THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


GIFT  OF 

School  of  Law  Library- 
Duke  University 


REMEDIES 


15Y 


SELECTED  CASES 

ANNOTATED 


BY 


SAMUEL  F.  MORDECAI 


ii\ 


DI:AN  of  law  school,  trinity   college  (N.  C), 
AUTHOR  OF  MORDECAFS  LAW  LECTURES 


Axr) 


ATWELL  C.  McINTOSH 

PROFESSOR   OF    LAW,    TRIMIA-   COLLEGE  (N.  C),  AUTHOR 
OF  CASES  ON   'IIIK   LAW   Ol'  CONIRACTS 


DTRIIAM,  X.  ( 

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STATK  .I(JL'KNAI>  PRINTING  COMPANY 

PHINTKIIK    AND   STERKOTVPKBS, 
>IAI»I.H<»N.  WIS. 


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TABLE  OF  CONTENTS 


CHAPTER  I. 

Remedies  Without  Judicial  Proceedings. 

Sec.  1.  Remedies  by  Operation  of  Law  (1-9).  (a)  Remitter  (1). 
(b)  Retainer,  Liens,  etc.  (2-8).  Retainer  by  Administrator,  etc. 
(2);  Stoppage  in  Transitu  (3);  Liens  (7).  (c)  Removal  of  Trade 
Fixtures  (8). 

Sec.  2.  Remedies  bv  Act  of  the  Party   (9-88).     (a)    Self-defense   (9-50). 
Life  and  Limb  of  Self.  Family  or  Servants    (9);    Retreating  to  the 
Wall  (13(;   Defense  of  Wife,  Husband,  Master,  Extent  of  Force  (15); 
Defense  of  Person,  Unnecessary  Violence    (16);    Husband  Way  Pre- 
serve his   Honor    (17-20);    Defense  of   Liberty    (20);    Self-preserva- 
tion (23);  Defense  of  Property,  Spring  Guns,  etc.  (25);   Guard  Dogs 
(31-34);    Defense  of  Person  and  Property,  Eviction  from  Hotels  by 
Force    (34);    Trespasser   in   Public  Road    (38);    "A  Man's   House   is 
his  Castle,"   Force  that  may  be  Used  to  Protect  it    (39);    "Molliter 
Manus"    (41-43);    Defense   of   Property    from    Trespassing   Animals 
(43);  Dogs  that  Kill  Sheep.  Suck  Eggs,  etc.  (45);  Negligence,  Force, 
Distress    (48);    Excessive   Force    (49).     (b)    Recaption   of   Property 
(50-59).     Retaking  Chattels   from   Tort-feasor,  what  Force  may  be 
used    (50);    Resisting  Recaption    (52);    Retaking  Property  from  the 
Person   by   Force    (53);    Entering   upon    another's   Land   to    Retake 
Chattels    (55).     (c)    Entry    (59-72).     ^\^lat    Constitutes    an    Entry 
(59);    E:ffert  of  Entry,  Fieri  non  debet  sed   factum  valet    (60-62); 
Eviction  bv  Force  of  Tenant  by  Sufferance    (62-70);    Ejection  of  a 
Servant  bv  Force    (70);    Forcible  Ejection   from   Church   Pew    (71). 
(d)  Abatement  of  Nuisance  (72-87).     Abatement  by  Individual,  Gate 
across   Highwav    (72);    Bridge   across   Navigable    Stream    (73,   75); 
Destroving  Intoxicants,  etc.  (75);  Turning  out  of  Public  Road  when 
Impassable    (77);     Killing    Dog    (80);     Abatement    of    Private    Nui- 
sance   (81-87);    Entering  on    Another's    Land   to   Abate    (82);    Pro- 
jecting Limbs  and  Roots  of  Trees   (82);    Obstructing  and  Diverting 
Surface  Water   (83).      (e)   Distress  for  Rent;    Nature  and  Extent  of 
the  Remedv;    What  may  be  Taken   (87). 
Sec.  3.   Bv  Agreement  of  Parties    (88-95).      (a)    Accord   and   Satisfaction 
(88);  Definition  and  Essentials  of  (88).     (b)  Arbitration  and  Award 
(90-95).     Submission   to  Arbitration,   Arbitration    Bonds,    Enforcing 
Awards   (90)-    What  may  be  Submitted  to  Arbitration   (91);    Agree- 
ment to  Arbitrate;    Insurance  Clause   (92);    Arbitration  and  Refer- 
ence Distinguished,  Duty  of  Arbitrators,  Enforcing  Award   (94). 


CHAPTER  II. 

Rkmkdmcs   i'.v   ,Iriii(  iai.  PiM)<'Ki;iiiN(is. 

Ser-  1  Criminal  and  Civil  Proceedings  Distinguished  (96-111).  Crimi- 
nal and  Civil  .Actions  Explninod,  Maslardy  ( !)(i ) ;  I'eace  Warrant,  Civil 
or  Criminal''  (97);  Contempt  I'locccdiiigs.  Civil  or  Criminal?  (9S, 
100);  Contempt  Proceedings.  Trial  by  .Jury  (102);  Marking  one  Pros- 
ecutor and  Taxing  Illni  with  Costs.  Civil  or  rriminal?  (lo:'.):    Action 


iv  TAllI^  OP  CONTENTS. 

for  ;i  IViialtv.  t'ivil  or  Criniiu;il'.'  (Hh;);  Action  I'oi-  a  I'cnalt.v  lin- 
posoti  lor  an  Offense  to  the  Public,  ANHien  tlie  Informer  may  sue 
(107);    Repeal  of  Statute  Imimsin^  the  Penalty   (109,  110). 

Sec.  2.  When  both  Civil  and  Criminal  Actions  Lie.  Merger  (111-115). 
Indictment  and  Civil  Action  lor  the  Same  Offense  (112);  Merger  of 
the  Civil  and  the  Criminal  Action   tli:'. ). 

Sec.  3.  Change  of  Remedy  by  Statute.  To  What  Extent  the  Legislature 
may  Change  the  Remedy   (11.^)). 


CHAPTER    111. 

Remkdies  Concerning  Ri:.vl  Estate. 

Sec.  1.  Writs  of  Entry,  Assize,  and  Right  (119-124).     Writs  of  Entry  and 

Assize  Exidained    (119);    Writ  of  Right  Explained    (121). 
Sec.  2.  Ejectment  Prior  to  the  Code  Practice  (125-150).     Forms  in  Eject- 
ment   (125-130);    Forms   in  Trespass  for  Mesne  Profits    (130-132); 
.John  Doe  and  Richard  Roe,  Lessor  of  Plaintiff,  Legal  Fictions  (132); 
Rule  as  to   Proving  Defendant  to  be  in   Possession    (133);    By  Co- 
tenant  against  Cotenant,  General  and  Special  Consent  Rule    (138); 
Title  Involved.  Legal  or  Rciuitable?  (139);   What  Title  Plaintiff  must 
Prove   (140);    Rights  of  Landlords  and  Tenants  and  Third  Persons 
to   Defend  the  Action    (143);    What   Defenses  Permissible  to  Land- 
lords and  Others  Let  in  to  Defend,  Parties  Let  in  by  Consent  Dis- 
tinguished from  Those  Let  in  by  the  Rules  of  Law,  Old  Practice  and 
Code  Practice  (145);   Title  Involved   (146);   Mesne  Profits  and  Dam- 
ages (147);   Judgment  How  far  an  Estoppel  at  Common  Law  (148). 

Sec.  3.  Ejectment  under  the  Code  Practice  (151-176).  Action  to  Re- 
cover Real  Estate  under  the  Code  Practice,  Estoppel  by  Judgment  in 
such  Cases  (151);  Transition  from  the  Common  Law  to  the  Code 
Practice  (156);  Judgment  how  far  an  Estoppel  under  the  Code 
Practice  (157);  Letting  in  Parties  to  Defend  under  the  Code  Practice 
(l.'.S);  Equitab'3  Defenses  under  the  Code  Practice  (160);  Tenant's 
Disputing  Title  of  Landlord  (161);  Against  Agent  of  the  State 
(162);  By  and  against  Co-owners  (163);  For  an  Easement  (166); 
For  the  Road-bed  of  a  Railroad  (167);  Summary  Proceedings  in 
Ejectment  (169,  170);  Ejectment  by  Mortgagee  against  Mortgagor, 
Notice  to  Quit  (172);  Ejectment  by  Owner  of  Equitable  Estate  (173) ; 
E(|uitable  Title  as  a  Defense  (174);  Mesne  Profits  and  Damages 
(175). 

Sec.  4.  Betterments.     Doctrine  of  Betterments  Discussed    (176). 

Sec.  5.  Slander  of  Title  (178-182).  Essentials  to  the  Action,  Actual 
Damage  (17S);  Actual  Damage  as  the  Result  of  Slander,  Essentials 
to  the  Declaration   (179);   Malice  (181). 

Sec.  6.  Removal  of  Cloud  upon  Title,  and  Quieting  Title  (182-186). 
Jurisdiction  in  Equity  and  under  Modern  Statutes  (182);  What  is 
such  a  Cloud  as  will  confer  Juiisdiction?   (184). 

Sec.  7.  Confusion  of  Roundaiies  and  Processioning.  Hlciuity  Jurisdic- 
tion over  questions  of  Boundary  (186-190);  Processioning  Lands,  In- 
troductory (188);  Practice  under  Processioning  Act,  Res  Judicata 
(188). 

Sec.  8.  Remedies  Relating  to  Things  Severed  from  the  Realty  (190-201). 
Fructus  Industriales  Produced  by  Disseizor  (190);  Trees  Severed 
and  Converted  into  a  Boat  or  the  like  (192);  House  Removed  from 
one  Man's  Land  and  Affixed  to  the  Land  of  another  (195,  197,  198); 
House  Removed  to  another's  Land,  but  not  Affixed  (200);  House 
Torn  down  and  Rebuilt  on  another's  Land   (200). 

Sec.  9.  Waste  (201-210).  Waste  in  Law,  Equitable  Waste,  Ancient  and 
Modern  Remedies  (201);  Estrepement  (202);  Ancient  Action  of 
Waste,  Writ  and  Declaration.  Strict  Rules  of  Practice  (203);  Action 
of  Waste  and  Modern  Action  of  Trespass  on  the  Case  in  the  Nature 


T-U^I.E  OF  I'ONTENTS.  V 

of  Waste  (204);  Who  can  sue  for  Waste,  Contingent  Remaindermen, 
etc     (205);    Remedies  of  Co-tenants  against   each   other  for  Waste 
(206);   Jurisdiction  of  Equity  in  Matters  of  Waste  (207);   Equitable 
Waste,  Remedy  in  Equity   (208);   Mandatory  Injunction   (209). 
Sec     10.  Forcible    Entry    and    Detainer    (210-214).     Unlawful    Detainer 
(210);    Forcible    Detainer   Distinguished   from    Forcible   Entry   and 
Detainer  (210);    Forcible  Detainer  by  Tenant  by  Sufferance   (21-); 
What  Constitutes  a  Forcible  Detainer  (213). 
Sec     11    Nuisance    (214-236).     Nuisance    Defined,    Public    and    Private, 
Remedies  at  Law  and  in  Equity    (214);    Public  Nuisance,  Informa- 
tion by  Attorney  General  (218);   Bill  in  Equity  by  Attorney  General 
(219);    Public    Nuisance,    Private    Injury,    Special    Damage    (220): 
Public  or  Mixed  Nuisance,  Private  Injury.  Special  Damage,  Liabil- 
ity of  Landlord  for  Nuisance  caused  by  Tenant   (222);    Jurisdiction 
and   Practice   in    Equity   in   Cases   of   Private   Nuisance    (228);    In- 
junction  before  Answer,    Preliminary    Mandatory    Injunction,   Prac- 
tice   (230);    Enforcing  Obedience   to   Mandatory    Injunction    (232); 
Private  Nuisance,  Successive  Actions  for  Damages  (232,  233);  When 
Successive  Actions  not  Allowed  (234). 
Sec    12    Trespass  Quare  Clausum  Fregit  (236-258).     What  Constitutes  a 
Trespass,    Entry   under   Claim   of   Right    (236);    License  from   true 
Owner,  Matter  of  Aggravation  (237);   Measure  of  Damage,  Elements 
of  Damage  (238);   Doctrine  of  Trespass  ab  initio   (240);   What  Title 
will  Support  Trespass  q.  c.  f.  (242);  Constructive  Possession  (243); 
What  Constitutes  such  Possession  as  will  sustain  Trespass  q.  o.  f. 
(244);   What  Possession  will  sustain  Trespass  q.  c.  f.  against  a  mere 
Tort-Feasor  and   his  Aiders.  Abettors,  etc.    (245);    By  Lessees  and 
Purchasers  of  Fructus  Industriales  and  Naturales  (246);   By  Owner 
of  an  Easement  (246) ;  By  City  or  Town  for  Injury  to  Streets  (247); 
By  Owner  of  the  Fee  Covered  by  a  Street  (248);  By  a  Town  against 
an  Invader  of  a  Market-house  owned  by  the  Town  in  Fee  (248) :  By 
Owner  of   Servient   Estate  against  Owner  of   Easement    (249);    By 
Tenant  against  Landlord   (250);    By  one  Co-tenant  against  Another 
(250);    By  Lessee  for  Years,  Remedy  of  Reversioner  for  Injury  to 
Demised  Land  (252);  Against  Owner  of  Trespassing  Animals  (254); 
English  and  American  Law  as  to  Cattle  Roaming  at  Large    (255); 
Judgment  in  Trespass  q.  c.  f.,  how  far  an  Estoppel   (256);   Trespass 
q.  c.  f.  under  the  Code  Practice,  Title  how  put  in  Issue  (257). 
Sec.  13.  Action  on  the  Case  for  Injury  to  Real  Estate   (258-261).     Case 
in  the  Nature  of  Waste  (258);   Against  the  Owner  of  an  Easement 
for  Exceeding  his  Powers    (259);    Trespass  on   the  Case  and  Tres- 
pass Vi  et  Armis  for  Injuries  to  Real  Estate  (260). 
Sec.  14.  Remedy     in     K(|ni(y     to     Restrain     Trespasses     (261-266).     Ir- 
reparable Injury,  Establishing  Right  at  Law    (261,  262);    Ordinary 
Trespass  without  Irreparable  Injury   (263,  264);   Continued  and  Re- 
peated Trespasses,  Trespasses  by  Wild  Animals  owned  by  a  Hunting 
Clul)  (265). 
Sec.  15.  R«mody  for  Trespasses  Committed  in  Exercise  of  Rights  claimed 
under  Eminent  Domain    (266-269).     Remedy  of  one  whose  Land  is 
taken   under  Eminent  Domain    (266);    Injunction   in  Cases  of  Emi- 
nent Domain   (208). 
Sec.   16.  Ronicdy   of   Licensee   who   is  Evicted;    Exclusion   and    Ejection 

from  Theatres,  Market-stalls,  etc.  (270). 
Sec.  17.  Remedies  on  C^ovenants  for  Title  (271-285).  Caveat  Emptor 
(271);  Actions  on  Covenants  of  Seizen.  Riglit  to  Convey,  and  War- 
ranty (273);  Covenants  against  incumbrances  (275);  Covenants  of 
Quiet  Enjoyment  and  Seizin.  Measure  of  Damages  (277);  Covenants 
of  Warranty  and  Quiet  Enjoyment.  Eviction  (280);  Form  of  Action 
on  Covenant  of  Warranty  (281);  When  the  H.ir  and  when  the  Per- 
sonal Representative  of  decca.sed  Covenantee  must  sue  for  Breach  of 
Covenant  (282.  283);  On  Covenant  of  Further  Assurance  (283); 
Remedy  In  Equity  on  Covenants  for  Further  Assurance  (285). 
Sec.  18.  MortgaRee's  RemedieH  (285-296).     Mortgagee's  Remedies  at  Law 

Remedies — b. 


\l  'I'AIU.K   »»!•'   <(i\  I'KNTS. 

and  in  Ec]uity.  Foreclosure,  rarties  (285);  Parties  to  Foreclosure 
Proi"cedini;s,  Disposition  of  Surplus  (US7):  Tlie  several  Remedies  of 
Morttiageo,  Cuuiulalive  Hum-dies,  Fjeetineiit,  Rents  and  Profits 
(-SS);  l'\)ri'(losure  wiien  Ili(>  Dclil  secured  is  payaldi-  in  installments 
(290);  .ludgnieut  in  Foreclosure,  Sale,  Rei)ort,  Conlirmat ion.  Mar- 
ried Woman's  Land  Mortgaged  to  secure  Husband's  debt,  Parties 
(2!n);  Foreclosure  Sale,  Raising  the  Bid  (294);  Mortgagee's  Pur- 
chasing at  Foreclosure  Sale   (2!>r)). 

Sec.  lit.  Remedies  of  Mortgagor  and  his  Assigns  (2!)li-300).  Bill  for 
Redemi)tion,  Form,  etc.  (29(5)  ;  Bill  to  have  a  Deed  Absolute  Declared 
to  be  a  Mortgage  and  to  Redeem  (297);  Bill  to  Redeem  Property 
Purchased  by  Mortgagee  at  his  own  Sale  (2flS). 

Sec.  20.  Remedy  for  Breach  of  Contract  to  Purchase,  Convey,  or  Devise 
Laud  (3(10-318).  Contract  to  Purchase  Land,  Remedy  of  Vendor  at 
Law,  Damages  (300,  302);  Contract  to  Sell  Land,  Remedy  of  Vendee 
at  Law,  Damages  (304,  305);  Contract  to  Convey  Land,  Remedy  of 
Vendee  in  Equity,  Specific  Performance  (306);  Oral  Contract  to 
Convey,  Remedy  in  Equity,  Part  Performance,  Betterments  i)ut  on 
the  land  by  the  Vendee,  Price  i)aid  by  the  Vendee  (309);  Oral  Con- 
tract to  Convey,  Remedy  of  Purchaser,  Betterments,  Purchase  Money 
(311);  Contract  to  Convey,  Specific  Performance  with  Compensation 
for  Defects  (313);  Contract  to  Convey,  Rights  to  Rescind  and  Re- 
cover in  Assumpsit,  Compensation  for  Defects  (313);  Specific  Per- 
formance of  Award  of  Arbitrators  (314);  Specific  Perfoimance  of 
Contract  to  Devise  (315);  Contract  to  Convey,  Cumulative  Remedies 
of  Vendor   (315-317). 

Sec.  21.  Writ  of  Assistance,  Remedy  of  Purchaser  at  .Judicial  Sale  to 
Obtain  Possession  (318). 


CHAPTER  IV. 

Forms  of  Actiox  to  Assert  Rights  Other  than  Those  Concerning  Re.\l 

Estate. 

Sec.  1.  Actions  Ex  Contractu  and  Ex  Delicto  Distinguished  (320-338). 
Imiiiisonment  for  Debt  and  for  Tort  Distinguished  (320);  Various 
Definitions  of  Tort,  Tort  arising  out  of  Contract  (321);  Waiving 
the  Tort  and  Suing  in  Contract  (324,  325);  Waiving  the  Contract 
and  Suing  in  Tort  (326);  Tort  or  Contract  at  Plaintiffs  Election, 
Jurisdiction  (328);  Action  of  Tort  for  Breach  of  Contract  (328); 
Forms  of  Action  Ex  Contractu  and  Ex  Delicto  under  the  Code  Prac- 
tice, Declaration  in  Tort  and  Recovery  in  Contract  (330);  Tort  for 
Breach  of  Duty  to  the  Public  arising  ex  contractu  (331);  Joinder  of 
Tort  and  Contract  in  the  same  Action,  Multifariousness  (332);  Tort 
growing  out  of  Contract,  Waiving  Contract  and  Suing  in  Tort,  Ap- 
plication to  Infants'  Contracts  (333,  336). 

Sec.  2.  Actions  Ex  Contractu  (338-347).  (a)  Covenant,  In  what  Cases 
the  Action  Lies  (338).  (b)  Debt,  in  what  Cases  the  Action  Lies 
(339).  (c)  Account,  When  an  Action  of  Account  Lies  (341);  Bill 
for  an  Account,  Account  Render,  Assumjjsit  at  Law,  Bill  for  an  Ac- 
count in  Equity  (342).  (d)  Assumpsit,  When  Assumpsit  Lies  and 
the  Origin  of  the  Action  (344);   When  Assumpsit  does  not  lie  (346). 

Sec.  3.  Actions  Ex  Delicto  (348-362).  (a)  Trespass  vi  et  armis,  When 
it  lies  (349).  (b)  Trespass  on  the  Case  (350);  Broad  Scope  of  the 
Action  (350);  Trespass  vi  et  armis  and  Trespass  on  the  Case  dis- 
tinguished. Waiving  the  Trespass  and  bringing  Case  (351);  Trespass 
on  the  Case  for  Breach  of  Duty,  for  Breach  of  Contract,  Case  and 
Assumpsit  when  Concurrent  Remedies  (353).  (c)  Trover  (355). 
(d)  Replevin  (35.5-359);  History  and  Nature  of  Replevin  (355); 
Common  Law  Action  of  Replevin,  Essentials,  Distinguished  from 
Trover  and  Detinue   (358).     (e)    Detinue   (359-362);    Nature  of  De- 


TABLE  OF  CONTENTS.  Vll 

tinue,  Ancient  and  Modern  Practice   (359);    Form  of  Judgment  and 
Execution   in  Detinue    (360);    Detinue  and  Replevin   Distinguished, 
Judgment  and  Execution  in  Detinue  (361). 
Sec.  4.  Forms  of  Action  under  the  Code  Practice  (362-365). 


CHAPTER  V. 

iNJtTRIES  TO  PeRSOXAL  SECURITY,  TO  PERSONAL  LIBERTY,   AND  TO  PRIVILEGES. 

Sec.  1.  Remedies  for  the  Death  of  a  Person,  Appeals  of  Death,  Lord 
Campbell's  Act  (366-373).  Appeals  of  Death,  Weregild  (366);  Ac- 
tio personalis  moritur  cum  persona.  Lord  Campbell's  Act   (369). 

Sec.  2.  Preventive  Remedies  (374-380).  Peace  Warrant  (374);  Injunc- 
tion (375). 

Sec.  3.  Threats,  What  Threats  are  Actionable  (381). 

Sec.  4.  Assault  and  Battery  (382-394).  What  Acts  amount  to  a  direct 
Assault  or  Trespass  (382);  WTiat  Constitutes  an  Assault  (383); 
What  does  not  Constitute  an  Assault  (384);  Assault  without  Bat- 
terj'  or  Special  Damage  (385);  ^Vllat  amounts  to  an  Assault.  Assault 
without  Physical  Injury,  Fright  (385);  Provocation  as  a  Defense  to 
an  Action  for  an  Assault  (386,  388);  Mutual  Assault,  Volenti  non 
fit  injuria  as  a  Defense  (389);  Ceremonies  in  Secret  Society  (390); 
Volenti  etc.,  in  Seduction  cases  (390);  What  Constitutes  a  Battery 
(391);  Measure  of  Damages  in  Actions  for  Personal  Insult,  Injury, 
and  Fright  (392). 

Sec.  5.  Injuries  to  the  Person  Resulting  from  Negligence  (394-405). 
When  Trespass  vi  et  armis  and  when  Trespass  on  the  Case  lies 
(394) ;  Remedy  of  Passenger  injured  by  Negligence  of  Carrier  (395); 
Negligence  and  Contributory  Negligence  Defined  (397);  "Last  Clear 
Chance"  (399);  Action  for  Fright  caused  by  Negligence  (401); 
Mental  Anguish  Doctrine   (403). 

Sec.  6.  lnjuri(  s  to  Health  (406-413).  Sickness  of  Individual  caused  by 
a  Public  Nuisance  (406);  Administering  Croton  Oil  in  Jest  (407); 
Bad  Provisions  sold  at  a  Public  Function,  Want  of  Privity  (407); 
Liability  of  Wholesaler  to  Consumer  for  Dangerous  Commodities, 
Want  of  Privity,  Duty  to  Public  (409);  Letting  House  Infected  with 
Smallpox  (411);   Malpractice  (412). 

Sec.  7.  Injuiies  to  R('i)utation  (413-439).  Criminal  Libel  Defined,  Jus- 
tification, Justifiable  Purpose  (413);  Civil  Action  for  Libel,  Libel 
and  Slander  Distinguished  (415);  Slander  of  women  by  Imputations 
of  Unchastity,  when  not  Actionable  per  se  (416);  When  Actionable 
per  se  (418);  Words  which  are  and  are  not  Actionable  i)er  se  (418); 
When  Damages  must,  and  need  not,  be  shown  (421);  Privileged 
Communications,  Absolute  and  Qualified  Privilege,  Malice  (422); 
Privilege,  Church  Trials  (425);  Excommunication  (426);  "Freedom 
of  the  Press,"  Criticism  of  candidates  (428);  Mutual  Libels,  Re- 
taliation (430.  432);  Province-  of  the  jury  in  Lii)e].  Lord  Erskine's 
victory.  Distinction  between  ciiminal  and  civil  proceedings  for  libel 
as  regards  the  powers  of  judge  and  jury  (434);  Inlunction  against 
libel   (438). 

Sec.  8.  Deiirivation  of  Liberty  (439-48.'.).  (a)  Hal)eas  Corpus  (439-4.'i6). 
HlKtory  and  Nature  of  the  remedy,  Practice  in  sucli  proceedings 
(439);  When  Aitplicant  is  in  Custody  under  Final  .ludgnient  of  a 
fourt  of  c  omii<4eiit  Jiirisdict  icii  (III);  As  a  Sutistilutc  for  a  Writ  of 
Error  or  an  Api)eal  (446);  What  Detentions  may,  and  what  may  not, 
be  relieved  l)y  Habeas  Corpus,  Wives,  Cliildren,  etc.,  Pliysleal  and 
Moral  Restraint  (416);  Power  of  United  States  Courts  to  disciiarge 
those  in  custody  under  the  Laws  and  Judii  iai  i'rocccilings  of  a  Statc> 
(450);  Power  of  State  Courts  to  discliarge  tiiose  in  custody  under 
the  Laws  and  Judicial  Proceedings  of  the  United  States  (451);  Duty 
of  Judge  in  Haljeas  Corpus  Proceedings,  Rights  of  Prisoner  on  Re- 
fusal   to   discliargo   him,    Ap|ioal,   Ci  rtiorari    (453).      (b)    False    Im- 


\  111  TAMIi;  Ol'"   CONTKNTS. 

prisonmont  (4r.G-46n.  What  is.  and  what  is  not.  an  Imprisonment 
(4r)G);  When  Trespass  and  when  Case  (he  remedy,  Reniidy  under 
the  Code  Prai-tiee,  Void  and  En  onions  Process  (-l.")?):  Distinguished 
irom  Malii'ious  Prosicution  (l.")'.!);  Process  void  I'or  want  of  juris- 
diction (4t:0).  (c)  Malicious  Prosecution  and  Abuse  of  l^esal  Proc- 
ess (461-479).  I\Ialicious  Prosecution  defined,  what  damages  must 
be  shown  to  support  the  action  (461);  Stirring  up  Vexatious  Litiga- 
tion (462);  Malice  in  Prosecuting  one  who  is  Guilty.  What  Malici- 
ous Prosecutions  are  Actionable,  IMobable  cause  (4(1:?)  ;  Distinguished 
from  False  Imprisonment,  Does  Trespass  or  Case  Lie  (464 );  What 
the  Complaint  should  Contain  (466);  Essential  Points,  lOffect  of 
•Tudgnient  reversed  on  Appeal  and  Judgment  of  committing  Mag- 
istrate as  Probable  Cause  (466);  Abuse  of  Legal  Process  (470); 
Malice  and  Probable  Cause,  Piosecutions  for  Wrongs  affecting  the 
Public  distinguished  from  those  for  Private  Henefit,  Effect  of  Ac- 
quittal on  Probable  Cause  (472);  Abuse  of  Legal  Process  and  Ma- 
licious Prosecution  distinguished.  Advice  of  Counsel  (473);  Law- 
ful Exercise  of  Legal  Process  with  Malicious  Motive  and  Ulterior 
Vindictive  Object,  Executing  Lawful  Process  in  an  Offensive  Man- 
ner (475);  False  Impi  isonment,  etc.,  Measure  of  Damages  (478). 
(d)  Liability  of  Officers  in  actions  for  False  Imprisonment,  Malici- 
ous Prosecution,  and  Abuse  of  Process  (479-485).  Liability  of  Judi- 
cial Officers  (479);  Judicial  and  Ministerial  Officers  and  Duties  dis- 
tinguished, Respective  Liabilities  of  such  Officers.  Superior  and  In- 
ferior Courts,  Jurisdiction  (481);  Acting  under  Void  and  Voidable 
Process  (483). 
Sec.  9.  Deprivation  of  Privileges  (485-489).  Unlawful  Interference  with 
Right  to  Vote  (485,  487);  Exemption  of  Election  Officers  from  Civil 
Actions  (488). 

CHAPTER  VI. 

Injuries  Growing  Out  of  Relative  Rights. 

Sec.  1.  Husband  and  Wife  (490-520).  (a)  Habeas  Corpus  (490-495). 
Right  of  Wife  to  Habeas  Corpus  when  Restrained  by  her  Husband 
(490,  491);  Rights  of  Husband  and  of  Wife  in  Habeas  Corpus  for 
the  Custody  of  the  W^ife  (491).  (b)  Seduction  (495-500).  Hus- 
band's Recovery  for  Seduction  of  Wife,  Basis  of  the  Action,  Con- 
sortium (495);  "Crim.  Con.,"  Proof  Requisite  in  (497);  Wife's 
Right  of  Action  for  Seduction,  etc.,  of  her  Husband  (498).  (e)  En- 
ticing and  Harboring  (501-509).  What  is  the  proper  Form  of  Ac- 
tion for  Enticing  and  Harboring  Wife  (501);  Alienation  of  Wife's 
Affections  without  Enticing  her  away  or  Seducing  her  (501);  Har- 
boring Wife  who  leaves  her  Husband  for  Good  Cause  (503);  Entic- 
ing and  Harboring  a  Wife,  who  is  a  Minor,  by  her  Parents,  General 
Rules  governing  Enticing  and  Harboring  in  all  cases  (503);  Entic- 
ing and  Harboring,  Acts  of  Strangers,  and  of  Parents  and  other  Rela- 
tives (504);  When  Wife  can  and  cannot  sue  for  Enticing  her  Hus- 
band from  her,  or  Tortiously  Inducing  or  Causing  him  to  Abandon 
her  (507).  (d)  Injuries  to  the  Wife  by  her  Husband  and  by  Third 
Persons  (509-520).  Selling  Deleterious  Drugs  to  the  Wife,  Hus- 
band's right  of  action  (509);  Injuries  to  the  Wife,  Remedies  of  the 
Husband  and  Wife  respectively  (511);  Injuries  to  the  Person  of  the 
Wife  by  the  Husband,  Remedy  of  Wife  (513);  Remedy  of  Wife  for 
Support  (515);  Wife's  remedy  for  Mutilation  of  Husband's  Corpse 
(517). 

Sec.  2.  Parent  and  Child  (520-549).  (a)  Habeas  Corpus,  Rules  govern- 
ing Courts  as  to  the  Custody,  etc.,  when  Child  l)rought  before  them 
on  Habeas  Corpus  (520).  (b)  Enticing  and  Harboring  Children 
(524-527).  What  constitutes  Enticing,  etc.,  Remedy,  Forms  of  Ac- 
tion, Gist  of  the  Action  (524);  Abduction,  History  etc.  of  the  remedy. 
Essentials  to  a  Recovery    (526).     (c)    Seduction    (527-536).     Form 


T.VBLE  OF  CONTENTS.  IX 

of  Action.  Father's  right  to  Recover,  Basis  of  the  Action,  Figment  of 
the  Law,  Basis  of  Damages,  Adult  and  Minor  Daughter  (527);  Ac- 
tion b}-  one  in  loco  parentis  (530);  Full  Review  of  the  law  of  Seduc- 
tion, Who  can  Maintain  an  Action  for,  Necessary  Allegations  of  the 
Complaint,  Figment  and  quaint  Fictions  of  the  law,  Services,  Men- 
tal Anguish  (531);  Action  bj^  both  the  Father  and  the  Child  (535). 
(d)  Death  or  Injury  of  Child  by  act  of  another.  Right  of  Parents  to 
recover  (537-541).  Death  of  Child  through  the  Negligence  of  an- 
other (537);  Injury  to  Child  which  causes  Damage  to  Child  only 
(538);  Injury  to  Child  causing  Damage  to  both  Parent  and  Child 
(539);  When  the  Parent  cannot  recover  (540).  (e)  Parent's  right 
to  the  Earnings  of  Child  (541-549).  Father's  right  to  recover  Child's 
Earnings  (541);  Mother's  right  to  the  Child's  Earnings  (542); 
When  is  the  Parent  Entitled  to  the  Earnings  and  Services  of  an 
Adult  Child?  (544):  Emancipation  of  Infants,  Effect  of  on  Parent's 
right  to  Earnings  (546);  Marriage,  how  far  an  Emancipation  (547). 
Sec.  3.  Master  and  Servant  (549-598).  (a)  Liability  of  Master  to  Serv- 
ant on  Contract  (549-557).  Remedies  of  Servant  for  Breach  of  Con- 
tract of  Hiring,  Entire  Contracts,  Wages  payable  in  Installments, 
Constructive  Service,  Duty  of  Dicharged  Servant  to  Seek  other  Em- 
I)loyment,  Estoppel  by  Judgment  on  one  Installment  (549);  Entire 
Contracts,  Remedy  (555).  (b)  Master's  Liability  to  Servant  in  ac- 
tions ex  delicto  (557-570).  Fellow-Servant  Doctrine,  History,  The 
Rule  and  its  Limitations  (557);  Fellow-Servant  Doctrine  Criti- 
cised (560);  "The  Fellow-Servant  Act"  (564);  Machinery,  etc.. 
Master's  Liability  and  Servant's  Duty  (567,  568).  (c)  Remedy  of 
Master  against  Servant  (570-577).  Breach  of  Contract  by  Work- 
man, Common  Law  remedy  of  Master  (570);  Statutes  making  it  a 
Crime  for  a  servant  to  Break  his  Contract  with  the  Master,  Im- 
prisonment for  Debt,  Thirteenth  and  Fourteenth  Amendments  to  the 
(Constitution  of  the  United  States  (572);  Specific  Performance  of  a 
Contract  to  Serve  (575).  (d)  Master's  right  to  Exoneration  against 
the  Servant,  Liability  of  a  Servant  to  a  Master  who  has  been  Mulcted 
in  Damages  for  Servant's  Negligence  (578).  (e)  Remedies  of  the 
Master  and  Servant  against  Third  Persons  (580-592).  Remedy  of 
the  Master  who.se  Servant  is  Disabled  by  the  Tort  of  another.  Menial 
Servant  (580);  Remedy  of  Master  whose  Servant  is  Enticed  to  quit 
his  service  (582,  583);  Master's  Remedy  by  Injunction  for  Enticing 
Servant,  Intimidating,  etc.  (586);  Remedy  of  Servant  against  an 
Intermeddler  who  causes  his  Master  to  Discharge  him  (589). 
(f)  Remedy  of  Third  Person  against  a  Master  for  the  Acts  and  Neg- 
ligence of  the  Servant  (592-597).  When  Trespass  vi  et  armis  and 
when  Trespass  on  the  Case  lies  (592);  Master's  Liability  for  the 
Wilful  Acts  of  his  Servant  (592);  Master's  Liability  for  the  Wilful 
and  Malicious  Acts  of  his  Servant   (595). 


CHAPTER  VII. 

I.N.ji'itiEH  TO  Tangible  Pfkso.nal  PnoriouTv. 

Sec.  1.  Rejiievin,  Detinue,  and  Allici]  Remedies  (598-609).  Who  can 
maintain  Replevin  (59.S);  Who  can  niaintaiu  Detinue  (599);  Effect 
of  .hulgniciit  in  Detinue  and  ''I'rovf  r  uiion  Title  to  tiie  subject-mat- 
ter (600);  Detinue,  Destruction  of  the  Subject-matter  l)y  the  act  of 
Ood  pendente  lite,  Dntinuo  and  Trover  distinguished,  Whr^n  Optional 
with  iilaiiitiff  to  liring  Detinue  or  Trover  (601  );  Detinue  and  (^laiiii 
and  I)eliv<ry  the  .same,  flencral  Practiec.  I'^orin  of  .hidgmiiit,  Dam 
ages,  Rettuii  of  Subject-matter  (60;',);  Claim  and  Deliveiy  under  the 
Code  Practice  (605);  Detinue  and  Claim  iuu\  Delivery  under  the 
Code  Practice  (606);  Remedv  in  Equity  for  the  Recovery  of  Chat 
tela   (608). 


X  TA151.K  ()1'\('(>N"I'1;N  TS. 

Sec.  2.  Trover  (609-ClS).  Tho  Roliof  Altordrd  in  Trover  (GO!));  Trover 
anil  Trespass  distinp;nished,  Who  may  maintain  Trover.  Title  of 
plaintiff.  Title  in  Third  Person  as  a  Defense  (009);  Proving  the 
Conveision,  When  Trover  and  wht  n  Trespass  on  the  Case  lies  for 
the  Destriietion  tte.  of  Bailed  Chattels  (C.l-);  What  amounts  to  a 
Conversion  (6i:'>);  Effect  of  Judgment  in  Trover  on  Title  to  the  Sub- 
ject-matter, Gist  of  the  action,  Title  that  will  sustain  Trover  (614); 
.Measure  of  Damages  in  Trover.  Return  of  Property  (616);  Waiving 
the  Tort  in  Trover,  .Jurisdiction  in  Trover   ((!17). 

Sec.  3.  Trespass  vi  et  armis  and  Trespass  on  the  Case  lor  Injuries  to 
Personal  Property  (618-627).  Trespass  and  Case  distinguished 
(61S,  619,  620);  Case  on  Custom  and  Special  Action  on  the  Case 
against  an  Innkeeper  (620);  Trespass  de  bonis  asportatis.  Title  and 
Possession  that  will  sustain  the  action,  Action  by  Reversioner  (622, 
623);  Wlien  Trespass  vi  et  armis  de  bonis  asportatis  lies  against  a 
Bailee,  and  when  Trespass  on  the  Case  and  Trover  w  ill  He  against  a 
Bailie  (624);  Trespass  vi  et  armis  and  Trespass  on  the  Case  for  In- 
juries done  by  Animals  (625);  Slander  and  Libel  of  the  Chattels  of 
Another  (626). 

CHAPTER  VIII. 

I.N.Jl'RIKS  TO   RumT.S   GROWING   OlT  OF   Co.NTK.\<  T. 

Sec.  1.  Action  of  Covenant  (628-631).  When  Covenant  lies  (628); 
Covenant  lies  on  a  Sealed  Instrument  only,  The  Rule  and  the  Ex- 
ceptions (629);  Covenant  and  Debt,  when  Concurrent  Remedies 
(630);  Covenant  against  an  Infant  (631). 

Sec.  2.  Action  of  Debt  (632-648).  Action  of  Debt  explained,  Collateral 
Agreements,  Negotiable  Instruments,  Debt,  Covenant,  or  Assumpsit 
when  the  Appropriate  Remedy  (632);  What  Amount  can  be  recov- 
ered in  Debt?  (634);  How  to  enter  .Judgment  in  Debt  on  a  Penal 
Bond  (635);  When  Debt  and  Covenant  are  Concurrent  Remedies 
(637);  Can  the  Recovery  Exceed  the  Penalty  in  the  Bond?  (637); 
Debt  for  a  Penalty  given  by  Statute,  What  Amount  can  be  recov- 
ered (640);  Debt  on  Bond,  payable  in  Installments,  Joinder  of  Debt 
and  Assumpsit  in  the  same  Action  (642);  Debt  Preferable  to  Cove- 
nant or  Assumpsit  where  the  i)laintiff  has  his  Election  to  adopt 
either.  Judgment  by  Default  in  Debt  (644);  Debt  on  Offldal  Bond  in 
which  the  State  is  Obligee,  "State  ex  lel."  (645);  Summary  Remedy 
on  Official  Bonds  (646). 
Sec.  3.  Action  of  Assumpsit  (648-676).  (a)  There  must  be  a  Contract 
either  Express  or  Implied  (648-660).  Gratuitous  Service,  Service 
without  Request  oi'  Promise  of  Remunei'aticn  (648);  Where  there 
was  no  Intention  to  Charge  (648);  Where  a  Contract  to  Pay  for 
Services  may  be  Inferred  from  the  Conduct  of  the  Party  Benefited 
(650);  Using  Goods  not  Ordered  (651);  Services  rendered  to  one 
who  is  Insensible  or  wholly  Incapable  of  Taking  Care  of  himself  at 
the  time  (653);  Express  Contract  and  Quantum  Meruit  or  Quantum 
Valelat  (654,  655);  Assumpsit  on  Account  Stated  (057):  Waiving 
the  Tort  and  suing  in  Assumpsit  (658,  659).  (b)  Money  Had  and 
Received  (661-667).  Basis  and  Gist  of  Assumpsit  for  Money  Had 
and  Received  (661);  When  the  Action  will  lie,  and  when  not.  Priv- 
ity Express  or  Implied  (662);  Privity,  Agreement  Express  or  Im- 
plied (665);  Waiving  Tort  and  suing  in  Assumpsit,  and  Waiving 
Contract  and  suing  in  Tort,  Total  Failure  of  Consideration,  Receipt 
of  the  Money  by  the  defendant  (666).  (c)  Money  Paid  to  Another's 
Use  (667-669).  Distinguished  from  Money  Had  and  Received,  Gist 
and  Essentials  of  Assumpsit  for  Money  Paid  etc.  (667);  Officious 
Paymfnt  (668);  Payments  not  Officious  (669).  (d)  Assumpsit  for 
Goods  Bargained  and  Sold,  and  for  Goods  Sold  and  Delivered  (669- 
676).  The  two  Actions  distinguished,  Common  Counts  (669);  For 
Goods  Sold  and  Delivered  for  Cash  or  Credit,  when  the  Purchaser 


T^VBLE  OF  CONTENTS.  XI 

Flails  to  Give  the  Note  for  the  Price,  or  otherwise  Fails  to  Comply 
with  the  Teims  of  Sale,  Written  and  Oral  Contract  of  Sale  (671, 
672);  Splitting  Accounts  in  Assumpsit  for  Goods  Sold  etc.  (673, 
674,  676). 

Sec.  4.  Remedies  on  Negotiable  Instruments  (676-682).  Assumpsit  at 
Common  Law  and  under  the  Statute  4  Anne.  c.  9  (676);  Debt  on 
Negotiable  Instrument  (678);  Practice  in  Actions  on  Negotiable  In- 
struments. Production  of  Instrument  at  the  Trial  (679);  Action  on 
a  Lost  Negotiable  Instrument  (680);  Wlien  Allegation  of  a  Con- 
sideration is,  or  is  not,  Necessary  (681). 

Sec.  5.  Performance  of  Conditions,  when  it  must  be  Alleged  (682-685). 
Dependent  and  Independent  Covenants  (682,  684). 

Sec.  6.  Summary  Proceedings  to  Collect  Purchase  Money  due  on  Prop- 
erty Purchased  at  Judicial  Sale,  Separate  Action  at  Law,  Summary 
Proceedings  in  the  Cause,  Order  of  Re-sale,  Concurrent  Remedies 
(685). 

Sec.  7.  Actions  of  Deceit,  and  of  Deceit  and  False  Warranty  (690-706). 
Case  and  Assumpsit,  Counts  in  Deceit  and  Warranty  joined  (690); 
Trespass  on  the  Case  for  Deceit,  or  Assumpit  on  the  Warranty,  at 
the  Option  of  the  plaintiff,  Alleging  and  Proving  the  Scienter  (691): 
.Joinder  of  Deceit  and  False  Warranty  under  the  Code  Practice.  The 
Scienter  when  Material,  When  Deceit  and  False  Warranty  may  be 
set  up  as  a  Counterclaim  (693);  Pure  Deceit  distinguished  from 
False  Warranty  (693);  Deceit  for  a  False  Statement  which  defend- 
ant did  not  Know  to  be  False,  nor  did  he  Know  it  to  be  True  (695); 
Latent  and  Patent  Defects,  Caveat  Emptor,  Suppressio  veri,  Sug- 
gestio  falsi.  Scienter  (697);  Damage  must  be  Alleged  and  Proved 
(700);  Measure  of  Damages  in  Deceit,  What  constitutes  Actionable 
Deceit.  Latent  and  Patent  Defects,  Suppressio  veri  and  Suggestio 
falsi.  Issues,  What  constitutes  Actionable  Damage  (700);  Elements 
of  the  action  of  Deceit,  Caveat  Emptor,  Vendor's  Choice  of  Remedies. 
Rescission  when  Allowed,  Puffing  one's  Wares,  Counterclaim,  Meas- 
ure of  Damages  (702);  Deceit  for  Fraud  Practiced  by  Vendee  on 
Vendor  (705);  Vendor's  Choice  of  Remedies,  Recovery  of  Specific 
Chattels,  Damages  (706). 

Stc.  8.  Conspiracy.  Remedy  for  Conspiracy  to  Injure,  Necessary  Al- 
legations and  Proof,  Conspiring  without  Acting   (707). 

Sec.  9.  Injunction  against  Breach  of  Contract  (710-713).  Contracts  in 
Restraint  of  Trade  (710);  Enforcement  of  Negative  Covenants  (712). 

Sec.  10.  "Breach  of  Promise"    (714). 


CHAPTER   IX. 

Remedies  in  Speciai<  Cases. 

Sec.  1.  Bills  for  Advice  to  a  Fiduciary  (716-720).  The  Jurisdiction  for 
Advising  Fiduciaries,  and  the  Limits  of  such  Jurisdiction  (716); 
Limits  of  the  Jurisdiftion  in  Bills  for  Advice,  Devises  Construed  in 
such  Cases  when.  Parties,  What  Questions  Answered  (718). 

Sec.  2.  Caveat  to  the  Probate  of  a  Will  (720-726).  Nature  of  the  Pro- 
ceeding, Proceeding  in  rem,  Nonsuit,  Withdrawal,  Citation  "to  See 
Proceedings,"  Parties  (720);  Who  may  Take  Part  in  the  Contro- 
versy, and  at  what  Time  and  how  th«  y  should  Proceed  (721);  Double 
Caveat,  Two  Wills  Propounded  the  Proiionnders  of  one  being  Ca- 
veators to  the  other.  Issues,  Form  of  Judgment  (722);  Effect  of 
Caveat  on  the  Exeeutor  or  Administrator  c.  t.  a.  (725). 

Sec.  3.  Partition  (726-744).  Ifislory  of  the  Reniody  at  Law  and  In 
Equity.  ProjH  r  Allegations  of  Petition,  Praetiee.  Form  of  .Indginont 
f726):  What  Estates  may  lie  Divided  liy  Adiial  Pnrlition  or  by  Sale 
for  Partition  (729);  Equity  Jurisdiction  and  Pra(  tire  in  Partition, 
Sale    for    Partition    when    Ordered    and    when    not    Ordered.    Partial 


XII  TAIU.K  OF  CONTKX'I'S. 

Partition  Actual  or  by  Sale,  Clerk's  .lurisdiition  (7:50);  lOssentials 
to  Application  for  a  Sale  for  Partition,  Policy  of  the  Law  as  to  such 
Sales  (T:'.1):  Tenants  in  I'onnnon  with  a  Partial  Division  made  by 
the  Donor.  When  Deeds  and  Wills  Construed  in  Hills  for  Partition 
t7:>-M;  Partition  of  Partnership  Lands,  Sale  for  Partition  and  Actual 
I'artitlon  in  Equity,  Settins  Apart  the  Share  of  one  Tenant  and 
Leaving  the  Residue  to  he  Held  in  Common  by  the  other  Tenants 
(7;U);  Contribution  for  Defects,  Implied  Warranty  in  Pailition, 
Caveat  Emptor  (7oG);  Charges  of  Owelty  lo  nuike  the  Partition 
Equal  and  Reasonable  (7il8);  Betterments  put  on  (he  Conunon  Proi)- 
erty  by  one  Tenant  in  Conunon,  Equitable  Partition  (7:i9);  Remedy 
for  Collection  of  Owelty  (742);  Partition  of  Chattels,  Remedies  of 
one  Co-tenant  of  Chattels  against  anotht  r   (7-1:?). 

Sec.  4.  Sale  of  Real  Estate  and  Chattels  belonging  to  Infants  (744-749). 
Jurisdiction  of  Equity  Courts,  What  Estates  may  be  Sold,  What  Cir- 
iums(ances  will  Justify  a  Sale  (744);  Statutory  Proceedings  to  Sell 
Realty  of  an  Infant  to  make  Assets  for  Payment  of  Debts  (746); 
Statutory  Pioceedings  to  Sell  Realty  of  an  Infant  for  a  Change  of 
Investment,  Proper  Practice,  Reference  to  Ascertain  if  Sale  be  Proper 
or  Necessary,  Report  and  Confirmation  of  Sale  (747). 

Sec.  5.  Inquisition  of  Lunacy  (749-756).  Jurisdiction  and  Practice  in 
Equity,  Acts  of  Lunatic  before  and  after  Adjudication,  Estoppel  by 
the  Adjudication.  Scope  of  the  Inquiry  (749);  Practice  under  Modern 
Statutes  (7u4). 

Sec.  6.  Sale  of  Real  Estate,  by  Personal  Representative,  to  Make  Assets 
for  Payment  of  Debts  of  a  Decedent  (757-767).  What  the  Complaint 
or  Petition  should  Contain,  Amount  of  Debts,  Value  of  Personalty 
(757);  Defenses  Open  to  the  Heirs  and  Devisees,  Reference  (758); 
Claiming  the  Homestead  (759);  Clerk's  Powers  and  Duties  in  Desig- 
nating what  Portion  of  the  Lands  shall  be  Sold  (760);  Partits,  Cred- 
itors' Rights,  Report  and  Confirmation  of  the  Sale,  Raising  the  Bid. 
Opening  the  Biddings,  Attacking  the  Sale  for  Fraud  (761);  Status 
of  Bidder  before  and  after  Confirmation,  Date  at  which  the  Pur- 
chaser's Title  is  Fixed  (764);  Effect  of  Plaintiff's  Counsel  Advising 
the  Defendants   (765). 

Sec.  7.  Creditors'  Bill  (767-777).  True  Character  of  General  Creditors' 
Bill,  Judgment  Creditors'  Bill,  Rules  of  Equity  Practice,  Rules  of 
Practice  under  the  Code.  Necessity  for  a  Judgment  at  Law,  Priori- 
ties (767);  Necessity  for  a  Judgment  at  Law  in  the  (Tnited  States 
Courts  (771);  Converting  a  Bill  by  one  Creditor  into  a  Creditors' 
Bill,  Suspension  of  the  Statute  of  Limitations,  Contest  of  the  Claim 
of  one  Creditor  by  another  Creditor,  What  Creditors  can  Participate 
in  the  Fund  (772);  Precedent  for  Advertising  for  Creditors,  Letting 
in  Belated  Creditors    (775). 

Sec.  8.  Remedy  of  Creditors  under  13  Elizabeth  (777-782).  The  Several 
Remedies  of  Creditors  at  Law  and  in  Equity,  Jurisdiction  to  Re- 
strain Execution  Sale  by  a  Creditor  (777);  Land  Purchased  by  the 
Debtor  but  Title  made  to  a  Third  Person  (780);  Remedy  when 
Fraudulent  Grantor  is  Dead   (780). 


CHAPTER   X. 

EXTRAORDINABY    RkMKDIKS. 

Sec.  1.  Habeas  Corpus.  Treated  in  Ch.  5,  sec.  8.  a;  Ch.  6,  sec.  1,  a,  and 
sec.  2,  a. 

Sec.  2.  Prohibition  (783-787).  The  Remedy  by  Prohibition  explained 
(783.  785). 

Sec.  3.  Mandamus  (787-796).  Nature  of  the  Remedy,  When  Mandamus 
will  and  will  not  Issue,  Practice,  Lord  Mansfield's  Form  of  Rule  to 
Show  Cause  (787);  Mandamus  exitlained,  When  it  is  the  Appropri- 
ate Remedy  (790);  Mandamus  from  a  Superior  to  an  Inferior  Court 
(792);   Alternative  and  Peremptory  Mandamus   (793,  794). 


t.>lble  of  contents.  Xlll 

Sec.  4.  Quo  Warranto  (796-804).  Definition  and  Nature  of  Writ,  Civil 
cr  Criminal?  (19G):  Definition,  History  and  Practice  (797);  Pro- 
ceedings in  the  Nature  of  Quo  Warranto  by  the  Crown,  Burden  of 
Proof  (798);  To  Try  Title  to  a  Public  Office  under  the  Code  Practice, 
Nature  of  the  Common  Law  Remedy,  Quo  Warranto  and  Mandamus 
distinguished  (799);  For  Usurping  an  Office  in  a  Private  Corpora- 
tion (801);  Against  Usurpers  of  Corporate  Franchises,  Private  Cor- 
porations  (802);    To  Dissolve  a  Municipal  Corporation   (803). 

Sec.  5.  Injunction  (804-821).  Nature  of  the  Remedy,  In  what  Cases  In- 
junction will  issue.  Different  Kinds  of  Injunction,  Mandatory  In- 
junctions (804);  General  Principles  and  Rules  governing  Injunc- 
tions, Nine  Cases  in  which  Injunction  will  issue  (809);  Common  and 
Special  Injunction  distinguished,  Code  Practice  (811);  Interlocu- 
tory or  Preliminary  Injunction  (812);  Rules  as  to  Granting  and  Dis- 
solving Restraining  Orders  or  Interlocutory  Injunctions  (813);  In- 
junction from  a  United  States  Court  to  Stay  Proceedings  in  a  State 
Court  (81.5);  Injunction  against  Proceeding  at  Law,  Against  Judg- 
ment and  Execution  at  Law,  to  Stay  Money  in  the  hands  of  the 
Sheriff  etc.  (816);  Injunction  to  Prevent  the  Commission  of  a  Crime, 
To  Test  the  Validity  of  a  Town  Ordinance  (817);  Effect  of  an  Ap- 
peal upon  an  Order  for  an  Injunction   (818). 

Sec.  6.  Bills  of  Peace  and  Quia  Timet  (821-827).  Bills  of  Peace  and 
Bills  Quia  Timet  distinguished.  Bills  to  Establish  and  Quiet  Title  to 
Realt}',  Multiplicity  of  Actions  by  different  Plaintiffs  (821);  In- 
junction against  Multiplicity  of  Actions  by  the  same  Plaintiff,  Con- 
solidation of  Actions,  Code  Practice,  Motion  in  the  Cause  (824,  826). 

Sec.  7.  Bills  of  Interpleader  (828-831).  Definition  and  Essentials  (828); 
Code  Practice,  Form  of  Complaint,  Privity  between  Claimants  (828). 

Sec.  8.  Certiorari  (832-839).  Nature  and  different  Uses  of  the  Remedy. 
Distinguished  from  Writs  of  Error  and  False  Judgment,  What  the 
Petition  must  Show  (832);  Full  Discussion  of  the  Remedy,  Dis- 
tinguished from  Writ  of  Error,  When  and  to  what  Tribunals  it  is- 
sues, What  Courts  can  issue  (833);  Certiorari  and  Recordari  dis- 
tinguished, How  Used  respectively  (835);  Certiorari  in  Cases  in 
which  no  Appeal  is  Provided  (836);  Certiorari  upon  Suggestion  of 
a  Diminution  of  the  Record  (838);  Certiorari  to  a  Judge  to  Correct 
or  Certify  a  Case  on  Appeal   (838). 

Sec.  9.  Recordari.  Explained,  The  Writ  before  and  after  the  Code  Prac- 
tice. When  the  Appropriate  Remedy,  Practice,  Supersedeas   (839). 

Sec.  10.  Scire  Facias.  Sci.  Fa.  Explained,  Common  Law  and  Code  Prac 
tice  (841,  843). 


CHAPTER  XI. 

Ancillaky  Remedies. 

Sec.  1.  Arrest  and  Bail  (846-850).  In  what  Cases  Arrest  and  Imprison 
ment  Allowed  in  Civil  Actions  (846);  Sufficiency  of  the  Affidavit, 
Duty  of  the  Court  as  to  Finding  the  Facts,  Assertions  upon  Informa- 
tion and  Belief,  Motion  to  Vacate,  Powers  of  Appellate  Court  (846); 
Arrest  under  Execution  against  the  Person,  Arrest  where  Proceed- 
ings in  Arrest  and  Bail  have  not  been  Resorted  to  as  an  Ancillary 
Remedy    (848). 

Sec.  2.  Claim  and  Delivery.  Whether  or  not  the  Ancillary  Remedy  of 
Claim  and  Delivery  may  be  Dispensed  with.  Detinue   (8."i0). 

Sec.  3.  Injunction.     When  Granted  as  an  Ancillary  Remedy   (851). 

Sec.  4.  Attachment  (852-861).  Origin  and  Nature  of  the  Remedy,  Es- 
toppel, Voluntary  Appearance  by  the  Defendant  (S.')2);  Explanation 
of  Atta<  liini  lit  al  Common  I.,asv  and  as  a  Code  R(  medy  (.S54);  "Or 
iginal  Attachm»^'nt"  under  Ancient  Practice,  and  Atlacliinent  under 
the  Code  Practice  (856);  Nature  of  AttacliUM  nt  under  the  Code  Prac- 
tice, Ancillary  Remedy,  Motion  in  the  Cause,  Motion  to  Vacate,  Who 
mav  be   let    in   as   Parties    (S."7t;    Sufficiency   of   Affidavit    (858);    At- 


\i\  'I'AUI.K   «M"   CONTKNTS. 

taohnieut  against  a  National  Hank  (859);  Doc-trim^  of  IVniioyer  v. 
Neft  (SCO). 
Sec.  r>.  Roicivers  and  Sequestration,  Ne  Exrat  (8(il-87:!).  Nature  and 
History  of  the  Remedy  of  Ain'oiiitins  Receivers,  Uses  of  the  Remedy. 
Powers  of  Receivers,  Limits  of  Towers  (SCil);  Actions  wiiich  a  Re- 
ceiver may  maintain.  General  Rules  governing  Re;-eivcrships.  Chan- 
ciM-y  Practice,  Code  Practice  (SC^);  Sequestration  in  Eqtiity  Ex- 
plained tStif));  Sequestration  and  Injunction,  Principles  which  gov- 
ern the  Courts  in  Granting  and  Removing  such  Process  (SCfi);  Prop- 
erty in  the  hands  of  a  Receiver  to  what  Extent  in  Custodia  l^egis, 
and  the  Effect  of  such  Custody  on  Third  Persons  (867);  Principles 
governing  the  Courts  in  Applications  for  the  Appointment  of  Re- 
I  elvers  (SiiS);  The  Writ  of  Xe  l*2xcat,  History  and  I'ses,  Practice  in 
Issuing,  How  its  Place  is  Supplied  under  the  Code  Practice   (870). 


CHAPTER  XII. 

.TriusDicTio.x. 

.Jurisdiction  of  the  Sub.iect-matter.  Want  of  such  .Jurisdiction  how 
Taken  Advantage  of,  Effect  of  the  Want  of  such  Jurisdiction  on  the 
Judgment  of  the  Court  (874);  Jurisdiction  Defined,  Jurisdiction  of 
the  English  Courts,  General  and  Special  Jurisdiction,  Jurisdiction 
of  the  Subject-matter,  Objection  to  the  Jurisdiction  how  and  when 
Taken,  Waiving  the  Want  of  Jurisdiction,  Jurisdiction  of  the  Federal 
Courts   (875). 

Want  of  Jurisdiction  of  the  Subject-matter.  Grant  of  Letters  of 
Administration  upon  the  Estate  of  a  Living  Person,  Want  of  Juris- 
diction of  the  Person,  I^^urteenth  Amendment  (877);  When  can  Con- 
sent Confer  Jurisdiction?  General  Ai)pearance,  Waiver  of  Want  of 
Jurisdiction   (882). 

When  the  Court  ex  mero  motu  will  Dismiss  for  Want  of  Juris- 
diction, Venue  (883);  Concurrent  Jurisdiction  and  Exclusive  Juris- 
diction (883). 

Extra-territorial  Effect  of  a  Judgment,  The  Doctrine  of  Pennoyer 
V.  Neff  how  far  Applied  to  Divorce,  "Full  Faith  and  Credit"  Clause 
(884);  Attacking  a  Judgment  for  Fraud,  Matters  not  within  the  Ju- 
risdiction of  a  Court  sometimes  Allowed  as  Defenses  (891);  Several 
Claims  Each  too  Small  for  Superior  Court  Jurisdiction  but  the  Ag- 
gregate within  its  Jurisdiction  (89ri);  Jurisdiction  of  Actions  on 
Penal  Bonds  (895);  How  a  Claim  too  Large  to  come  within  the 
Jurisdiction  of  an  Inferior  Court  may  be  Brought  within  its  Juris- 
diction. Remission  (89^);  Fraud  upon  the  Jurisdiction  of  the  Court 
(898.  899). 

Jurisdiction  of  an  Appellate  Court  in  Cases  in  which  it  has  no 
Original  Jurisdiction,  and  in  Cases  in  which  its  Jurisdiction  is  Con- 
current with  that  of  the  Inferior  Court  (899). 

Jurisdiction  of  Courts  of  Equity,  Origin,  General  Principles,  Lim- 
itations (900,  901);  Instances  of  Equity  Jurisdiction  (901);  Legal 
and  Equitable  Remedies  under  the  Code  (905). 

What  Constitutes  a  Court  of  Record  (908);  Local  and  Transitory 
Actions,  Jurisdiction  and  Venue  (909). 


CHAPTER  XI IT. 

Proc-e.ss. 

Sec.  1.  Introductory  (911-918).  History  and  Nature  of  Writs  as  Process 
by  which  an  Action  was  Commenced,  Variance  between  the  Writ  and 
the  Declaration  (Oil):  Nature  of  the  Writ.  Form.  Defects.  Objec- 
tions how  and  when  to  be  Made  and  when  Waived   (915);   The  Prin- 


T.VBLE  OF  CONTENTS.  XV 

cipal  Writs  in  Use  under  the  Common  Law  Practice  (916);  Original 
Writ,  Trespass  on  the  Case  (916);  Writ  of  Debt,  Writ  of  Debt  on 
two  Bonds,  Writ  of  Debt  Qui  Tarn  (917);  Writ  of  Covenant,  Detinue, 
Trover,  Trespass  vi  et  armis.  Trespass  q.  c.  f.  (917);  Writ  of  Debt 
against  an  Individual  and  an  Executor.  Writ  of  Replevin  (917); 
Writ  of  Waste  (918). 

Sec.  2.  Subpoena  in  Equity,  Process  in  Equity,  Form  of  Subpoena  in 
Equity    (918,  919). 

Sec.  3.  Mesne  Process  (920). 

Sec.  4.  Arrest,  Common  and  Special  Bail,  Appearance.  Evolution  of  Ar- 
rest in  Civil  Actions,  Shameful  Oppression  by  Imprisonment  for 
Debt.  Affidavit    (920). 

Sec.  5.  When  a  Writ  is  Issued  (922-925).  Writ  Signed  by  the  Clerk  in 
May  but  not  Delivered  to  the  Sheriff  until  July  (922);  Writ  Signed 
by  the  Clerk  in  April  and  not  Delivered  to  the  Sheriff  at  all,  Vol- 
untary Appearance  by  Defendant  in  September  (923);  When  is  a 
Writ  "Issued"  and  an  Action  "Commenced?"'    (92.5). 

Sec.  6.  Summons  under  the  Code  Practice  (926-944).  Common  Law  Writ, 
Subpoena  in  Equity,  Summons  under  the  Code,  Variance  between 
the  Process  and  the  Complaint  (926);  Service  of  the  Summons 
(928);  What  is  Personal  Service  (930);  Waiver  of  Defects  in  the 
Service,  General  Appearance  (932);  General,  Special,  and  Quasi  Ap- 
pearance, How  when  and  for  what  Purposes  a  Special  Appearance 
may  be  Entered  (933);  Special  Appearance  to  Move  to  Dismiss,  Gen- 
eral Appearance  upon  such  Motion  being  Overruled,  Practice  in  such 
Cases  (935);  Effect  of  Failure  to  Serve  Lawful  Process  (936);  Serv- 
ice by  Publication,  When  Constitutional,  Actions  in  rem  and  in 
personam.  Manner  of  Service  on  Nonresidents,  Doctrine  of  Pennoyer 
v.  Neff  (936);  Different  Methods  of  Making  Due  Service  of  Process, 
Effect  of  Service  other  than  Personal  Service  within  the  Territorial 
Jurisdiction  of  the  Court,  Proceedings  in  rem  and  in  personam, 
Amendment  of  Summons  (939);  Prerequisites  to  Valid  Service  by 
Publication,  Essentials  of  the  Affidavit  (942). 


CHAPTER  XIV. 
Parties. 

Necessity  for  Naming  the  Plaintiffs,  Action  by  Copartnership 
(945,  946);  Naming  the  Defendants  (946,  947);  Result  of  a  Defect 
of  Parties  in  a  Court  of  Law,  Misjoinder  and  Nonjoinder  (947): 
Result  of  a  Defect  of  Parties  in  a  Court  of  Equity  (949);  Result  of 
Defect  of  Parties  under  the  Code  Practice  (949);  Corporations  as 
Parties  (950). 

Infants  as  Parties  Plaintiff  or  Defendant,  Prochein  Amy,  Guardian 
ad  litem  (951  );  Equity  Practice  whrn  infants  are  Defendants  (952): 
Practice  in  the  Ajipointment  of  Prochein  Amy  or  Guardian  ad  litem 
for  Infant  Parties,  Common  Law  and  Code  Practice,  How  far  Infants 
are  Bound  by  Fraudulent  Judicial  Proceedings  (953);  How  to  Pro- 
ceed when  there  are  Infant  DiM'endanls,  Infants  Appearing  by  At- 
torney (057);  Service  of  Summons  on  Infants  (959);  Infant  in 
ventre  sa  mere  as  a  Party   (9(>0). 

Married  Women  as  Parties  Plaintiff  and  Defendant  (962);  Mar- 
liagd  of  ['"eme  Sole  Party  Pendente  Lite  (965);  Married  Women  as 
I'nrtlesin  E(|uity  (965);  Married  Women  as  Plaintiffs  under  the  Code 
Praetjff  (066);  Married  Women  as  Defendants  under  the  Code  Prac- 
tice  (067). 

Lunatics  as  Parties  (969);  Service  of  Summons  on  Insane  Defend- 
ant, Guardian  as  a  Party,  Venue   (971). 

Parties  in  E|uily,  Numero>is  Parlies,  Trustee  and  Cestui  Que 
Trust  as  Parties,  A  Few  of  a  Class  SufTicient  when  (071.  076);  How 
Ijong  a  Party  is  Considered  to  be  in  Court,  When  Noti<o  of  a  Motion 
Is  Required  (978);  Joint  Parties.  Several  Parties,  Joint  and  Several 
Parties   (978). 


TABLE  OF  CASES 


[the  figukes  refer  to  the  pages.] 


Ackeison  v.  Erie  R.  R.,  909. 

Adams  v.  Lisher,  472. 

Adderton  v.  Melchor,  132. 

Ahalt,  Shafer  v.,  416. 

Albea  v.  Griffin,  311. 

Alexander,  Taylor  v.,  483. 

Allen  V.  Crofoot,  240. 

Allen  V.  Greenlee,  464. 

Allen,  Smith  v.,  139. 

Allen  V.  Taylor,  315. 

Allman,  Morrow  v.,  679. 

Alsbrook  v.  Shields.  60. 

Alvord,  Cable  v.,  870. 

Ames  V.  Kansas,  797. 

Amick  V.  O'Hara,  48. 

Amis,  Bradley  v.,  233. 

Amunson,  Sieber  v.,  88. 

Anders,  Dunham  v.,  110. 

Andress  v.  State,  841. 

Anonymous,  230. 

Archibald  v.  Means,  918. 

Arnistead,  Barbee  v..  501. 

Arnold,  Dougan  v.,  832. 

Arrington,  Vass  v.,  764. 

Arundel  v.  McCulloch,  73. 

Asbury,  McDowell  v.,  843. 

Ashby  V.  White,  485. 

Ashley,  Butterfield  v.,  524. 

Askew.  Pritchard   v.,  294. 

Assurance    Co.,    Manufactuiing    Co. 

v.,  92. 
Atcheson  v.  Everitt,  106. 
Atkins,  Story  v.,  676. 
Atty.  Gen.  v.  City  of  Paterson,  812. 
Atty.  Gen.  v.  Hunter.  219. 
Atwell   V.  McJ^urc,  133. 
Austin,  Stevenson  v.,  976. 
Avery  v.  Lunilicr  Co.,  568. 
Aydlftt.  Tillftt    v.,  760. 
Ayers,  Credle  v.,  288. 

B. 

I'.aton   V.  .Johnson,  942. 
RridgHr  v.  Phinney,  361. 
Hacr  V.  Martin,  246. 
Railcy  v.  Schnltziiis,  230. 
Hain  v.  State.  162. 


Baker,  Chamblee  v.,  555. 

Baker  v.  Cordon,  102. 

Baker,  Slater  v.,  412. 

Baker,  Sweeney  v.,  428. 

Ballance,  Marks  \.,  676. 

Ballard,  Santom  v.,  882. 

Ballentine,  Park  v.,  949. 

Ballon,  Nat.  Tube  Works  Co.  v.,  771. 

Bait.  C.  P.  R.  Co.  V.  Kemp,  395. 

Baudfield  v.  Bandfield,  513. 

Bankhead,  Williams  v.,  974. 

Barbee  v.  Armstead,  501. 

Barbour,  Robinson  v.,  681. 

Barfield  v.  Turner,  466. 

Barker,  Rex  v.,  787. 

Barkley  v.  Wilcox,  83. 

Barnard,  Vane  v.,  209. 

Barnes  v.  Harris,  336. 

Barnes  v.  Martin,  52. 

Barrett,  Sowell  v.,  297. 

Bartholomew  v.  Jackson.  648. 

Bartlett  v.  Kochel.  535. 

Barton  v.  Osborn,  213. 

Barwi(-k  v.  Barwick,  614. 

Basely,  Leward  v.,  15. 

Bates,  Henderson  v.,  901. 

Battle  V.  Davis,  863. 

Beatty,  N.  C.  Land  Co.  v.,  332. 

Bechinor,  Gamly  v.,  947. 

Bell,  Hargett  v.,  817. 

Benjamin  v.  Teel,  721. 

Benson  v.  Remington,  541. 

Benthall,  Powell  v.,  504. 

Berino,  Olivant  v.,  609. 

Bcrthon  v.  Cart w right.  503. 

Bcthea  v.  ;\lcLennon,  601. 

Uigaouette  v.  Paulet,  495. 

Biggs.  Ex  parte,  836. 

Bills.  Rineliart  v.,  .501. 

Bishop.  Myi  itk   v.,  243. 

Bisho|)  V.  W'ebei-,  407. 

Blalock,  Strayhorn  v..  928. 

Bland,  Ho))bs  v.,  693. 

Blann,  Given  v..  87. 

Blcwitt,  hi  re.  754. 

Bloom.  .Fesus  College  v..  207. 

Blount  V.  Pritchard,  757. 

Blue  .Mt.  Forest  Asso..   Kills  v..  265. 

niythe.  Bryan  v.,  S74. 

Boaro.  Erhardt   v..  262. 


win 


T.VBIiE  OV  CASES. 


TiiK  i-'i(;rni:s  UKi'Kit  ro  riii-:  tackh.] 


Boing  V.  R.  R..  8S)i». 

Bois  V.  Bois.  418. 

Bolaiul.  Freeman  v.,  330. 

Boutl.  Inge  v.,  61)3. 

Bond,  Tayloe  v.,  716. 

Boney.  PuUen  v.,  210. 

Booth  V.  Clark.  SGI. 

Bost  V.  Mingues,  41). 

Bowers  v.  R.  R..  :?2li. 

Bo.xley  v.  Collins.  210. 

Boyce  v.  Williams,  609. 

Boyle  V.  Robbiiis,  673. 

Brackenridgo,  Lewis  v.,  920. 

Bradley  v.  Amis,  233. 

Bragg  V.  Lyon,  730. 

Brame  v.  Clark,  238. 

Branie  v.  Swain,  317. 

Branch  v.  Frank,  858. 

Brandenburg,  Grove  v.,  462. 

Bray,  Dozier  v.,  634. 

Bray,  Leame  v.,  394. 

Briggs  V.  Evans,  .^27. 

Briley  v.  Cherry,  600. 

Brittain,  Patton  v.,  651. 

Brittain  v.  Payne,  325. 

Brock  V.  Copeland,  33. 

Bronson  v.  Kinzie,  115. 

Brooks  V.  Stinson,  8. 

Brothers  v.  Hurdle.  190. 

Brown,  Cain  v.,  803. 

Brown,  Doyle  v.,  936. 

Brown,  Field  v.,  342. 

Brown  v.  Gray,  697. 

Brown  v.  Osborn,  838. 

Brown  v.  Perkins,  75. 

Brown  v.  Ramsay,  544. 

Brown,  Silloway  v.,  250. 

Brumfield,  Wilson  v..  313. 

Bryan  v.  Blythe,  874. 

Bryan  v.  Fisher,  682. 

Bryan  v.  Moring,  722. 

Bryan  v.  Stewart,  457. 

Bucknam,  Nichols  v.,  669. 

Budget  Pub.  Co.,  Dooling  v.,  626. 

Bullinger  v.  Marshall,  324. 

Buntin,  .Tones  v.,  89."). 

Burgess  v.  Carpenter,  580. 

Burton  v.  Farinholt,  780. 

Burwell,  Knott  v.,  430. 

Busbee  v.  Macy,  184. 

Butchers'   Union,   Cres.    Live   Stock 

Co.  v.,  466. 
Butler,  Setzar  v.,  624. 
Butterfield  v.  Ashley,  524. 
B.  &  G.  Furniture  Co..  Powell  v.,  214. 


Cable  v.  Alvord,  870. 
Cain  v.  Brown,  803. 
Camp,  Love  v.,  306. 


Campbell  v.  Race,  77. 

Canby,  Hough  v.,  952. 

Cannady,  State  v.,  103. 

Cape rt on  v.  Schmidt,  151. 

Carmichael  v.  Moore,  645. 

Carpenter,  Burgess  v.,  580. 

Carr,  Featherstone  v.,  826. 

Carr,  Lease  v.,  726. 

Carrol  v.  Green,  344. 

Carruthers  v.  Tillman,  232. 

Carter  v.  Glass,  691. 

Cartwright,  Berthon  v.,  503. 

Cassady  v.  Laughlin,  339. 

Caton,  Day  v.,  650. 

Chalk  V.  Wyatt,  261. 

Chambers,  Webb  v.,  657. 

Chamblee  v.  Baker,  555. 

Chase,  Gibbs  v.,  622. 

Chatham  Furnace  Co.  v.  Moffatt,  695. 

Cheek,  Ramsey  v.,  422. 

Cherry,  Briley  v.,  600. 

Cheshire,  Condry  v.,  173. 

Cherihunt,  Rex  v.,  70. 

Child  v.  Homer,  432. 

Childs  v.  Martin,  883. 

City  of  Paterson,  Atty.  Gen.  v.,  812. 

City  of  St.  Joseph,  Smith  v.,  511. 

Clap,  Com.  v.,  413. 

Clarendon   v.   Hornby,   738. 

Clark,  Booth  v.,  861. 

Clark,  Brame  v.,  238. 

Clark  V.  Downing,  383. 

Clark,  Ex  parte,  575. 

Clark,  Gardner  v.,  678. 

Clark  V.  Goodwin,  635. 

Clark,  Louis.  &  St.  L.  R.  R.  v.,  366. 

Clegg,  Cobb  v.,  813. 

Cline  V.  Green,  978. 

Clitheroe  Case,  491. 

Cobb  V.  Clegg,  813. 

Cobb,  Wheeler  v.,  932. 

Coffey,  .Jones  v.,  175. 

Coffield  V.  McLean,  746. 

Cole  V.  Turner,  391. 

Colgrove  v.  Koonce,  158. 

Collins,  Boxley  v.,  210. 

Colter  V.  Lower,  459. 

Comrs.,  R.  R.    (Conn.  Riv. )   v.,  783. 

Comrs.,  Fry  v.,  794. 

Comrs.,  Lutterloh  v.,  793. 

Comrs.   v.  White   Water  Canal   Co., 

112. 
Com.  v.  Clap,  413. 
Com.  V.  Donahue,  53. 
Com.  V.  Graham,  547. 
Condry  v.  Cheshire,  173. 
Conklin,  Weinman  v.,  182. 
Conklin  v.  Smith,  667. 
Conner  v.  New  Albany,  247. 
Construction  Co.,  Young  v..  567. 
Conway  v.  Grant,  31. 


TABLE  OF  CASES. 


XIX 


[the  figures  refek  to  the  packs.  J 


Cookson,  Somerset  v.,  608. 

Cooley,  Stewart  v.,  479. 

Coombs  V.  Rose,  425. 

Cooper  V.  Hamilton,  263. 

Cooper  V.  Helsabeck,  659. 

Cooper,  White  v.,  148. 

Copeland,  Brock  v.,  33. 

Cordon,  Baker  v.,  102. 

Cox,  Thompson  v.,  761. 

Cox,  Worth  v.,  646. 

Craighead  v.  Pike,  734. 

Craker  v.  R.  R.  (Chic.  &  N.  W.),  392. 

Crane  v.  McDonald,  828. 

Cranmer  v.  Graham,  654. 

Craton,  State  v.,  17. 

Credle  v.  Ayers,  288. 

Cres.    Live    Stock    Co.    v.    Butchers' 

Union,  466. 
Crickett,  Mc.Manus  v.,  592. 
Crofoot,  Allen  v.,  240. 
Cronenwett,  McGurk  v.,  589. 
Cronk,  Mich.  Mut.  Ins.  Co.  v.,  197. 
Crosby,  Palmer  v.,  978. 
Crouch  V.  Martin,  599. 


D. 


Daggett  V.  Robins,  355. 

Danitrl,  Fairaer  v..  174. 

Daniel,  Penniman  v.,  860. 

Daniel,  Queen  v.,  582. 

Davis,  Battle  v..  863. 

Davis  V.  Davis,  731. 

Davis  v.  Judd,  628. 

Davis,  Reeves  v.,  908. 

Davis,  State  v..  38. 

Day  v.  Caton,  650. 

Day.  Tasburgh  v.,  178. 

Deal,  Price  v..  277. 

Deal  V.  Sexton,  960. 

Dfans  V.  R.  R..  399. 

Deans,  Thompson  v.,  314. 

Dearman,  Irwin  v.,  530. 

DeavfT,  Mosselier  v..  65. 

Den  V.  Morris,  119. 

Dick,  Holtz  v.,  503. 

Dickens,  Ricketts  v..  281. 

DIckerson.  In  re,  747. 

Dickey,  Robinson  v.,  743. 

Diggs  V.  Wolcott,  815. 

Dills  V.  Hampton,  161.  252. 

Dilts  V.  Kinney,  625. 

Dist.  Atty.  V.  L.  &  B.  R.  R..  218. 

Dist.  Med  Son.  State.  Elder,  pros.  v. 

833. 
Doctf-r  V.  Rjpdfl.  475. 
Dodson  v.  Mock.  618. 
Doe  V.  Mace,  172. 
Doe  V.  West.  140. 
Dollar.  Garraid  v..  300. 
Donahoc  v    Richards.  538. 


Donahue,  Com.  v.,  53. 

Dooling  V.  Budget  Pub.  Co.,  626. 

Dorsheimer  v.  Roorback,  969. 

Dougan  v.  Arnold,  832. 

Dougherty  v.  Stepp,  236. 

Dowd  v.'"Seawell,  640. 

Downer  Ker.  Oil  Co.,  Wellington  v., 

409. 
Downing,  Clark  v.,  383. 
Doyle  V.  Brown,  936. 
Dozier  v.  Bray,  634. 
Duffy  V.  Murrill,  358. 
Dunham  v.  Anders,  110. 
Dupree  v.  Dupree,  204. 
Durham,  Porter  v.,  188. 


B. 


Early,  Ely  v.,  905. 

Early,  Joyner  v.,  706. 

Edwards,  Hogwood  v.,  260. 

Eisenhauer  v.  Quinn,  198. 

Eley,  White  v.,  328. 

Elliott,  Scott  v.,  598. 

Ellis  v.  Blue  Mt.  For.  Asso.,  265. 

Elwell,  Low  v.,  62. 

Ely  V.  Early,  905. 

Erhardt  v.  Boaro,  262. 

Etheridge  v.  Vernoy,  271. 

Evans,  Briggs  v.,  527. 

Evans  v.  Norris,  2. 

Everitt,  Atcheson  v.,  106. 


Farinholt,  Burton  v.,  780. 

Farmer  v.  Daniel.  174. 

Farmer,  Joyner  v.,  298. 

Farmers'  Bank,  Glenn  v.,  775. 

Farnham  v.  Hay,  642. 

Farrar,  Gordon  v..  488. 

Farrell  v.  Railroad,  3. 

Featherston  v.  Carr,  826. 

Ferebee,  Morrisette  v.,  759. 

Ferguson  v.  State,  92«.«. 

Field  V.  Brown.  342. 

Finley  v.  Simpson,  629. 

Fisher,  Bryan  v.,  682. 

bisher  v.  Greensboro  Water  Supply 

Co..  328. 
Fisclil!  V.  Fischli,  .">15. 
Fitzgerald  v.  Robinson.  426. 
Fletcher,  Gylbert  v.,  631. 
Flinn,  Francis  v.,  438. 
Flournoy,  Vick  v..  939. 
Foran.  Smith  v.,  578. 
Fort.  White  v.,  113. 
Fortescue,  Smith  v.,  258. 
Fountain,  Manning  v.,  (ififi. 
Foust,  Slangbter  v..  285. 
Fraley.  StokeH  v.,  256. 


w 


TABLE  OP  (WSKS. 


[THK  FUirKF.S   REI-'lUl  TO  Till:    I'M. is. 


Francis  v.  Fltun.  43S. 
Frank,  Branch  v.,  858. 
Frjisor  v.  Little.  637. 
Frazier.  Panl  v..  390. 
Freeman  v.  Boland,  336. 
Freeman,  Nichols  v.,  304. 
Frink  v.  Stewart,  Sf.l. 
Fritscho  v.  Fritsche,  166. 
Froneberger  v.  Lewis,  295. 
Fry  V.  Conirs.,  794. 
Fnllerton  v.  Warrick.  386. 

Q. 

Ga.  Iron  &  Coal  Co.,  Simmons  v.,  439. 

Gale,  Squier  v.,  792. 

Gamly  v.  Bechinor,  947. 

Gammon  v.  Johnson,  287. 

Ganley  v.  Looney,  249. 

Gardner  v.  Clark,  678. 

Garrard  v.  Dollar,  300. 

Gates,  Grimes  v.,  381. 

Gatling,  Saunders  v.,  799. 

Gentry  v.  Harper,  780. 

Gentry,  Morris  v.,  953. 

Gernerd  v.  Gernerd,  507. 

Gheen,  Pliimmer  v.,  463. 

Gibbs  V.  Chase,  622. 

Gidney,  Moore  v..  765. 

Gilchrist  v.   Middleton,   163. 

Given  v.  Blann,  87. 

Gladstein.  Levin  v.,  891. 

Glancy,  Johnston  v.,  309. 

Glass,  Carter  v.,  691. 

Glenn  v.  Farmers'  Bank,  775. 

Glover  v.  Riddick,  613. 

Goddard,  Green  v.,  41. 

Goddard,  Peirce  v.,  195. 

Godwin,  Holmes  v.,  603. 

Goode,  State  v.,  39. 

Goodman  v.  Winter,  744. 

Goodson,  Keener  v.,  94. 

Goodtitle,  Jared  v.,  139. 

Goodwin,  Clark  v.,  635. 

Gordon  v.  Farrar,  488. 

Gordon  v.  Lowther,  205. 

Gould,  Ex  parte,  100. 

Governor  v.  Howard,  109. 

Gragg  v.  "Wagner,  275. 

Graham  Crammer  v.  654. 

Graham,  Com.  v.,  547. 

Graham  v.  O'Bryan,  935. 

Grammer,  Parker  v.,  866. 

Grandona  v.  Lovdall.  S2. 

Grant,  Conway  v.,  31. 

Graves,  Wood  v.,  470. 

Gray.  Brown  v.,  697. 

Green,  Carrol  v.,  344. 

Green,  Cline  v.,  978. 

Green  v.  Goddard,  41. 

Green  v.  Griffin,  818. 


(Jrecu    V.   Liter,   \2\. 

Green,  Moore  v.,  320. 

Grefn  v.  State.  ;>:!(). 

Greenfield   Bank   v.   Leavitt,  616. 

Greenlee,  Allen  v..  464. 

Greensboro  Water  Supply  Co.,  Fisher 

v.,  328. 
Gregory  v.  Paul,  90i'. 
Gregory  v.  Thomson.  632. 
Grosso  v.  Railroad   (Del.  L.  &  W.), 

369. 
Griffin,  Albea,  311. 
Griffin,  Green  v.,  818. 
Griffin,  Schenk  v.,  852.      . 
Griffin,  White  v.,  619. 
Grimes  v.  Gates,  381. 
Grist  V.  Hodges,  282. 
Griswold  v.  Sabin,  302. 
Grove  v.  Brandenburg,  462. 
Guntner,  Vegelahn  v.,  586. 
Gylbert  v.  Fletcher,  631. 

H. 

Haddock  v.  Haddock,  884. 
Hafner,  Loubz  v..  348. 
Hagar,  Shirley  v.,  951. 
Hale,  Whitehead  v.,  868. 
Hall  v.  Piddock  739. 
Hamilton,  Cooper  v.,  263. 
Hamilton,  McMinn  v.,  883. 
Hamlin  v.  Mack,  43. 
Hammersley,  Tyler  v.,  816. 
Hammond,  Story  v.,  406. 
Hampton,  Dills  v.,  161,  252. 
Hancock  v.  Railroad,  564. 
Hancock  v.  Ritchie,  923. 
Hancock  v.  Wooten,  767. 
Hankins  v.  Newell,  801. 
Hanna  v.  Mills,  672. 
Hardware  Co.,  Railroad  v.,  473. 
Hargett  v.  Bell,  817. 
Hargrove  v.  Powell,  138. 
Harkey  v.  Houston,  156. 
Harman,  Kimball  v.,  707. 
Harman,  State  v.,  19. 
Harper,  Gentry  v.,  780. 
Harper,  Southerland  v.,  777. 
Harris,  Barnes  v.,  336. 
Harris  v.  Theus,  710. 
Harriss  v.  Sneeden,  846. 
harshaw  v.  McKesson,  290. 
Hart  V.  Leonard.  809. 
Hartsfield  v.  Jones,  644,  835. 
Harward,  Holleman  v.,  509. 
Haskins  v.  Royster,  583. 
Hasty,  Hunthy  v.,  848. 
Hatchell  v.  Kimbrough.  250. 
Haughton  v.  Leary.  922. 
Hay,  Farnham  v.,  642. 
Hay  v.  McCoy,  950. 


TABLE  OF  CASES. 


XXI 


[THE  FIGURES  REFER  TO  THE  PAGES.] 


Hays  V.  Lanier,  945. 
Havward,  James  v.,  72. 
Hayward,  Peters  v.,  360. 
Hazell,  Pate  v.,  2. 
Heath  v.  Williams,  82. 
Helsabeck,  Cooper  v.,  659. 
Henderson  v.  Bates,  901. 
Hendricks,  Simmons  v.,  732. 
Hensley,  Horton  v.,  245. 
Herman  v.  Watts,  742. 
Herndon,  State  v.,  453. 
Hipp  V.  Rabin,  901. 
Hoar,  Jones  v.,  658. 
Hobbs  V.  Bland,  693. 
Hobbs  V.  Railroad,  537. 
Hodges,  Grist  v.,  282. 
Hogwood  V.  Edwards,  260. 
Holland,  Magee  v.,  526. 
Hollman,  Ex  parte,  572. 
Holleman  v,  Harward,  509. 
Hollingsworth,  Page  v.,  254. 
Hollister,  Kill  v.,  91. 

Holmes  v,  Godwin,  603. 
Holmes  v.  Johnson,  461. 
Holtz  V.  Dick,  503. 

Hooker  v.  State,  908. 

Hoover,  Lewis  v.,  385. 

Hopkins  v,  Lee,  305. 

Hornby,  Clarendon  v.,  738. 

Homer,  Child  v.,  432. 

Horton  v.  Hensley,  245. 

Hough  V.  Canby,  952. 

Hough  V,  Martin,  186. 

Hough,  State  v.,  13. 

Houghtalling,  Knight  v.,  318. 

Houston,  Harkey  v.,  156. 

Howard,  Governor  v.,  109. 

Hubbard  v.  Preston,  80. 

Hughes  v.  Jones,  749. 

Hughes,  WiLson  v.,  605. 

Hume  V.  Tufts,  623. 

Hunter,  Atty.  Gen.  v.,  219. 

Huntley  v.  Hasty,  S4S. 

Hunton  v.  Luce,  896. 

Hurdle,  Brothers  v.,  190. 

Hurst,  Powers  v.,  946. 

Hutson  V.  Sawyer,  720. 


I. 


Inge  V.  Bond,  693. 
Ingram,  McDonald  v.,  170. 
Insurance  Co.,  Long  v.,  936. 
Irons,  Richmond  v.,  772. 
Irwin  V.  Dearman.  530. 
IvpHon  V.  Moore  220. 


Jackson, 
Jackson. 


J. 

Bartholomew  v. 
Regina  v.,  491. 


648. 


Jackson  v.  Telegraph  Co.,  478. 
James  v.  Hayward,  72. 
James,  Tenn.  M'fg.  Co.  v.,  546. 
Jared  v.  Goodtitle,  139. 
Jarman  v.  Saunders,  811. 
Jarman  v.  Ward,  850. 
Jenkins  v.  W^aldron,  487. 
Jernigan,  :\IcCormick  v.,  680. 
Jerome  v.  Ortman,  338. 
Jesus  College  v.  Bloom,  207. 
Johnson,  Bacon  v.,  942. 
Johnson,  Gammon  v.,  287. 
Johnson,  Holmes  v.,  461. 
Johnson  v.  Pate,  157. 
Johnson  v.  Perry,  50. 
Johnston  v.  Glancy,  309. 
Johnston  v.  Pasteur,  359. 
Jones  v.  Buntin,  895. 
Jones  v.  Coffey,  175. 
Jones,  Hartsfield  v.,  644,  835. 
Jones  V.  Hoar,  658. 
Jones,  Hughes  v.,  749. 
Jones,  King  v.,  283. 
Jones,  McLeod  v.,  55. 
Jones,  Railroad  v.,  397. 
j  Jones,  Southerland  v.,  203. 
!  Jones  V.  Towne,  71. 
Jones,  Whissenhunt  v.,  147 
Joyner  v.  Early,  706. 
Joyner  v.  Farmer,  298. 
\  Judd,  Davis  v.,  628. 
Judd  V.  Mining  Co.,  845. 
Justice,  Simpson  v.,  228. 

K. 

Kansas,  Ames  v.,  797. 
Keary,  R.  R.  v.,  560. 
Keener  v.  Goodson,  94. 
Keller,  Kroessin  v.,  498. 
Keller,  McRae  v.,  107. 
Kelly  V.  Lett,  351. 
Kelsey,  Penoyar  v.,  854. 
Kemp  V.  Mitchell,  296. 
Kemp,  Railroad  (Bait.  C.  P.)  v. 
Kendall,  Gates  v.,  330. 
Kendall  v.  Stone,  179. 
Kennedy  v.  Whcatley.  242. 
Kcrstetter  v.  Ravmond,  655. 
Kill  V.  Hollister,  91. 
Killian  v.  Railroad,  537. 
Kimball  v.  Hannan,  707. 
Kinil)rough.  lialclicll  v.,  250. 
King  V.  Jones,  2S3. 
King  V.  Railroad,  839. 
Kinney,  Dilts  v.,  625. 
Kinzle,  Bronson  v.,  1]."(. 
Kitchie.  Ovcrcash  v.,  163. 
Knight  v.   Iloiighlalllng.  318. 
Knott  V.  Biirwcil,  430. 
Kochel,  Bartlctt  v.,  535. 


I 


395. 


XXll 


'rAHi.i;  1)1'  I'ASi'-s. 


[TIIK   I'lCiVUKS   RKFER  TO  TIIK   I'ACKS.] 


Koonce,  Colgrove  v..  158. 
Kroessln  v.  Keller,  498. 
Kvles  V.  Railroad.  517. 


Lade  v.  Shepherd.  248. 

La  Grange  v.  State  Treasurer,  790. 

Lajoie,  Phil.  Ball  Club  v.,  712. 

Lanier,  Hays  v.,  945. 

Lassiter  v.  Ward,  G90. 

Laughlin,  Cassady  v.,  339. 

Leach.  Womble  v.,  617. 

Leame  v.  Bray,  394. 

Leary,  Haughton  v.,  922. 

Lease  v.  Carr,  726. 

Leavitt,  Greenfield  Bk.  v..  616. 

Lee,  Hopkins  v.,  305. 

Leigh.  Rex  v.,  798. 

Leonard,  Hart  v..  809. 

Lett,  Kelly  v.,  351. 

Levin,  Gladstein  v..  891. 

Leward  v.  Basely,  15. 

Lewis  V.  Brackenridge,  920. 

Lewis,  Froneberger  v.,  295.     . 

Lewis  V.  Hoover,  385. 

Lewis  V.  McNatt,  949. 

Lewis.  Ransom  v.,  59. 

Life  Association,  Scott  v.,  933. 

Lindeman  v.  Lindsey.  259. 

Lindsay,  Nixon  v.,  736. 

Lindsey.  Lindeman  v.,  259. 

Lisher,  Adams  v..  472. 

Lister's  Case,  490,  491. 

Liter,  Green  v.,  121. 

Little,  Fraser  v.,  637. 

Little  V.  Thorne,  718. 

Loane,  Sharpe  v.,  264. 

Long  V.  Insurance  Co.,  936. 

Long,  :\Iaddrey  v.,  145. 

Long  V.  McLean,  846. 

Loomis,  May  v.,  702. 

Looney,  Ganley  v.,  249. 

Loubz  V.  Hafner,  348. 

Loxdoll,  Grandona  v.,  82. 

Love  v.  Camp,  306. 

Low  v.  Elwell,  62. 

Lowe  v.  Peers,  637. 

Lowe,  Turner  v.,  ICO. 

Lower,  Colter  v.,  459. 

Lowther,  Gordon  v.,  205. 

Luce.  Hunton  v.,  896. 

Lumber  Co.,  Avery  v.,  568. 

Lumber  Co.  v.  Lumber  Co.,  257. 

Lumber  Co.,  Railroad  v.,  268. 

Lumber  Co..  Smith  v.,  549. 

Lunn  V.  Shermer,  700. 

Lunsford,  State  v.,  456. 

Lutterloh  v.  Comrs.,  793. 

Lyman,  Perkins  v..  630. 


Lyon.  Bragg  v.,  730. 
Lyou,  State  v.,  374. 

M. 

Mace,  Doe  v.,  172. 

Mack,  Hamlin  v.,  43. 

Macferlan,  Moses  v.,  661. 

Macy,  Busbee  v.,  184. 

Madre,  Potter  v.,  192. 

Maddrey  v.  Long,  145. 

Magee  v.  Holland,  526. 

Magruder  v.  Randolph,  674. 

Manfg.  Co.  v.  Assurance  Co.,  92. 

Manfg.  Co.  v.  National  Bank,  859. 

Maiil'.i;.  Co.  v.  Railioad.  2.(1. 

Manning  v.  l-'ountain,  666. 

Manning  v.  Manning,  966. 

Marks  v.  Ballance,  676. 

Marsden,  Rex  v.,  796. 

Marsh,  McCrea  v.,  270. 

Marsh  v.  Williams,  856. 

Marshall,  Bullinger  v.,  324. 

Martin,  Baer  v.,  246. 

Martin,  Barnes  v.,  52. 

Martin,  Childs  v.,  883. 

Martin,  Crouch  v.,  599. 

Martin,  Hough  v.,  186. 

Massachusetts,  Rhode  Island  v.,  875. 

May  v.  Loomis,  702. 

Mayor    of   N.    Y.,    Railroad    (Third 

Ave.)   v.,  824. 
Mayor  of  Norwich  v.  Swan,  248. 
Maxwell,  Skinner  v.,  867. 
McClees  v.  Sikes,  349. 
McCombs  V.  Wallace,  109. 
McCormick  v.  Jernigan,  680. 
McCoy,  Hay  v.,  950. 
McCrea  v.  Marsh.  270. 
McCulloch,  Arundel  v.,  73. 
McDonald,  Crane  v.,  828. 
McDonald  v.  Ingram,  170. 
McDowell  V.  Asbury,  843. 
McGarr  v.   N.  &   P.  Worsted   Mills, 

541. 
McGraw,  Van  Pelt  v.,  350. 
McGurk  v.  Cronenwett,  589. 
Mcintosh,  Scott  v.,  341. 
McKesson.  Harshaw  v..  290. 
McLean,  Coffield  v..  746. 
McLean.  Long  v.,  846. 
McLennon.  Bethea  v.,  601. 
McLeod  V.  .Tones,  55. 
McLure,  Atwell  v.,  133. 
McManus  v.  Crickett.  592. 
McManus  v.  Railroad,  222. 
McMinn  v.  Hamilton,  883. 
McNatt,  Lewis  v.,  949. 
McNeal,  Scott  v..  877. 
McRae  v.  Keller,  107. 
McRae  v.  Morrison,  671. 


TABLE  OF  CASES. 


XXIU 


Meadows  v.  Smith,  668. 

Means,  Archibald  v.,  918. 

Mebane  v.  Mebane,  291. 

Mebane,  Turner  v.,  200. 

Melchor,  Adderton  v.,  132. 

Melchor,  Miller  v..  146. 

Mich.  Mut.  L.  Ins.  Co.  v.  Cronk,  197. 


[the  figures  refer  to  the  pages.] 

Nichols  V.  Freeman,  204. 
Xisbet,  Ware  v.,  838. 
Nixon  V.  Lindsay,  736. 
Norris,  Evans  v.,  2. 
Norwood  V.  O'Neal,  665. 
N.  &  P.  Worsted  Mills,  McGarr  v., 
542. 


163. 


Middleton,  Gilchrist  v 

Miller  v.  Melchor,  146. 

Miller,  Morris  v.,  497. 

Miller  v.  State,  45. 

Miller,  Tuite  v.,  285. 

Miller  v.  Washburn,  865. 

i^Iills.  Hanna  v.,  672. 

Mingues,  Bost  v.,  49. 

Mining  Co.,  Judd  v.,  845. 

Minor  v.  Sharon,  411. 

Mitchell,  Kemp  v.,  296. 

Mitchell  V.  Railroad   (Roch.),  401. 

Mock,  Dodson  v.,  618. 

Moffatt.    Chatham    Furnace    Co.    v. 

695. 
Moffatt.  Taylor  v.,  460. 
Monroe,  State  v.,  407. 
Monsley,  Villers  v.,  415. 
Montgomery,  Person  v.,  758. 
Moore.  Carmichael  v.,  645. 
Moore  v.  Gidney,  765. 
Moore  v.  Green,  320. 
Moore,  Iveson  v.,  220. 
Moore  v.  Thompson,  898. 
Moore,  Wharton  v.,  176. 
Moore,  Wilson  v..  926. 
Moring,  Bryan  v.,  722. 
Morris,  Den  v.,  119. 
Morris  v.  Gentry,  953. 
Morris  v.  Miller,  497. 
Morris,  White  v.,  957. 
.Morrisette  v.  Ferebee,  759. 
Morrison,  McRae  v.,  671. 
Morrison  v.  Morrison.  206. 
.Morrow  v.  Allman,  679. 
Moses  V.  Macferlan,  661. 
Mosseller  v.  Deaver,  65. 
.Muri)hey,  Wilson  v..  346. 
.Murrill.  Duffy  v.,  358. 
Myrick  v.  Bishop,  243. 


N. 


Nat.  Bank,  .Manfg.  Co.  v..  859. 
Nat.  Tube  Works  Co.  v.  Ballou, 
N.  C.  Land  Co.  v.  Beatty,  332. 
Neaglf,   fn  re,  450. 
Neal   V.  Wilcox.  620. 
Nevin  V.  Pullman  Car  Co.,  353. 
New  Albany,  Conner  v..  247. 
Newfll,    Hankins   v..   801. 
Newell,  Snider  v.,  531. 
Newell  V.  Wliilcher,  385. 
Nichols  V.  Bucknian,  669. 


771. 


O. 

Gates  V.  Kendall,  330. 
Gates,  State  v.,  97. 
O'Brien  v.  O'Brien,  208. 
O'Bryan,  Graham  v.,  935. 
O'Hafa.  Amick  v.,  48. 
Olivant  v.  Berino,  609. 
O'Neal,  Norwood  v.,  665. 
O'Neill,  Pittock  v.,  434. 
Ortman.  Jerome  v.,  338. 
Osborn,  Barton  v.,  213. 
Osborn.  Brown  v.,  838. 
Osborn,  Price  v.,  140. 
Overcash  v.  Kitchie,  163. 


Page  V.  Hollingsworth,  254. 

Palin  V.  Small,  946. 

Palmer  v.  Crosby,  978. 

Palmer  v.  Railroad  &  Elec.  Co.,  388. 

Palmer's  Will,  In  re,  725. 

Park  V.  Ballentine,  949. 

Parker  v.  Grammer,  866. 

Parker  v.  Staniland,  246. 

Parker  v.  Taylor,  188. 

Parrott,  State  v.,  74. 

Parsell  v.  Stryker,  315. 

Pasteur,  Johnston  v.,  359. 

Pate  V.  Hazell.  22. 

Pate,  Johnson  v.,  157. 

Pate,  State  v.,  96. 

Pat.  &  Ham.  Turnpike  Co.,  State  v., 

802. 
Patton  V.  Brittain,  651. 
Paulet,  Bigaouette  v.,  495. 
Paul  V.  Frazier,  390. 
Paul,  Gregory  v.,  962. 
Payne,  Brittain  v..  325. 
Payne,  Washburn  v.,  895. 
Peers,  Lowe  v.,  637. 
Peirce  v.  Goddard,  19."). 
Penninian  v.  Daniel,  860. 
Penoyar  v.  Kelsey,  854. 
People,  Pond  v..  9. 
Perkins,  Brown  v.,  75. 
Perkins  v.  Lyman,  630. 
Perry,  Johnson  v.,  .'»(). 
Perry  v.  Phii)ps,  16. 
Person  V.  Montgomery,  758. 
Peters  v.  I  lay  ward.  360. 
Phil.  Ball  Chib  v.  Lajoie,  712. 


\  X  i  \ 


TAHI,K  OV  CASKS. 


[the  i'u;i'RES  r>:ki:u  to  riii:  i-AiiKs.] 


Phinney.  Dadgor  v.,  361. 

Phipps.  Perry  v.,  lli. 

Plddork.  Hall  v..  739. 

Pierce  v.  Railroad,  595. 

Pike,  Craighoad  v..  734. 

Pittock  V.  O'Neill,  434. 

Ploof  V.  Putnam,  23. 

Pluninier  v.  Gheen,  463. 

Pond  V.  People.  9. 

Pope,  Vick  v..  967. 

Porter  v.  Durham,  188. 

Porter  v.  Railroad,  266. 

Porter,  Stuard  v.,  971. 

Potter  V.  Madre,  192. 

Powell  V.  Benthall,  504. 

Powell  v.  B.  &  G.  Furn.  Co.,  214. 

Powell,  Hargrove  v.,  138. 

Powers  V.  Hurst,  946. 

Preston,  Hubbard  v.,  80. 

Preston,  Roberts  v.,  60. 

Price  V.  Deal,  277. 

Price  V.  Osborn,  140. 

Pritchard  v.  Askew,  294. 

Pritcbard.  Blount  v.,  757. 

Pullen  V.  Boney,  210. 

Pullman  Car  Co.,  Nevin  v.,  353. 

Putnam.  Ploof  v.,  23. 

Q. 

Quails,  Rasor  v.,  237. 
Queen  v.  Daniel,  582. 
Quinn,  Eisenhauer  v.,  198. 

R. 

Rabin.  Hipp  v.,  901. 

Race.  Campbell  v.,  77. 

Railroad   (Erie),  Ackerson  v.,  909. 

Railroad,  Boing  v.,  899. 

Railroad,  Bowers  v..  326. 

Railroad  (L.  &  St.  L.I  v.  Clark,  366. 

Railroad  (Conn.  Riv. )  v.  Comrs..  783. 

Railroad  (Chi.  &  X.  W. ),  Craker  v., 

392. 
Railroad,  Deans  v.,  399. 
Railroad    (L.   &  B. »,   Dist.  Atty.  v., 

218. 
Railroad,  Farrell  v.,  3. 
Railroad  (Del.,  L.  &  W.),  Grosso  v., 

369. 
Railroad,  Hancock  v.,  564. 
Railroad  v.  Hardware  Co.,  473. 
Railroad,  Hobbs  v.,  537. 
Railroad  v.  .Jones,  397. 
Railroad  v.  Keary,  560. 
Railroad   (Bait.  City  P.  Ry.),  Kemp 

v.,  395. 
Railroad,  Killian  v.,  537. 
Railroad,  King  v.,  839. 
Railroad,  Kyles  v.,  517. 


Railroad 
Railroad, 
Railroad 

824. 
Railroad, 
Railroad 


V.  Lumber  Co.  268. 
Manfg.  Co.  v., 
(Third    Ave.) 


.'20. 

V. 


Mayor. 


McManus  v..  222. 
(Roch.).   Mitchell  v.. 

.  Palmer  v., 

595. 

266. 

v.  Railroad 


im. 

;!8S. 


(E. 


Y.  C.  &  H.),  Rich  v.. 


.  234. 

Rogers    Loc.     & 
804. 

D. )   v.  Waterson 


Railroad  &  Elec.  Co 
Railroad,  Pierce  v.. 
Railroad.  Porter  v.. 
Railroad   (T.  &  C. ) 

Ala.),  167. 
Railroad    (N 

321. 
Railroad,  Ridley 
Railroad     (Erie) 
Mach.  Works  v 
Railroad   (C.  H.  . 

&  Kirk,  255. 
Railroad,  Wesson  v.,  592. 
Railroad,  Williams  v.,  331,  540. 
Railroad     (Middlesex),    Wilton    v.. 

539. 
Ramsay,  Brown  v.,  544. 
Ramsey  v.  Cheek,  422. 
Ramsey,  State  v.,  20. 
Randolph,  Magruder  v.,  674. 
Ransom  v.  Lewis.  59. 
Rasor  v.  Quails,  237. 
Ratledge,  West  v.,  911. 
Rawson,  Slater  v.,  273. 
Raymond,  Kerstetter  v.,  655. 
Raymond  v.  Russell,  438. 
Reildick,  Tredwell  v.,  244. 
Reeves  v.  Davis,  90S. 
Regina  v.  Jackson,  491. 
Remington,  Benson  v.,  541. 
Rex  V.  Barker,  787. 

Cheshunt,  70. 

Leigh,  798. 

Pister,  491. 

Marsden,  796. 

Rosewell,  81. 

Island  V.  Massachusetts,  875. 
Railroad    (N.  Y.  C.  &  H.), 


V. 
V. 
V. 
V. 

V. 


Rex 
Rex 

Rex 
Rex 

Rex 

Rhode 
Rich  V. 

321. 
Richards,  Donahoe  v.,  538. 
Richardson  v.  Strong,  653. 
Richmond  v.  Irons,  772. 
Ricketts  V.  Dickens,  281. 
Riddick,  Glover  v.,  613. 
Ridley  v.  Railroad,  234. 
Riedel,  Docter  v.,  475. 
Rinehart  v.  Bills,  501. 
Ritchie,  Hancock  v.,  923. 
Robbins,  Boyle  v.,  673. 
Roberson  v.  Roch.  Box  Co.,  900. 
Roberts  v.  Preston,  60. 
Robins,  Daggett  v.,  355. 
Robinson  v.  Barbour,  681. 
Robinson  V.  Dickey,  743. 
Robinson,  Fitzgerald  v.,  426. 


TAULE  OF  CASES. 


XXV 


[the  figures  befeb  to  the  pages.] 


Roth.  Eox  Co.,  Roberson  v..  900. 
Rogers  Loc.  &  Mach.  Works  v.  Rail- 
road (Erie),  804. 
Roorback,  Dorsheimer  v.,  969. 
Rose,  Coombs  v.,  425. 
Rose,  Stevens  v.,  201. 
Roseman  v.  Roseman, 
Rosewell,  Rex  v.,  81. 
Ross,  State  v..  67. 
Royster,  Raskins  v., 
Russell,  Raymond  v. 


959. 


583. 
438. 


Sabin.  Griswold  v.,  302. 

Sackett  v.  Wilson,  965. 

Santom  v.  Ballard,  882. 

Saunders  v.  Gatling,  799. 

Saunders.  Jarman  v.,  711. 

Savage,  Tuberville  v.,  384. 

Sawyer,  Hutson  v.,  720. 

Scantling,  Titus  v.,  90. 

Schenck  v.  Griffin,  852. 

Schmidt.  Caperton  v.,  151. 

Schneider,  In  re,  446. 

Schnitzius,  Bailey  v.,  230. 

Schuer  v.  Veeder,  620. 

Scott  v.  Elliott,  598. 

Scott  v.  Life  Association,  933. 

Scott  V.  Mcintosh,  341. 

hcott  V.  McXeal,  877. 

Scott  V.  Sheiiherd,  382. 

Seawell,  Dowd  v.,  640. 

Sergeant  &  Harris  v.  Stryker,  662. 

.Setzar  v.  Butler,  624. 

Setzer  v.  Wilson,  705. 

Sexton,  Deal  v.,  960. 

Shafer  v.  Ahalt,  416. 

Sharon.  Minor  v.,  411. 

Sharon  v.  Tucker,  821. 

Sharpe  v.  Loane.  264. 

Sharpe.  Webster  v.,  925. 

Shaw  V.  Vincent,  313. 

Shaw.  Wlllianis  v.,  280. 

Shepherd,  Lade  v.,  248. 

Shejiherd.  Scott  v„  3S2. 

Shernur,  Lunn  v.,  700. 

Shields.  Alsbrook  v.,  60. 

Shirley  v.  Hagar,  951. 

Shirtoii,  Sniggf  v.,  212. 

Shooting  Club  v.  Thomas.  232. 

Shooting  Club,  Thomas  v.,  648. 

Short  v.  Stotts,  714. 

Sieber  v.  Amunson,  88. 

Slkes.  McfUes  v..  349. 

SIkes,  Simmons  v.,  612. 

Sllloway  v.  Brown,  250. 

Simmons  v.  Ga.  Iron  &  Coal  Co.,  439. 

Sininiona  v.  Hendricks,  732. 

SimmDiis  v,  Sikes,  612. 

Simon.  Townshend  v.,  685. 


Simpson,  Finley  v.,  629. 

Simpson  v.  Justice,  228. 

Simpson  v.  State,  25. 

Skinner  v.  Maxwell,  867. 

Skinner  v.  White,  418. 

Slater  v.  Baker,  412. 

Slater  v.  Rawson,  273. 

Slaughter  v.  Foust,  285. 

Small,  Palin  v.,  946. 

Smathers,  Stevens  v.,  200. 

Smith  V.  Allen,  139. 

Smith  V.  City  of  St.  Joseph,  511. 

Smith,  Conklin  v.,  667. 

Smith  V.  Foran,  578. 

Smith  V.  Fortescue,  258. 

Smith  V.  Lumber  Co.,  549. 

Smith,  :\Ieadows  v.,  668. 

Smith  V.  Spooner,  181. 

Sneeden,  Harriss  v.  846. 

Snider  v.  Newell.  531. 

Snigge  V.  Shirton,  212. 

Somerset  v.  Cookson,  608. 

So  Relle  v.  Telegraph  Co.,  403. 

Soule,  Sprague  v.,  828. 

Southerland  v.  Harper,  777. 

Southerland  v.  Jones,  203. 

Sowell  v.  Barrett,  297. 

Spooner,  Smith  v.,  181. 

Sprague  v.  Soule,  828. 

Squier  v.  Gale,  792. 

Staniland,  Parker  v.,  246. 

State,  Andress  v.,  841. 

State,  Bain  v..  162. 

State  v.  Cannady,  103. 

State  v.  Craton,  17. 

State  v.  Davis,  38. 

State,  Elder.  i)ros.  v.  Dist.  Med.  Soc, 

833. 
State,  Ferguson  v.,  920. 
State  v.  Goode,  39. 
State,  Green  v.,  930. 
State  V.  Harman,  19. 
State  V.  Herndon,  453. 
State,  Hooker  v.,  908. 
State  V.  Hough,  13. 
State  V.  Lunsford,  456. 
State  V.  Lyman,  374. 
State,  Miller  v.,  45. 


State 
State 
State 
State 
State 
802. 
State 
State 
State. 


Monroe,  407. 
Gates,  97. 
Parrott,  74. 
Pate.  96. 
Pat.  &  Ham. 

Ramsey,  20. 
Ross.  (17. 


Turiiiiike  Co., 


Simpson  v. 


io. 


State  V.  Steele.  34. 


State  v. 
State  v. 
State  v, 


Stigall.  520. 
Taylor,  42. 
Whitaker,  785. 


I 


\XV1 


TAHI.K    OF    GASliS. 


[thg  figures  refer  'ix)  the  rA(;Es.] 


State,  Whittoni  v..  OS. 

State  V.  Williams.  390. 

State,  Wilson  v.,  947. 

Stato  Treas.,  La  (1  range  v..  790. 

Steams  v.  Washl)\iiii,  (JG9. 

Steele.  State  v..  ;!4. 

Stepp.  Dougherty  v.,  236. 

Stevens  v.  Rose,  201. 

Stevens  v.  Smathers,  200. 

Stevenson  v.  Austin,  970. 

Stewart,  Bryan  v.,  457. 

Stewart  v.  Cooley,  479. 

Stewart.  Frink  v.,  851. 

Stigall,  State  v.,  520. 

Stinson.  Brooks  v.,  8. 

Stokes  V.  Fraley  256. 

Stone,  Kendall  v.,  179. 

Story  V.  Atkins,  676. 

Story  V.  Hammond,  406. 

Stotts,  Sliort  v..  714. 

Stout  v.  Wren,  389. 

Strayhorn  v.  Blalock,  928. 

Stryker,  Parsell  v.,  315. 

Stryker.  Sergeant  v.,  662. 

Strong,  Richardson  v.,  653. 

Stuard  v.  Porter,  971. 

Sugg,  Wood  v.,  729. 

Swain.  Brame  v.,  317. 

Swan,  Mayor  of  Norwich  v.,  248. 

Sweeney  v.  Baker  428. 


Talhot,  Vankirk  v.,  684. 
Tarble"s  Case,  451. 
Tasburgh  v.  Day,  178. 
Tayloe  v.  Bond,  716. 
Taylor  v.  Alexander,  483. 
Taylor,  Allen  v.,  315. 
Taylor  v.  ?iIoffatt,  460. 
Taylor,  Parker  v.,  188. 
Tavlor,  State  v.,  42. 
Taylor,  Webb  v.,  606. 
Teel,  Benjamin  v.,  721. 
Telegraph  Co.,  .Jackson  v.,  478. 
Telegraph  Co.,  So  Relle  v.,  403. 
Tenn.  Manfg.  Co.  v.  James,  546. 
Theus,  Harris  v.,  710. 
Thomas  v.  Shooting  Club.  648. 
Thomas,  Shooting  Club  v.,  232. 
Thompson  v.  Cox,  761. 
Thompson  v.  Deans,  314. 
Thompson,  Moore  v..  898. 
Thomson,  Gregory  v.,  632. 
Thorn  v.  Williams,  901. 
Thorne,  Little  v.,  718. 
Tillett  V.  Aydlett,  760. 
Tillman,  Carruthers  v.,  232. 
Titus  V.  Scantling,  90. 
Tompkins  v.  Willshear,  341. 
Toms  V.  Warson,  857. 


Towne,  .lones  v.,  71. 
Townshend  v.   Simon,  (iS."(. 
Trask,  Watson  v.,  421. 
Tredwell  v.  Reddick,  244. 
Trumbull,  Wall  v..  481. 
Tuberville  v.  Savage,  384. 
Tuckei-.  Sharon  v.,  821. 
Tufty.  Hume  v.,  623. 
Tuite  V.  Miller,  285. 
Turner,  Bralield  v.,  466. 
Turner,  Cole  v.,  391. 
Turner  v.  Lowe,  160. 
Turner  v.  Mebone,  200. 
Tyler  v.  llanimersley,  816. 


Van  Pelt  v.  McGraw,  350. 
"Vane  v.  Barnard,  209. 
Vankirk  v.  Talbot,  684. 
Vass  V.  Arrington,  764. 
Veeder,  Schuer  v.,  620. 
Vegelahn  v.  Guntner,  586. 
Vernoy,  Etheridge  v.,  271, 
Vick  V.  riournoy,  939. 
Vick  V.  Pope,  967. 
Vincent,  Shaw  v.,  313. 
Villers  v.  Monsley,  415. 


W. 


Wagner,  Gragg  v.,  275. 

Waldron,  Jenkins  v.,  487. 

Wales  V.  Whitney,  446. 

Walker,  Winslow  v.,  7. 

Wall  V.  Trumbull,  481. 

Wallace,  INlcCombs  v.,  169. 

Wallace,  Weaver  v.,  700. 

Ward,  Jarman  v.,  850. 

Ward,  Lassiter  v.,  690. 

Ward  V.  Ward.  965. 

Ware  v.  Xisbet,  838. 

Warfield,  Ex  parte,  375. 

Warrick,  Fullerton  v.,  386. 

Warson.  Toms  v.,  857. 

Washburn,  Miller  v.,  865. 

Washburn  v.  Payne,  895. 

Washburn,  Stearns  v.,  669. 

Waterson  &  Kirk.  Railroad  (C.  B.  & 

D.)   v.,  255. 
Watkins,  Ex  parte,  444. 
Watson  V.  Trask,  421. 
Watts,  Herman  v.,  742. 
Weaver  v.  Wallace,  700. 
Webb  V.  Chambres,  657. 
Webb  v.  Taylor,  606. 
Weber,  Bishop  v.,  407. 
Webster  v.  Sharpe,  925. 
Wehrman  v.  Conklin,  182. 
Wellington  v.  Downer  Ker.  Oil  Co., 

409. 


T.\BI^  OF  CASES. 


XXVll 


[THE  FIGURES  KEFEB  TO  THE  PAGES.] 


Welsh,  Wilt  v..  333. 
Wesson  v.  Railroad,  592. 
West,  Doe  v.,  140. 
West  V.  Ratledge,  911. 
Wharton  v.  Moore.  176. 
Wheatley,  Kennedy  v.,  242. 
Wheeler  v.  Cobb,  932. 
Wheeler.  Wise  v.,  143. 
Whissenhunt  v.  Jones,  147. 
Whitcher,  Xewell  v.,  385. 
White,  Ashby  v.,  485. 
■\\Tiite  Water  Canal  Co.,  Comrs. 

112. 
White  V.  Cooper,  148. 
White  V.  Eley,  328. 
White  V.  Fort,  113. 
White  V.  Griffin,  619. 
White  V.  Morris,  957. 
White,  Skinner  v.,  418. 
Whitaker,  State  v.,  785. 
Whitehead  v.  Hale,  868. 
Whitney.  Wales  v.,  446. 
Whittem  v.  State.  98. 
Wibright  v.  Wise,  915. 
Wilcox,  Barkley  v.,  83. 
Wilcox,  Xeal  v..  620. 
Williams  v.  Bankhead.  974. 
Williams,  Boyce  v.,  609. 
Williams,  Heath  v.,  82. 
Williams,  Marsh  v.,  856. 
Williams  v.  Railroad.  331,  540. 


v., 


Williams  v.  Shaw,  280. 

Williams,  State  v..  390. 

Williams,  Thorn  v.,  901. 

Willshear,  Tompkins  v..  341. 

Wilson  V.  Brumfield,  313. 

Wilson  V.  Hughes,  605. 

Wilson  V.  Moore,  926. 

Wilson  V.  ]\Iiirphey,  346. 

Wilson.  Sackett  v.,  965. 

Wilson.  Setzar  v.,  705. 

Wilson  V.  State,  947. 

Wilt  V.  Welsh,  333. 

Wilton  V.  Railroad  (Middlesex),  539. 

Winslow  V.  Walker,  7. 

Winter,  Goodman  v.,  744. 

Wise  V.  ^lieeler,  143. 

Wise,  Wibright  v.,  915. 

Wiseman  v.  Witherow,  898. 

Witherow,  Wiseman  v.,  898. 

Wokott,  Diggs  v.,  815. 

Womble  v.  Leach,  617. 

Wood  V.  Graves.  470. 

Wood  V.  Sugg,  729. 

Wooten,  Hancock  v.,  767. 

Worth  V.  Cox,  646. 

Wren,  Stout  v..  389. 

Wyatt,  Chalk  v.,  261. 

Y. 

Young  V.  Construction  Co.,  567. 


IXTRODUCTION 


CHAPTER   1. 

REMEDIES    WITHOUT    JUDICIAL    PROCEEDINGS— Sec.    1.  Reme- 
KiEs  isY  OpePvATIux  OF  Lxv>\—^a)  Remitter.     If  the  true  owner  of  the  fee 
be  dissiezed  and  barred  of  his  right  of  entry  and  thereafter  the  posses- 
sion, or  right  of  possession,  devolves  upon  him  by  operation  of  law,  un- 
der some  defective   title,   this   possession   or   right  of  possession   under 
the  defective  title  is,  by  mere  operation  of  law,  merged,  so  to  speak,  into 
liis  former  good  title— thus  restoring  his  impaired  title  to  its  pristine 
perfection.     This  is  brought  about  by  the  spontaneous  and  instantaneous 
operation  of  law  without  the  participation  or  consent,  even,  of  the  owner. 
Mutatis  mutandis,  if  one  be  in  the  wrongful  possession  of  land  and  the 
true  title  to   the   freehold   devolve  upon   him  by  operation  of   law,   his 
wrongful  possession  is  merged,  as  it  were,  into  his  freehold  title.     These 
automatic    workings    of    the    law    are    called    REMirriai.     Remitter    only 
operates  when  the  title  or  possession  or  right  of  possession  devolves  by 
operation   of  law,  and  never  when   such   rights  or  circumstances  arise 
1  y  act  of  the  partv.     (1).     Somewhat  analogous  to  remitter  is  the  case  of 
tlie  true  owner  of  a  chattel  whose  right  to  recover  the  possession  thereof 
by  legal  process  has  become  barred  by  the  statute  of  limitations.     Should 
he,  even  by  his  own  act,  gain  possession  of  such  chattel,  such  possession 
merges  into  and  again  perfects  his  title.     (2) .     (h)  Retainer.  Lien,  etc.    As 
no  one  can  sue  himself,  an  executor  or  administrator  would  have  been  at 
a  great  disadvantage  under  the  old  law,  which  gave  priority  to  those  cred- 
itors of  a  decedent  who  first  brought  an  action  against  his  personal  rep- 
resentative.     To  obviate  such  an  injustice  the  law  gave  to  claims  of  the  per- 
sonal representative,  against  his  decedent,  priority  over  claims  of  other 
rreditors  of  the  same  class.   This  priority  is  called  the  right  of  Retainer,  be- 
cause the  personal   representative  may   retain  the  amount  due  to  him- 
self before  paying  anything  to  the  other  creditors  whose  claims  are  of 
no  higher  dignity  than  his  own.     (2)     Stoppage  in  Tkansiti.     The  ven- 
dor of  a  chattel  has  a  right  to  retain  possession  thereof  until  the  price 
is  paid— he   has  a  vendor's  lien   for  the  price.     This   is  a  common-law 
lien  which  exists  only  so  long  as  the  vendor  retains  possession  of  the 
chattel— parting  with"  the  possession  discharges  the  lien.     As  a  delivery 
to  a  common  carrier  is,  ordinarily,  a  delivery  to  the  consignee,  it  follows 
that  such  a  delivery  by  the  vendor  is  a  delivery  to  the  vendee  and  an 
extinguislinient  of  the  "vendor's  lien.     But,  by  the  common  law.  if  such 
vendor,   after   delivery    to   the   carrier,   discovers   that   the   vendee   is   //(- 
solvent,  he  may  forbid  the  carrier's  ilelivering  the   cbaltel   to  the  yen 
dee  and  may  retake  it  into  his  own  possession.     This  is  called  the  right 
of  STOppAf.K,  I.N  Tkansitt-  whlch   is.   in  effect,  a  rigiit  to  revoke  the  de- 
livery to  the  vendee  and  thereby  to  revive  the  vendor's  lien  conferred 
by  the  law.      (3).     In   a  nnml)er  of  instances  the  coininon   law   and   the 
statutes  of  the  several  states  confer  Mi)on  a  creditor  who  has  possession 
of  the  chattels  of  his  debtor,  the  right  to  retain  su(  h   possession   \intil 
his  claim  is  paid.     In  surh  cases  the  creditor  is  pivnn  a  Lien  upon  such 
chattels.     This  lien  is  waived  and  lost  by  voluntarily  parting  with  such 
possession.     (7t.     f<)    Rrmovnl   of   Trmlc    Fixtures.     A    tenant    may    re- 
move trade  fixtures  provided  he  do  so  during  his  term.     (S). 

Sec.  2.  Rk.medies  hy  the  Act  oe  the  Pahtv  In.hki:i».— ^ay  Self-tlefensr. 
One  may  so  far  "take  the  law  info  his  own  hands"  as  to  defend  person. 


X\.\  INl'KODI   (■■|'lo\. 

sitouso.  cliiltlron.  stM-vanls  ami  otluM-  il«>i'iMi(lents,  niiisti'i-.  dwiiliiii;,  lands, 
ami  ihattols.  Tiiis  is  tlio  law  ol"  Si:i, 1-111:1  knsk.  Tliis  law  juslilios  an 
act.  not  oxcessive  in  its  force,  done  in  tlie  lionost  and  reasonable  belief 
of  immediate  ilanger.  If  under  such  circumstances,  one  injure  the  as- 
sailant, no  liabilit.v.  civil  or  criminal,  follows.  The  right  exists  under 
all  circumstances  (except  where  the  assailant  is  ai-ting  in  the  lawful 
exercise  of  his  rights,  see  note  at  L"?  and  cise  at  17);  but  nice  (luestions 
arise  as  to  the  degree  of  force  that  may  be  lawfully  exerted  in  the  exer- 
cise of  such  right.  The  degree  of  force  varies  with  the  nature  of  the 
act  resisted  and  the  circumstances  attending  it.  If  one  be  assaulted  in 
his  ihrcUitifj  he  is  not  required  to  retreat,  but  may  use  such  me.ans  as 
are  necessary  to  repel  tlie  assailant  from  his  house  or  to  i)revent  a 
forcible  entering  into  the  house,  even  to  the  taking  of  life.  But  life 
must  not  be  taken  if  the  assailant  can  be  otherwise  arrested  or  re- 
pelled. If  the  attack  be  in  itself  felonious  and  of  a  violent  character. 
the  defense  of  self,  family,  and  property  may  be  as  comi)lete  as  is  neces- 
sary. Such  felonies  as  murder,  rape,  burglary,  robbery,  and  the  like, 
may  be  repelled  by  force,  and  no  retreat  is  required,  but,  per  contra,  the 
assailant  may  be  pursued  until  freedom  from  all  danger  is  secured — 
Icilling  the  assailant  in  so  doing  is  justified.  If  the  attack  be  not 
felonious  in  design,  the  person  attacked  must  do  all  that  is  reasonably 
within  his  power  to  avoid  the  necessity  of  extreme  resistance — by  re- 
treating to  the  wall  if  to  retreat  he  safe.  In  Wisconsin  the  common- 
law  rule  as  to  retreating  to  the  wall — the  "flight  rule'— is  no  longer  the 
law.  In  all  cases  of  violent  assault,  if  the  circumstances  be  such  as  to 
naturally  induce  the  belief  that  the  assailant  ijilended  to  do.  and  had 
the  power  to  do.  great  bodily  harm,  or  to  kill,  the  person  assaulted,  if 
not  himself  legally  at  fault,  may  kill  his  adversary  if  necessary.  Self- 
defense  is  no  excuse  for  acts  done  in  resisting  and  openly  defying  an 
officer  in  the  lawful  exercise  of  his  duties.  (9-15).  One  may  be  the 
aggressor — may  commit  an  assault — in  the  defense  of  spouse,  child,  de- 
pendents, etc..  but  an  assault  in  the  first  instance  to  defend  the  posses- 
sion of  chattels,  etc.,  is  not  justifiable,  for  in  such  cases  the  doctrine 
of  molliter  manus  applies.  (15).  A  person  is  not  required  to  stand 
quietly  and  suffer  himself  or  his  horse  to  be  bitten  by  a  dog,  nor  to  give 
the  dog  "a  fair  fight."  The  dog  may  be  killed  if  there  be  reasonable 
ground  to  suppose  that  such  a  course  is  necessary  to  prevent  its  biting 
the  man  or  his  horse.  But  to  pursue  and  kill  the  dog  after  all  danger 
is  over,  is  not  lawful.     (16). 

A  husband  may  'protect  his  honor."  That  is.  he  may  use  such  force 
as  is  necessary  to  take  his  wife  from  one  in  whose  company  she  is,  if 
there  be  reasonable  ground  to  apprehend  that  his  dishonor  will  be  the 
result  of  his  failure  to  exert  such  right.  If  the  husband  find  one  in  the 
act  of  adultery  with  his  wife  and  kill  him  on  the  spot,  it  is  only  man- 
slaughter; and  so  it  is  though  "the  situation  be  not  the  very  act,  but 
severely  approximate  thereto."  (19).  Considerable  latitude  is  alloweil 
one  in  using  force  in  resisting  an  unlawful  restraint  of  his  liberty. 
(20).  Urgent  necessity  justifies  many  entries  upon  land  and  interfer- 
ences with  personal  property  that  would,  but  for  such  excuse,  have  been 
trespasses.  This  doctrine  applies  with  special  force  when  human  life  is 
in  danger.  If  the  owner  of  premises  unduly  resists  the  exercise  of  the 
rights  or  privileges  growing  out  of  this  doctrine  and  damages  result 
therefrom,  he  will  be  liable  therefor.  He  may  not  lawfully  carry  to 
such  extremes  his  right  to  defend  his  j^remises  from  intruders  (2.3  and 
see  77).  The  defense  of  premises  from  simple  trespasses  will  not 
justify  the  infliction  of  serious  bodily  harm  by  means  of  spring  guns, 
etc.  (25);  or  ferocious  dogs  (31).  But  one  may  guard  his  premises 
with  dogs  who  are  let  loose  only  at  night  and  at  such  part  of  the  prem- 
ises as  no  one  may  be  reasonably  expected  to  enter  at  night  for  any 
lawful  purpose  (33).  The  proprietor  of  a  hotel  may  refuse  admission 
to  his  premises  to  all  persons  other  than  those  entitled  to  enter  as 
IMoper  guests  and  those  having  legitimate  business  with  a  guest.  Per- 
sons simply  desirous  to  solicit  the  patronage  of  the  guests  may  be  ex- 


INTRODUCTION.  XXXI 

eluded,  and  discrimination  may  be  lawfully  made  in  favor  of  some  per- 
sons soliciting  such   patronage.     Persons   intruding  upon   such   premises 
may  be  forcibly  excluded  and  put  off  of  the  premises  should  they  refuse 
to  leave  after  being  requested  to  do  so— after  the  molliter  manus  rule 
has  proven  ineffectual,  but  no  more  force  must  be  used  than  is  neces- 
sary.    (34).     As    the    public    authorities    have    only    an    easement    in    a 
public  road,  the  fee  remaining  in  the  abutting  owners,  and  as  the  gen- 
eral public  have  only  the  right  to  pass  along  the  road,  such  an  owner 
may  lawfully  use  force  to  drive  off  an  armed  and  boisterous  trespasser 
who  is  using  indecent  language  in  the  public  road  but  in  front  of  his 
dwelling.     The   rule   of  molliter   manus   does   not  apply  to   one  who   is 
acting   in   belligerent   defiance.     (38).     A  man's  house   is   his   castle   to 
which  he  may,  with  force,  refuse  admittance  to  all,  and  from  which  he 
may    exclude   all    who    refuse   to   leave.     But   officers    charged    with   the 
execution  of  criminal  process  do  not  come  within  this  rule,  though  those 
charged  with  the  execution  of  civil  process  do.     Whether  a  permit  or 
license   to   enter    for   the   purpose   of   siezing   chattels   leased,    or   mort- 
gaged, or  conditionally  sold,  can  be  revoked  and  the  entry  of  such  li- 
censee forcibly   resisted,    and   whether  after   entry   he  may   be  forcibly 
evicted,   are   questions   on    which    the    courts   differ.     (38).     There   is   a 
force  ill  laic,  as  where  any  entry  is  made  upon  the  premises  of  another 
without   permission,   and   a  force  in   fact,   as   in   burglary,   or   breaking 
open  a  door  or  gate.     If  there  be  only  force  in  law.  the  trespasser  must 
be  requested  to  leave  before  hands  can  be  laid  on  him  to  evict  him,  but 
if  there  be  force  in  fact  it  is  lawful  to  oppose  force  to  force  and  no  re- 
quest to  leave  need  be  made  before  resorting  to  force.     So  an  attempt 
by  force  in  fact  to  take  chattels  from  one's  possession  may  be  resisted 
with    force    without    any    previous    request    that    the    aggressor    desist. 
(41).     If  a  trespasser  or  unwelcome  visitor  invade  one's  dwelling  with- 
out force,  he  must  be  requested   to  leave   before   resorting  to   force   to 
eject  him.     If  he  does  not  accede  to  such  request,  the  owner  should  lay 
hands  gently  upon  him,  and  if  he  still  refuses,  such  force  may  be  used 
as  is  necessary  to  evict  him — care  being  taken  to  use  no  more   force 
than  is  necessary.     If  the  intruder  defiantly  stands  his  ground    (armed 
with  a  deadly  weapon?)   the  doctrine  of  molliter  manus  does  not  ai)iily, 
but  force  may  be  resorted  to  at  once.     (42).     At  common  law  one  was 
permitted   to  capture  and   confine  domestic  animals  trespassing  on   his 
premises.     This  was  called  the  right  of  distress  damage  feasant.     Some- 
what similar  remedies  are  allowed  by  statute  in  practically  all  of  the 
states.     (43).     It    seems    that    all    may    kill    a   trespassing    dog    that    is 
known  to  be  an  egg-sucking  and  sheep-killing  dog — for  such  an  animal 
is  a  nuisance  and  may  be  destroyed  as  such.     The  civil  liability  of  one 
who  kills  another's  dog,  as  a  nuisance,  does  not  necessarily  depend  upon 
whether  the  dog  was  in  the  very  act  of  killing  sheep,  or  the  like,  but 
whether  tlie  killing  of  the  dog  was  a  fair  act  of  prudence — reasonal)le 
regard  being  had  to  the  relative  values  of  the  dog  and  of  the  property  to 
protect  which  the  killing  was  done.      (45).     Tresjiassing  horses,  cattle, 
etc.,  may  be  driven  from  one's  premises  and.  if  this  be  properly  done,  no 
liability  results  from  such  driving:   but  if  savage  and  powerful  dogs  be 
set  upon   them   and   they   be   injured   in   consecpience,  the  owner  may   re- 
cover  damages   because   of   the   excessive   force   used,     'i'lic    fail    tiiat    no 
injury  to  tlie  aninuil  was  intended,  is  no  defense,   for  even  a  lunatic  is 
liable  for  his  trespass  against  the  person  or  i)roperty  of  another.     (48). 
A    valuable    domestic    animal— stub    :is    a    liigh-bred    lioar — may    not    be 
killfd  ff>r  past  acts  of  trcsi)ass  damage  feasant;   because  that  is  to  take 
vengeance,  and  "vengeance  is  mine,  sailh  the  Lord;"  nor  can  sucli  animal 
be   killed   to  prevent  anticipated   mischief,   for   that  may   never   happen; 
nor   is  the   Killing  justifiable  because   the   animal    is   difficult   to   cai)ture 
when    such   !itteni|)t    is   made   while   he   is   in    the   act    of   doing   damage. 
(10).     (h)    Krcnjitinn  of  property.     One  may   defend   his   i)ossession   and 
title    to    cliatli-ls.      If    A    goes    upon    I3's    1;up1    aiul    uiidertaUes    to    carry 
away  Bs  chattels,  B  may  interfere  to  stop  it  and  use  sufficient  force  for 
that  purpose.     But  he  must  not  assault  A   unless  resisted,  and  he  must 


-WXU  IXTKiHMC'I'lON. 

not  use  uiiiuMossaiy  viohMU-o.      ('>()).     If  A  lie  lawfully   in  possession  of 
IVs  chattels— as  if  A  distrain  R's  cattle  damage  feasant — A  may  forcibly 
resist  Hs  attempt  to  carry  off  such  cattle.     If  one  be  in  the  actual  ad- 
\ (>rse  i.i>ssessii)n  ot  the  chattels  of  another,  the  true  owner  cannot  law- 
fully  retake  such  chattels  by  force.     His  attempt  sn  to  do  may  be   re- 
sisted with  force.     (52).     If  A  and  B  be  together,  and  A  obtain  posses- 
^ion  of  H's  money  or  chattels  by  ftmr  <ir  fiainL  B  m:iy  regain  his  momen- 
tarily   interrupted   possession   by   the  use  of   reasonable   force,   short  of 
wounding  or  the  employment  of  a  dangerous  weapon.     It  has  been  held 
that  B  would  have  the  same  right  even  after  a  considerable  time  had 
elapsed  between  the  wrongful  taking  and  the  recai)tion.     (:">3).     If  A's 
chattels  be  stolen  or  otherwise  illegally  taken  from  him,  he  may  jiursue 
and  retake  them  wherever  they  be  found  unless  they  be  deposited  upon 
the  lands  of  one  not  a  participant  in  the  taking — and  even  in  that  case 
he  may  enter  such  premises  and  retake  his  goods  in  case  of  theft  and 
hot  pursuit.     So,  from  necessity,  one  whose  cattle  escape  upon  the  land 
of  another  may  follow  and  drive  them  back,  unless  the  escape  of  the 
cattle  occurred  under  such  circumstances  as  to  be  itself  a  trespass.     In 
nuiny  instances  one  has  an  implied  license  to  enter  upon  another's  prem- 
ises  to   take   chattels — e.    g.    permission    to    keep    chattels   on    another's 
premises  involves  a  license  to  enter  for  their  removal;   so  of  a  sale  of 
chattels  which  are  at  the  time  on  the  seller's  land;   but  no  such  license 
arises  if  the  seller  is  to  deliver  the  goods  elsewhere.     The  mere  fact  that 
A's  chattels  are  on  B's  land,  does  not  justify  A's  entry  to  take  them. 
The  bailor  has  no  right  to  enter  the  bailee's  premises  to  take  the  thing 
bailed,   without   the  bailee's   permission;    and  so   it   is   with   mortgaged 
(battels  left  on  the  premises  and  in  the  possession  of  the  mortgagor,  in 
the  absence  of  some  special   provision  to  that  effect   in   the  mortgage. 
It  has  been  held  that  a  mortgage  of  chattels  which  are  on  the  premises 
of  the  mortgagor  when  the  mortgage  is  executed,  is  a  sale  of  chattels 
then  being  on  the  premises  of  the  seller,  which  sale  carries  with  it  the 
implied  license  to  enter  the  premises  and  take  the  chattels;    but  that 
such  license  would  not  extend  to  other  premises  to  which  such  chattels 
might  be  subsequently  removed.     (55).     (c)  Entry.     An  entry  that  will 
revest  a  divested  estate  must  be  an  open  entry  under  claim  of  right,  so 
as  to  give  notoriety  to  the  matter.     (59).     An  entry  effected  by  unlaw- 
ful   force    and    breach    of    the    peace    is    effectual    as    far    as    the    title 
is    concerned,    and    a    plea    of    liberum    tenementum    is    good    against 
any  civil   action  'for   such   invasion — fieri    non   debet   sed   factum   valet. 
(60).     An  entry  on  part  of  a  tract  of  land  is  effectual  as  to  all  of  it 
except  such  portion  as  may  be  in  the  actual   possession  of  an  adverse 
claimant.     If  the  true  owner  enter  peaceably  he  cannot  be  treated  as  a 
trespasser;    nor    can    one    in    wrongful    possession    maintain    an    action 
against  him  as  such.     If  the  true  owner  enter  upon  land  held  adversely 
the  legal  possession  is  in  him  notwithstanding  the  presence  of  the  ad- 
verse claimant,   for  where  two  are  on  land  the  law   adjudges  the  pos- 
session to  be  in  him  who  has  the  title.     (60).     According  to  some  au- 
thorities, a  tenant  at  sufferance  may  be  forcibly  evicted  by  the  land- 
lord;   and,  in  such  event,  if  no  more  force  than  necessary  be  used,  no 
rhv7  action  will  lie  against  such  landlord,  though  he  may  be  liable  to 
hiflicf'iient  for  a  forcible  entry    (62):    but  others  hold   that   such   a  rul- 
ing,   while   doubtless   correct   as    the   law    stood    in    the    semi-barbarous 
period  of  feudal  tenures,  has  no  place  in  the  law  of  this  civilized  period, 
and   that   one   so   forcibly   evicted   is   entitled    to    nominal    damages,    at 
least,  even  against  the  true  owner,  for  the  trespass;    to  actual  damage ■•■ 
for  injury  done  to  his  person  or  goods;    and  to  exemplary  damages  if 
the  trespass  be  committed  in  a  wanton  and  reckless  manner.     (66,  and 
compare  67).     Mere  occupants  of  premises — such  as  domestic  servants, 
college  professors,  nurses,  etc.,  as  distinguished  from  tenants  who  have 
an  estate  in  the  premises — may  be  evicted  by  force,  care  being  taken  not 
to  commit  a  breach  of  the  peace  in  so  doing.     (70).     The  owner  of  a 
pew  in  a  church  may  so  far  exercise  his  prerogatives — as  a  member  of 
the  church  militant — as  to  forcibly  evict,  in  person  or  by  the  aid  of  the 


INTRODUCTION.  XXXI 11 

mercenary  forces  of  the  police,  another  worshipper  who  has  taken  a  seat 
in   such    pew    and    refuses   to   vacate   when    requested    so    to    do.     (71). 
(d)  Abatement  of  Xuisance.     Although  the  usual  course  is  to  redress  a 
public  nuisance  by  Indictment,  yet  every  one  may  remove  such  nuisance 
if  personally  incommoded  thereby.     (73).     A  bridge  across  a  navigable 
stream,  unless  sanctioned  by  the  government  in  the  legitimate  exercise 
of  its  authority,  is  such  a  nuisance  as  may  be  removed  by  any  person 
who  is  impeded  thereby  in  his  rights  of  navigation.     The  same  is  true 
as  to  obstructions  placed  in  public  roads.     (73-74).     But  the  unlawful 
sale  of  liquor  in  a  store,  while  it  may  be  a  public  nuisance,  is  not  to  be 
abated  by  the  zealous  opponents  of  such  traffic — because  they  are  not  so 
directly  "injured  thereby  as  to  come  within  the  rule  of  law  which  per- 
mits individuals  to  abate  public  nuisances.     An  individual  may  physi- 
cally abate  a  private  nuisance,  injurious  to  himself,  when  he  could  also 
bring  an  action:  and  he  may  remove  a  public  nuisance  when  it  obstructs 
his  individual  right:   but  strangers,  who  are  not  obstructed  in  their  in- 
dividual rights,  have  no  such  power  as  to  public  nuisances.     This  is  a 
distinction    sometimes    overlooked    in    judicial    opinions.     The    right    to 
abate    public    nuisances    is    never    entrusted    to    individuals    by    way    of 
vindicating  the  public  right,  but  solely  for  the  relief  of  the  person  whose 
right   is  obstructed   by   such   nuisance.     (75).     Somewhat   allied   to   the 
subject  of  abating  a  public  nuisance,  is  the  right  which  the  law  gives  a 
traveller   to   go   across    private   lands   when    the   public    road   is   so    ob- 
structed as  to  make  such  a  course  a  necessity.     Such  right  is  not  to  be 
exercised   for   convenience   merely,   nor   w'hen    other   public   ways   could 
have  been  selected  and  the  obstruction  avoided.     It  is  confined  to  cases 
of    inevitable   necessity    or    unavoidable    accident,    arising    from    sudden 
and  recent  causes.   (77,  and  see  23).     The  congregating  of  barking  and 
pugnacious  dogs  near  one's  premises,  is  such  a  nuisance  as  he  may  abate 
by  killing  the  dogs,  if  such  a  course  be  reasonable  or  necessary  under 
the  circumstances.     (80).     One  may  abate  a  private  nuisance  as  stated 
supra,  and  for  the  purpose  of  so  doing  he  may  enter  the  premises  of 
the  one  who  maintains  such  nuisance  after  failing  to  obtain  relief  by 
other   means.     (81-82).     So   one   may   cut   off — (//;    to    his    line,    but    no 
further — the  limbs  and  roots  of  trees  which  project  into  and  above  his 
soil.     (82).     It  is  said  to  be  the  rule  of  the  common  laiv  that  a  lower 
proprietor  may  so  raise  the  level  of  his  land  as  to  pond  back  rain  water 
upon  the  upper  proprietor,  while  the  civil  law  forces  the  lower  proprietor 
to  submit  to  the  flow  of  such  water  according  to  the  natural  shape  of 
the  earth.     Some  courts  adopt  the  one  law  and  some  the  other.     (S3). 
fe)  Distress  for  Rfut.     This  was  a  species  of  self-help  afforded  landlords 
by   the  common    law.     It    permitted   them   to   seize   the   chattels   of   the 
tenant  and  hold  them  until  the  rent  was  paid — a  proceeding  in  which  the 
landlord   is  a  judge   in    his  own   case,   contrary  to   the  solid  maxim   of 
common   law,  says   Lord   Coke;    and   a  power  which   is   tyrannical   and 
may   be  made   an   engine  of   oppression   almost    irreconcilable   with   the 
spirit  of  American  laws  and  institutions,  says  .ludge  Stevens.     Not  all 
chattels  could  be  distrained  for  rent — for  fixtures,  growing  crops,  perish- 
able articles  such  as  milk,  sheaves  and  shocks  of  grain,  goods  held  by 
the  tenant  as  bailee  to  be  worked  on,  beasts  of  the  plow,  implements  of 
husbandry,  and  instruments  of  a  mans  trade  were  exemiit.     (87). 

Skc.  3.  By  A(.iu;i:.mi:.nt  <tr  Pahtiks.  (a)  Accord  and  Satisfaction.  An 
accord  is  a  satisfaction  agreed  upon  between  the  party  Injviring  and  the 
party  injured,  which,  irlnn  pci fonvrd.  is  a  bar  to  all  actions  ui)on  that 
account.  It  must  bf?  advantageous  to  the  creditor  and  he  must  receive 
an  actual  benefit  from  it;  it  must  be  accepted  as  a  satisfaction;  and  it 
must  be  followed  by  the  performance  of  everything  which  the  party 
agreed  to  do.  An  iiccord  not  followed  by  a  satisfaction  is  no  bar.  (89). 
(h)  Arbitration  and  Award.  This  is  a  method  of  settling  disputes  out  of 
court  by  subinilting  the  matter  in  controversy  to  persons  selected  by 
the  contenfliiig  parties  or  under  their  sanction  and  agreeing  to  abide  by 
their  judgment,  which  is  called  an  award.  This  remedy  was  of  common- 
law  origin.     Originally  persons,  thctigh  no  legal  proceedings  were  pend- 


XWIV  INTKom'tTlON. 

iiiK  botwooii  tlieni.  were  perniitt(>(l  to  sul)niit  any  matter  of  dispute  to 
arbitrators  and  tlie  award  was  ciiioice:!  l)y  action  on  tlic  award  or  on 
tile  bond  given  for  its  iierlorinance.  It"  an  action  was  pcndins  between 
tlie  parties  and  tliey  agreed  to  snbinit  the  controversy  to  arbitrators,  tlie 
award  was  made  a  rule  of  court  and  its  performance  enforced  by  at- 
taclunent.  Hy  !•  &  10  Wm.  :'.  an  award,  made  in  a  controversy  al)ont 
wiiidi  no  action  was  jiending,  could  also  lie  made  a  rule  of  court;  but 
tliis  statute  did  not  abolisli  the  other  remedy  of  action  ui^on  the  bond  to 
abide  by  the  award — it  simply  gave  an  additional  remedy.  (90).  The 
courts  became  jealous  of  the  arbitrators,  and  riiled  that  an  agreement  to 
refer  all  matters  of  dispute  to  arbit  i-ators.  wliere  no  action  was  pending, 
was  void;  liecause  it  tended  to  cust  the  jurisdiction  of  the  courts.  The 
oonclusion  finally  reached  is:  An  agreement  to  arbitrate,  which  has  the 
effect  to  i)revent  the  suffering  party  from  coming  into  a  court — or,  in 
other  words,  which  ousts  the  courts  of  their  jurisdiction — cannot  be  sup- 
ported: but  an  agreement  that  no  action  shall  be  brought  until  arbitra- 
toih  shall  have  settled  the  amount  of  ilamages,  or  the  time  of  paying  it. 
or  any  matters  of  that  kind  which  do  not  go  to  the  root  of  the  action, 
are  valid.  (91-93).  There  is  a  marked  distinction  between  a  refer- 
ence under  the  Code  practice  and  a  submission  to  arbitration.  A  refer- 
ence is  simply  a  method  of  trying  a  pending  case  before  a  refei-ee  in- 
stead of  before  the  court  and  a  jury.  The  referee  must  report  the  testi- 
mony, find  the  facts  and  the  law,  and  report  his  conclusions  to  the 
court  for  approval  or  disapproval:  but  arbitrators  need  not  find  the 
facts  nor  need  they  even  follow  the  law,  for  they  are  a  law  unto  them- 
selves.    (94). 


CHAPTER   II. 

REMEDIES  BY  JUDICIAL  PROCEEDINGS.— Skc.  1.  CiUMiNAf.  .\nd 
Civil  Pkockkdi.vgs  Distixc;uisiii;i).  Actions  are  either  civil  or  criminal. 
If  the  proceeding  is  by  indictment  it  is  criminal;  when  by  action  or 
other  mode,  it  is  civil.  All  criminal  proceedings  are  prosecuted  in  the 
name  of  the  state:  but  all  proceedings  prosecuted  in  the  name  of  the 
state  are  not  criminal;  for  the  state  may  i)rosecute  a  civil  action  or 
authorize  individuals  to  prosecute  such  actions  in  its  name — "State  ex 
rel."  A  bastardy  proceeding  is  a  mere  police  regulation  intended  to 
secure  the  public  from  the  expense  of  rearing  a  child  and,  hence,  is  not 
a  criminal  action  or  proceeding.  (96).  A  peace  warrant  is  a  preven- 
tive remedy  to  keep  down  an  impending  and  threatened  breach  of  the 
peace,  etc.  It  is  per  se  a  criminal  proceeding.  (97).  Proceedings  to 
punish  one  for  contempt  of  court  are  criminal  in  their  nature  and  gov- 
erned by  the  principles  applicable  to  criminal  proceedings.  When  a 
court  commits  a  person  for  contempt  the  adjudication  is  a  conviction 
and  the  consequent  commitment  is  an  execution.  Contempt  of  court  is 
a  specific  criminal  offense.  Its  punishment  is  sometimes  by  indictment 
and  sometimes  by  summary  proceedings.  Some  courts  draw  a  distinc- 
tion between  proceedings  to  punish  for  criminal  contempt  and  pro- 
ceedings as  for  contempt  to  enforce  civil  remedies;  but  this  distinction 
is  rather  for  the  regulation  of  the  practice  than  for  changing  the  nature 
of  the  proceeding  to  punish  for  contempt.  (98-102).  One  cannot  be 
forced  to  give  evidence  against  himself  in  such  proceedings.  (101). 
The  court  may  submit  a  disputed  fact  to  a  jury  in  proceedings  for  con- 
tempt, but  the  respondent  has  no  right  to  a  jury  trial.  (102).  When  a 
criminal  prosecution  is  gotten  up  upon  the  initiative  of  an  individual 
and  such  jirosecution  is  found  by  the  court  to  be  frivolous  and  malici- 
ous, it  has  long  been  the  practice  to  mark  the  instigator  as  prosecutor 
and  to  tax  him  with  the  costs.  Such  summary  proceedings  are  crimi- 
nal in  their  nature,  yet,  like  contempt  proceedings,  they  violate  no  funda- 
mental right  of  the  individual  who  is  made  to  suffer  thereby.  (103). 
An  action  to  collect  a  penalty — whether  it  be  at  the  suit  of  the  state  or 
qui  tam — is  as  much  a  civil  action  as  an  action  for  money  had  and  re- 


INTRODUCTION.  XXXV 

ceived.  Penal  actions  have  never  been  put  under  the  head  of  criminal 
law.  (106-108).  The  state's  coiitisel  cannot  enter  a  nol.  pros,  to  a  qui 
tarn  action,  except  for  its  part  of  the  penalty;  but  the  legislature  may 
repeal  the  statute  imposing  the  penalty  and  thereby  destroy  the  in- 
former's right  to  recover.  However,  after  judgment  has  been  rendered, 
the  legislature  cannot,  by  a  repeal  of  the  statute  or  otherwise,  take  away 
from  the  informer  his  share  of  the  i)enalty — for  the  judgment  is  a  vested 
right   of  property.      (110). 

Skc.  2.  WiiEx  Both  Crimixal  axd  Civil  Actioxs  Lie.  Mergek.  Un- 
der the  old  law,  in  gross  and  atrocious  crimes  the  private  wrong  was 
swallowed  up  in  the  public  wrong — that  is.  all  civil  remedy  was  sus- 
pended until  the  indictment  for  the  crime  had  been  disposed  of.  But  in 
crimes  of  an  inferior  nature  the  private  injury  could  be  redressed  by 
civil  action  regardless  of  the  criminal  prosecution.  (111).  In  the  case 
of  a  public  nuisance  any  person  who  sustained  special  damage  could  sue 
for  the  same,  and  an  indictment  would  lie  also.  In  cases  in  which  the 
civil  remedy  was  suspended  until  the  criminal  indictment  was  disposed 
of,  the  civil  action  of  the  person  injured  could  be  maintained  as  soon  as 
the  criminal  prosecution  was  disposed  of — whether  by  conviction  or  ac- 
quittal. The  refusal  of  a  grand  jury  to  find  a  true  bill  was  a  sufficient 
disposition  of  the  criminal  prosecution  within  this  rule.     (113). 

Sec.  3.  Cii.\X(iE  ov  Rk.mkdy  isy  Statite.  A  state  may  regulate  at  pleas- 
ure the  mode  of  proceeding  in  its  courts,  and  this  it  may  do  in  actions 
ex  contractu  as  well  as  ex  delicto;  but  it  cannot  affect  pre-existing  con- 
tracts by  so  changing  the  remedy  as  to  destroy  all  remedy  cr  to  burden 
the  proceedings  with  new  conditions  and  restrictions  to  such  an  extent 
as  to  make  the  remedy  haidly  worth  pursuing.  Such  radical  changes  in 
the  remedy  violate  the  constitutional  provision  forbidding  a  state  to  im- 
pair the  obligation  of  contracts.     (115). 


CHAPTER  III. 

REMEDIES  CONCERNLNG  REAL  ESTATE.— Sec.  1.  Writs  of  Ex- 
TKv,  AssizK  .\Mi  RicnT.  and  Sic.  2.  E.iectmext  Prior  to  the  Code  Prac- 
tice. Under  the  very  ancient  English  law,  the  remedies  for  the  recov- 
ery of  a  freehold  interest  in  land  were:  Writ  of  Entry.  Writ  of  Assize, 
and  Writ  of  Right.  The  writs  of  Entry  and  Assize  were  possessory  ac 
tions.  in  which  only  the  right  of  possession  was  adjudicated:  but  by  the 
Wiit  of  Right  the  title  was  determined.  At  this  ])eri()d  of  the  law  the 
only  remedy  of  lessee  for  years  in  case  he  was  wrongfully  ousted  by  the 
lessor,  was  by  writ  of  covenant  on  the  breach  of  contract,  whereby  he 
was  enabled  to  recover  his  term  as  well  as  damages;  but  if  dispossessed 
by  a  stranger,  his  remedy  was  by  a  writ  of  ejectione  firmae.  which  was 
a  mere  personal  action  of  trespass,  whereby  lie  was  enabled  to  recover 
damages  only  and  not  the  possession  of  the  land.  Later  on,  the  lessee 
was  given  a  more  coniidete  remedv  by  the  writ  of  nnare  ejecit  infra 
terminuni,  whereby  he  was  enabled  to  recover  both  the  possession  of  the 
land  :.nd  damages  from  any  person  whomsoever  for  ousting  him.  These 
anci^Mit  remedies  were  all  suijplanlf'd  by  the  action  of  Ejectment,  which 
"is  an  ingenious  fiction  for  tin-  trial  of  titles  to  the  iKissession  of  land. 
In  form,  it  is  a  trick  between  two  to  dispossess  a  third  by  a  sham  suit 
.'•nd  jsidgmenf.  Tiie  artifice  would  be  criminal  unless  the  court  con- 
verted it  into  a  fair  trial  with  the  proper  |)arty."  In  this  action  the 
plaintiff  wa.s  .loliii  Doe  upon  the  demise  of  the  real  idaiiitiff.  and  tiu'  de- 
fend'int  was  Ui<  hard  Hoc  'I'lic  action  was  cominciiccd  l)y  liliiig  a  dec- 
laration setting  forth  that  the  real  i)Iaintiff  had  demised  to  John  Doe 
certain  preniisf-s  for  a  term  of  years;  that  by  virtue  of  (his  demise  .John 
Doe  had  entered  and  was  j)ossessed  of  the  demispd  premises:  and  that 
Richard  Roe  with  force  and  arms  had  ejecti-d  .lohn  Doe  trom  such  itrem- 
Ises.  Upon  filing  this  derhnat irui.  the  re.il  iilaiiitiff  was  refpiiied  to 
serve  a  notice  upon  the  person  in  possession  of  the  jiremises  to  the  ef- 


xxxvi  ixTijnnrcTittx. 

feet  that  such  declaration  had  been  filed  and  that  ho  must  appear  in  the 
artion  and  defend  his  riglits.  otherwise  judKUient  would  be  entered 
against  Kiihard  Roe  and  bo,  the  i)orson  in  possession,  would  be  turne;! 
out  of  jiossossion.  Tiio  real  plaintiff  was  rorpiired  to  give  a  bond,  pay- 
able to  the  olerk  of  the  court,  oonditionod  lor  tlie  prosecution  of  the  a"- 
tion  with  effect,  or  otherwise  to  pay  all  costs  and  damages  awarded  on 
failure  so  to  do.  Should  the  party  in  possession  desire  to  defend  the 
action  he  was  required  to  confess  the  lease,  entry,  and  ouster  set  fortli 
in  tlio  dociaration.  and  to  plead  not  gviilty  to  the  charge  of  his  bavin;; 
forcibly  evicted  John  Doe.  This  was  called  the  Vonseut  h'uU',  because 
it  was  entered  upon  the  records  of  the  court  that  these  things  had  been 
consented  to  by  the  real  plaintiff  and  the  real  defendant  in  the  action. 
The  only  process  in  the  action  was  the  notice  above  mentioned  which 
was  served  by  the  sheriff  together  with  a  copy  of  the  declaration,  .\fter 
entering  into  the  consent  rule,  the  real  defendant  entered  a  formal  plea 
of  not  guilty  and  put  himself  upon  the  country.  But,  before  being  al- 
lowed to  plead,  the  real  dpfendant  was  required  to  give  a  bond,  payable 
to  John  Doe.  conditioned  that  he  should  answer  the  action  and  abide  by 
the  judgment  which  might  be  rendered  therein.  If  the  plaintiff  had  a 
verdict,  judgment  was  rendered  against  the  real  defendant  tliat  John 
Doe  recover  against  him  the  unexpired  term  in  the  lands  described  in 
the  declaration,  together  with  costs  and  damages.  Upon  plaintiff's  mo- 
tion it  was  also  ordered  that  a  writ  of  possession  issue.  If  the  verdict 
was  in  favor  of  the  defendant,  judgment  was  rendered  in  his  favor  for 
costs  against  the  real  plaintiff  and  the  sureties  on  his  prosecution  bond. 
If  judgment  were  rendered  for  the  plaintiff,  as  above,  he  brought  a  new 
action  against  the  real  defendant  for  the  rents  and  profits  during  his 
occupancy  of  the  land.  Originally  the  rents  and  profits  were  recovered 
in  the  action  of  ejectment,  but,  in  order  that  that  action  might  not  be 
hampered  with  this  inquiry — which  would  be  labor  lost  should  the  plain- 
tiff fail  to  obtain  a  verdict — the  practice  grew  up  to  enter  a  verdict  for 
merely  nominal  damages;  leaving  the  plaintiff  to  institute  a  subsequent 
action  for  the  rents  and  profits.  This  subsequent  action  was  called 
Trespass  for  Mesne  Profits.     (119-132). 

In  the  action  of  ejectment  the  demise  to  John  Doe  could  not  be  laid 
in  a  dead  man,  because  the  lessor  of  the  plaintiff  was  the  real  plaintiff 
in  the  action  and  a  dead  man  cannot  sue;  and  for  the  further  reason  that 
the  lessor  of  the  plaintiff  was  required  not  only  to  have  title  at  the  date 
of  the  demise,  but  title  and  right  of  entry  at  the  commencement  of  the 
suit.  These  a  dead  person  cannot  have,  for  at  the  death  of  a  man  the 
title  passes  out  of  him  into  his  heirs  or  devisees,  or,  in  case  of  a  chattel 
interest,  into  his  personal  representatives.  (132).  The  action  was 
commenced  when  the  notice,  w-ith  a  copy  of  the  declaration,  was  served, 
and  not  when  the  declaration  was  filed.  If  the  person  served  with  the 
notice  failed  to  appear  and  defeni  the  action,  the  real  plaintiff  was  re- 
quired to  show  that  such  person  was  in  possession  of  the  land  in  order 
to  recover  any  judgment  in  the  action;  but  if  the  person  notified  de- 
fen'led  the  action,  or  if  any  other  person  applied  to  make  himself  a  de- 
fendant and  defended  the  action,  the  plaintiff  was  not  required  to  prove- 
that  the  defendant  was  in  possession.  (133).  Ordinarily  the  real  de- 
fendant is  required  to  admit  Lease,  Entry,  and  Ouster,  and  this  was 
called  the  General  Consent  Rule;  but  as  one  cotenant  cannot  recover 
against  another,  in  ejectment,  unless  an  actual  ouster  be  proven,  in  such 
cases  the  defendant  applied  to  the  court,  upon  affidavit,  for  leave  to 
enter  into  a  Special  Rule — by  which  he  was  permitted  to  admit  only 
the  lease  and  entry,  but  not  the  ouster.  However,  if  he  denied  that  the 
real  plaintiff  had  any  title,  he  was  required  to  enter  into  the  general 
crmsent  rule.  (13S).  Before  the  Code  practice  was  instituted,  the 
plaintiff  could  not  recover  upon  an  equitable  title,  neither  could  the  de- 
fendant set  up  an  equitable  title  as  a  defense.  (139).  The  plaintiff  had 
to  recover  upon  the  strength  of  his  own  title,  and  not  upon  the  weakness 
of  his  adversary's  He  was  always  required  to  prove  a  clear  legal  right 
of  possession. — whether  such  right  was  based  upon  a  freehold  title,  or  a 


INTRUDUCTIOX.  XXXVll 

fhattel  interest,  or  upon  a  mere  right  of  occupancy.  It  was  immaterial 
how  minute  his  interest,  provided  it  were  a  legal  interest  carrying  with  it 
the  right  of  possesson.  If  the  defendant  could  show  that  the  legal  right  of 
possession  was  in  some  third  person,  the  plaintiff  was  defeated  in  the 
action.  But  where  both  plaintiff  and  defendant  claimed  title  under  the 
san^e  pcrsou.  neither  was  allowed  to  deny  that  such  person  had  title, 
unless  he  could  connect  himself  with  a  title  superior  to  such  common 
source  of  title.  (140-141).  A  landlord  whose  tenant  was  sued  in  eject- 
ment had  a  right  to  be  made  a  defendant,  either  in  place  of  the  tenant 
or  jointly  with  him:  save  in  this  instance  no  third  person  could  become  a 
defendant  except  hy  consent  of  the  plaintiff.  (143).  Under  the  old  law, 
a  landlord  let  in  to  defend  could  make  no  defense  which  his  tenant  could 
not  have  made:  but  a  defendant  let  in  hy  consent  was  not  restricted  to 
the  defenses  of  the  party  actually  in  possession.  Under  the  Code  prac- 
tice, a  landlord  is  no  longer  restricted  to  the  defenses  to  which  his  ten- 
ant is  confined.     (145). 

In  the  action  of  trespass  for  mesne  profits  the  plaintiff  recovered  up 
to  the  time  of  trial,  and  not  simply  to  the  time  the  action  was  com- 
menced; and  so  it  is  in  actions  to  recover  real  property  under  the  Code 
practice  (but  as  to  this,  see  note  at  page  176,  which  says  that  the  old 
practice  was  otherwise).  (146-147).  As  the  old  action  of  ejectment 
was  strictly  a  possessory  action,  the  judgment  was  not  an  estoppel  in 
respect  to  the  title  and,  consequently,  the  parties  could  continue  to  bring 
ejectment  against  each  other  ad  infinitum  by  simply  changing  the  date 
of  the  alleged  demise.  Thus,  the  party  in  possession,  though  success- 
ful in  every  instance,  might  be  harassed  and  vexed,  if  not  ruined,  by  a 
litigation  constantly  renewed.  To  put  an  end  to  such  litigation  courts 
cf  equity  interfered  and  closed  the  controversy  by  injunction.     (148). 

Sec.  3.  Ejectment  U.xder  the  Code  Practice.  As  has  been  said,  under 
the  old  practice  the  right  of  property  in  land  could  only  be  determined 
by  the  writ  of  right,  for  the  right  of  possession  alone  was  determined 
by  the  writs  of  entry  and  assize.  A  judgment  in  the  writs  of  entry 
and  assize  was  conclusive  and  an  estoppel  in  any  subsequent  action  un- 
der these  writs:  but  the  action  of  ejectment,  which  supplanted  these  an- 
cient remedies — called  real  actions — worked  no  estoppel  as  to  future  ac- 
tions of  ejectment.  The  action  of  ejectment  has  in  its  turn  been  rele- 
gated to  the  historical  department  of  the  law,  l)eing  superseded  by  a 
simple  action  to  recover  real  property  under  the  Code  practice.  To  speak 
of  this  action  under  the  Code  as  an  action  of  ejectment,  is  simply  to  use 
a  figure  of  speech.  The  Code  action  combines  all  that  w^as  of  any  prac- 
tical good  in  all  of  its  predecessors — for  it  can  be  used  as  a  mere  pos- 
sessory action  or  as  an  action  to  try  the  title  to  the  freehold,  at  the  elec- 
tion of  the  plaintiff.  In  whatever  way  it  is  used  it  works  a  complete  es- 
toppel quoad  the  title  alleged  in  the  complaint.  If  the  plaintiff  allege  a 
mere  right  of  possession,  the  estoppel  extends  only  to  such  possession: 
but  if  he  allege  title  in  fee,  or  other  freehold  estate,  the  estoppel  is 
complete  as  to  such  estate.  (1.5]-].")7).  While  the  Code  is  very  liberal 
in  iiermitting  all  persons  to  become  i)arties  who  are  interested  in  the 
subject  matter  of  an  action,  still  it  will  not  permit  one  who  claims  title 
paramount  and  adverse  to  both  plaintiff  and  defendant,  to  come  in  as  a 
party  to  an  action  to  recover  real  estate,  unless  by  consent  of  the  par- 
ties. A  landlord  may  come  in  as  a  matter  of  right  and  defend  an  ac- 
tion broufilit  ngainst  his  tenant.  (l.')8).  The  tenant  is  not  permitted 
to  disi)nte  tlie  title  of  his  landlord.  Under  the  old  ])ractice  a  tenant 
with  an  equitable  title  in  himself  could  assert  such  tit!'!  by  a  suit  in 
equity,  though  he  could  not  set  it  up  as  a  defense  at  law.  Under  the 
Code  practhf  he  m.iy  set  up  su<h  defense  in  bis  answor  without  resort- 
ing to  the  circumlocution  of  a  seiiarato  action.  This  right  of  the  tenant 
to  set  up  an  equitable  defense  is  confined  within  conservat've  limits. 
(160-161).  Althoiigh  neither  the  United  States  nor  a  state  can  be  sued 
without  its  i)crmission — excpj)t  in  so  far  ns  tlio  lltli  amendment  applies 
to  a  state — still,  this  doctrine  has  no  apjjlication  to  nfliccrs  and  agents 
of  either  government  who  are  in  possession  of  and   hold   real  estate  by 

Rtmedles — d. 


xxxviii  IN  TuoDrciioN. 

virtue  of  their  otruial  positions.  An  action  to  recover  such  real  estate 
may.  therefore,  he  niaintaineil  against  s>uh  otlicials.  (11)2).  One  co- 
tenant  may  sue  alone  and  recover  the  whole  of  the  common  property 
from  one  claiming  adversely  to  his  cotenants  as  well  as  himseir,  thougli 
he  prove  title  to  only  an  undivided  interest.  This  he  is  allowed  to 
do  to  protect  the  rights  of  his  cotenants  against  trespassers  and  dis- 
seisors. If  the  defendant  show  title  to  an  interest  in  the  premises. 
and  be  not  a  mere  trespasser  or  disseisor,  one  cotenant  who  sues 
alone  will  recover  his  undivided  share;  and  this  he  may  do  though 
he  claim  the  entire  estate  Instead  of  his  proper  undivided  share.  One 
rotenant  can  not  maintain  an  action  against  another  cotenant  for  the 
possession,  or  title  and  possession,  of  their  undivided  land,  unless  an 
actual  ouster  be  proven  or  admitted  by  the  pleadings.  ( ICiii-lOfi).  The 
action  of  ejectment  would  not  lie  to  recover  a  mere  easement:  but  it 
would  lie  to  recover  the  roadbed  of  a  railroad,  because  the  right  of  way 
of  a  railroad  stands  in  a  different  category  from  that  of  an  ordinary 
easement.  Whether  these  principles  govern  actions  to  recover  real 
property  under  the  Code  is  a  question  not  entirely  free  from  difficulty. 
(166-169.  See  11  L.  R.  A.  (N.  S.)  129).  By  statute  a  sunimary  and  in- 
expensive remedy  for  ejecting  tenants  by  sufferance  is  afforded.  This 
remedy  is  usually  termed  a  Summary  Proceeding  in  Ejectment,  of  which 
justices'  courts,  or  other  inferior  courts,  are  given  jurisdiction.  This 
remedy  is  confined  to  the  eviction  of  those  who  are  strictly  tenants  by  a 
demise,  and  does  not  extend  to  such  tenants  as  mortgagors  in  posses- 
sion, vendors  and  vendees  in  contracts  for  the  sale  and  purchase  of  lanl. 
and  the  like.  (169-172).  In  those  states  in  which  the  mortgagee  still 
has  the  legal  title,  he  may  maintain  ejectment,  or  its  successor  under 
the  Code,  against  the  mortgagor.  (172).  An  equitable  title  is  suffi- 
cient in  the  prosecution  or  defense  of  an  action  to  recover  real  estate. 
(173-174).  Damages  and  rents  and  profits  up  to  the  time  of  trial,  and 
not  merely  up  to  the  commencement  of  the  action,  are  recovered  in  the 
same  action  that  is  brought  to  recover  the  land,  and  not  by  a  separate 
action  as  under  the  former  practice.     (17.o). 

Sec.  4.  Betterments. — At  common  law  one  who  put  improvements 
upon  another's  land  was  the  absolute  loser  of  the  money  and  labor  thus 
expended,  under  the  maxim  cujus  est  solum,  etc.  This  was  so  notwith- 
standing the  utmost  good  faith  of  him  who  thus  improved  another's  land 
thinking,  and  having  every  reason  so  to  think,  that  he  was  expending 
his  money  and  labor  upon  his  own  land.  In  the  course  of  time  the  courts 
of  equity  afforded  some  relief  in  such  cases,  though  the  relief  thus  given 
was  far  from  being  complete.  Now,  the  matter  is  fairly  adjusted  by 
statute.     Such  improvements  are  called  Betterments.     (176). 

Sec.  5.  Slander  of  Title. — To  make  disparaging  remarks  about  an- 
other's title  to  real  estate,  is  denominated  Slander  of  Title,  by  a  figure 
of  speech  in  which  the  title  to  land  is  personified  and  made  subject  to 
many  of  the  rules  applicable  to  personal  slander.  An  action  lies  to  re- 
cover damages  for  such  slander:  but  to  maintain  such  an  action  it  is 
essential  to  establish:  (1)  The  falsity  of  the  words  published  or  spoken: 
('2)  the  malicious  intent  with  which  they  were  uttered;  and  (3)  that 
actual  pecuniary  loss  or  injury  was  suffered  therefrom — which  loss  or 
injury  must  be  the  natural  and  legal  consequence  of  the  words  uttered. 
These  things  must  be  alleged  in  the  complaint  and  proved  at  the  trial. 
(178-182). 

Sec.  6.  Removal  of  Cloud  vi'on  Title.  a.\d  Qiietixg  Title. — With  the 
exception  of  the  action  for  slander  of  title,  the  common  law  afforded  no 
remedy  to  one  in  possession  of  lan.-l.  should  another  claim  a  title  to, 
interest  in,  or  charge  upon.  it.  Wliile  he  might  recover  damages  for  the 
slander  of  his  title  if  he  could  prove  an  actual  loss  in  consequence,  such 
action  could  not  be  maintained  against  one  who  set  up  a  bona  fide  claim, 
because  of  the  absence  of  malice.  Equity  affords  a  remedy  by  permitting 
the  person  in  possession  to  file  a  bill  to  quiet  the  title  or  to  remove  a 
cloud  upon  the  title.  To  maintain  such  a  suit,  a  complainant  must 
show:    (1)   That  he  is  in  possession  of  the  property;    (2)    that  he  has 


INTRODUCTION.  XXXIX 

established  his  title  by  successive  judgments  in  his  favor  in  repeated 
actions  of  ejectment  between  himself  and  the  defendant.  Upon  these 
facts  appearing,  the  court  will  grant  a  perpetual  injunction  to  quiet  the 
possession  of  the  plaintiff  against  any  further  litigation  from  the  same 
source.  This  practice  has  proved  so  beneficial  that  in  many  of  the  states 
statutes  have  been  passed  affording  a  like  remedy  in  all  cases  where  the 
party  in  possession,  and  sometimes  when  he  is  out  of  possession,  seeks 
to  clear  up  his  title  and  remove  any  cloud  caused  by  an  outstanding 
deed  or  lien  which  he  claims  to  be  invalid,  and  which  is  a  menace  to  his 
peaceable  occupation  of  the  land,  or  an  obstacle  to  its  sale.  The  statu- 
tory remedy  is  generally  broader  and,  consequently,  more  effectual  than 
that  afforded  by  courts  of  equity.  Care  must  be  taken,  in  seeking  such 
relief,  that  the  plaintiff  do  not  allege  such  a  state  of  facts  as  to  show 
that  his  fears  with  regard  to  his  title  are  utterly  groundless  and  idle, 
for  the  law  has  no  remedy  for  hysterics.     (182-186). 

Sec.  7.  Coxfi-.sion  ok  Boixd.vrik.s  axd  Pos.sessiox. — When  the  boundary 
line  between  two  adjacent  land  owners  was  once  plain,  but  afterwards 
became  confused  by  reason  of  the  misconduct  of  one  of  the  parties,  or 
when  some  relation  between  the  parties  makes  it  the  duty  of  one  of 
them  to  preserve  the  landmarks  and  they  have  become  confused  by  the 
neglect  or  fraud  of  the  one  charged  with  that  duty,  a  remedy  is  af- 
forded in  equity  which  is  called  Confusion  of  Boundaries.  This  relief 
consists  in  declaring  the  right  of  the  complainant  and  in  directing  a 
commission  to  go  upon  the  land  and  mark  the  boundary  line.  (186), 
In  North  Carolina,  for  nearly  a  century  and  a  half  there  have  existed 
statutes,  called  Processioning  Acts,  by  which  it  has  been  attempted  to 
afford  a  cheap  and  summary  remedy  for  establishing  boundaries.  After 
running  the  gauntlet  of  adverse  judicial  construction  and  legislative 
amendment,  this  remedy  has  at  last  developed  into  a  special  proceeding 
of  practical  utility — it  "is  now,  and  will  remain,  a  cheap  and  speedy 
method  of  settling  a  boundary,  where  only  the  boundary  is  in  question, 
and  should  be  encouraged."  (188).  [But  land  owners  should  remem- 
ber that  "the  cheapest  is  not  always  the  best"  and  that  "haste  makes 
waste."  I 

Sf.c.  8.  Remedies  Relating  to  TiriNCS  Severed  Froji  the  Realty.— 
When  the  true  owner  of  land  recovers  possession  thereof  from  one  in 
adverse  possession  under  a  claim  of  right,  all  tniscvered  buildings,  fix- 
tures, fructus  naturales  and  industriales,  pass  to  him  with  the  land; 
but  not  so  with  things  which  have  been  severed,  though  they  be  still  on 
the  premises.  Neither  can  such  true  owner  maintain  trover  or  replevin 
against  such  adver.se  occupant  (or  a  trespasser  or  third  person,  says 
Pearson.  C.  .1.),  or  his  vendee,  for  such  severed  jiroperty.  His  remedy 
is  an  action  for  damages  and  for  mesne  profits.  (190).  But  for  things 
wrongfully  severed  by  one  rightfully  in  possession — as  by  a  particular 
tenant — the  reversioner  or  remainderman  may  maintain  trover  or 
replevin;  that  is.  he  may  recover  damages  for  the  conversion  of  the 
thing  severed,  or  may  recover  the  thing  itself,  even  though  it  be  con- 
verted into  something  else — as  timber  into  shingles:  iirovided  the  change 
be  not  too  radical — as  timber  into  a  boat  or  house.  (192).  A  mort- 
Rjgee  cannot  maintain  trover  against  the  vendee  of  land  upon  which 
the  mortgagor  has  built  a  house  partly  out  of  material  fiom  a  hoiise  re- 
moved from  the  mortgaged  premises.  The  mortgagor  alone  is  liable 
for  the  tortious  removal  of  the  house  from  the  mortgaged  premises. 
(lf>.5).  But  if  a  liouse  be  removed  by  one  in  possession  of  land  under  a 
cmitract  of  piinhnsc  and  such  house  be  permanently  fixed  to  the  free- 
hold of  a  third  person — one  not  in  privity  with  the  vendor  of  the  land — 
tilt-  vendor  may  recover  the  house  in  replevin.  (197).  If  a  house,  de- 
tached from  land  and  in  process  of  removal,  be  tortiously  taken  by  one 
who  thereafter  fixes  It  j)ermanently  ui)on  land  which  he  subsequently 
sells  to  a  bona  fide  p>irchaser  without  notice,  the  former  owner  of  the 
house  may  recover  it  in  replevin.  To  constitute  a  chattel  an  immovable 
fixture,  it  must  be  attached  to  the  land  by  tlu'  ou-ury  of  smli  (hnttd. 
(19S).     That   a  linuae  may  be  recovered  in   replevin  nfter  being  ))erman 


Xl  IXI'lMIHCIliiX. 

ontJy  fixed  to  otlirr  laiKls,  n\:iy  bo  a  doubt t'ul  question.  That  it  may  bp 
so  recovered  after  removal  to  other  l.ind  but  before  briiio  pcnuaninlU/ 
attavhol  thereto,  seems  to  admit  of  no  doubt.  (200).  'I'rover  will  lie 
for  a  house  torn  down  and  removed  from  niortgased  land  and  rebuilt 
upon  the  land  of  a  third  person  who  hujts  irith  notice  of  the  facts.  The 
mortgagor's  recovery  in  such  action  will  be  the  value  of  the  removed 
house.  (200).  [It  "may  not  be  impropei-  to  say  that  the  law  Korverniim 
the  remedies  for  the  wrongful  severance  of  things  pertaining  to  realty 
is  not  in  a  perfectly  satisfactory  condition.  Each  of  the  various  courts 
and  writers  that  have  undertaken  to  determine  or  elucidate  the  subject 
feels  contident  of  right  and  acoiracy — upon  the  same  principle  that 
every  crow  tliinks  its  offspring  the  whitest.  The  cases  selected  seem 
to  the  editors  to  be  a  fair  and  practical  presentation  of  the  law— and 
further  these  deponents  say  not.  | 

Skc.  9.  W.vsTK. — Originally,  the  only  remedy  for  waste  was  at  law: 
against  the  holder  of  legal  particular  estates  at  the  suit  of  the  rever- 
sioner or  remainderman  in  fee  or  in  tail;  and  only  single  damages  could 
be  recovered  except  in  the  case  of  guardian  in  chivalry  who  forfeited 
his  guardianship.  The  remedy  was  extended  against  all  particular  ten- 
ants by  the  statutes  of  Marlbridge  and  Gloucester.  The  statute  of  Glou- 
cester permitted  the  recovery  of  treble  damages  and  also  the  place  act- 
ually wasted.  By  statute  Westminster  2  a  remedy  for  waste  was  given 
to  joint  tenants  and  tenants  in  common  against  their  cotenants.  Of 
course  no  injunction  issued  from  a  court  of  law:  but,  while  an  action  to 
recover  land  was  pending,  the  law  courts  issued  a  writ  of  estrepement 
pendente  placito  commanding  the  sheriff  to  put  a  stop  to  all  waste  dur- 
ing the  pendency  of  the  action;  and,  after  judgment  was  rendered  in 
any  real  action  and  before  possession  was  delivered  by  the  sheriff,  a 
writ  of  estrepement  was  issued  to  the  sheriff  commanding  him  to  stop 
any  waste  prior  to  the  execution  of  the  writ  of  possession.  Originally 
the  remedy  at  law  for  waste  was  the  old  writ  of  waste;  but  that  fell 
Into  disuse  and  was  finally  abolished  by  3  and  4  William  IV.  This  old 
writ  was  used  to  a  limited  extent  In  this  country,  but  was  superseded 
by  an  action  on  the  case  in  the  nature  of  waste,  for  the  recovery  of 
damages  only,  and  by  the  equitable  remedy  of  injunction.  The  action 
on  the  case  could  be  maintained  not  only  by  a  remainderman  or  rever- 
sioner in  fee  or  in  tail,  but  also  by  remaindermen  and  reversioners  for 
life  or  years,  and  would  lie  not  only  against  a  particular  tenant  but 
against  a  stranger  who  committed  depredations.  The  remedy  in  equity 
was,  and  is,  an  injunction  to  stay  future  waste  and  a  mandatory  injunc- 
tion not  only  to  stay  future  waste,  but  to  force  the  defendant  to  repair 
injuries  theretofore  committed,  where  practicable  to  do  so.  Equity  goes 
still  further  and,  under  the  doctrine  of  Equitable  Waste,  will  forbid  a 
tenant  who  holds  without  impeachment  of  waste,  or  one  holding  a  de- 
feasible fee,  to  commit  acts  which  constitute  "a  fraud  upon  the  power  to 
commit  waste" — acts  of  trifling  profit  to  the  tenant,  but  of  irrejiarable 
damage  to  the  estate  in  expectancy.  The  holder  of  a  contingent  ex- 
pectant estate  cannot  recover  damages  for  waste  already  committed,  but 
he  may  have  protection  by  injunction.  Cotenants  are  afforded  appro- 
priate remedies  both  at  law  and  in  equity  against  waste.  As  equity 
usually  affords  complete  relief  in  a  matter  before  it,  it  will  decree  an 
account  for  waste  done,  when  it  orders  an  injunction  to  stay  waste. 
(201-209). 

Sec.  10.  FoRCinr.E  Entry  axd  Dktainp:r. — As  has  been  stated  in  Sec.  2 
(e),  whether  or  not  the  landlord  may  forcibly  enter  the  premises  and 
eject  a  tenant  at  sufferance  therefrom,  is  a  question  on  which  the  courts 
do  not  agree.  By  statute,  in  England  and  in  some  of  the  states,  a  sum- 
mary and  extraordinary  remedy  is  afforded  one  whose  land  Is  taken  or 
detained  from  him  by  force  and  violence.  To  constitute  a  forcible  en- 
try or  detainer,  a  mere  technical  trespass,  which  constitutes  force  in 
law,  is  not  sufficient:  there  must  be  actual  violence  or  some  demonstra- 
tion calculated  to  create  alarm,  if  not  terror,  in  ordinary  minds.  It  is 
not  necessary  that  there  should  be  any  assault  or  battery.     (210).     For- 


IXTKUULCTION.  xli 

cible  Detainer  is  a  separate  and  distinct  offense  from  Forcible  Entry 
and  Detainer.  The  distinction  consists  in  tlie  laicfulness  or  unJauful- 
ness  of  the  entry.  Where  the  entry  is  unlaicful,  whether  forcible  or 
not,  and  the  subsequent  holding  is  forcible  and  tortious,  the  offense 
committed  is  Forcible  Entry  and  Detainer.  But  where  the  original 
entry  is  latcfiil  and  the  subsequent  holding  is  forcible  and  tortious,  then 
the  offense  is  Forcible  Detainer.  (210).  It  has  been  held  that  a  ten- 
ant at  sufferance  who  forcibly  resists  the  entry  of  his  landlord  com- 
mits a  -forcible  detainment."     (212-213). 

Sec.  11.  Nuisance. — The  doctrine  of  nuisance  is  as  old  as  the  com- 
mon law  itself.  There  are  two  kinds  of  nuisances:  (1)  Common  nui- 
sance, which  affects  all  the  people  and  is  au  oft"ense  against  the  state 
punishable  by  indictment:  and  for  which  one  who  suffers  damage  pe- 
culiar in  kind  or  degree  beyond  what  is  common  to  himself  and  others, 
may  recover  damages;  (2)  Private  nuisance,  which  affects  one  or  more 
as  private  individuals,  and  not  as  a  part  of  the  public,  and  is  a  ground 
for  a  civil  action  only.  Generally  a  nuisance  affects  real  property,  and 
the  law  with  regard  thereto  seems  to  have  been  originally  confined  to 
such  property;  but  modern  law  takes  a  much  wider  range.  The  old 
common  law  remedies  for  the  individual  were  two:  (1)  Quod  permittat 
prosternere,  which  was  a  writ  commanding  the  defendant  to  permit  the 
plaintiff  to  abate  the  nuisance,  or  show  cause  against  the  same.  The 
plaintiff  could  have  judgment  to  abate  the  nuisance,  and  for  damages 
against  the  defendant;  (2)  An  Assize  of  Nuisance,  in  which  the  sheriff 
was  commanded  to  summon  a  jury  to  view  the  premises,  and,  if  they 
found  for  the  plaintiff,  to  have  the  nuisance  abated,  and  for  damages. 
These  ancient  remedies  were  never  in  use  in  this  country.  Both  under 
the  old  and  modern  law  the  private  individual  injured  by  a  private 
nuisance  or  specially  injured  by  a  public  nuisance,  has,  to  a  limited  ex- 
tent, the  right  to  take  the  law  into  his  own  hands  and  abate  the  nui- 
sance (as  has  been  explained  in  ch.  1,  §  2),  as  well  as  the  additional 
remedy  of  resorting  to  the  courts.  The  modern  remedies  in  the  courts 
are,  an  action  at  law  for  damages,  and  a  suit  in  equity  to  forbid,  abate, 
or  restrain  the  nuisance.  The  action  at  law  for  damages  is  only  a  half- 
way remedy  sometimes  leading  to  endless  litigation;  so  that  the  remedy 
in  equity  by  injunction — plain  or  mandatory — "is  sometimes  the  only 
one  effective  or  complete,  forl)idding,  preventing,  stopping,  abating  the 
nuisance,  exercising  such  restraint,  and  no  more,  as  the  exigencies  of 
the  particular  case  demand."  The  courts  of  equity  do  not  administer 
relief  in  such  cases  as  a  matter  of  strict  right,  but  of  orderly  and  rea- 
sonable discretion  according  to  the  right  of  the  case  before  them,  and, 
hence,  will  refuse  to  interfere,  but  send  the  party  to  a  court  of  law, 
where  the  iiayraent  of  damages  would  be  the  fairer  course  to  all  con- 
cerned.    (214). 

The  authority  of  the  attorney-general,  or  other  law  officer  empowered 
to  represent  tli(^  government,  to  file  an  Information  in  E(inity  to  restrain 
and  prevent  a  public  nuisance,  seems  to  be  well  establisluMl  in  England. 
It  may  be  done  by  him  ex  oflicio.  or  upon  the  relation  of  interested  per- 
sons. A  similar  jtractice  obtains  in  some,  if  not  all,  of  the  states. 
(218-219).  A  i)rivate  individual  may  recover  damages  at  law  for  a  pub- 
lic nuisance  from  which  lie  suffers  a  sprcin]  ilainagc.  (220).  The  law 
Ijrovides  an  a<l<'quate  rcnicdy  for  tlic  wrong  doni'  tlic  general  |)ui)lic  by  a 
nuisance — which  remedy  is  by  indictment  or  iiijuiictinn  at  the  suit  of 
the  attorney  general — and  thereby  ])revents  a  multiplicity  of  vexatious 
private  actions.  Hence  it  Is,  that  a  i)rivate  individual  cannot  maintain 
an  action  for  a  public  uuisancp  unless  be  show  a  sp<'(ial  damage  to 
himself.  Hut  he  is  not  rctpilred  to  i)iove  an  Injury  from  wliich  he  is  the 
Hole,  or  even  a  jirculiar.  sufferer.  While  the  damage  must  be  special. 
as  contradistinguished  from  a  grievance  <ommon  to  the  whole  public,  it 
may  nevertlifless  be  suffered  by  a  number  of  peojile.  or  by  oven  a  class 
of  people,  and  give  to  each  a  right  of  redress.  The  anioniil  of  tlamages 
recoverable  by  them  may  vary  according  to  the  extent  of  injury  suf- 
fered by  each;  but  each  one  of  them  may  maintain  an  art  ion  i)y  showing 


\ln  iN'i'UDnrcnoN. 

the  special  injury  suffered  by  him — for  one  who  falls  into  a  ditch  dug 
in  a  public  road  is  not  to  be  prevented  from  recoverinp;  damages,  from 
him  who  dug  the  ditch,  by  the  fact  that  many  others  also  fell  into  the 
same  ditch.  (2L'0).  It  has  also  been  said  tliat  in  order  for  a  i)rivate 
citizen  to  recover  for  a  public  nuisance,  he  must  establish  sonic  danuige 
or  Injury  special  aul  peculiar  to  himself  and  differing  in  kind  and  de- 
gree from  that  suffered  in  common  with  the  general  public.  (1222). 
IThere  is  diversity  of  opinion  quoad  ■"ijeculiar."  |  I<]quity  will  afford 
relief  by  injunction  in  cases  of  private  nuisiiiice.  but  this  relief  is  al- 
ways exercised  sparingly  and  with  great  caution — especially  where  it  is 
sought  to  stop,  or  seriously  cripple,  a  public  enterprise  because  of  its 
being  more  or  less  of  a  nuisance  to  one  or  more  individuals.  (228).  A 
mandatory  injunction  will  be  issued  to  force  the  removal  of  a  nuisance; 
but  a  prcliminari/  nuxndatory  injunction  will  be  ordered  only  in  cases 
of  extreme  uevessiti/.  (230).  Obeilience  to  a  mandatory  injunction  will 
be  enforced  by  proceedings  in  contempt.  (232).  Successive  actions 
may  be  brought  for  damages,  from  time  to  time,  until  the  defendant  is 
compelled  to  abate  the  nuisance — every  continuance  of  the  nuisance 
after  a  preceding  action  being  considered  a  new  injury-  The  first  ac- 
tion is  regarded  as  a  trial  of  the  question  whether  or  not  the  thing 
complained  of  be  a  nuisance.  Therefore  it  is  proper  to  allow  only  com- 
pensatory damages  in  the  first  action,  while  exem|)lary  damages  are  al- 
lowed in  the  subsequent  actions;  which  damages  should  be  so  exemplary 
as  to  compel  an  abatement  of  the  nuisance.  (232).  Ordinarily  where  a 
trespass  results  in  a  nuisance,  successive  suits  may  be  brought  for  its 
continuance,  in  each  of  which  the  damages  are  estimated  only  up  to  the 
commencement  of  the  action,  in  some  states;  but  up  to  the  time  of  trial. 
in  others.  Where  the  building  of  a  railroad  is  authorized  by  law  and  is 
done  with  reasonable  care  and  skill,  it  is  not  a  nuisance,  and  the  com- 
pany is  not  answerable,  after  paying  the  sum  assessed  for  the  land  thus 
appropriated,  in  any  subsequent  action.  The  damages  resulting  from 
an  appropriation  under  its  charter — both  present  and  prospective  dam- 
ages— may  be  assessed  in  one  proceeding;  and  it  is  the  legal  right  of 
either  plaintiff  or  defendant  to  have  the  permanent  damages  assessed 
by  demanding  such  assessment  in  the  pleadings.  If  either  makes  such 
demands  the  judgment  becomes  res  judicata  as  to  all  subsequent  ac- 
tions.    (234). 

Skc.  12.  Trespass  Qtjare  Clausum  Fregit.— It  is  an  elementary  prin- 
ciple that  every  unauthorized  entry  upon  the  lands  of  another  is  un- 
lawful and,  therefore,  a  trespass.  From  every  such  entry  against  the 
will  of  the  possessor,  the  law  infers  some  damage;  if  nothing  more, 
the  treading  down  the  grass,  herbage,  or  shrubbery.  (236).  A  i)erson 
having  the  freehold  and  right  of  possession  could,  under  the  old,  and 
some  modern,  authorities,  even  enter  upon  lands  by  force  without  sub- 
jecting himself  to  an  action  of  trespass  q.  c.  f.  by  the  party  in  posses- 
sion. The  ground  of  this  action  is  the  breaking  and  entering  the  plain- 
tiff's close.  If  the  defendant  can  justify  the  entering,  he  defeats  the  ac- 
tion no  matter  how  outrageous  his  conduct  after  such  an  entry.  But  if 
the  entry  be  nnlatoful,  then  misconduct  contemporaneous  with,  or  sub- 
sequent to,  such  entry,  is  only  matter  of  aggravation  for  which  both 
compensatory  and  exemplary  damages  may  be  recovered.  (237-240). 
But  where  an  authority  to  enter  upon  the  premises  of  another  is  given 
hy  late,  the  party  becomes  a  trespasser  ab  initio  by  misconduct  after 
such  entry.  Per  contra  where  the  entry  is  under  authoiity  or  license 
given  by  the  party  in  possession,  misconduct  after  such  entry  may  be 
punished  in  some  appropriate  action,  hut  not  in  trespass  q.  c.  /.  because 
the  doctrine  of  "trespasser  ab  initio"  is  confined  strictly  to  those  cases 
in  which  the  right  to  enter  is  given  hy  laiv.  The  reasons  given  for  this 
distinction  have  been  said  to  amount  to  a  distinction  without  a  differ- 
ence. The  law  confers  a  right  to  enter  premises  upon  the  customers  of 
innkeepers,  shopkeepers,  and  the  like,  who  undertake  to  serve  the  public, 
and  upon  officers  charged  with  the  service  of  process — all  of  whom  be- 
come trespassers  ab  initio  by   misconduct  subsequent  to  entry.     (240). 


iXTRODL'CTiox.  >^liii 

Under  the  English  law.  an  actual  possession  by  the  plaintiff  at  the  time 
of  the  trespass  committed  is  necessary  to  support  this  action.  But  in 
England  all  lands  are  occupied,  and  a  trespass  cannot  be  committed  but 
upon  the  actual  possession  of  some  one;  while  here,  a  great  part  of  our 
lands  are  not  occupied  by  any  actual  possession,  and.  if  we  were  to  fol- 
low the  English  rule,  we  should  expose  such  unoccupied  lands  to  be 
trespassed  upon  without  affording  the  owner  a  remedy.  Our  rule  Is: 
"In  order  to  support  an  action  for  simple  trespass  (under  the  Code)  a 
plaintiff  must  show  actual  possession  where  any  person  is  holding  ad- 
versely; but.  in  the  absence  of  adverse  occupation,  the  constructive  pos- 
session which  proof  of  title  draws  to  him  is  sufficient."  (242).  If  the 
plaintiff  have  a  deed  covering  the  locus  in  quo,  his  actual  possession  of 
a  part  thereof  is  actual  possession  of  the  whole.  The  deed  ascertains 
the  extent  of  the  possession.  If  any  part  be  in  the  actual  adverse  oc- 
cupancy of  another  under  an  inferior  title,  occupation  of  a  part  under 
the  good  title  extends  to  and  embraces  the  part  actually  occupied  under 
such  inferior  title.  (243).  Possession  alone  is  sufficient  to  maintain 
this  action  against  a  mere  tort-feasor.  (245).  The  grantee  or  lessee  of 
vesturae  terrae  or  herbogii  terrae  may  maintain  the  action,  or  eject- 
ment, "though  he  has  not  the  soil."  (246).  Trespass  q.  c.  f.  lies  for 
an  injury  to  an  easement:  but  it  cannot  be  maintained  by  a  city  or  town 
for  injuries  to  a  public  street,  if  the  fee  simple  in  the  street  be  in  an- 
other. Neither  can  such  owner  in  fee  maintain  the  action.  Such  in- 
juries are  to  be  redressed  by  some  other  proceeding — such  as  indictment 
for  a  public  nuisance,  etc.  (246-248).  However,  a  city  or  town  may 
maintain  the  action  against  an  invader  of  a  market  house  owned  by  it 
in  fee.  (248).  The  action  may  be  maintained  by  the  owner  of  the 
servient  estate  against  the  owner  of  an  easement  for  an  abuse  of  the 
rights  conferred  by  the  granted  easement;  and  by  a  tenant  against  his 
landlord  for  an  unwarranted  entry.  (249-250).  One  tenant  in  com- 
mon cannot  maintain  this  action  against  another  for  breaking  and  en- 
tering the  close  owned  in  common;  because  each  has  an  equal  right  of 
entry,  occupation,  and  enjoyment,  and  the  possession  of  one  is  presumed 
to  be  the  possession  of  all.  But  if  one  cotenant  oust  the  other,  the  other 
may  maintain  this  action  against  him.  (250).  Where  there  is  a  per- 
manent injury  to  the  freehold,  the  reversioner  or  remainderman  may 
maintain  an  action  on  the  case  in  the  nature  of  waste  against  the  tort- 
feasor; but  only  the  lessee  in  possession  can  sustain  an  action  of  tres- 
pass q.  c.  f.  against  him.  Both  the  lessee  and  the  reversioner  may  sue 
for  the  same  tortious  act— the  one  in  trespass  q.  c.  f.  and  the  other  in 
trespass  on  the  case.  (252).  Trespass  q.  c  f.  lies  against  one  whose 
cattle  go  u|)on  the  lands  of  another  and  cause  injury  to  crops,  etc. 
(254-256).  This  action  is  used  in  some  jurisdictions  to  try  the  title  to 
real  estate,  it  being  "a  common  and  convenient  mode  of  trying  the  title 
to  land  of  which  there  is  a  constructive,  but  no  actual,  possession." 
Trespass  is  essentially  an  offense  against  the  possession,  and,  hence,  an 
action  therefor  can  be  maintained  by  one  who  does  not  own  the  fee. 
This  being  so,  a  judgment  in  trespass  q.  c.  f.  is  not  an  estopi)el  as  to  the 
title,  unless  the  verdict  be  upon  an  issue  involving  the  title;  but  if  the 
pleadings  raise  such  issue — as  they  may  properly  do — a  verdict  and 
judgment  thereon  do  work  an  estojjpel  as  to  the  title.      (257). 

Si;c.  1^.  AcTio.N  <).\  Tin:  C.vst:  i oit  I.n.huv  to  Rk.vi,  Estati:. — If  a  stran- 
ger break  the  close  of  one  having  the  particular  estate,  and.  besides  in- 
juring him  by  taking  away  his  crops,  etc.,  also  commits  an  injury  to  the 
intxritancp.  as  by  cutting  timber  trees,  or  the  like,  the  particular  tenant 
may  maintain  trespass  f|.  c.  f.  and  the  owner  of  tlie  expectant  estate  may 
maintain  trespass  on  the  case  in  tiic  nature  of  waste.  (25S).  The  ac- 
tion on  the  case  lies  for  the  disturbance  or  obstruction  of  an  easement; 
and  also  for  an  increase  of  the  servitude.  (259).  The  distinction  be- 
tween trespass  q.  c  f.  and  trespass  on  the  case,  as  regards  injuries  to 
realty,  is  tbis:  where  the  immediate  act  itself  occasions  the  injury,  tres- 
pass q.  c.  f.  lies;  but  where  the  ad  itself  is  not  an  injury  but  an  injiiry 
results  in   consequence   thereof,  trespass  on   the  case   lies.     (260). 


xliv  INTHODICTIOX. 

Sec.  14.  Rkmedy  in  Et^i  ity  to  Hkstkain  Tkksi«.\shi;s. — An  injunction 
will  issue  in  tuiuity  to  rostrain  a  trespass  wliicli  (•aus(>s  an  iiT('paral)le 
injiifv.  Fornu'ily  surli  relief  was  never  affordt'd  until  the  coniplainaut 
had  established  his  title  to  the  locus  in  quo,  at  law;  b\U  that  doctrine 
has  been  greatly  modified  in  modern  times.  (261-262).  An  ordinary 
trespass — one  which  does  not  cause  irreparable  injury — will  not  be  en- 
joined unless  the  defendant  be  insolvent.  (263-264).  Continuous  and 
re[>eated  trespasses  by  a  person  or  his  animals  will  be  enjoined.  To  re- 
fuse an  injunction  in  such  cases  would  enable  a  wrongdoer  to  force  an 
innocent  person  to  perpetually  lease  his  property  for  such  damages  as 
he  might  he  able  to  recover  in  repeated  actions  of  trespass,  and  deprive 
him  of  the  right  to  enjoy  his  estate.     (265). 

Si:o.  15.  Rkmkdv  Ag.mnst  Tkksi'a.sst.s  CoM.\niTi:i)  in  Exkrcisr  of 
Rights  Cr,.\iMKi)  Undku  E.>ri.\ENT  Domai.n. — Where  land  is  appropriated 
by  a  corporation  having  the  right  of  condemnation,  the  owner  may  re- 
sort to  the  remedy  prescribed  by  a  special  statute  or  to  the  ordinary 
common  law  or  Code  remedies  appropriate  to  the  injuries  sustained,  at 
his  own  election.  (266).  In  controversies  growing  out  of  the  right  to 
appropriate  property  under  eminent  domain  it  is  against  the  policy  of 
the  law  to  hamper  and  delay  public  enterprises  by  injunction.  Per  con- 
tra, it  accords  with  the  law's  policy  to  lestrain,  by  injuni-tion,  those  who, 
by  force,   impede  the  prosecution  of  such  works. 

Sec.  16.  Remedy  of  Licensee  Who  is  Evicted. — A  mere  license  to  oc- 
cupy realty  is  revocable  at  will,  even  though  value  be  paid  for  such 
license.  The  remedy  of  one  whose  license  is  revoked,  and  who  is  ex- 
cluded or  forcibly  ejected  from  the  premises,  is  upon  the  contract  and 
not   in  tort.     (270). 

Sec.  17.  Remedies  on  Covenants  fok  Title. — In  contracts  for  the  sale 
of  land,  it  is  the  duty  of  the  purchaser  to  guard  himself  against  defects 
of  title,  quantity,  incumbrances,  and  the  like,  by  requiring  of  the  ven- 
dor the  usual  covenants  of  seizin,  right  to  convey,  against  incumbrances, 
quiet  enjoyment  or  warranty,  and  for  further  assurance.  If  he  fail  so 
to  do,  it  is  his  own  folly  and  the  law  will  not  afford  him  a  remedy  for 
the  consequences  of  his  own  negligence.  But  if  there  be  any  actual 
misrepresentation  or  other  positive  fraud  on  the  part  of  the  vendor, 
with  regard  to  a  material  matter,  the  purchaser  will  be  afforded  relief. 
The  maxim  caveat  emptor  applies,  in  the  absence  of  fraud,  in  all  courts 
whether  of  law  or  equity.  (271).  I'pon  the  covenants  of  seizin  and 
right  to  convey,  no  action  can  be  maintained  by  an  assignee  of  the 
title,  for,  if  broken  at  all,  these  covenants  are  necessarily  broken  at  the 
moment  of  the  execution  of  the  deed;  and,  as  they  do  not  run  with  the 
land,  they  do  not  pass  by  a  subsequent  conveyance  thereof.  The  cove- 
nants of  warranty  and  quiet  enjoyment,  on  the  other  hand,  do  run  with 
the  land  and  may  be  sued  upon  by  a  subsequent  purchaser,  however  re- 
mote. (273).  The  fact  that  the  covenantee  had  notice  of  the  existence 
■of  an  incumbrance  at  the  time  he  accepted  his  deed,  is  no  bar  to  his  re- 
covery on  a  covenant  against  incumbrances.  (275).  As  a  gpueral  rule 
a  plaintiff  can  not  recover  for  a  breach  of  the  covenants  of  quiet  enjoy- 
ment, warranty,  and  further  assurance  until  there  is  a  breach  of  such 
covenants.  The  measure  of  damages  for  breach  of  the  covenants  of  war- 
ranty and  quiet  rnjoyment,  and  seizin  also,  is,  as  a  general  rule,  the 
same,  to  wit.  the  ])rice  i)aid  for  the  land  with  interest:  but  in  some  states 
the  measure  of  damages  is  the  value  of  the  land  at  the  time  of  the  evic- 
tion. (277).  It  is  a  well  settled  rule,  thai,  under  the  covenants  of 
warranty  and  quiet  enjoyment,  the  plaintiff  must  show  a  lawful  evic- 
tion in  order  to  maintain  his  action.  But  it  is  not  necessary  to  show 
that  the  eviction  was  under  lerjfil  process.  (2S0-2S1).  When  the  heir, 
f>nd  when  the  ))ersonal  reiiresentative,  of  a  deceased  covenantee  must 
sue  for  breach  of  covenant,  is  a  question  which  the  authorities  do  not 
answer  very  satisfactorily.  In  this  instance  resort  will  have  to  be  had 
to  the  methods  and  scales  of  Wouter  Van  Twiller.  (282-283).  There 
is  a  well  established  jurisdiction  in  equity  over  certain  covenants.  A 
covenantor  will  be  enjoined  from  disturbing  the  covenantee  in  violation 


INTRODUCTION.  xlv 

of  the  covenant;  and  specific  performance  of  a  covenant  for  further 
assurance  will  be  decreed.  "But  we  find  no  case  of  interference  by 
equity  In  relation  to  the  covenant  of  warranty."     (285). 

Sec.  18.  INIortgagee's  Remedies. — Anciently  equity  took  no  part  in 
controversies  between  mortgagor  and  mortgagee.  If  the  mortgagee  toolc 
possession  before  the  day  of  forfeiture  and  was  in  possession  uhen  the 
default  occurred,  he  needed  no  remedy;  for  the  mortgagor's  rights  were 
dead  and  gone,  and  the  most  complete  title — the  legal  title,  the  right  of 
possession  and  the  actual  possession — was  in  him.  If  the  mortgagor 
was  in  possession  when  the  default  occurred,  the  mortgagee's  title  was 
perfect  with  the  exception  of  actual  possession;  and  this  he  could  ob- 
tain by  entry  followed  up,  if  necessary,  by  the  recovery  of  possession  in 
an  action  at  law.  At  a  later  period  equity  assumed  jurisdiction  by  per- 
mitting the  mortgagor  to  redeem,  on  a  day  fixed  by  the  court,  by  paying 
the  money,  notwithstanding  the  fact  that  complete  default  had  been 
made  and  the  mortgagee's  title  had  become  perfect  at  law.  As  this  rul- 
ing would  have  left  the  mortgagee's  title  at  the  mercy  of  the  mortgagor 
— who  might,  or  might  not,  elect  to  redeem — the  court  permitted  tlie  mort- 
gagee-to  file  a  bill  against  the  mortgagor  to  compel  him  to  redeem  his 
land,  by  a  day  to  be  set  bj^  the  court,  or  else  to  forfeit  his  equity  of  re- 
demption. This  remedy  of  the  mortgagee  was  called  a  Bill  of  Fore- 
closure. Originally,  the  practice  was  to  set  a  day  on  which  the  mort- 
gagor was  required  to  pay  the  debt  secured,  and  thereby  redeem  his 
land.  Should  the  mortgagor  fail  to  pay  the  money  by  that  day,  a  decree 
was  entered  against  him  whereby  he  was  forever  foreclosed  of  his 
equity  of  redemption  and  the  title  of  the  mortgagee  was  made  perfect  as 
against  him  and  his  heirs.  Later  on,  the  court,  instead  of  decreeing  a 
strict  foreclosure,  decreed  a  sale  of  the  land  by  a  commissioner,  and  out 
of  the  proceeds  discharged  the  mortgage  debt.  If  a  surplus  remained 
after  discharging  the  debt,  interest  and  costs,  it  was  ordered  to  be  paid 
to  the  mortgagor.  This  last  is  the  modern  equity  and  Code  practice. 
Notwithstanding  the  remedy  of  foreclosure  in  equity,  the  mortgagee  had, 
and  still  has.  the  right  to  enter  upon  the  premises,  or,  if  necessary,  to 
bring  an  action  at  law  to  recover  such  possession.  He  may  also  disre- 
gard the  mortgage  and  bring  an  action  in  personam  against  the  mort- 
gagor for  the  debt.  Thus,  at  the  present  time,  a  mortgagee  has  three 
distinct  remedies  in  the  courts:  (1)  Ejectment  for  the  mortgaged  land; 
(2)  an  action  or  suit  to  foreclose  the  mortgage;  ('3)  an  action  in  per- 
sonam for  the  debt.  Under  the  Code  practice,  all  of  these  remedies  may 
be  asserted  in  one  action.  Under  the  old  practice  of  strict  foreclosure, 
only  the  heir  of  a  deceased  mortgagor  was  a  proper  party;  except  where 
an  account  of  the  personal  property  was  sought  from  the  personal  rep- 
resentative; in  which  case  only  could  the  personal  representative  be 
made  a  defendant.  It  is  still  the  practice  in  some  jurisdictions  to  per- 
mit only  the  heir  to  be  made  a  party;  while  in  others,  both  tlio  personal 
representative  and  the  heir  are  necessary  parties.  All  incumbrancers, 
whctlier  i)rior  or  subsequent  to  the  mortgage,  must  be  joined  with  the 
mortgagor  as  parties  defendant.  If  this  is  not  done,  the  court  should,' 
ex  mero  motu,  order  them  to  be  brought  in  as  i)arties  defendant.  (285- 
288).  After  an  action  of  ejectment  or  foreclosure  is  commenced,  the 
crops  and  rents  atifl  i)rofits  of  the  land  belong  to  the  mortgagee— that  is. 
he  is  entitled  to  thcni.  (2.SS).  if  the  mortgage  debt  be  iiayable  in  in- 
stallments, an  action  at  law  will  lie  for  each  installment  as  it  matures: 
but  a  court  will  lujt  entertain  an  action  or  suit  to  foreclose  the  mortgage 
until  all  the  installments  are  due.  (2!tO).  The  decree  or  judgment  of 
foreclosure  must  still  set  a  time  within  which  the  mortgagor  may  re- 
deem his  land— wiiicli  ijiue  must  be  such  as  will  give  him  a  reisonable 
opportunity  to  raise  the  money— liefore  a  sale  is  made  uiuier  the  decree 
of  the  court.  The  detree  must  direct  that  the  sale  be  reported  to  the 
court  and  coufirnied  before  the  title  shall  be  made  to  the  purchaser. 
(291).  A  bidder  has  only  inchoate  rights  as  a  purchaser  In-fore  the 
sale  is  confirmetl.  The  sale  will  be  set  aside  and  a  resale  ordered  when. 
In  the  .sound  discretion  of  the  court — due  regard  being  ii.id  to  the  rights 


Xl\  i  INTlMniC  TldN. 

of  the  biiUKM' — jiistico  and  r;iirm\ss  io(iuiiTs  such  a  courso.  After  a  sale 
has  been  reported,  the  eoiirt  will  usually  order  a  resale  if  a  responsible 
person  will  raise  the  bid  ten  per  cent,  or  more,  and  agree  to  start  the 
bidding  at  a  resale  at  siuh  advanced  priie — security  being  given  for  his 
compliance  with  iiis  pro|)osilioii.  (  2!"  I  I .  The  mortgiigee  may  purcluise 
at  the  sale  of  tiie  commission  api)t)inti'd  by  the  court  to  nuiUe  the  lore- 
closure  sale:  but  "it  is  usual  and  i)erhaps  necessary  for  the  trustee  and 
beneficiary  |  mortgagee]  to  obtain  leave  of  the  court  to  bid,  or  else  to 
have  a  confirmation  with  full  knowledge  of  all  the  facts  appearing." 

Skc.  lit.  KiMKDiKs  OK  Till',  Ah)itT(;A(;oK  AM)  His  AssKiNS. — Botli  under 
the  equity  and  Code  practice  a  mortgagor  may  sue  the  mortgagee  for 
redemption,  and  will  be  allowed  to  redeem  his  land  after  the  mortgage 
has  become  absolute.  The  bill  or  complaint  in  such  a  suit  should  con- 
tain a  formal  offer  to  redeem  by  paying  whatever  sum  shall  be  found  due 
upon  an  adjustment  of  the  account  between  the  parties.  (20G).  A  like 
rigiit  of  redemption  exists  and  will  be  enforced  by  the  courts  where  it 
is  shown  that  a  deed  absolute  on  its  face  was  in  fact  intended  by  the 
parties  thereto  to  be  a  mortgage.  (297).  If  a  mortgagee  sell  under  a 
power  contained  in  the  mortgage  and  purchase  at  his  own  sale,  either 
in  person  or  through  an  agent,  the  mortgagor  may  still  successfully 
prosecute  a  suit  for  redemption  against  him.     (29.S). 

Sec.  20.  Remedy  fok  Breach  oe  Contract  to  Purchase,  Convey,  or 
Devise  Land. — At  law  the  vendor  in  a  contract  to  convey  land  recovers 
damages  for  breach  of  the  contract.  There  are  two  lines  of  authority 
as  to  the  measure  of  his  damages — the  English  Rule,  and  the  Rule  of 
some  of  the  American  courts.  By  the  English  rule,  the  measure  of  dam- 
ages is  the  difference  between  the  price  fixed  by  the  contract,  and  the 
value  of  the  land  at  the  time  fixed  for  the  delivery  of  the  deed  therefor. 
Some  states  adopt  this  English  rule.  Other  states  permit  the  vendor  to 
recover  the  whole  contract  price,  with  interest  thereon,  upon  his  show- 
ing that  he  has  tendered  a  deed  to  the  vendee.  (300-304).  The  vendee 
may  also  sue  for  damages  at  law  upon  breach  of  the  contract.  The 
measure  of  his  damages  is  the  value  of  the  land  at  the  time  of  the  breach 
cf  the  contract  to  convey.  (305).  The  remedies  afforded  by  a  court  of 
law  to  both  vendor  and  vendee  are  inadequate.  Therefore  equity  will 
do  full  justice  to  each  by  requiring  a  si)ecific  performance  of  the  con- 
tract. At  one  while  the  courts  of  equity  were  quite  oppressive  in  re- 
quiring practical  impossibilities  from  the  vendor.  For  Instance,  if  a 
husband  contracted  to  sell  his  wife's  land  or  his  own  land  discharged 
of  dower,  he  could  be  committed  for  contempt  until  he  procured  his 
wife's  joinder  with  him  in  a  conveyance:  so  if  a  person  contracted  to 
sell  land  which  he  did  not  own,  or  to  which  he  had  but  an  imperfect 
title,  he  would  be  committed  until  he  procured  title  or  perfected  such 
title  as  he  had,  and  then  conveyed  the  premises  according  to  his  con- 
tiact.  unless  he  showed  that,  after  strenuous  efforts  on  his  part,  it  was 
impossible  to  i)erform  his  contract.  These  harsh  rulings  have  about 
passed  away.  The  present  rule  is.  that  specific  performance  of  a  con- 
tract to  buy  or  sell  real  estate  will  be  decreed  as  a  matter  of  course  in 
idain  cases,  but  when  hardship  would  result  from  such  a  decree,  it  is  a 
matter  of  discretion  with  the  court.  (300).  While  an  oral  contract  to 
purchase  or  convey  land  is  void  under  the  Statute  of  Frauds,  still  equity 
will  decree  specific  performance  of  such  contracts  if  they  have  been  in 
part  performed.  Such  relief  is  based  upon  fraud.  The  part  performance 
must  be  established  by  acts  palpable  and  evident  to  the  senses  of  all, 
such  as  absolute  and  visible  i)ossession  of  the  premises  by  the  vendee 
and  his  making  lasting  improvements  thereon.  This  is  the  doctrine  of 
Part  Performance.  It  does  not  hold  in  North  Carolina.  (309).  When 
specific  performance  of  an  oral  contract  cannot  be  decreed  because  the 
facts  will  not  justify  the  application  of  the  doctrine  of  part  performance, 
equity  will  afford  the  oral  vendee  some  relief  anyhow.  It  will  decree 
compensation  to  the  amount  of  the  purchase  money  i)aid  by  him  and  in- 
terest thereon,  and  also  for  all  beneficial  and  lasting  improvements 
which  he  may  have  put  upon  the  premises.     (311  and  309).     The  oral 


INTRODUCTION.  xlvii 

vendee  is  entitled  to  such  reimbursement  although  he  is  out  of  possession 
when  he  seeks  such  relief.  (311).  It  is  a  clearly  recognized  principle, 
that  if  there  is  only  a  partial  failure  of  performance  by  one  party  to  a 
contract  to  convey,  for  which  there  may  be  a  compensation  in  damages, 
the  contract  is  not  put  an  end  to:  but  if  the  vendor  can  convey  only  an 
insignificant  and  immaterial  part  of  what  is  bargained  for,  equity  will 
not  compel  the  vendee  to  take  that  portion  even  at  the  corresponding 
reduction  in  price.  However,  if  the  vendor  can  substantially  comply 
with  his  contract,  and  the  part  as  to  which  he  cannot  perform  it,  is  of 
such  a  character  as  to  admit  of  compensation  being  made  to  the  vendee 
for  such  failure,  equity  will  enforce  specific  performance  of  the  contract 
so  modified.  (313).  Specific  performance  of  the  award  of  arbitrators 
will  be  decreed  when  the  subject  matter  of  the  award  is  realty;  and  so 
of  a  contract  to  devise  realty.  (314-315).  The  vendor,  in  a  contract 
to  convey,  occupies  practically  the  same  position  as  a  mortgagee.  He 
has  several  remedies:  (1)  An  action  in  personam,  at  law,  to  recover  the 
price;  (2)  ejectment,  at  law,  to  get  possession  of  the  land;  (3)  specific 
performance  in  equity.  Equity  will  decree  that  the  vendee  specifically 
perform  his  contract  by  paying  the  price  by  a  time  fixed  by  the  court, 
and  that,  upon  his  failure  so  to  do,  the  land  be  sold  by  a  commissioner 
and  the  proceeds  thereof  applied  to  the  payment  of  the  amount  due  the 
vendor,  together  with  interest  and  costs, — the  surplus  to  be  returned  to 
the  vendee.  The  vendor  may  prosecute  all  of  these  remedies  at  the 
same  time,  and,  under  the  Code  i)ractice,  in  the  same  action.  As  a  mort- 
gage v.'ill  not  be  foredosed  until  all  the  installments  of  the  debt  secured 
are  due,  so  specific  performance  will  not  be  decreed  until  all  installments 
of  the  price  are  due:  but  each  installment  may  be  sued  on  at  law  as  it  ma- 
tures.    (315-318). 

Sec.  21.  Wiux  of  Assistance. — This  writ  may  be  termed  an  equitable 
habere  facias  possessionem,  for  it  only  issued  from  a  court  of  equity  un- 
der the  old  practice.  Under  the  Code  practice,  it  issues  from  any  court 
having  jurisdiction  to  sell  real  estate.  Its  use  is  to  put  one  into  pos- 
session who  has  purchased  at  a  judicial  sale  and,  having  fully  complied 
with  the  terms  of  sale,  has  received  a  deed  from  the  commissioner.  The 
writ  is  obtained  by  a  motion  in  the  cause  based  upon  aflfidavit  that  the 
person  in  possession  is  a  party  to  the  cause,  or  holds  under  such  a  party, 
and  refuses  to  surrender  the  possession.      (318). 


CHAPTER  IV. 

FORMS  OF  ACTION  TO  ASSERT  RIGHTS  OTHER  THAN  THOSE 
CON'CERNING  REAL  PROPERTY.— Sec.  1.  Actions  Ex  CoNTRArru  and 
Ex  Dei.mto  DisriNfaisiiiJii. — A  constitutional  provision  forbidding  im- 
prisonment for  debt  except  in  cases  of  fraud,  forbids  such  imprisonment 
in  all  actions  ex  contractu  unless  fraud  be  established:  but  it  does  not 
forbid  such  imprisonment  in  actions  of  pure  tort.  (320).  It  is  said 
that  there  is  no  thoroughly  satisfactory  definition  of  a  tort.  Ordinarily, 
the  essence  of  a  tort  consists  in  the  violation  of  some  f/i//.)/  (li(r  to  an  in- 
divirlMJil.  whicli  duty  may  sometimes  arise  out  of  a  contract,  but  is  a 
thing  different  from  the  mere  contract  ol)ligation.  In  such  cases  the 
violation  of  such  duty  becomes  a  tort  for  which  an  action  ex  delicto  will 
He.  "A  breach  of  contract  may  be  so  intended  and  planned;  so  inter- 
woven into  a  scheme  of  oi)pression  and  fiaud:  so  made  to  set  in  motion 
innocent  raus(s  which  otherwise  would  not  ojx'rale,  as  to  cease  to  l)e  a 
mere  breach  of  contract,  and  become,  in  its  association  with  attendant 
circumstances,  a  tortious  end  wrongful  act  or  omission."  Where  a 
breach  of  contract  involves  a  tort,  (he  (ontract  may  be  waived  and  re- 
dirs:-<  lie  Iiao  in  an  .'"lion  of  tort.  .Mutitis  mutandis,  if  a  transaction 
involve  both  a  tort  and  a  breach  of  contract,  ex[)ress  or  iini)li('d,  tlio  tort 
may  be  waived  and  redress  liad  in  an  action  ex  contractu.  Thus,  if 
chattels  he  tortiously  taken   and   snUI.   the  owner  may   ratify  such   sale 


XlVlll  INTKoDrcridN, 

and  recover  the  price  obtaiued  by  the  tort  feasor,  in  assumpsit  for 
money  hud  and  received,  in  sucli  cases  the  owner  has  tlie  oi)tion  to  »ne 
either  in  tort  or  in  contract.  (321-328).  A  failure  to  perform  its  con- 
tract with  a  city  to  maintain  a  certain  fire  pressure,  subjects  a  water 
tonipany  to  an  action  of  toil  iiy  a  citizen  injured  i)y  such  failure,  altliough 
such  litizen  be  not  a  party  to  the  contract.  (32S).  At  common  law  it 
was  of  vital  importance  that  a  plaintiff  select  tlie  proper  remedy.  The 
intricacies  and  mischiefs  of  that  system  of  procedure  have  been  sup- 
planted by  the  Code  pra(  tice  under  which  there  is  but  one  form  of  ac- 
tion. If  the  complaint  set  out  such  facts  as  entitle  the  plaintiff  to  re- 
lief, the  court  will,  under  the  Code  practice,  give  the  appropriate  relief 
without  quibbling  over  the  questions  of  form  and  whether  or  not  the 
action  is,  or  should  be,  ex  contractu  or  ex  delicto.  (330).  It  often  hap- 
pens that  a  plaintiff  has  an  election  to  sue  in  either  contract  or  tort. 
Uy  the  skillful  exercise  of  this  election  he  may  recover  from  one  non 
sui  juris  for  a  tort  growing  out  of  a  contract,  although  he  could  not  re- 
cover on  the  contract  itself.  Some  courts  sustain  and  some  repudiate 
this  doctrine.     (333-339). 

Sec.   2.  Actions   Ex  Coxtractu. — (a)    Covenant. — "Covenant"   at  com- 
mon law  is  an  action  upon  a  deed.     It  is  only  because  a  deed  requires 
a  seal  that  this  action  lies  upon  an  agreement  under  seal.     It  is  a  ques- 
tion  whether   the   instrument   be   or   be   not   a  deed   that  governs.     All 
sealed    instruments   are   deeds.     But   even   at   common    law   the   action 
would  sometimes  lie  against  a  party  to  an  instrument  although  he  had 
not  affixed  his  seal  thereto — e.  g.  one  who  accepts  a  sealed  lease  contain- 
ing covenants  upon  his  part.     1'here  were  other  exce])tions  growing  out 
of  the  customs  of  London  and  other  local  customs.     An  action  of  debt 
would  also  lie  upon  a  sealed  instrument  for  a  certain  sum  of  money  due 
thereon:   if  the  amount  due  was  not  fixed  and  certain  but  had  to  be  as- 
certained in  the  way  of  damages  for  breach  of  the  agreement  set  forth 
in  the  deed,  covenant  was  the  sole  remedy.     (338).     (b)  Debt.     The  ac- 
tion of  debt  is  founded  upon  an  express  or  implied  contract  in  which  the 
certainty  of  the  sum  appears.     It  lies  upon  every  express  contract  to 
pay  a  sum  certain.     It  does  not  lie  upon  a  contract  to  pay  or  deliver 
things  other  than  money,  such  as  lumber,  cotton,  etc.     (339).     (c)  Ac- 
count.    If  one  be  indebted  to  another  for  a  number  of  items  due  by  ac- 
count, or  for  a  balance  in  the  latter's  favor  where  there  are  mutual  ac- 
counts, the  creditor's  remedy  is  assumpsit  at  law.     But  if  the  account 
be  so  complicated  as  to  render  it  impractical  for  a  jury  to  deal  with  it, 
assumpsit  will  not  lie — the  remedy  being  an  action  for  account  at  law, 
in  which  the  trial  is  had  before  auditors;    or  a  bill   in  equity  will   lie. 
The  jurisdiction  of  equity  in  matters  of  account  extends  to  those  cases, 
and   to  those  only,   in  which  the  action  of  account  lies  at  law.     Both 
remedies  are  confined  to  those  cases  in  which  the  accounts  are  too  ex- 
tensive   or    too    complicated    to    admit    of    a    trial    by    jury.     (341-344). 
(rl)    Assuinpsit.     The    action    on    the   case    usually    called   Assumpsit    is 
founded   on   a   contract   express  or   implied.     "Case"    is   a  generic   term 
"Which  embraces  many  different  species  of  actions.     There  are  two,  how- 
ever, of  more  frequent  use  than  any  other  form   of  action  whatever — 
these  are  assumpsit  and   trover.     The  strict  legal   denomination   of  the 
action    of   assumjisit   is    "Trespass   on   the   Case    upon    Promises."     This 
form  of  action  originated,  like  many  others,  under  the  statute  of  West- 
minster 2.     (344).     Under  the  strict  practice  at  common  law,  assump- 
sit would  not  lie  on  a  sealed  instrument  so  long  as  that  instrument  re- 
mained in   full   force;    because  covenant    (or  debt)    was  the  appropriate 
remedy.     However,   there  were  instances  in  which  assumpsit  would  lie 
on  a  sealed  instrument  or,  at  least,  on  causes  of  action  growing  out  of, 
or  intimately  connected  with,  such  instruments.     These  instances  would 
appear  to  be  exceptions  to  the  above  rule;  but  it  would  be  heresy  to  call 
them  such.     (34fi). 

Sec.  3.  Actions  Ex  Delicto. — Co)  Trespass  Vi  et  Armis.  All  of  the 
authorities  concur  in  the  position  that  whenever  an  injury  is  committed 
by  the  immediate  act  complained  of.  the  remedy  is  by  Trespass  Vi  et 


INTKODUCTIOX.  XllX 

Arniis:  in  other  words,  if  the  injury  suffered  be  the  immediate  result 
of  the  tortious  act,  Trespass  Vi  et  Armis  lies,  and  it  is  immaterial 
whether  the  injury  be  wilful  or  not.  The  dividing  line  between  tres- 
pass vi  et  armis  and  trespass  on  the  case  is  the  difference  between  Im- 
mediate injury  and  consequential  injury.  If  the  injury  be  done  by  the 
act  of  the  party  himself  at  the  time,  or  he  be  the  immediate  cause  of  it, 
trespass  vi  et  armis  is  the  remedy  though  the  act  causing  the  injury 
happened  accidentally  or  by  misfortune.  (34S).  Trespass  q.  c.  f.  and 
trespass  vi  et  armis  may  be  joined  as  separate  counts  in  the  same  ac- 
tion, as  the  form,  pleas,  and  judgment  in  the  two  actions  are  the  same. 
Trespass  vi  et  armis  will  lie  for  any  unlawful  interference  with  an- 
other's person  or  chattels  provided  it  be  accompanied  with  force  actual 
or  implied.  (349).  (h)  Trespass  on  the  Case.  This  action  originated 
with  the  Statute  Westminster  2.  It  lies  for  any  cause  of  action  for 
which  covenant  or  debt  will  not  lie.  It  is  a  genus  which  comprises 
many  species,  the  most  prominent  of  wiiich  are  assumpsit  and  trover. 
It  is  in  the  nature  of  a  bill  in  equity  and  whatever  is  right  in  justice 
and  conscience  will  sustain  or  defeat  the  action.  (350).  It  is  based 
upon  very  general  principles  and  is  designed  to  afford  relief  in  all  cases 
where  one  man  is  injured  by  the  wrongful  act  of  another  and  no  other 
remedy  is  provided  by  law.  (350).  When  the  act  itself  is  complained 
of,  trespass  vi  et  amris  is  the  proper  action.  Where  the  consequences 
only  are  complained  of,  trespass  on  the  case — usually  abbreviated  to 
■'Case" — is  the  proper  action.  That  is,  trespass  lies  where  the  injury 
is  immediate — case  where  it  is  consequential.  "It  sometimes  requires 
an  exceedingly  nice  perception  to  be  able  to  trace  the  dividing  line"  be- 
tween the  two  remedies.  In  some  cases,  although  the  injury  be  immedi- 
ate, the  ijlaintiff  has  his  election,  and  may  waive  the  trespass  and  bring 
case  for  the  consequential  damage — as  if  one  take  another's  horse,  the 
latter  may  elect  to  bring  trover  (which  is  an  action  on  the  case)  in- 
stead of  trespass  vi  et  armis.  But  to  maintain  case,  the  plaintiff  must 
icaive  his  ground  of  complaint  on  account  of  the  trespass.  (351). 
Wherever  there  is  a  contract  and  a  common-law  duty  incident  to  tlie 
employment  which  is  the  subject  of  the  contract,  a  party  to  the  contract 
may  recover  either  in  tort  or  in  contract  for  a  l)reach  of  such  contract. 
There  is  some  confusion  in  the  authorities  as  to  what  is  meant  by  the 
common-law  duty  as  distinguished  from  duties  and  obligations  imposed 
by  the  contract  itself.  In  some  instances  an  action  will  lie  for  failuie 
to  iierfoim  the  common-law  duties  incident  to  a  contract  in  favor  of  one 
who  is  not  a  party  to  the  contract.  (353).  (c)  Trover.  Trover  is  an 
action  ex  delicto.  It  is  one  of  the  forms  of  trespass  on  the  case.  In 
form,  it  is  a  fiction;  in  substance,  a  remedy  to  recover  the  value  of  chat- 
tels personal  wrongfully  converted  1)y  another  to  his  own  use.  The 
form  suppo.ses  that  the  defendant  maij  have  come  laicfiill]/  by  the  pos- 
session of  the  goods,  and  it  lies  where  in  fact  his  possession  was  ac- 
quired lawfully.  If  a  taking  be  wrongful  and  by  trei)ass,  by  bringing 
trover  the  plaintiff  waives  the  trespass  and  admits  the  possession  to 
have  been  lawfully  gotten;  and,  hence,  no  damages  can  be  recovered  in 
Kuch  action  for  the  trespass  i)i  taking  the  goods.  Trover  is  an  action 
of  tort.  The  whole  tort  consists  in  the  wrongful  conversion.  Two 
things  are  necessary  to  be  proved  in  trover,  (1)  that  the  property  con- 
verted was  that  of  the  ))laintiff:  (2)  a  wrongful  conversion  by  the  defend- 
ant. (355).  (d)  Rejihriu.  The  action  of  rpj)leviii  is  fotinded  on  a 
tortious  taking  and  detaining.  It  is  analogous  to  an  action  of  tres- 
|)asH;  but  is,  in  fact,  a  proceeding  in  rem  to  regain  possession  of  the 
chattels  in  controversy,  and  in  i)art  a  proceeding  in  jiersonam  to  re- 
cover datiiages  for  the  wrongful  taking  and  detention  thereof — not  for 
their  value.  In  England  there  were  two  kinds  of  replevin  -one  at  com- 
mon law  and  the  olher  under  the  statute  of  Marlbridge.  (355).  Hy 
the  cfunmon  law,  a  taking  by  the  d'-fendant  was  necessary  to  sustain 
the  action — 'We  command  yon  that  you  cause  to  be  replevied  the  cattle 
of  H  which  I)  toolc  and  unjustly  detains,"  was  the  language  of  the  writ. 
Withtjut    a   trespass   by    the   defend;inl.    the    writ    could    not    lie    userl.      Il 


I  IN  IIMDIC  I'liiN. 

the  defeiulaiit  came  into  possession  by  bailment,  tin^  i>laii)tiff  was  driven 
lo  an  action  of  trover  or  detinne;  and  it  was  l)y  dctinnc  alone  that  the 
possession  o!"  the  specific  property  conld  he  regained.  CifjS).  (c)  ncliiivc. 
Detinue  is  defined,  in  the  old  books,  as  a  'remedy  founded  upon  the 
delivery  of  goods,  by  the  owner,  to  another  to  keep,  who  will  not  after- 
wards deliver  them  back  again."  To  sustain  the  action  it  must  be 
shown  that  the  defendant  came  lanfiilli/  into  the  possession  of  the 
goods — either  by  dtdivery  to  him  or  by  his  finding  them.  In  modern 
times  the  action  is  allowed  in  eveiy  case  in  which  the  owner  i)refers 
to  recover  the  si)ecific  property  rather  than  damages  for  its  conversion, 
and  no  regard  is  jiaid  to  the  nuinner  in  which  the  defendant  acquired 
the  possession.  Tiie  unlawful  detaining  is  the  sole  fouiulation  of  the 
action.  (35y).  The  judgment  in  detinue  should  be  conditional;  it 
should  adjudge  that  the  plaintiff  recover  the  specific  articles  or  the 
value  thereof,  if  the  specific  articles  can  not  be  had;  and  such  also  is 
the  direction  to  the  sheriff  in  the  distringas  issued  to  enforce  the  judg- 
ment. There  is  no  seizing  of  the  chattels  sued  for  until  after  the  final 
judgment;  but  in  replevin  the  property  is  seized  immediately  upon  the 
commencement  of  the  action.  Replevin  is,  therefore,  the  only  certain 
remedy  for  the  recovery  of  the  specific  chattel.     (360,  361). 

Sec.  4.  Foisms  ok  Action  Unuku  tuk  Codk  Pk.vctick. — Under  the  Code 
practice,  there  is  but  one  form  of  action  in  civil  cases.  In  that  action 
many  ancillary  remedies  may  be  obtained,  i.  e.  Arrest  and  Bail,  Claim 
and  Delivery,  Injunction,  Attachment,  and  Appointment  of  Receivers. 
Those  ancillary  remedies  need  not  be  asked  for  even  if  the  party  be  en- 
titled to  them:"  and  if  they  be  improperly  asked  for,  they  are  simply  de- 
nied, which  denial  does  not  affect  the  action  itself.  The  distinction  be- 
tween the  present  system  of  procedure  and  that  formerly  in  force  is, 
that  under  the  old  system  there  were  distinct  forms  of  action  for  the 
redress  of  various  injuries,  and  so  much  regard  w^as  paid  to  the  form  of 
the  action,  that,  however  meritorious  the  cause,  a  mistake  in  the  selec- 
tion of  the  remedy  sent  the  plaintiff  out  of  court.  The  common  sense 
of  mankind  has  caused  the  old  system  to  be  abrogated  in  most  of  the 
states  and  countries  of  the  English  speaking  race.  The  distinction  be- 
tween actions  at  law  and  suits  in  equity  and  the  forms  of  all  such  ac- 
tions are  abolished  in  most  jurisdictions,  and  all  relief  is  afforded  in  the 
one  form  of  civil  action  above  mentioned.  There  are  torts  and  con- 
tracts, and  legal  rights  and  equitable  rights,  just  as  there  used  to  be;  but 
there  are  not  several  forms  of  action,  nor  separate  courts  of  law  and 
equity.  One  court  administers  both  law  and  equity,  and  all  rights  are 
asserted  in  a  single  foim  of  action.  The  Code  i)ractice  is  neither  a  modi- 
fication nor  a  simplification  of  any  of  the  common  law  modes  of  pro- 
cedure. It  practically  abolishes  all  of  the  common  law  forms  of  action, 
and  adopts  the  equity  practice  with  some  slight  modifications.  (362- 
365). 

CHAPTER  V. 

INJURIES  TO  PERSONAL  SECURITY,  TO  PERSONAL  LIBERTY 
AND  TO  PRIVILEGES. — Sec.  1.  Remedies  for  the  Death  of  a  Person. 
Ai'i'EAi.s  OK  Death.  I^)I{I)  Camimjele's  Act. — At  common  law  there  were 
three  occasions  upon  which  the  courts  inquired  of  the  killing  of  a  human 
being:  (1)  Indictments,  which  were  prosecutions  brought  in  the  name 
and  behalf  of  the  king;  (2)  Appeals  of  death,  which  were  proceedings 
brought,  not  by  the  king  nor  in  his  name,  but  in  the  name  and  for  the 
benefit  of  private  individuals;  (3)  Inquisitions  against  deodands.  An 
appeal  was  an  accusation  by  one  private  subject  against  another  for 
some  heinous  crime.  It  was  a  private  process  for  the  punishment  of 
public  crimes  which  originated  in  a  custom,  derived  from  the  ancient 
Germans,  of  allowing  a  pecuniary  satisfaction,  called  a  weregild,  to  the 
party  injured  or  to  his  relations.  Such  proceedings  were  never  regarded 
as  a  violation  of  Magna  Charta:  but  weie  considered  "a  noble  remedy 
and   a  badge  of  the  rights  and  liberties  of  Englishmen."     An  acquittal 


INTTRODrCTION.  li 

in  this  proceeding  was  a  bar  to  a  subsequent  indictment  for  the  same  of- 
fense: but  an  acquittal  on  an  indictment  was  not  a  bar  to  a  subsequent 
prosecution  of  an  appeal  for  the  same  offense.  By  the  Statute  of  Glou- 
cester, an  appeal  of  murder  "must  be  sued  out  within  a  year  and  a  day 
after  the  death"  of  the  victim.  Appeals  were  abolished  by  59  George  III. 
The  remedy  was  never  in  use  in  this  country,  except  in  Maryland; 
though  the  right  existed  in  Pennsylvania  also.  (366).  Except  where  an 
appeal  would  lie.  the  maxim  actio  personalis  moritur  cum  persona  ap- 
plied, and  no  recovery  could  be  had  for  the  death  of  a  human  being — 
neither  husband,  wife,  parent,  child,  nor  master  could  recover  for  the 
loss  consequent  upon  the  death  of  spouse,  parent,  infant  child,  or  serv- 
ant, where  the  death  was  caused  by  the  wrongful  act  or  negligence  of 
another.  This  state  of  the  law  was  remedied  in  England  by  Lord  Camp- 
bell's Act  in  1S46.  by  which  those  dependent  upon  one  who  was  killed  by 
the  wrongful  act  or  negligence  of  another  were  given  a  remedy.  The 
maxim  of  the  common  law,  while  the  subject  of  criticism  by  text-writ- 
ers, seems  to  have  been  fully  adopted  and  in  force  in  this  country. 
Statutes  of  like  character  with  Lord  Campbeirs  Act  exist,  perhaps,  in 
all  the  states;  though  the  provisions  of  such  statutes  differ  in  important 
particulars.     (369). 

Sec.  2.  Pkevextive  Remi^oies. — Peace  Warrant.  This  is  a  summary 
remedy  by  which  one  may  be  required  to  give  bond  for  keeping  the 
peace  and  for  his  good  behavior.  It  is  a  criminal  proceeding  instituted 
by  one  individual  against  another,  and  is  generally  regulated  by  stat- 
ute. (374).  It  seems  to  be  a  rule  prevailing  everywhere,  that  an  in- 
junction will  not  lie  to  prevent  a  threatened  crime.  Formerly  the  courts 
would  not  interfere  by  injunction  except  wiiere  some  property  interest 
was  involved;  but.  now.  there  seems  to  be  a  disposition  on  the  ])art  of 
some  courts  to  enjoin  acts  which  interfere  with  purely  personal  rights. 
such  as  paying  improper  attentions  to  a  man's  wife,  and  the  like.     (375). 

Sec.  3.  Tiiueats. — The  extortion  of  money  by  threats  of  hodily  hurt 
is  indictable  at  common  law,  and  an  action  on  the  case  lies  for  pecuniary 
damages  consequent  upon  such  threat.  A  mere  vain  fear  produced  by  a 
tiireat  will  not  sustain  the  action;  neither  will  a  threat  of  injury  to 
property — it  must  be  a  threat  to  injure  the  person.  Sickness  brought  on 
by  terror  caused  by  a  threat  of  arrest  and  imprisonment  in  the  peniten- 
tiary, is  such  an  injury  as  will  sustain  the  action.  (381).  Trespass 
lies  for  legal  acts  which  become  trespasses  by  accident.  The  lawfulness 
or  unlawfulness  of  the  original  act,  is  not  controlling — for  one  is  liable 
if  he  strike  another  by  accident  while  defending  himself  from  a  third 
person;  but  is  not  liable,  in  the  absence  of  special  damage,  for  throwing  a 
log  into  a  highway.  The  true  question  is,  whether  or  not  the  injury 
resulted  directly  and  immediately  fi-(,m  the  act.  If  it  did,  trespass  will 
lie  though  the  injury  be  not  instantaneous.  The  intervention  of  a  free 
agent  will  relieve  the  one  who  did  the  original  act,  unless  such  free 
agent  acted  upon  a  natural  impulse  of  self-defense, — such  as  throwing 
off  a  lighted  sfpiib  that  falls  ui)on  him.  (382.)  It  is  not  necessary,  to 
constitute  an  assault,  that  actual  violence  bo  done  to  the  jjcrson.  If  the 
party  threatening  the  iissault  have  the  ability,  means,  and  ai)parent 
intention  to  carry  his  threat  into  execution,  it  constitutes  an  actionable 
assault.  Striking  the  horse  upon  which  one  is  riding,  or  upsetting  a 
chair  or  carriage  in  which  one  is  sitting  constitutes  an  assault.  (3S3). 
Holsterous  language  wiiicji.  iKtwcvcr.  negatives  the  intention  to  strike, 
«loes  not  constituli-  an  assault;  and  tiiis  is  so  although  tiiere  be  some 
demonstration  of  force.  Thus,  where  the  plaintiff  placed  his  hand  upon 
his  sword  and  said.  "If  the  time  were  not  assize,  I'd  run  you  through, 
sir, — your  eyes,"  this  was  not  an  assault.  (384).  If  one  lift  uj)  his 
fane  or  fist  nt  ;iiu)tli<  r  in  a  llircati'ning  maimer,  or  striUc  at  liini  with  his 
fist  or  any  weapon-  licing  within  striking  distance — ijut  miss  him,  it  is 
railed  an  "tmlawfiil  setting  upon  one's  person,"  and  is  an  assault  foi 
which  an  action  of  tresi)as3  lies.  (3S.5).  FTntering  the  .yleeping  roon 
«f  a  female  at  night  and  leaning  over  her  with  a  ijroffer  of  criminal 
sexual  Intercourse,  the  aggressor  being  so  near  as  to  excite  feir  and  ap 


lii  INl'lMIM  Cl'ldN. 

prolu'iision' of  force  in  tlit>  execution  of  his  iiurposc,  constitutes  an  ac- 
tionable assault.  If  the  plaintiff  was  so  frightened  and  shocked  in  her 
feelings  as  to  injure  her  health,  she  could  recover  damages  for  such  in- 
jury. (3S5K  In  civil  actions  for  assault  and  battery  the  defendant  may 
show,  in  mitigation  of  damages,  the  provocation  proceeding  from  the 
person  assaulted.  Rut  the  provocation  must  be  so  recent  as  to  raise  a 
fair  presumption  that  the  assault  was  committed  in  the  heat  of  blood 
produced  by  the  provocation.  (3Sti).  The  fact  that  the  plaintiff  invited 
the  assault  by  insulting  language  or  provoking  conduct  will  not  bar  a 
recovery:  and  so  it  is  when  parties  fight  by  consent.  However,  matters 
of  provocation  may  be  considered  by  the  jury  in  assessing  damages.  In 
civil  as  in  crimin;il  actions,  provocation  is  a  mitigation,  not  a  defense. 
(388).  The  maxim  volenti  non  fit  injuria  applies  to  actions  for  assault 
and  battery,  etc:  but  the  rule  has  this  qualification— the  act  assented  to 
must  be  lawful.  One  can  not  lawfully  authorize  another  to  beat  him. 
l3S9t.  Even  the  ceremonies  of  a  benevolent  society  are  indictable  and 
actionable  if  they  culminate  in  laying  hands  upon  a  member  who  for- 
bids it.  (390).  Formerly,  a  woman  could  not  recover  for  her  own  se- 
duction, but  in  some  states  the  courts  have  overruled  that  doctrine. 
(391).  The  least  touching  of  another  in  anger  is  a  battery;  so  is  ad- 
ministering a  deleterious  drug,  in  jest.  (391).  In  actions  of  tort  com- 
pensatory damages  are  allowed,  which  are  to  compensate  the  plaintiff 
for  the  injury  suffered;  when  proper  ground  is  established  therefor, 
punitory  or  exemplary  damages  are  also  allowed  for  the  punishment  of 
the  defendant  and  for  an  example  to  others.     (392). 

Si:C.     .J.    I.NJURIES    TO    THE    PERSON     Rt:SULT].\(!     FROM     NEfiLIOENCE.       If    an 

injury  result  from  the  immediate  act  of  another — whether  the  act  be 
wilfully  or  negligently  done,  or  whether  the  injurious  effect  be  intended 
or  merely  accidental — trespass  vi  et  armis  is  the  remedy.  But  if  the 
injury  be  not  the  immediate  result,  trespass  on  the  case  is  the  remedy. 
(394).  A  common  carrier  of  passengers  owes  to  the  passenger  the  duty 
to  be  careful.  This  duty  is  incident  to  the  contract  as  a  matter  of  law. 
The  right  to  maintain  an  action  for  the  breach  of  such  duty,  does  not 
depend  upon  the  contract,  but  is  founded  upon  the  common-law  duty  to 
carry  safely.  The  passenger  may  sue  upon  the  contract  of  carriage, 
where  there  is  one;  which  action  would  be  ex  contractu;  or  he  may  bring 
an  action  of  tort  for  the  negligence,  if  he  prefer  so  to  do,  which  action 
would  be  ex  delicto.  (395).  Negligence  is  a  failure  to  do  what  a  rea- 
sonable and  prudent  person  would  ordinarily  do  under  the  circumstances, 
or  doing  what  such  a  person  would  not  have  done  under  the  circum- 
stances. The  essence  of  negligence  may  lie  in  either  omission  or  com- 
mission. One  who  by  his  own  negligence  suffers  an  injury  cannot  re- 
cover from  another  for  such  injury.  If  the  injury  be  caused  entirely 
by  the  negligence  or  improper  conduct  of  the  defendant,  the  plaintiff  can 
recover:  but  if  the  injury  proceed  from  the  negligence  of  the  plaintiff — 
that  is,  if  the  misfortune  would  not  have  happened  had  it  not  been  for 
plaintiff's  negligence — plaintiff  cannot  recover.  (397).  However,  if  the 
defendant  be  negligent  and  the  plaintiff  be  guilty  of  contributory  negli- 
gence, the  plaintiff  can  recover,  notwithstanding  his  contributory  negli- 
gence, if  the  defendant  could  have  avoided  the  injury  by  the  exercise  of 
proper  care  after  being  aware  of  the  plaintiff's  negligence.  This  is  called 
the  doctrine  of  "The  Last  Clear  Chance."  (399).  "While  there  is  some  con- 
flict of  authority  upon  the  question,  the  weight  of  authority  seems  to 
hold  that  no  recovery  can  be  had  for  injuries  caused  by  fright  if  there 
be  no  immeiiate  personal  injury.  Such  results  as  nervous  disease, 
blindness,  insanity,  or  even  a  miscarriage,  are  too  remote  to  sustain  an 
a<tion  under  this  rule.  The  courts  seem  to  be  unaware  of,  or  unable  to 
comprehend,  the  common  aphorism  "you  had  as  well  kill  a  man  as  scare 
him  to  death."  (401).  In  some  states  it  is  held  that  mental  anguish, 
caused  by  the  negligence  of  another,  may  be  considered  in  fixing  the 
damages  incident  to  such  negligence.  In  other  states  this  doctrine  is 
repudiated.  In  discussing  this  "mental  anguish"  doctrine,  Mr.  Henry  A. 
Page  put  this  pertinent  inquiry  to  the  courts,  "How  much  per  ang?'" 
(403). 


INTRODUCTION.  liii 

Sec.  6.  Injuries  to  Health. —  'Injuries  affecting  a  man's  health  are 
wrongs  or  injuries  unaccompanied  by  force,  for  which  there  is  a  remedy- 
in  damages  by  special  action  on  the  case."  Such  action  lies  although 
the  injury  to  the  plaintiff  be  caused  by  a  public  nuisance,  or  by  admin- 
istering deleterious  drugs,  or  by  selling  unwholesome  food,  or  by  selling 
any  dangerous  article  for  ordinary  use — such  as  illuminating  oils,  stove 
poiish,  medicine,  etc.  Where  full  notice  is  not  given  of  the  dangerous 
qualities  of  the  article  sold,  the  manufacturer  or  wholesaler  of  such  arti- 
cles is  liable  to  one  who  purchases  from  the  retailer.  So  of  one  who 
knowingly  lets  an  infected  house  without  notifying  his  lessee  of  the  in- 
fection. (406-411).  A  professional  man  is  liable  for  injuries  resulting 
from  malpractice.  Under  the  Code  practice,  such  actions  may  be  in  tort 
or  in  contract  at  the  election  of  the  plaintiff.     (412). 

Sec.  7.  I.x.jlries  to  Reput.vtiox. — Trespass  on  the  case  is  the  appropri- 
ate remedy  for  injuries  resulting  from  libel  and  slander.     A  libel  is  a 
malicious    publication    expressed   either    in    printing    or    writing,    or    by 
signs  or  pictures,   tending  to  blacken  the  memory  of  the  dead  or  the 
reputation  of  the  living,  and  to  expose  them  to  public  hatred,  contempt, 
or  ridicule.     A  libel  is  indictable  as  a  crime,  and  also  the  subject  of  a 
civil  action  for  damages.     In  the  absence  of  a  statute,  proving  the  truth 
of  the   matter   published— which   is   called  justifying— is   no   defense   to 
either  the  criminal  or  civil  action  for  a  libel;  the  maxim  of  the  law  be- 
ing, "the  greater  the  truth,  the  greater  the  libel."     (413-415).     The  dis- 
tinction between  libel  and  slander  is  this,  libel  is  written  or  printed; 
slander  is  only  spoken:  or,  as  it  is  sometimes  expressed,  a  la  Irish,  writ- 
ten slander  is  libel,  while  oral  libel  is  slander.     Every  libel  will  sustain 
a  civil  action  for  damages  unless  the  defendant  be  protected  by  privilege: 
but  such  is  not  the  case  with  slander.     Some  words  will  support  an  ac- 
tion of  slander  without  proof  of  actual  damage  suffered  therefrom — such 
words  are  said  to  be  "actionable  per  se."   Unless  the  words  spoken  be  ac- 
tionable per  se,  it  is  necessary  to  show  that  the  plaintiff  suffered  some 
actual  loss  or  damage  by  reason  of  the  slander,  or  his  action  will  fail. 
The  slander  of  women  by  imputations  of  unchastity  is  not  actionable  per 
se,  unless  such  unchastity  would  work  a  forfeiture  of  property — such  as 
land  given  to  a  woman  upon  condition  to  be  forfeited  should  she  become 
unchaste.     This  drop  of  "the  essence  of  wisdom"  of  the  common  law  has 
been    partly   wiped    up   with    modern    statutes   making    such    slanders   a 
crime.     (415-418).     By  the  English  rule,  words,  to  be  actionable  per  se, 
must  impute  a  crime  for  uhich  corporal  punishment  may  be  infUctei  in 
a  temporal  court.     In  this  country,  it  is  held,  in  some  of  the  states,  that 
words  are  actionable  per  se  which,  if  true,  will  subject  one  to  an  indict- 
ment involving  moral  turpitude,  or  subject  one  to  an  infamous  punish- 
ment; while  in  other  states  the  English  rule  is  practically  followed.     But 
in  some  states  words  are  held  to  be  actionable  per  se  if  they  convey  an 
imputation  upon  one  in  the  way  of  his  profession  or  occupation.     Words 
malicious  and  false  and  uttered  with  intent  to  injure  one,  and  which  do 
injure  him,  are  actionable  whether  defamatory  or  not,  e.  g.  to  call  a  man 
a  dissenter,  is  not  defamatory:   but  to  do  so  in  a  small  prejudiced  com- 
munity, with  intent  to  injiire  his  trade,  is  actionable  if  such  injury  re- 
sults therefrom.     Such    words   may   not   support  a   technical   action   for 
slander,  but  they  will  support  an  action  of  some  kind — the  name  of  the 
action  is  of  no  consequence.     (41.S).     Any  written  slander  constitutes  a 
libel.     Many  charges  which,  if  merely  spoken,  would  not  supjiort  an  ac- 
tion for  slander,  will,  if  written,  support   an  action   for  lil)el.     Words  of 
mere  ridicule  or  contemj)t.  which  only  tend  to  lessen  a  man  in   public 
esteem  or  wound  his  feelings,  will,  if  written.  supi)ort  an  action  for  libel. 
(421).     Some   words  are  not  actionable   though    highly   defamatory,   be- 
cause'spoken  or  written  under  such  circiinistances  as  to  render  the  party 
uttering  them  iminuno  to  citlier  criminal  or  civil  actions  therefor.     Such 
Immunity  is  called  Privilege,  and  such  utterances  are  called  "Privileged 
f-ommunications."     Privilege  is  of  two  kinds,  absolute  and  qualified.     .\b- 
soliite  privilege  shields  one  from  all  liability,  criminal  and  civil,  no  mat- 
ter liow  false  and  malicious  the  cliarges  may  be.     This  absolute  privilege 
extends  only  to  utterances  upon  the  lloors  of  Congress  and  the  state  legis- 

Remedics — e. 


li\  INl'KODlt   rioN. 

latures,  reports  of  military  or  other  officers  to  their  sviperiors  in  tlie  line 
of  duty,  to  everything  said  by  a  judge  on  the  hench.  by  a  witness  in  the 
box.  and  the  like.     Qualified  privilege  does  not  give  absolute  iinuiunity: 
for  the  person  slandered  or  libeled  may  recover,  in  siiite  of  the  privilege. 
upon  proof  that  the  words  were  not  used  in  good  faith,  but  that  the  de- 
fendant took  advantage  of  a  pririlcffCil  occasion  to  falsely,  artfully,  and 
knowingly  defame  him.     To  overcome  this  qualified  privilege,  falsehood 
and  express  malice  must  be  shown.     Honesty  of  puri)ose  is  essential  to 
qu;iJified  privilege,  and  to  constitute  honesty  of  purpose  the  defamatory 
words  must  be  uttered,  not  merely  on  an  occasion  which  would  justify 
making  them,  but  also  from  a  sense  of  duti/  and  toith  a  belief  that  they 
arc  true.     The  character  which  a  master  gives  a  servant  ui)on  inquiry  by 
one  who  proposes  to  employ  such  servant,  criticism  of  public  officers,  let- 
ters to  a  department  of  government  protesting  against  the  appointment 
of  one  to  office  because  of  disqualifying  matters  charged,  are  instances  of 
qualified  privilege.     (422).     Words  uttered   in  church  trials,  of  or  to  a 
member,   are   within   the   rule   of  qualified   i)rivilege:    aliter   as   to  such 
words  uttered   of  or  to  a  stranger,   it  seems.     (425).     In   this  age  and 
country   to   pronounce  an  anathema   against,   and   to  excommunicate,   a 
member  of  a  church  can  have  no  such  temporal  ill  effects,  in  the  eye  of 
the  law,  as  to  be  actionable  per  se.  or  to  exclude  such  acts  from  the  pro- 
tection of  the  doctrine  of  qualified  privilege.     (426).     In  the  absence  of 
a  statute,  what  is  called  "freedom  of  the  press"  confers  upon  publishers 
and  editors  no  greater  exemption  from  liability  for  libel  than  the  law- 
accords  to  all  other  persons.     Liberty  of  the  press  simply  protects  pub- 
lications from  censorship.     (428).     In  cases  of  defamation,  the  defend- 
ant may  show  previous  provocation  received  from  the  plaintiff,  provided 
such  provocation  originated  in.  or  be  closely  connected  with,  the  same 
subject  matter  out  of  which  the  defendant's  alleged  libel  or  slander  arose. 
The  defendant  may  show  that  he  spoke  the  defamatory  words  in  a  mo- 
ment of  heat  and  passion,  under  provocation  from  the  plaintiff  immedi- 
ately preceding  his  utterances.     Under  such  circumstances,  all  acts,  etc.. 
constituting  parts  of  the  res  gestae  may  be  shown  in  mitigation  of  dam- 
ages.    Heat  and  passion  alone  do  not  mitigate;  but  when  such  emotions 
are  directly  attributable  to   contemporaneous  provocation  by  the  plain- 
tiff, they  do  mitigate  the  damages.     The  rule  which  allows  provocation  to 
be  shown  in  mitigation  of  damages  is  confined  to  recent  provocation  and 
to  those  cases  in  which  the  matter  offered  in  mitigation  of  damages  is 
explanatory  of  the  meaning  of  the  language  complained  of  and  of  the 
occasion   of  writing   it — all   being  parts  of  a  connected   and   continued 
controversy.     (430-434).     Prior  to  "Fox's  Libel  Act."  only  the  question, 
whether,    or   not,   the   defendant    published    the   alleged    libel,    was    sub- 
mitted to  the  jury,  in  the  trial  of  indictments  for  libel.     Whether,  or  not, 
the  publication   was  libelous   was   decided   by   the  judge — the   jury   had 
nothing  to  do  with  it.     Fox's  Act  changed  this,  and  required  the  whole 
matter  to  be  submitted  to  the  jury— just  as  in  all  other  criminal  prosecu- 
tions.    This  act  has  been  adopted  by  legislation  or  by  judicial  decision  in 
this  country.     f434).     Formerly  under  the  English  practice,  an  injunc- 
tion would  not  issue  to  restrain  a  libel;  but,  by  statute,  such  practice  is 
now  allowed  in  that  country.     Except  in  cases  of  boycott,  the  courts  of 
this  country  seem  to  follow  the  original  English  practice.     (438). 

Sf.c.  8.  Dkprivation  of  Lihektv. — (a)  Habeas  Corpus.  This  writ  is  as 
much  a  palladium  to-day  as  it  ever  was.  It  was  in  use  before  the  days  of 
Magna  Charta;  but  it  became  so  little  respected  as  to  no  longer  afford 
substantial  protection  to  English  subjects.  This  was  remedied'  by  the 
great  Habeas  Corpus  Act  which  gave  to  this  remedy  the  fullest  and 
strongest  scope.  It  has  been  said  that  habeas  corpus  was  neither  a  civil 
nor  criminal  action;  that  there  are  no  parties  to  the  proceeding  except, 
nominally,  the  person  detained  of  his  liberty  and  the  person  by  whom  he 
is  detained;  that  it  is  error  to  characterize  the  proceeding  as  a  cause  or 
action;  that  it  is  nearly  allied  to  a  proceeding  in  rem;  that  it  is  not  de- 
signed to  obtain  redress  against  anybody,  and  no  judgment  can  be  en- 
tered against  anybody;  and  that,  techincally  speaking,  there  is  no  plain- 


INTRODUCTIOX.  Iv 

tiff  and  no  defendant.     But  it  is  said  by  the  Supreme  Court  of  the  United 
States  that  habeas  corpus  proceedings  are,  to  all  intents  and  purposes, 
civil  actions,  both  under  the  common-law  and  Code  practice.     (439).     One 
under  sentence  by  the  final  judgment  of  a  court  of  comptent  jurisdic- 
tion will  not.  ordinarily,  be  discharged  by  habeas  corpus:  but  if  there  be 
a  want  of  jurisdiction  in  the  court,  or  if  its  action  be  unconstitutional  or 
in  the  execution  of  an  unconstitutional  law,  or  if  its  judgment  be  void  as 
distinguished  from  erroneous  or  voidable,  one  in  custody  under  the  final 
judgment  of  a  court,  will  be  discharged  by  habeas  corpus.     (444).     Mere 
error  in  a  judgment  cannot  be  reviewed  in  habeas  corpus  proceedings. 
(446).     The  writ  is  not  a  writ  of  error,  though  in  some  cases  it  may  be 
used,  in  connection  with  the  writ  of  certiorari,  for  that  purpose.     The 
character  of  the  restraint  or  imprisonment  necessary  to  sustain  the  writ, 
is  not  satisfactorily  defined.     Confinement  under  both  civil  and  criminal 
process  may  be  relieved;   wives  restrained  by  husbands;   children  with- 
held from  those  entitled  to  their  custody;  persons  held  in  arbitrary  cus- 
tody  by   private   individuals, — as   in   madhouses;    those   under   unlawful 
military  control ;  may  all  obtain  relief  by  this  writ.     But  there  must  be 
something  more  than  a  mere  moral  restraint — such  as  telling  a  person  to 
"consider  himself  under  arrest."     There  must  be  actual  confinement,  or 
the  present  means  of  enforcing  physical  restraint.     (446).     One  who  is 
in  the  custody  of  state  officials  under  criminal  process  may  be  discharged, 
on  habeas  corpus,  by  a  Federal  court  when  the  alleged  cause  of  detention 
is  for  an  act  done  in  discharge  of  his  duty  as  a  United  States  official.     The 
writ  lies  to  discharge  one  in  custody  under  process  of  a  state  court,  when 
such  action  of  the  state  court  is  in  violation  of  the  constitution,  or  of  a 
law  or  treaty,  of  the  United  States:  but  this  use  of  the  writ  is  exercised 
with  caution  and  as  a  matter  of  discretion  rather  than  as  a  matter  of 
course,    even    in    those   cases    in    which    the   jurisdiction    clearly    exists. 
(450).     But  a  state  court  cannot  discharge  a  prisoner  in  custody  under 
the  authority  of  the  United  States.     (451).     No  appeal  lies  either  by  the 
state  or  a  petitioner  from  the  ruling  of  a  judge  that  there  is,  or  is  not, 
probable  cause,  or  admitting,  or  refusing  to  admit,  to  bail.     But  if  the 
iiidge  declines  to  hear  evidence  because  an  indictnunt  for  a  capital  offence 
has  been  found  against  the  petitioner,  his  ruling  becomes  a  question  of 
law  reviewable  by  appeal,  certiorari,  or  writ  of  error — according  to  the 
I)ractice  of  the  appellate  court.     An  ap])eal  does  lie  in  cases  involving  the 
custody  of  children  and  others  forcibly  detained  by  individuals,  and  not 
under  legal  process.     A  prisoner  may  appeal  from  the  circuit  court  of  the 
United  States  to  the  supreme  court  thereof,  where  his  petition  allege^ 
tliat   he    is    imprisoned    in    violation    of   the   constitution    of   the   United 
States;  but  such  appeals  are  restricted  to  those  cases  provided  for  by  stat- 
ute.    (453).     (h)   False  Imprisonment.     False  imprisonment  is  the  ille- 
fcal  restraint  of  the  person  of  any  one  against  his  will.     It  was  regarded 
as  a  heinous  offense  and  visited  with  severe  punishment  at  the  common 
hiw.     As  it  necessarily  included  a  technical  assault,  and  usually  included 
a  battery  also,  the  indictment  charged  assault  and  battery  and  false  im- 
I)risonment.     There  may  be  a  false  imprisonment  without  touching  the 
Iierson,  as  where  an  officer  exhil)its  a  warrant   to  a   person  and   desires 
liiin  to  go  before  a  magistrate,  wiiich  request  is  complied   witii  without 
further  compulsion.     This  is  an  imprisonment  because  tlie  person  yields 
to  what  he  supposes  to  be  a  legal  necessity,  and  if  the  officer's  action  was 
unwarranted  by  law,  such  imprisonment  is  a  false  imprisonment.     (456). 
At  common  law  there  are  two  remedies  for  an   illegal  arrest:    (1)   Tres- 
pass vl  et  armis  where  there  is  no  legal   excuse  or  justification   for  the 
arrest— as  where  it  is  made   without  legal   process  or  under  void  legal 
process;   (2)  trespass  on  the  case  where  the  arrest  is  made  under  process 
which  is  erroneously  issued,  but  is  not  ai)soIutely  void.     Al)soIutc]y  void 
process  will  protect  neither  tlic  officer  serving  it  nor  tlic  suitor  who  jiro- 
cured  it  to  be  issued.      If  tfie  process  be  erroneously  issui'd.  but  not  void, 
it  will  protect  the  officer  malung  the  arrest;  and  it  will  also  protect  the 
suitor  who  pro(  ured  it  to  be  i.ssued.  In  an  action  of  trespass  vi  et  armis. 
though  it   trill  vol  jirutrrf  him  in  an  ndinn  of  "trespass  on  the  cnsc  in  thr 


Ivi  l.NTKODL'tTlDN. 

natiirr  of  wttlicious  prosecution."  whore  the  want  of  probable  cause  and 
malice  exist.  Under  the  Code  praeiiee.  an  action  of  tr('si)ass  vi  et  ariuis 
and  an  action  of  trespass  on  the  case  in  tlie  nature  of  false  iniiirisonnicnt. 
may  be  joined  in  the  same  action  and  set  up  in  the  same  complaint— 
that  is,  tlie  relief  afforded  by  both  of  these  common-law  remedies  will 
now  be  afforded  in  one  single  and  simple  civil  action.  (457).  In  an  ac- 
tion for  iiialivioiis  prosi'viitioii.  malice  and  tlie  want  of  probable  cause 
must  be  alleged  and  proven:  but  not  so  in  an  action  for  false  imprison- 
ment. There  is  a  marked  distinction  between  the  two  injuries.  For 
malicious  prosecution  the  common-law  remedy  was  trespass  on  the  case. 
If  one  is  imprisoned  under  leijal  process  issued  in  an  action  instituted 
and  carried  on  nialivioKshj  and  uithout  probable  cause,  it  is  malicious 
prosecution:  but  if  the  imprisonment  be  leithout  leiial  process,  it  is  false 
imprisonment.  No  proof  of  malice,  or  want  of  probable  cause,  is  neces- 
sary to  make  out  a  case  of  false  imprisonment — such  i)roof  cannot  take 
the  place  of  want  of  lc,a:al  process.  (-l.')0).  If  a  judicial  offic-er,  whether 
possessed  of  a  general  or  a  special  jurisdiction,  act  erroneously,  or  even 
oppressively,  in  the  exercise  of  his  authority  and  within  his  jurisdiction, 
an  indii^idual.  at  irliose  suit  he  acts,  is  not  answei-able  therefor — he  is 
not  to  be  held  for  the  error  or  misconduct  of  such  officer.  But  if  a  judi- 
cial officer  having  onU/  a  special  or  li)nited  jurisdiction,  exceed  his  au- 
thority and  act  in  a  case  of  which  he  has  «o  jurisdiction,  no  person  can 
justify  under  such  proceedings — much  less  the  suitor  who  instituted 
them.  (460).  (c)  Malicious  Prosecution  and  Abuse  of  Legal  Process. 
The  foundation  of  an  action  of  Malicious  Prosecution  is  the  express  or 
implied  ynalice  of  the  defendant.  Whoever  institutes  legal  proceedings 
against  an  innocent  and  unoffending  person — which  proceedings  charge 
a  person  with  a  crime  injurious  to  his  fame  and  reputation  and  tends  to 
deprive  him  of  his  liberty — and  whoever  maliciously  causes  a  person's 
arrest,  or  brings  groundless  accusations  against  him — which  entail  ex- 
penses incident  to  defending  himself, — is  liable  for  damages  in  an  action 
of  trespass  on  the  case.  The  injuries  which  will  support  an  action  for 
malicious  prosecution  are:  (1)  Injury  to  a  man's  fame — as  if  the  subject 
matter  of  the  prosecution  be  scandalous;  (2)  where  a  man  is  put  In  dan- 
ger to  lose  his  life,  limb,  or  liberty  by  the  prosecution;  (3)  damage  to 
his  estate — as  where  he  is  forced  to  expend  money  to  defend  himself 
against  the  charge.  (461).  If  one  procures  another  to  sue  a  third  per- 
son without  cause,  an  action  lies  against  him  who  procured  the  bringing 
of  such  suit:  but  not  against  the  plaintiff  therein.  An  action  against  one 
who  stirs  up  vexatious  litigation,  cannot  be  sustained  unless  it  be  shown 
that  there  was  no  cause  for  the  action  which  he  procured  to  be  brought. 
(462).  Where  probable  cause  is  absent,  malice  is  implied  when  a  crimi- 
nal prosecution  is  instituted:  but  the  trant  of  probable  cause  can  not  be 
implied  from  tlie  most  express  tnalice.  If  the  person  prosecuted  be 
guilty,  the  prosecutor  is  not  liable  for  malicious  prosecution — no  matter 
how  malicious  his  motive;  neither  does  such  action  lie  though  the  per- 
son prosecuted  be  innocent,  if  the  evidence  against  him  be  sufficient  to 
establish  probable  cause  and  the  prosecutor  honestly  believes  the  charge 
to  be  true.  (463).  If  one  person  cause  another  to  be  arrested  without 
process,  it  is  a  trespass  and  false  imprisonment.  So,  if  he  arrest  him 
upon  process  which  is  void  in  itself,  or  void  for  want  of  jurisdiction  in 
the  court  issuing  it.  An  action  for  malicious  prosecution,  on  the  other 
hand,  is  a  special  action  on  the  case  for  the  use  of  valid  process  of  law 
from  malicious  motives.  It  presupposes  valid  process.  (464).  To  sus- 
tain an  action  for  malicious  prosecution  it  is  necessary  to  show,  (1)  that 
the  prosecution  has  terminated  by  the  acquittal  or  discharge  of  the  ac- 
cused; (2)  that  in  instituting  the  prosecution  the  prosecutor  acted  with- 
out probable  cause;  and  (3)  that  he  was  actuated  by  legal  malice,  i.  e., 
by  improper  or  sinister  motives.  Want  of  probable  cause  and  the  ex- 
istence of  malice,  either  express  or  implied,  must  both  exist  concurrently 
to  entitle  the  plaintiff  to  recover.  If  probable  cause  be  shown,  the  de- 
fense is  perfect  notwithstanding  the  fact  that  the  defendant  was  actu- 
ated solely  by  malice  in  instituting  the  prosecution  against  the  plaintiff. 


IXTRODL'CTION.  Ivii 

How  much  weight,  as  proof  of  probable  cause,  shall  be  given  to  a  judg- 
ment of  guilty,  which  judgment  is  subsequently  reversed  for  error,  is  a 
question  not  settled  in  an  entirely  satisfactory  manner.  It  has  been  held 
that  probable  cause  is  fully  established  by  a  verdict  and  judgment  of 
guilty,  although  upon  appeal  a  contrary  verdict  and  judgment  be  rendered 
in  a  higher  court:  and  that,  if  it  appear  that  the  alleged  malicious  prose- 
cution was  before  a  court  having  jurisdiction  and  was  then  decided 
against  the  defendant — nothing  appearing  to  fix  the  prosecutor  with  any 
unfair  means  in  conducting  the  prosecution — such  judgment  establishes 
probable  cause.  If  there  be  a  conviction  before  a  magistrate,  even, — he 
having  jurisdiction  of  the  subject  matter — it  will  be  conclusive  evidence 
of  probable  cause,  unless  the  conviction  be  obtained  by  undue  means. 
It  is  an  irrebuttable  presumption  of  law  that  every  judicial  tribunal, 
acting  within  its  jurisdiction,  acts  impartially  and  honestly.  This  rule 
applies  to  the  court  and  its  judgment,  and  not  to  litigants  in  the  court. 
(466).  An  action  lies  for  the  "Abuse  of  Legal  Process,"  whether  the 
process  be  civil  or  criminal.  Such  action  is  based  upon  misconduct  in 
the  execution  of  valid  legal  process — process  which  is  justifiable  and 
proper  in  its  inception.  For  example,  if,  after  an  arrest  under  valid 
civil  or  criminal  process,  the  party  arrested  be  subjected  to  unwarrant- 
able insult,  indignities,  or  cruelty,  or  be  otherwise  treated  with  oppres- 
sion and  undue  hardship,  he  may  maintain  an  action  in  tort  against  the 
officer  and  against  others  who  unite  with  the  officer  in  doing  the  wrong. 
Perhaps  the  most  frequent  form  of  such  abuse  of  legal  process  is  that  of 
working  upon  the  fears  of  the  person  arrested  for  the  purpose  of  extort- 
ing money  or  other  property,  or  of  compelling  him  to  sign  some  paper,  to 
give  up  some  claim,  or  to  do  some  other  act  demanded  by  those  con- 
trolling the  prosecution.  (470).  It  is  said  that  there  is  a  distinction 
between  the  malicious  prosecution  of  civil  actions  and  the  malicious 
prosecution  of  criminal  actions.  In  the  last  named  the  prosecutor  is 
much  more  favored  than  in  the  first;  for  the  prosecutor  of  a  public 
wrong  is  protected,  provided  he  has  probable  cause,  however  malicious 
his  motives.  (472).  An  abuse  of  legal  process  consists  in  employing 
such  process  for  some  unlawful  object,  not  for  the  legitimate  purpose  for 
which  such  process  was  intended  by  law.  If  process,  either  civil  or  crim- 
inal, be  thus  misused,  this  is  an  abuse  for  which  an  action  will  lie.  In 
such  action  it  is  not  necessary  to  shoic  either  malice  or  icant  of  probable 
cause  in  causing  the  process  to  issue,  nor  that  the  proceeding  has  termi- 
nated; and  it  is  immaterial  whether  such  proceeding  was  baseless  or  not. 
(473).  The  authorities  frequently  confound  the  action  for  the  Abuse  of 
Legal  Process  with  that  for  Malicious  Prosecution,  although  these  actions 
are  essentially  different.  (475).  Exemplary  damages  are  allowed  in 
actions  for  false  imprisonment  if  the  defendant  act  wantonly  or  with 
criminal  Indifference  to  civil  obligations.  (478).  (d)  Liability  of  of- 
ficers in  Actions  for  False  Imprisonment,  Malicious  Prosecution,  an^ 
Abuse  of  Legal  Process.  An  independent  judiciary  is  justly  regarded  as 
essential  to  the  public  welfare  and  the  best  interests  of  society.  Hence, 
for  acts  done  in  the  exercise  of  judicial  authority  clearly  conferred,  a 
judge  shall  not  be  held  liable  to  any  one  in  a  civil  action,  so  that  he  may 
feel  free  to  act  upon  his  own  convictions  uninfluenced  by  any  ai)prehen- 
sion  of  ill  conspquf-nces  to  himself.  .ludges  of  courts  of  record  of  superior 
or  general  jurisdiction  arc  not  liable  to  a  civil  action  for  their  judicial 
acts,  even  when  such  acts  are  malicious,  corrupt,  and  in  excess  of  their 
jurisdiclinn:  but  judges  of  inferior  :ind  limited  jurisdiction  are  not  pro- 
tected when  they  act  beyond  the  limits  of  their  jurisdiction.  (479).  A 
ministrrial  officer  has  a  line  of  conduct  nuuked  out  for  liini  by  the  law, 
and  he  has  nothing  to  do  but  to  follow  it.  while  a  judicial  officer,  on  the 
other  hand,  must  necessarily  exercise  judgment  and  discretion  in  dis 
charging  his  duties.  Hence  it  is.  that  a  ministerial  officer  is  held  liable, 
in  a  civil  action,  for  any  failure  to  follow  his  prescribed  line  of  duty: 
while  a  judicial  officer  is  expmjjt  from  a  civil  action,  under  the  rule 
above  stated.  No  action  will  lie  against  a  jiistice  of  the  peace  for  a 
judicial  act.  as  distinguished  from   his  ministerial  acts,  provided  ho  set 


l\iii  INI-KODITTION. 

within  his  jurisdiction.  It  is  not  always  easy,  however,  to  distinguish 
botwoon  judicial  and  ministerial  acts.  (481).  Executive  ofTicers,  being 
obliged  to  execute  i)rocess,  are  protected  in  the  proper  discharge  of  their 
duty  if  the  process  issue  from  a  court  or  magistrate  having  jurisdiction 
of  the  subject  matter.  If  the  magistrate  proceed  unlawfully  in  issuing 
the  process,  he  may  be  liable:  but  the  officer  who  executes  it  is  not.  The 
executive  officer  is  protected  even  when  the  process  under  which  he  acts 
is  voidable  for  irregularity  or  mistake  in  its  issue:  but  not  where  it  is 
apparent  that  the  process  is  void  for  ivant  of  jurisdiction  in  the  magis- 
trate. (483).  One  who  is  wilfully  denied,  or  hindered  in,  his  right  to 
vote,  by  officers  who  ought  to  receive  his  vote,  may  maintain  an  action, 
against  sucli  officers — to  assert  his  right  and  to  recover  damages  for  the 
injury.  To  sustain  the  action,  there  must  be  proof  of  malice,  express  or 
implied,  on  the  part  of  the  officer.  The  action  does  not  lie  for  a  mere 
error  of  judgment,  when  their  motives  are  pure  and  untainted  with  fraud 
or  malice.  (487).  Where  the  question  of  one's  right  to  vote  is  held  to 
be  a  judicial  question,  as  is  the  case  in  some  jurisdictions,  no  liability 
rests  upon  election  officers  for  refusing  to  allow  one  to  vote — the  rule 
applicable  to  judicial,  as  distinguished  from  ministerial  officers,  is  ap- 
plied in  such  jurisdictions.     (488). 


CHAPTER  VI. 

INJURIES  GROWING  OUT  OF  RELATIVE  RIGHTS.— Sec.  1.  Hus- 
B.\ND  AND  Wife. — (a)  Habeas  Corpus.  Whatever  may  have  been  the 
former  lawr,  it  is  now  settled,  that  a  man  has  no  legal  right  to  restrain 
his  wife  of  her  liberty  by  confining  her  to  his  house,  etc.  He  may  inter- 
pose between  her  and  an  improper  companion  for  the  purpose  of  "pre- 
serving his  honor:"  but  he  has  no  right  to  imprison  her.  Therefore,  she 
will  be  freed  from  such  imprisonment  or  confinement,  by  habeas  corpus, 
and  set  at  liberty  to  go  where  she  pleases.  (490-495).  (b)  Seduction. 
The  husband  may  recover  damages,  in  trespass  vi  et  armis  or  trespass 
on  the  case,  against  one  who  has  sexual  intercourse  with  his  wife — 
whether  the  wife  assented  thereto,  solicited  it,  or  was  forced.  It  is  the 
defilement  of  the  marriage  bed — the  corrupting  of  the  wife's  body  rather 
than  her  mind — that  constitutes  the  essential  wrong.  Seduction  of  the 
wife  and  the  loss  of  her  service  and  affections,  are  mere  matters  of  ag- 
gravation of  damages,  and  not  essentials  to  a  recovery.  (495).  There 
must  be  positive  proof  of  an  actual  marriage  to  sustain  an  action  of 
crim.  con.  (497).  A  wife  cannot  maintain  an  action  of  crim.  con.: 
but  in  some  states  she  can  maintain  an  action  against  anyone — man  or 
woman — who  wrongfully  induces  her  husband  to  abandon  her,  or  to  send 
her  away,  or  to  withdi'aw  his  support.  (498).  (c)  Enticing  and  Harbor- 
ing.  Either  trespass  or  case  lies  for  the  wrongful  enticing  or  harboring 
the  wife.  (501).  The  husband  may  maintain  an  action  against  one  who 
permanently  or  temporarily  alienates  his  wife's  affections,  although  such 
conduct  be  unattended  by  sexual  intercourse  or  abandonment.  (501). 
But  if  a  husband's  ill-treatment  of  his  wife  be  such  as  to  justify  her 
leaving  him  for  fear  of  bodily  harm,  he  can  maintain  no  action  against 
one  who  harbors  her.  (503).  Neither  can  he  recover  of  one  who  in- 
duces his  wife  to  abandon  him  because  of  his  brutal  treatment.  Par- 
ents are  allowed  greater  latitude  than  others  in  the  matter  of  inducing 
their  daughters  to  abandon  their  husbands  for  ill-treatment,  and  in  in- 
ducing those  who  have  abandoned  their  husbands  for  such  cause,  to  re- 
fuse to  return  to  them.  But  unless  the  husband's  conduct  be  such  as  to 
justify  such  interference,  he  may  maintain  an  action  against  anyone — 
parents  included — who  induces  his  wife  to  leave  him,  or  who  induces  her 
to  remain  away  from  him  after  having  left  him.  For  the  mere  harbor- 
ing of  the  wife,  unattended  by  enticing  or  inducing  her  to  refuse  to  re- 
turn to  him,  no  action  lies.  (503-507).  As  at  common  law  a  wife  could 
bring  no  action  in  the  law  courts  without  the  joinder  and  assent  of  her 
husband,  she  was  without  any  remedy  against  one  who  induced  her  bus- 


INTRODUCTION.  Hx 

band  to  abandon  her.     But  where  the  statutes  of  a  state  permit  her  to 
sue  alone,  she  may  maintain  an  action  against  one  who  entices  her  hus- 
band to  abandon  her  or  induces  him  to  refuse  to  return  to  her.     WTiat 
constitutes  such  a  wrongful  exercise  of  influence  over  the  husband,  is 
determined  by  practically  the  same  rules  which  govern  in  cases  of  en- 
ticing and  persuading  a  wife  to  leave,  or  remain  away  from,  her  husband. 
(507).     The  husband  may  recover  damages  sustained  by  him  as  the  re- 
sult of  a  battery  upon  his  wife,  or  of  a  wilful  sale  to  her  of  a  dangerous 
or  deleterious  drug.      (509).     For  a  tort  committed  upon  the  wife,  two 
actions  will  lie— one  by  the  husband  alone  for  the  loss  of  service,  ex- 
penses, etc.,  the  other  by  the  husband  and  wife  jointly,  for  the  wife's 
suffering  and  the  injury  to  her  person.     There  are  statutes  in  some  of 
the  states  which   allow   but  one  action.     These  statutes   permit  all   the 
damages  incident  to,  and  growing  out  of,  an  injury  to  the  wife,  to  be 
recovered    in    the   same   action.     (511).     In    the   absence   of  an    express 
statute,  the  wife  can  maintain   no  action  against   her   husband   for  in- 
juries to  her  person  suffered  at  his  hands.     (513).     Under  the  English 
law,  there  is  no  precedent,  except  in  a  few  extreme  cases,  where  any 
court  has  granted  a  maintenance  to  the  wife  except  in  divorce  proceed- 
ings, or  as  an  incident  to  divorce.     It  seems  to  be  a  general  rule  that  the 
granting  of  a  maintenance  to  the  wife  out  of  the  husband's  estate,  is  not 
an  original  but  an  incidental  matter — incidental  to   divorce.     However, 
of  late  years  it  has  been  held  in  many  states  that  such  maintenance  will 
be  allowed  by  courts  exercising  equitable  jurifdiction,  where  the  wife 
brings  an  action  for  that  purpose,  although  she  is  not  seeking  a  divorce. 
(515).     A  wife  may  recover  damages  for  the  mutilation  of  her  husband's 
corpse.     (517). 

Sec.  2.  Parent  and  Child. — (a)  Habeas  Corpus.     The  courts  of  equity 
have    jurisdiction    to    dispose   of   the    custody    of    minor    children.     The 
courts  will  not  deprive  parents  of  such  custody  unless  it  plainly  appear 
that  the  court,  in  the  careful  exercise  of  such  power — having  due  regard 
to  the  natural  rights  of  the  parent  and  the  mental,  moral,  and  physical 
welfare  of  the  child— should  place  the  child  in  the  custody  of  some  one 
else.     This  jurisdiction   is   generally   exercised   in    this   country   by   any 
court  or  judge  having  jurisdiction  in  matters  of  habeas  corpus.     When  a 
child,  servant,  or  wife,  is  brought  before  the  court  on  habeas  corpus  and 
it  appears  that  such  person  has  sufficient  discretion  to  make  a  suitable 
selection  of  the  person  with  whom  it  prefers  to  reside,  the  court  will 
allow  such  selection  to  be  made,  and  will  see  that  the  person  is  not  hin- 
dered in  taking  up  his  or  her  abode  with  the  custodian  so  selected.     But 
where  there  is  a  want  of  such  discretion,  the  court  awards  the  custody 
to  some  suitable  person  of  its  own  selection.     (520).     (h)  Enticinfi  and 
Harboring  ChiUlren.     A  father  occupies  the  dual  relation  of  parent  and 
master  of  his  minor  children,  within  the  rules  of  the  law.     Therefore,  he 
may  maintain  trespass  on   the  case  against  one  who  knowingly  entices 
such  children  from  liis  service,  or  who  knowingly   retains  and  emjiloys 
them  after  they  have  left  him.     It  is  necessary  to  a  recovery  that  it  be 
proven  that  the  defendant  knew,  at  the  time  of  enticing,  employing,  or 
harboring,  that  the  child  thus  enticed,  etc.,  was  the  servant  of  tiie  i)lain- 
tiff.     (524).     In  the  days  of  feudal  tenure,  the  father  could  recover  the 
value  of  the  marriage  from  one  who  ahducted  his  minor  heir:  but  it  was 
said   in    1858   that   in   modern   times   there   was   no  case   in    England    or 
America  of  a  recoveVy  by  a  father  for  ahduction  simply;  though  he  can 
recover  where  there  has  been  an  actual  or  constructive  loss  of  his  child's 
services  as  a  result  of  its  abduction.     The  action  rests  upon  the  right  to 
the  services.     A   loss  of  services  is   presumed   from   an   abduction   or  en- 
ticing, etc.     One  standing   in   loco    i)arentis   may   maintain    surli   action. 
(526).     (c)    deduction.     A    father    may    maintain    either    tresi)ass   vl    et 
arnils  or  trespass  on  the  case  for  the  seduction  of  his  daughter — minor 
or   adult     when    she   is   also    liis   servant.     Theoretically    he    recovers   as 
master — for  any  trifling  service  by  the  daughter  will  siistain  the  action, 
and  punitory  damages  are  allowed.     The  relation  of  master  ;ind  servant 
Is  presumed  when   the  daughter,  whether  adult    or   tninor.   resides   with 


Ix  lN"l"K()|>lt'ri()N. 

the  father  or  is  under  his  control.  In  some  states  the  law  on  this  sub- 
ject has  been  changed  by  the  courts,  and  the  father — and  in  some  in- 
stances the  mother — is  allowed  to  recover  a^  parent — the  fiction,  that 
the  recovery  must  W  based  on  the  relation  of  master  and  servant,  being 
abolished.  One  stantling  in  loco  parentis  may  recover  for  seduction. 
(o27-5o5).  At  common  law,  the  maxim  volenti  non  fit  injuria  debarred 
a  recovery  by  a  female  for  her  own  seduction.  By  statutes  in  some 
states,  and  by  decisions  in  others,  the  law  on  this  subject  has  been  radi- 
cally changed  and  the  female  may  recover  in  such  cases,  especially  when 
the  seduction  is  accomplished  under  promise  of  marriage.  Where  a 
daughter  is  allowed  to  recover  for  her  own  seduction,  her  father  may 
also  recover — the  recovery  in  the  one  action  being  no  bar  to  the  recov- 
ery in  the  other.  (535).  (d)  Death  or  Injury  of  Child  hy  Aet  of  An- 
other. Right  of  Parents  to  Recover  for.  While  the  father  may  recover 
for  the  loss  of  services  and  for  expenses  resulting  from  the  tortious  injury 
of  his  minor  child  by  another,  he  cannot,  in  the  absence  of  a  statute. 
recover  anything  if  such  child  be  killed — at  least,  nothing  beyond  loss  of 
services  previous  to  the  child's  death.  (537).  For  such  an  injury  to 
the  child  as  does  not  entail  loss  of  services  or  expense  upon  the  father, 
the  child  alone  can  recover.  For  an  injury  that  merely  causes  loss  of 
services  or  expense  to  the  father,  the  father  alone  can  recover.  Where 
the  injury  causes  suffering  or  injury,  or  both,  to  the  child,  and  also  en- 
tails loss  of  services  and  expense  upon  the  father,  both  the  child  and  the 
father  can  recover — the  action  by  the  one  is  no  bar  to  the  action  by  the 
other.  (538-539).  An  injury  to  a  minor  child  while  employed  by  an- 
other, will  not  sustain  an  action  by  the  father  where  there  is  no  wrong- 
ful act  or  negligence  of  the  employer;  and  this  is  so  although  the  em- 
ployment was  not  with  the  father's  permission.  (540).  (e)  Parent's 
Right  to  Earnings  of  Child.  Where  a  parent  wholly  abandons  his  child, 
he  forfeits  his  right  to  the  child's  services  and  earnings — such  conduct 
is  one  of  the  methods  by  which  emancipation  is  worked.  (541).  At 
common  law,  the  father  is  entitled  to  the  services  and  earnings  of  his 
minor  children  while  they  live  with  and  are  supported  by  him,  or  are  in 
his  custody  or  under  his  control.  The  mother  is  not  so  entitled  at  the 
common  law.  The  common  law  doctrine  as  to  the  mother's  rights  has 
been  greatly  relaxed  in  modern  times,  and  the  tendency  of  the  modern 
decisions  and  statutes  is  to  place  a  widowed  mother  in  the  shoes  of  the 
deceased  father  quoad  the  custody,  services,  and  earnings  of  her  minor 
children.  It  has  been  held  that  a  mother  may  recover  for  her  minor 
child's  services  even  in  the  father's  lifetime,  if  the  father  assigns  to 
her,  or  abandons  in  her  favor,  his  paternal  rights  and  duties.  (542). 
The  right  of  a  father  to  the  services  of  his  sane  child  ceases  at  twenty- 
one.  It  has  been  said  that  an  adult  child  may  elect  still  to  remain  un- 
emancipated.  In  such  case  the  father  continues  liable  for  his  child's 
support  and  entitled  to  its  services  and  earnings.  However  this  may  be 
with  sane  adult  children,  it  is  certain,  according  to  the  ruling  in  New 
Jersey,  that  an  adult  child  who  is  non  compos  is  not  emancipated  per  se 
upon  arrival  at  age  and,  if  it  continue  to  live  with  the  father,  the  father's 
rights  to  its  s'-rvif-es  and  earnings  are  uniiiterrui)tPd.  Whether  eman- 
cipation has  taken  place  at  the  child's  majority,  is  a  question  of  fact, 
not  of  law.  (544).  The  father  may  permit  his  minor  child  to  take  and 
use  its  earnings.  This  is  called  emancipation.  Emancipation  puts  an 
end  to  the  father's  rights.  Emancipation  may  be  express  or  impled; 
entire  or  partial;  absolute  or  conditional;  in  writing  or  oral;  for  the 
whole  minority  or  for  a  shorter  term.  It  does  not  enlarge  the  minor's 
capacity  to  contract — it  simply  precludes  the  father  from  asserting  his 
parental  rights.  If  one  employ  a  minor  with  notice  of  its  non-emanci- 
pation, payment  of  the  wages  to  the  child  is  no  defense  to  the  father's 
action  for  such  wages;  and,  mutatis  mutandis,  payment  to  the  father 
will  be  no  defense  to  the  minor's  action,  if  his  emancipation  be  known 
to  the  employer.  (546).  Marriage  emancipates  a  minor  daughter,  and 
the  tendency  of  modern  decisions  is  towards  common  sense  and  holding 
the  same  thing  with  regard  to  a  minor  son.     Not  only  may  emancipa- 


INTRODUCTION.  Ixi 

tion  be  effected  by  contract  between  parent  and  child,  but  also  by  cruelty, 
neglect,  abandonment,  etc..  on  the  part  of  the  parent — leaving  the  child 
to  shift  for  itself,  or  treating  it  so  badly  as  to  justify  its  leaving.  So, 
acting  in  so  depraved  a  manner  as  to  make  it  improper  for  the  child  to 
continue  to  live  with  its  parents,  will  work  an  emancipation.  An 
emancipation  once  made  is  irrevocable  without  the  child's  consent. 
(547). 

Sec.   3.  M.\ster  and   Servant. — (a)  Master's  Liahility  to   Servant  on 
Contract.     A  servant,  who  is  wrongfully  discharged,  has  his  election  of 
the  following  remedies:    (1)   He  may  treat  the  contract  as  rescinded  arid 
immediately  bring  quantum  meruit,  but  in  such  action  he  can  recover 
only  for  the  time  actually  served;    (.2)  he  may  sue  at  once  for  the  breach 
of  contract,  in  which  case  he  can  recover  only  his  damages  up  to  the 
commencement  of  such  action;    (3)  he  may  treat  the  contract  as  existing 
and  sue  at  each  period  of  payment  for  the  salary  then  due;    (4)  he  may 
wait  until  the  end  of  the  contract  period,  and  then  sue  for  the  breach, 
in   which   case   the   measure  of   damages   will    be   his   stipulated    salary 
diminished  by  such  sum  as  he  has  actually  earned,  or  might  have  earned 
by  a  reasonable  effort  to  obtain  other  employment;    (5)   if  his  wages  be 
payable  in  installments,  he  may  sue  on  each  installment  as  it  matures, 
or  he  may  sue  on  several  matured  installments  at  the  same  time — in  one 
action  or  in  separate  actions.     A  judgment  will  be  an  estoppel  as  to  all 
installments  due  at  the  time  suit  is  brought— whether  such  installments 
be  actually  embraced  in  the  action  or  not.     A  servant  who  is  wrongfully 
discharged,   or    who   quits    for   proper    cause,    must    exercise    reasonable 
diligence   in  seeking  employment  of  a  not   lower  grade.     His   recovery 
will  be  diminished  by  the  amount  so  earned  or  which  might  have  been 
earned.     The  burden  is  on  the  master  to  show  what  was,  or  could  have 
been,  thus  earned  by  the  servant.     (549).     If  there  be  an  entire  execu- 
tory contract  of  hiring  and  the  servant  perform  a  part  of  it  and  then 
wilfully  refuses,   without  legal  excuse,  to   perform  the   rest,  he  can   re- 
cover nothing,  according  to  the  older  decisions.     The  manifest  injustice 
of  refusing  all  compensation  in  such  cases  has  caused  the  courts  to  re- 
lax this  stringent  rule.     The  modern  ruling  is,  that  if  the  master  has 
derived  any  benefit  from  the  labor  done  and  if,  by  the  contract  of  hiring, 
the  wages  are  payable  in  installments,  the  servant  may  recover  the  in- 
.'^tallments  actually   earned.     In   still   other   i)articulars   the   common-law 
doctrine    of    "Entire    Contracts"    has    been    equitably    modified.     (555). 
(b)  Master's  Liability  to  Servant   in   Actions  Ex  Delicto.     In  1S37,  the 
•'Fellow-servant"   doctrine  originated   in   England   in  the  ruling  by  Lord 
Abinger    (Sir   James   Scarlett).     It   was   adopted    in    South   Carolina   in 
IS41;    was  ai)i)lied  to  railroads  in  England  in  1850;    and  has  taken  |)os- 
session  of  America  since  that  time.     In  many  states  it  has  been  abolished 
by  statute  as  far  as  the  employes  of  railroads  are  concerned.     The  doc- 
trine,  in   a  modified  form,   was   adopted   by   the   Supreme  Court  of  the 
United  States  in  the  Ross  Case.     That  court  sulisequently  overruled  the 
Ross  case  and  adopted  the  doctrine  in  its  ultra  form,  in  Conroy's  case. 
Tn  19110,  an  act  of  Congress  was  passed  abolishing  the  doctrine  as  to  the 
employes  of  carriers  engaged   in    interstate  commerce.     This  act   being 
declared   unconstitutional   in   iiart,  another  act  of  Congress  was  passed, 
in  1908,  whirh  reenacts  the  act  of  1900  in  terms  which  r.niovp  its  un- 
constitutional features.     In  its  ultra  form,  this  doctrine  shields  the  mas- 
ter from  all  liibility  for  injuries  suffered  l)y  his  servant  where  such  in- 
jury results  from   the  act  or  negligfiu*'  of  the   fellow-servant  of  the  in- 
jured  i)erson— all   em|)loyes  of  a  common   master   in   the   iirosei-ution   of 
the  same  general   undertaking  being  considered   fellow-sorvants.     In   its 
modified  form   all    servants   of   the   common    master   are   not    held   to   be 
^How'-servants  within  the  rule:   but  an  upi)er  servant  who  has  a  certain 
amount  of  dominion  and  <'ontrol  over  others,  is  held  to  be  tlie  common 
niastei's  allei-   e^o.   whose   arts  oi-   negligence   towards   anotlier   employe, 
render  the  common  master  liable  to  the  injured  servant.     This  modified 
form   of  the  doctrine   has   practically   suii)ilant<d   the  original   and   ultra 
form.     The  wliole  doctrine  has  been  the  subject  of  caustic  criticism  by 


1X11  INTHolUCTION'. 

able  judges — one  of  whom  says,  that  the  "reasoning  of  that  learned  but 
souunvhat  oocentric  jiuige,  Lord  Aliinger,  is  but  one  of  the  many  in- 
stances of  how  little  some  of  the  most  shininK  talents  of  the  advocate 
appear  to  prepare  the  possessor  for  the  oHice  of  the  judge."  The  doc- 
trine is  said  to  be  based  upon  no  settled  principle  of  the  common  law, 
and  to  be  tainted  with  the  effluvia  of  serfdom,  villeinage,  and  other  ob- 
solete brutalities  of  the  Knglish  common  and  statute  law  toward  serv- 
ants. The  statutes  which  abolish  the  whole  doctrine  as  to  the  employes 
of  railroads  and  other  carriers — leaving  it  in  operation  as  to  the  em- 
ployes of  other  masters — have  been  held  to  violate  no  clause  of  the 
Federal  Constitution  or  other  fundamental  principle  of  law.  (557-567). 
It  is  an  elementary  rule  in  the  law  of  negligence,  that  the  master  owes 
the  duty  to  furnish  proper  tools  and  appliances  to  his  servant.  Where 
there  is  one  appliance  only  which  is  approved  and  in  general  use  for 
performing  a  certain  function,  it  is  the  master's  duty  to  use  it.  Where 
there  are  several  appliances  used  for  the  same  purpose,  all  of  which  are 
approved  and  in  general  use,  the  master  fills  his  duty  if  he  exercises 
reasonable  care  in  making  a  selection.  It  is  the  master's  culpable  neg- 
ligence, and  not  a  mere  error  of  judgment  on  his  part,  which  renders 
him  liable  in  such  cases.  (567-570).  (c)  Remedii  of  the  Master  Against 
the  Servant.  Under  the  English  common  and  statute  law  prior  to  1848, 
the  condition  of  an  employe  was  almost  servile.  Until  that  date  the 
master's  remedy  against  the  servant  was  confined  to  a  criminal  prose- 
cution; while  that  of  the-  servant  against  the  master  was  confined  to  a 
civil  action.  But  this  has  all  been  changed,  and  nowhere  are  the  rights 
of  workmen  and  servants,  of  all  ages  and  sexes,  so  admirably  protected 
as  they  are  in  England  at  the  present  time.  In  1875  statutes  were  passed 
in  that  country  which  have  been  aptly  described  as  "The  Workman's 
Charter  of  Liberty."  "Then,  for  the  first  time  in  the  history  of  that 
country,  did  the  employer  and  the  employed  sit  under  equal  laws."  By 
the  Federal  Constitution  and  statutes,  all  persons  under  the  dominion  of 
the  United  States  are  fully  protected  against  slavery  in  all  of  its  forms 
— peonage,  the  coolie  system,  and  all  other  attempted  evasions  of  the  loth 
amendment.  Imprisonment  for  debt — that  is,  for  non-performance  of 
any  obligation  arising  out  of  a  contract  made  by  a  person, — is  now  for- 
bidden by  the  constitutions  of  practically  all  the  states;  though,  until 
recent  years,  imprisonment  of  debtors  was  common  to  both  England  and 
America.  "No  person  shall  be  imprisoned  for  debt  except  in  cases  of 
fraud,"  means  that  no  one  shall  be  imprisoned  for  a  cause  of  action  ex 
contractu:  but  it  does  not  shield  one  from  imprisonment  for  the  non- 
payment of  a  liability  arising  out  of  a  pure  tort.  Statutes  making  it  a 
crime  for  a  laborer  or  tenant  to  violate  his  contract  with  his  master  or 
landlord,  are  but  attemi)ted  evasions  of  the  constitutional  provision  above 
quoted,  and  are  void.  The  legislative  power  to  make  acts  criminal  and 
punishable  by  imprisonment,  cannot  be  extended  to  an  invasion  of  the 
rights  guaranteed  to  the  citizen  by  the  constitution.  Such  statutes  are 
in  violation  of  the  13th  amendment  to  the  constitution  of  the  United 
States,  and  of  the  act  of  Congress  known  as  the  Peonage  Statute.  The 
contracts  of  apprentices,  sailors,  and  soldiers,  are  sui  generis  and  not 
within  the  constitutional  provisions.  State  or  Federal,  above  referred  to. 
Statutes  making  it  criminal  to  violate  a  contract  of  hiring  would,  pos- 
sibly, be  valid,  as  far  as  the  14th  amendment  is  concerned,  if  aimed  at 
master  and  servant  alike.  A  statute  making  it  criminal  for  a  servant 
to  obtain  money  or  advances  under  a  contract  of  hiring, — which  con- 
tract he  enters  into  for  the  purpose  of  defrauding  his  master  and  with 
the  fraudulent  intent  never  to  perform  it — would  be  valid,  it  seems. 
(570-575).  The  specific  performance  of  a  contract  to  i)erform  personal 
services  for  another  will  not  be  decreed,  except,  possibly,  in  the  case  of 
apprentices,  sailors  and  soldiers.  "Neither  the  servant  nor  the  master 
is  subject  to  have  enforced  against  him  a  specific  execution."  However, 
In  certain  peculiar  instances,  one  who  has  contracted  to  serve  another 
will  be  enjoined  from  serving  anyone  else  during  the  contract  period. 
(575,    and    see   712).     (d)  Master's    Right    to   Exoneration    Against    the 


iNTRoDUCTio.v.  Ixiii 

Servant.    Where  either  master  or  servant  is  mulcted  in  damages,  by  a 
third  person,  in  consequence  of  the  negligence  of  the  other,  he  is  en- 
titled to  exoneration.     (578).     (e)  Remedies  of  Both  Master  and  Servant 
Against  Third  Persons.     "At  common  law.  in  England,  the  master  might 
bring  an  action  at  law  for  damages  against  a  third  person  for  any  loss 
he  might  have  sustained  by  reason  of  such  third   person's   unlawfully 
injuring  or  interfering  with  his  servant,  but  this  power  was  only  to  be 
exercised  in   the  case   of  a  menial  servant — a  domestic   infra  moenia." 
But  this  statement  that  the  law  in  such  cases  is  confined  to  menial  serv- 
ants, must  be  taken  cum  grano  salis,  if,  indeed,  it  is  not  to  be  entirely 
repudiated.     (580).     An  action  on  the  case  lies  against  one  who  entices 
a  servant  to  quit  the  master's  service;    and  it  has  been  said  that  tres- 
pass vi  et  armis  lies  where  the  servant  is  taken  away  by  force.     (582). 
Whatever  may   be  the   law   as   to    injuries    inflicted   upon    a   servant,   it 
seems  to  be  well  settled  that  one  who  entices  a  servant  from  his  master 
is  liable  to  the  master  in  damages,  no  matter  lohat  the  grade  of  service — 
whether  it  be  menial  or  one  of  much  dignity.     The  master's  rights  in 
such  cases  are  derived  from  the  law  governing  contracts,  and  not  merely 
from  the  law  governing  the  relation  of  master  and  servant.     The  law 
which  renders  the  enticer  liable  "extends  impartially  to  every  grade  of 
service,   from   the   most   brilliant   and   best   paid    to    the   most   homely." 
The  enticer  is  liable  if  he  knows  of  the  existence  of  a  valid  contract  of 
service;    he  cannot  shield  himself  by  playing  the  part  of  a  "chivalrous 
protector  of  defrauded   ignorance," — for,  in  the  eyes  of  the  law,  he  is 
known  by  the  homely  epithet  of  "officious  intermeddler,"     "Interference 
with  such  relations  can  only  be  justified  under  the  most  special  circum- 
stances and  where  there  cannot  be  the  slightest  suspicion  of  a  spirit  of 
mischief-making  or  self-interest."      (583).     The  unlawful  interference  be- 
tween master  and  servant  sometimes  reaches  the  magnitude  of  a  private 
nuisance  and  will  be  stopped  by  injunction — for  instance,  the  intimida- 
tion of  employes  by  strikers.     (586).     A  servant  may  maintain  an  action 
for  damages  against  an   intermeddler   who   knowingly   and   maliciously 
causes  his  discharge  from  employment.     (589).     It  is  said  at  page  591, 
that,  while  it  is  frequently  stated  by  text-writers  and  in  judicial  opin- 
ions that  a  master  may  recover  for  the  seduction  of  his  female  servant, 
yet,  no  case  can  be  found  in  which  such  a  recovery  was  had,  unless  the 
plaintiff  was,  not  only  the  master  but  also,  the  parent,  or  one  standing 
in    lo(  o  parentis.     Since  this  volume,  with  the  exception  of  this  intro- 
duction, has  been  printed,  the  editors  have  been  furnished,  through  the 
courtesy   of  Mr.   G.    H.    Burroughs,   of   Toronto,   with   the   headnotes   to 
Ford   V.  (lourlay,  42  U.  C.  Q.   B.,  552;    from  which   it  appears  that  the 
plaintiff  did  recover  for  the  seduction  of  his  female  servant  although  he 
was  not  related  to  her.  nor  did  he  stand  towards  her  in  loco  parentis. 
The  case  holds  that  while  none  of  the  sijecial  grounds  for  compensation 
which  may  be  considered  in  the  case  of  a  parent,  apply  in  the  case  of 
master  or  employer;    still,  the  master  is  not  restricted  to  the  recovery 
of  his  actual   pecuniary  loss,  but  his  damages  depend  very  much  upon 
the  position  in  his  household  occuijicd  by  the  person  seduced. 

(f)  Hemedy  of  Third  Persons  Against  the  .Master  for  the  Acts  and  I\rg- 
ligenre  of  Jtis  Servants.  I'ntil  a  comparatively  recent  date  it  was  held 
that  the  master  is  not  liable  for  the  icilful  trespasses  and  torts  of  his 
servants — the  limit  of  his  liability  being  for  the  negligence  or  unskilful- 
ness  of  his  servant.  (592-595).  Hut,  by  the  modern  decisions,  the 
mastfr  is  liable  not  only  for  the  iif^gligence  and  unskilfulness,  but  also 
for  the  wanton,  wilful,  and  malicious  acts  of  his  servant  done  in  fur 
therance  of  the  roaster's  business,  and   while  on   duty.     (595). 


Ixiv 


i\  TKMDrri'iDN. 


CHAPTER  VII. 


l\jurip:s   to   TAxainLK   personal   property.— six.    1.  Re- 

TLKViN,  Drn.M  E,  .\.M)  i\j,i,ii:i)  Ri;.Mi:i)Y  in  Equity.  One  who  has  possession 
of  a  chattel  by  virtue  of  either  a  special  or  general  property  therein, 
may  maintain  either  replevin  or  trover:  but  one  who  has  possession  of 
a  chattel  simply  for  another,  e.  g.  a  servant  for  the  master,  can  maintain 
no  action  against  one  who  disturbs  such  possession.  (598).  The 
gravamen  of  the  action  of  detinue  is  the  detention  of  chattels.  The 
plaintiff  must  prove  three  things:  (1)  Property  in  himself;  (2)  an  un- 
lawful detention  by  the  defendant;  and  (3)  the  value  of  the  property 
detained — but  the  loilairfid  detention  is  the  main  and  principal  point  in 
issue.  (599).  A  judgment  in  an  action  of  detinue  is  conclusive  as  to 
the  title  between  the  parties  and  their  privies;  but  the  judgment  is  no 
bar  to  a  subsequent  action  for  the  same  chattel  against  the  same  defend- 
ant or  against  a  third  person,  unless  and  until  the  judgment  has  been 
satisfied.  (GOO).  Actus  del  nemini  facit  injuriam — there  is  a  loss,  but 
it  is  damnum  al)S(iue  iiijuiia:  therefore,  if  the  chattel  be  destroyed  by 
the  act  of  Ck»d  pendente  lite,  the  loss  falls  upon  the  plaintiff  in  detinue 
if  the  property  were  his.  There  is  a  marked  distinction  between  de- 
tinue and  trover;  though,  in  many  cases,  the  plaintiff  has  an  option  as 
to  which  he  will  bring.  The  basis  of  detinue  is  a  continuing  title  in  the 
plaintiff;  and  the  alleged  wrong  consists  wholly  in  the  wrongful  with- 
holding of  the  possession  of  his  goods  from  him.  In  trover  the  alleged 
wrong  consists  in  the  conv€i-sio7i  of  chattels  which  were  once  the  prop- 
erty of  the  plaintiff  but  which  have  been  made  the  property  of  the  de- 
fendant by  the  defendant's  wrongful  conversion.  If,  after  being  thus 
converted,  the  chattels  be  destroyed  pendente  lite  by  the  act  of  God,  the 
loss  falls  upon  the  defendant.  In  detinue  the  jury  must  find  the  pres- 
ent value  of  the  chattel — the  value  at  the  date  of  their  verdict.  (601). 
Under  the  Code  practice,  the  action  of  "Claim  and  Delivery"  is  said  to 
be  substituted  for  replevin  and  detinue.  In  such  action  the  value  of  the 
property  must  be  assessed  as  of  the  time  of  the  trial — for  the  value 
stands  in  lieu  of  the  property,  should  it  turn  out  that  the  property  can- 
not be  returned.  The  defendant  cannot  compel  the  plaintiff  to  accept  the 
assessed  value,  if  there  can  be  a  return  of  the  property  in  specie; 
nor  can  the  plaintiff  compel  the  defendant  to  pay  the  assessed  value, 
if  he  offers  to  return  the  property.  This  is  so  notwithstanding  any 
deterioration  in  the  value  of  the  property.  It  may  be  that,  if  it  ap- 
l)ear  on  the  trial  that  the  property  has  been  destroyed,  the  jury  could 
so  find,  and  ascertain  the  value  of  the  property  at  the  time  of  the 
taking  and  render  a  verdict  for  such  value  with  interest  thereon 
as  damages  for  the  taking  and  detention.  If  the  property  has  deteri- 
oriated  during  the  unlawful  detention,  the  jury  should  assess  the  dam- 
ages resulting  from  the  taking  and  detention — an  element  of  which  is 
the  deterioration  between  the  time  of  taking  and  the  time  of  trial. 
(603).  The  Code  remedy  for  the  recovery  of  specific  chattels  is  some- 
times called  an  "Action  of  Claim  and  Delivery."  Properly  speaking, 
there  is  no  such  action.  The  remedy  thus  called  is  an  action  to  recover 
the  possession  of  personal  property,  and  is  in  the  nature  of  the  actions 
of  detinue  and  replevin  under  the  common  law  practice.  "Claim  and 
Delivery  of  Personal  Property"  is  an  ancillary  remedy,  but  not  essen- 
tial to  the  action.  This  ancillary  remedy  is  peculiar  to  the  Code  prac- 
tice. It  gives  to  the  main  action  something  of  the  nature  of  the  com- 
mon-law action  of  replevin.  "Claim  and  Delivery"  of  the  property  may 
be  omitted  and  the  action  may  be  simply  to  recover  the  iiossession  of  the 
specific  chattel— as  in  replevin  or  detinue;  or  to  recover  the  value  of  the 
property — as  in  trover  or  trespass.  In  any  case,  Claim  and  Delivery  is 
but  ancillary  to  the  main  action.  (605-607).  It  is  only  in  extraordi- 
nary cases  that  equity  will  interpose  in  controversies  concerning  chat- 
tels: but  equity  will  rompel  the  restoration  of  chattels  to  the  true  owner 
where  damages  would  be  a  mockery  rather  than  justice — e.  g.  a  faithful 


INTRODUCTION.  IxV 

family  slave  endeared  hy  a  long  course  of  service  or  early  association, 
or  a  rare  piece  of  bric-a-brac,  such  as  the  silver  altar  piece  remarkable 
for  a  Greek  inscription  and  dedication  to  Hercules,  or  the  like.     (608). 

Sec.  2.  Tuovkk.— Trover  is  an  action  for  damages  for  the  conversion 
of  chattels,   and   not  for   the  specific   recovery   thereof.     The   defendant 
cannot  force  the  plaintiff  to  accept  the  chattel  in  controversy;   and  so  it 
is  in  actions  in  the  nature  of  trover  under  the  Code  practice.     To  sustain 
trover,  the  plaintiff  must  establish  both  title  and  possession,  or  the  right 
of  possession.     It  is  one  of  the  characteristic  distinctions  between  trover 
and  trespass,  that  trespass  may  be  maintained  on  possession;   but  trover 
onlv  on  proi)€)-1y  and  possession,  or  right  of  possession.     Trover  is  to 
personaltv  what  ejectment  is  to  realty— in  both,  title  in  the  plaintiff  is 
indispensable.     Title  may  be  presumed  from  possession,  and  such   pre- 
sumption   will    sustain    trover    without    proof   of    title    against    all    the 
world.     Yet  such  presumption  may  be  rebutted.     If  rebutted,  the  plain- 
tiff's action   fails.     If  the  defendant  prove  title  in  a  third  person,   the 
plaintiff's  action  fails  notwithstanding  his  possession.     It  has  been  said 
that  anv   bona  fide  possession    will   sustain    the  action  against   a  mere 
wrong-doer.     Where  the  plaintiff  has  a  title  founded  simply  upon  a  bona 
fide  possession,  the  defendant  cannot  defend  himself  by  showing  that  a 
third  person— with  whose  title  defendant  does  not  connect  himself— has 
a  better  title  than  the  plaintiff.     (609-611).     "If  there  be  a  deprivation 
of  propertv  to  the  plaintiff,  it  will  constitute  a  conversion  though  there 
be  no  acquisition  of  property  to  the  defendant.     If  property  be  lost  by  a 
bailee,  or  stolen  from  him,  or  be  destroyed  by  accident  or  by  negligence, 
trover  will  not  lie— trespass  on  the  case  being  the  proper  remedy  under 
such  circumstances.     To  sustain  trover,  the  defendant  must  have  been 
an  actor  and  have  made  an  injurious  conversion;  or  have  done  an  actual 
w^rong."     (612).     A   conversion    consists   either   in   an   appropriation   of 
the  chattel  to  the  defendant's  own  use  and  beneficial  enjoyment;    or  in 
its  destruction;   or  in  exercising  dominion  over  it  to  the  exclusion  of  the 
plaintiff  or  in  defiance  of  his  right;  or  in  withholding  the  possession  from 
the  plaintiff  under  a  claim   of  title   inconsistent  with   his  right.     It   is 
not  every  tortious  act  affecting  the  property  of  another  that  amounts  to 
a  conversion;    thus,  cutting  down  another's  trees  without   taking  them 
aivay.  is  a  trespass,  but  it  is  no  conversion.     (613).     The  bare  posses- 
sion is  sufficient  to  maintain  an  action  of  trespass  against  a  wrong-doer, 
for  the  gist  of  that  action  is  an  injury  to  the  possession:   but  in  trover, 
the  injury  done  by  the  trespass  in  taking  is  waived,  and  the  plaintiff 
supposes  he  has  lost   his  property,   and   therefore,  alleges  that  the  de- 
fendant fonnd  it  and  wrongfully  converted  it  to  his  own  use.     The  gist 
of  the  action  is,  not  that  the  defendant  took  possession  of  the  chattel 
after  finding  it,  but  that  he  wrongfully  converted  it  to  his  own  use  after 
Uking  possession.     The  measure  of  damages  is  the  value  of  the  proj)- 
erty  converted.     When   the  defendant  satisfies  the  judgment  in  trover, 
he  pavs  the  value  of  the  property,  and  the  title  is  ipso  facto  vested  in 
him  by  operation  of  law— consequently,  except  when  the  property  is  re- 
stored and   the  conversion  was  merely  temporary,  trover  can  never  he 
maintained  unless  a  satisfaction  of  the  judgment  will  have  the  effect  of 
vesting  a  good  title  in  the  defendant.     But  as  to  this  last  i)roposition  the 
authorities   conflict.     (614).     When   there   has   been   a  conversion    by   a 
sale,  the  owner  may  maintain  trover,  or  he  may  dispense  with  the  wrong 
and  suppose  the  sale  made  l»y  his  consent  and  bring  an  action  for  the 
money  for  which  the  i)roperty  was  sold,  as  money  had  and  received  to 
his  use.     But  both  of  these  remedies  cannot    l)e   i>iirsu<'d    in   the  same 
action.     (617). 

SKr.  ?..  Tkisi'ass  Vi  i:t  Akmis  and  Thkhpass  on  the  Case  fob  1n- 
.TiTHiEs  TO  pKKsoNAf.  Pkoi'khty.  The  distinction  between  injuries  which 
will  sustain  an  action  of  trespass  vi  et  arinis  and  those  which  will  sus- 
tain an  action  on  the  case — between  injuries  immediate,  and  injuries  con- 
sequential—is very  subtle  and  attenuated.  One  of  the  most  ai)t  illus- 
trations is  thus  stated:  If  A  throw  a  log  in  the  highway  and  it  hits  B, 
B's  remedy  is  trespass  vi  et  armis;   but  if  C  come  along  afterwards  and 


IXM 


IN  rKiiDrt'TioN. 


\»  InJurtHl  from  fHlllng  over  tlu«  log.  Os  renu>,ly  is  trespass  on  the  case 
Kor  fverv  tortious  :ul  whi.h  ii.j.MVs  anotliers  inopo  ty.  the 
iiior  is  n«».U>  to  the  owner  in  dimiages  to  be  recovered  in  trespass 
v»  K  urn.is  or  trespa-ss  on  the  case.  If  the  tresimss  is  coinnutted  on  the 
property  while  it  is  in  the  possession  of  the  owner  •  trespass  is  he 
proiHT  remedy;  if  while  in  the  possession  ol  another  as  Imilee-the 
i\w  •  vinK'i.ut  a  reversion-Tase"  is  the  i-roper  remedy.  Trespass 
vl  ,  .  is  usuailv  abl.reviated  to  •trespass,"  and  trespass  on  the  case. 

to     .ase        "(Cl'H      Trespass    will    lie    for   a   direct   and    violent    injury 
tvholher  inllieted  by  ne>;ligence  or  intentionally.     Case  also  will  lie  for 
■ueh  an  iujurv  if  occasioned  by  carelessness,  but  not  if  the  injury  result 
from  a   wllfni   net.     (G20).     An  action   on   the  case,  on   the     custom  of 
the  land.'-  lies  asaiust  innlieepers  and  common  carriers.     In  this  action, 
im  are  treated  as  insurers,  and  are  liable,— except  for  the  acts 
.\  the  enemies  of  the  state,— without  proof  of  negligence.     In 
which  respect  this  action   differs   from  an  ordinary  action  on  the  c^ase 
•Kainst   a   bailee.     A   reiovery    in   an    action    on    the   case   may    be    had 
aminst  an  innkeeper,  who  Is  guilty  of  negligence,  in  many  instances  in 
which  no  recovery  could  be  had  in  case  "on  the  custom:"  For  instance, 
one  takes  board  at  an   inn  under  a  special  contract  and  his  goods  are 
lost    the  innkeeper  is  not  liable  "on  the  custom;"  but  he  is  liable  in  a 
special  action  on  the  case  if  negligence  be  shown.     Case  "on  the  custom" 
Is  a  remedy  restricted  to  guests  of  an  inn  as  distinguished  from  boarders 
who  sojourn  at  an  inn  under  a  special  contract.     "It  is  sometimes  dif- 
ficult to  draw  the  line  between  guests  and  boarders.     They  frequently 
run  Into  each  other  like  light  and  shade."     (620).     The  title  of  a  deputy 
sheriff  to  property  seized  under  execution,  is  a  mere  special  property,  it 
IS  true:   but  still  his  possession  is  sufficient  to  sustain  trespass  d.  b.  a. 
e  stranger.     (622).     For  an  injury  to  a  mere  reversionary 
s  d.  1).  a.  does  not  lie;    because  an  actual  possession  or  a 
right  to  immediate  possession  must  be  shown.     (623).     If  a  bailee  mis- 
use the  thing  bailed,  case  lies.     If  the  bailee  refuse  to  surrender  the 
thing  bailed,  or  sell  it,  trover  lies.     If  he  destroy  the  thing  bailed,  then 
either  trover  or  trespass  will  lie.     If  goods  be  lent,  or  delivered  to  an- 
other to  keep,  and  he  refuses  to  return  them  on  demand,  trespass  does 
not  lie,  but  trover  is  the  proper  remedy.     (624).     If  one  injure  another's 
cattle  "with"  a  dog,  trespass  lies:  but  if  the  injury  be  done  by  the  dog. 
or  other  animal,  without  the  owner's  agency,  though  in  his  presence,  case 
lies.     "For  it  was  owing  to  his  not  hanging  the  dog  on  the  first  notice," 
Is  the  shibboleth  of  the  bench   in   actions  against  owners  of  dogs   for 
injuries  caused  by  these  interesting  animals.     (625).     A  special   action 
on  the  case  lies  for  the  libel  or  slander  of  another's  chattels,  provided 
special  damage  be  proven:  but,  in  the  absence  of  such  proof,  no  action 
lies.     "A  tradesman  offering  goods  for  sale  exposes  himself  to  observa- 
tions of  this  kind;  and  it  is  not  by  averring  them  to  be  false,  scandalous, 
ni  and  defamatory,  that  the  plaintiff  can  found  a  charge  of  libel 

ui.'  :,  ;:i,"  or  recover  damages  therefor,  unless  he  prove  special  damage. 
(626).  "Although  there  is  but  one  form  of  action  under  the  Code  prac- 
tice, whether  the  wrong  complained  of  be  one  to  be  redressed,  under 
ih«  ronimon-law  practice,  by  Trespass,  Trover,  or  Detinue,  yet,  even  un- 
d>  ■  practice,  the  plaintiff's  recovery  will  be  governed,  to  an 

in  .  '.lent,    by    the    principles   governing    these    common-law    ac- 

tions.'     (627). 

CHAPTER  VIII. 

INJURIES  TO  RIGHTS  GROWING  OUT  OF  CONTRACT.— Sec.  1.  Ac- 
tios or  CovE.'tA.xT.  Covenant  lies  only  upon  a  sealed  contract.  If  there 
b-  '  '♦   will  not  lie  though  the  contract  contain  the  state- 

n.  !.   and   delivered."     It   is   a  disputed   i)oint;   whether 

c  aKainst  one  who  orally  accepts  a  deed   poll 

p...  -      .—  ..  -  ;-  nants   to   be   performed    by    him.      (628-630). 

Either  drbt  or  f/n-mnnt  will  lie  on  a  sealed  instrument  where  the  amount 


INTRODUCTION.  Ixvii 

due  thereon  is  ascertained  and  certain — liquidated — by  the  terms  of  the 
instrument.  So.  in  ancient  times,  of  penal  bonds — the  plaintiff  could 
sue  in  debt  for  the  penalty,  or  in  covenant  for  damages.  (630).  Although 
an  infant  may  voluntarily  bind  himself  an  apprentice,  yet  neither  at 
the  ccmmon-law  ncr  under  5  Eliz.  c.  4,  would  covenant  lie  on  the  obli- 
gation of  an  infant  for  his  apprenticeship — that  is,  no  action  at  law  lay 
against  an  infant,  upon  such  obligation,  for  damages.      (631). 

Sec.  2.  Actiox  of  Debt.  The  action  of  debt  lay  against  principals 
only.  It  did  not  lie  against  sureties.  Such  was  the  law  at  a  very  early 
period  when  the  action  of  debt  was  the  form  of  action  provided  for  all 
matters  in  controversy  arising  out  of  mere  personal  contracts.  (632). 
It  has  been  said  that  only  the  precise  sum  demanded  could  be  recovered 
in  an  action  of  debt:  but  that  is  not  correct.  The  rule  is  not  that  the 
plaintiff  must  recover  the  sum  demanded  or  not  at  all;  but  that  the 
proofs  must  agree  with  his  allegations.  The  plaintiiT  may  recover  less. 
The  exact  sum  demanded  in  the  writ  need  not  be  found  by  the  jury, 
when,  from  the  nature  of  the  demand,  the  amount  is  uncertain:  but 
when  the  contract,  as  stated  in  the  declaration,  fixes  the  amount  due,  the 
verdict  must  agree  with  the  writ,  or  judgment  will  be  arrested.  (634). 
Debt  lies  upon  a  penal  bond.  By  the  common-law,  the  obligor  was 
forced  to  pay  the  whole  penalty  if  he  failed  to  comply  with  the  condition 
at  the  time  specified.  This  was  remedied  by  8  and  9  Will.  3.  Prior  to 
this  act,  the  obligor  had  to  resort  to  chancery  to  be  relieved  from  the 
penalty  upon  payment  of  what  was  justly  due.  The  statute  remedies 
that  evil  by  permitting  no  other  recovery,  at  law  even,  than  the  actual 
damages  sustained.  There  is  a  distinction,  however,  between  the  penalty 
in  a  bond  to  secure  the  performance  of  conditions,  and  a  statutory 
penalty  secured  by  bond.  In  the  first  case,  damages  only  are  recover- 
able; In  the  other,  the  whole  penalty  is  recoverable.  (636).  It  has 
been  held  that  there  is  a  difference  between  covenants  in  general  and 
covenants  secured  by  a  penalty  or  forfeiture.  In  the  latter  case,  the  ob- 
ligee has  his  election  to  bring  either  debt  for  the  penalty  and  recover  the 
penalty;  or,  if  he  does  not  choose  this  course,  he  may  proceed  upon  the 
covenant  and  recover  more  or  less  than  the  penalty.  But  can  the  re- 
covery exceed  the  penalty  of  the  bond?  This  is  a  question  upon  which 
the  authorities  differ.  It  has  been  answered  both  in  the  affirmative  and 
in  the  negative  by  able  judges.  (637-640).  Debt  lies  for  a  penalty 
given  by  a  statute;  and  upon  the  judgment,  domestic  or  foreign,  of  a 
court  of  record  or  not  of  record.  (640).  Debt  does  not  lie  for  money 
payable  in  installments,  till  the  whole  debt  is  due,  unless  the  payment 
be  secured  by  a  penalty.  The  operation  of  this  rule  cannot  prove  in- 
Mirious;  for,  if  Ihp  contract  bo  under  seal,  upon  non-payment  of  the  in- 
stallments as  they  respectively  become  due,  the  party  has  his  remedy  by 
action  of  covenant:  or,  if  by  parol,  by  that  of  assumpsit.  (642).  Debt 
is  preferable  to  Covenant  or  Assumpsit  where  the  plaintiff  has  his  elec- 
tion to  ado|)t  any  one  of  the  three — because  judgment  by  default  final  may 
be  entered  in  debt;  whereas  the  judgment  in  the  other  two  actions  is 
usually  required  to  be  by  default  and  Inquiry.  (644).  Debt  is  the 
proper  remedy  on  an  official  bond  in  which  the  state  is  the  obligee.  The 
action  must  be  brought  "State  ex  rel."  (645).  Summary  judgment, 
rendered  without  previous  service  of  piocess  or  other  notice,  is  a  remedy 
allowed  by  the  law  of  England  and  of  this  country  to  enforce  official 
l)onds  and  othpr  liabilities  of  public  ofllcers  where  the  recoveiy  is  the 
property  of  the  government.      (646). 

Sfc.  3.  Arrrov  or  A.ssimpsit.  (a)  There  Mttst  Be  a  Contract.  Either 
Express  ur  ImpUftl.  To  support  tlx'  action  of  .'issimipsit  tliere  must  be 
a  cnntrad.  though  it  may  be  either  express  or  inipli(>d.  If  one  perform 
services  for  another  with  the  intention  not  to  charge  therefor,  he  can, 
nevertheless,  recover  the  value  of  his  services  unless  his  intention  not 
to  charge  was  known  to  the  other  person:  but  if  his  good  intentions 
were  known  to  the  person  servc^d,  bo  cannot  recover — for  one  cannot  do 
an  act  of  charity  and  afterwards  rharge  for  It.  (64S).  A  contract  to 
pay   for   services    may   be    inferred    from    the    conduct    of   one   benefited 


|\\  III  iNTHonrcnoN. 

thereby — as  where  he  knows  that  another  is  working  for  him  with  the 
expectation  of  being  paid  for  his  services,  and  yet  does  not  notify  such 
woiiviiiaii   it>  ili'sist.  Imt   actcp's  Hit-   lii'iit'lii   of  iiis  labor.      ((!.")()).     Using 
poods  not  ordered  will  subject  one  to  assumpsit  for  their  value.     (651). 
Assumi>sil  lies  for  necessary  servites  n  iitiered  to  one  who  is  insensible; 
or  wholly  incapable  of  taking  care  of  himself  at  the  time;   or  who  is  a 
non  compos.     ((">."):?).     Labor  on  a  farm   is  more  valuable  In   the  spring 
and  summer  than  in  the  winter.     Therefore,  it  would  be  unjust  to  per- 
mit a  farm  liaml.  hired  lor  a  year,  to  labor  through  the  winter  months, 
quit   witlumt    cause   in    the   spring,   and    then    recover   his    full    monthly 
wages  for  the  time  served.     It  is  well  settled  that  where  there  is  an  ex- 
press  contract    it    must    be   declared    on,   and   that   quantum    meruit    or 
v;ilfl)at   will   not   lie  unless  performance  of  the  contract  has   been    i)re- 
vented  by  the  other  party.     Hut  it  is  also  said  to  be  settled,  that  quan- 
tum meruit  or  valebal  will  lie  on  a  parol  contract  which  has  been  fully 
performed  by  the  plaintiff,  and  that  it  is  not  necessary,  in  such  case,  to 
declare    uiion    the    special    contract.     (654-657).     Assumpsit    lies    on    an 
"account  stated."     If  an  account  be  presented  and  no  objection  be  made 
thereto  within  a  reasonable  time,  assumpsit  will  lie  for  the  amount  of 
the  account,  without  proof  of  the  sale  and  delivery  of  the  goods.     (657). 
It  is  held  by  some  courts  that  the  w^hole  extent  of  the  doctrine  of  "waiv- 
ing the  tort  and  suing  in  assumpsit"  is,  that  one  whose  goods  have  been 
taken  from  him  or  unlawfully  detained,  whereby  he  has  a  right  to  an 
action  of  trespass  or  trover,  may,  if  the  wrong-doer  sell  the  goods  and 
receive  the  money,  waive  the  tort,  affirm  the  sale,  and  bring  assumpsit 
for  "money  had  and  received"  for  the  proceeds.     It  is  also  said  that  no 
case  can  be  shown  in  which  assumpsit  lay  for  goods  sold  if  the  goods 
were  taken  but  tiot  sold-  by  the  wrong-doer — except  against  the  executor 
of  a  deceased  wrong-doer.     (658).     It  is  said  by  other  courts  that,  while 
assumpsit   is   not  generally   the  approi)riate   remedy,   yet,  it  sometimes 
lies  for  the  value  of  goods  obtained  tortiously;  and  that  there  are  many 
such  cases  in  which  the  plaintiff  may  waive  the  tort  and  sue  for  goods 
sold,  etc.     "As  the  defendant  cannot  take  advantage  of  his  own  wrong, 
the  plaintiff  may  waive  the  tort  when  his  goods  have  come  icrongfully 
into  the  defendant's  possession,  and  sue  for  goods  sold — treating  the  de- 
fendant, who  has  wrongfully  possessed  himself  of  the  goods,  as  the  pur- 
chaser."    (659).     (b)  M07iey  Had  and,  Received.     Assumpsit  for  money 
had  and  received  is  "a  kind  of  equitable  action  to  recover  back  money 
which  ought  not  in  justice  to  be  kept."     It  is  a  very  beneficial  remedy, 
and.  therefore,  much  encouraged.     It  lies  only  for  money  which  ex  aequo 
et  bono  the  defendant  ought  to  refund, — e.  g.  money  paid  by  mistake;   or 
upon  a  consideration  which  totally  falls;   or  got  through  imposition,  ex- 
tortion, oppression,  or  undue  advantage  taken  of  the  plaintiff's  situation, 
in  violation  of  laws  made  for  the  protection  of  persons  in  his  situation. 
The  gist  of  this  action  is,  that  the  defendant,  under  the  circumstances 
of  the  case,  is  obliged  by  the  ties  of  natural  justice  and  equity  to  refund 
the  money — in  other  words,  the  defendant  has  money  which  would  burn 
a  hole  in  an  honest  man's  pocket,  and  the  law  turns  out  the  fire  brigade 
to  avert  the  impending  evil.     But  there  must  be  some  privity  existing 
between   the   parties   in   relation   to  the  money  sought   to  be   recovered. 
This  privity  may  be  express  or  implied.     It  is  express  when  the  defend- 
ant has  received  the  money  as  agent  of  the  plaintiff;   or  where  he  con- 
sents or  agrees  to  appropriate  money  in  his  hands,  belonging  to  another, 
to  the  payment  of  the  plaintiff  at  the  owner's  request.     It  is  implied  in 
those  ca.ses  only  in   which  the  defendant  has  received  money  from  the 
plaintiff,  or  money  belonging  to  the  plaintiff,  by  mistake;   or  by  means  of 
fraud  or  duress  practiced;   or  upon  a  consideration  which  has  failed;   or 
by  tortiously  converting  the  plaintiff's  property  into  money.     In   other 
words,  the  money  sought  to  be  recovered  in  this  action  ui)on  an  implied 
promise,  must  either  be  the  identical  money  of  the  iilaintiff  of  which  the 
defendant   has   improperly  possessed   himself;    or  the  proceeds  of  some 
property  of  the  plaintiff;   or  money  issuing  out  of  some  fund  or  emolu- 
ment belonging  to  the  plaintiff.     (661-665).     This  action  does  not  lie  to 


INTRODUCTION.  Ixix 

recover  money  received  by  one  person,  under  a  claim  of  right,  which  in 
law  should  have  been  paid  to  another.  (665).  Even  if  a  tort  be  com- 
mitted in  obtaining  money,  the  injured  person  has  a  right  to  waive  such 
tort  and  sue  for  money  had  and  received.  Such  an  action  is  ex  con- 
tractu and  not  ex  delicto.  E  converse,  when  the  breach  of  a  contract 
involves  a  tort,  the  contract  may  be  waived  and  an  action  be  sustained 
for  the  tort.  (666).  (cj  Money  Paid  to  Another's  Use.  To  sustain  this 
action  of  assumpsit  for  money  paid  to  defendant's  use — that  is,  for 
"money  paid,  laid  out,  and  expended"  to  another's  use — there  must  have 
been  a  payment  of  money  by  the  plaintiff  to  a  third  party  at  the  request 
of  the  defendant  and  upon  his  promise  to  repay  the  amount.  Both  the 
request  and  the  jtroniise  may  be  either  express  or  implied.  An  officious 
payment  of  another's  debt  is  not  such  a  payment  to  his  use  as  will  sup- 
port the  action.  If  a  purchaser  of  chattels  pay  off  a  lien  thereon,  such 
payment  is  not  officious,  because  necessary  to  the  protection  of  his  title. 
A  subsequent  ratification  or  recognition  of  a  payment  is  equivalent  to  a 
request.  (668-669).  (dj  Assutnpsit  for  Goods  Bargained  and  Sold,  and 
far  Goods  Sold  and  Delivered.  The  "Common  Counts"  are  the  counts  in 
assumpsit:  For  money  had  and  received;  for  money  lent;  for  money 
paid  to  another's  use;  for  goods  sold  and  delivered;  for  goods  bargained 
and  sold,  etc.  Assumpsit  for  "Goods  Sold  and  Delivered"  lies  for  the 
l)rice  where  goods  have  been  delivered  in  consummation  of  a  sale.  As- 
sumpsit for  "Goods  Bargained  and  Sold"  lies  for  the  price  of  goods  sold, 
but  not  delivered.  To  maintain  a  count  for  goods  sold  and  delivered,  it 
is  essential  that  the  goods  should  have  been  delivered  to  the  defendant 
or  his  agent,  etc.;  or  that  something  equivalent  to  a  delivery  should  have 
occurred.  If  goods  be  sold,  but  7iot  delivered,  the  plaintiff  will  be  non- 
suited if  he  has  declared  only  for  goods  sold  and  delivered,  even  though 
the  goods  be  packed  in  boxes,  furnishd  by  the  purchaser,  ready  for  de- 
livery; for  in  such  a  case  the  declaration  should  have  been  for  goods  bar- 
gained and  sold.  Even  the  count  for  goods  bargained  and  sold  will  fail 
when  there  has  been  no  delivery,  unless  it  appear  that  there  has  been 
a  complete  sale  and  acceptance  so  as  to  vest  the  title  to  the  goods  in  the 
defendant.  (669).  Assumpsit  for  the  price  of  goods  sold  and  delivered 
lies  whether  the  sale  be  for  cash  or  on  a  credit.  The  only  difference  be- 
tween a  sale  for  cash  and  a  credit  sale  is,  that  on  a  cash  sale  assumpsit 
may  be  brought  at  once,  while  on  a  credit  sale  it  cannot  be  maintained 
until  after  the  time  of  credit  has  expired.  (671).  Where  it  is  agreed 
that  a  note  or  bill,  payable  at  a  future  day,  will  be  accepted  for  the 
[irice  and  the  purchaser  fails  to  give  such  note  or  bill,  the  seller  cannot 
maintain  assumpsit  foi"  goods  sold  and  delivered  until  the  time  of  credit 
has  expired;  but  he  can  sue  at  once  for  damages  for  the  breach  of  the 
contract  of  sale  resulting  from  the  failure  to  give  the  bill  or  note.  In 
such  an  action  he  may  recover,  as  damages,  the  whole  value  of  the  goods, 
unless,  perhaps,  there  should  be  a  rebate  of  interest  during  the  stipu- 
lated credit.  The  only  difference  between  suing  at  one  time  or  the 
other  consists  in  the  form  of  the  remedy.  (672).  A  creditor  whose  de- 
mand against  his  debtor  consists  of  an  account  of  several  items,  either 
for  goods  sold  or  labor  done  at  different  times,  may  sue  upon  each  item, 
or  ui)on  any  number  of  items,  or  for  the  aggregate  amount  due,  in  one 
action  or  in  several  actions.  As  each  item  is  a  se])arate  debt  there  is 
nothing  to  forbid  a  sejjarate  action  on  each  item.  However,  if  a  plain- 
tiff uantnnly  or  maliciously  bring  a  great  number  of  actions  on  separate 
items  which  might  have  been  consolidated  into  one  action,  the  court  will 
consolidate  all  of  such  a«tions  into  one.  at  the  |)]aintiff's  cost.  If,  how- 
ever, the  debt  is  an  cndrr  one,  consisting  of  but  one  item,  it  cannot  be 
divided,  and  separate  actions  maintained  iiiion  each  part.  When  sepa- 
rate actions  are  brought  upon  segregated  items  of  an  account,  such  a 
■■performance"  is  called  "splitting  up"  the  account.  (67;').  When  a 
sale  of  goods  constitutes  only  one  transaction,  although  a  multitude  of 
separate  articles  may  be  Infludcd  in  the  sale,  and  nothing  ai)i)ears  to  in- 
dicate that  either  jiarty  intended  each  item  to  constitute  a  separate 
transaction  and  cause  of  action,  the  account  cannot  be  "split  up."    (674). 

Remedies — f. 


I\\  iXTRonrcTiox. 

If  the  seller  render  to  the  purchaser  a  statement  showing  a  halance 
struck,  and  claim  that  balance  as  a  debt,  the  purchaser  is  held  in  law  to 
admit  the  correctness  of  the  balance  and  to  impliedly  i)romise  to  pay  the 
same;  unless  he  object  to  such  statement  within  apt  time.  In  the  ab- 
sence of  such  objection,  the  balance  struck  becomes  a  new  and  indivisible 
cause  of  action — it  cannot  be  split  up.      (67G). 

Skc.  4.  Rkmkdiks  on  NihiotiamM':  Instiu'mknts. — At  common  law  in- 
debitatus assumpsit  was  the  sole  remedy  upon  a  negotiable  instrument; 
and  the  plaintiff  was  obliged  to  prove  the  consideration  of  the  Instru- 
ment. The  statute  4  Ann.  c.  9,  allows  the  plaintiff  to  declare  in  debt 
upon  the  instrument  itself.  Before  the  statute,  the  instrument  was  only 
evidence  of  the  alleged  assumpsit.  After  the  statute,  the  declaration 
was  in  debt  upon  the  instrument  and  the  instrument  itself  was  sufflcient 
evidence  to  support  the  action  without  any  further  proof  of  the  consid- 
eration: and  in  this  respect  alone  did  the  statute  effect  the  remedy. 
The  statute  does  not  take  away  the  old  remedy,  but  gives  an  additional 
remedy  with  leave  to  the  i)laintiff  to  pursue  either,  as  he  may  elect.  In 
Indebitatus  Assumpsit  ui)on  a  negotiable  instrument,  a  recovery  may  be 
had  upon  either  of  several  counts:  Upon  the  instrument  Itself;  for 
money  paid,  etc.,  to  the  defendant's  use;  for  money  lent  or  advanced; 
for  money  had  and  received  to  plaintiff's  use.  The  action  will  lie  by 
and  against,  not  only  the  original  parties  to  the  instrument — such  as 
maker  and  payee;  but  also  by  and  against  those  secondarily  connected 
therewith — such  as  indorser  and  indorsee.  In  all  counts,  and  between 
all  parties  to  the  instrument,  the  instrument  itself  is  presumptive  evi- 
dence sufficient  to  sustain  the  action;  but  such  i)resumption  may  be  re- 
butted. Proof  of  a  consideration  is  not  essential;  but  if  the  defendant 
introduce  testimony  tending  to  show  that  the  instrument  was  nudum 
pactum,  the  plaintiff  must  show  a  valid  consideration.  An  action  of 
Debt  lies  on  all  negotiable  instruments  against  those  primarily  liable 
thereon,  but  not  against  those  secondwily  liable.  (676-679).  In  ar-- 
tions  on  negotiable  instruments,  it  is  the  practice  to  require  the  produf- 
tlon  of  the  instrument  at  the  trial  and  to  withhold  judgment  until  the 
Instrument  is  filed  of  record;  but  a  failure  to  file  the  instrument  at  the 
trial  will  not  invalidate  the  judgment — as  the  filing  may  be  done  subse- 
quently nunc  pro  tunc.  (679).  The  remedy  on  a  lost  bond,  is  in  equity, 
because  at  law  the  obligor  has  a  right  to  demand  profert  of  the  bond, 
and,  as  no  profert  can  be  made  if  the  bond  be  lost,  the  remedy  at  law  is 
gone.  The  courts  of  equity  held  on  to  this  jurisdiction  even  after  the 
law  courts  had  dispensed  with  profert.  The  jurisdiction  in  equity  as  to 
lost  negotiable  instruments  arose  from  the  right  to  require  indemnity 
from  liability  on  the  paper  sued  on,  in  case  such  paper  should  after- 
wards turn  up  in  the  hands  of  another.  Recovery  may  be  had  at  law 
upon  a  lost  instrument  if  such  instrument  be  not  negotiable.  Under  the 
Code  practice,  if  it  appear  that  the  instrument  sued  on  has  not  been 
destroyed,  was  negotiable,  and  cannot  be  produced,  an  indemnity  may 
be  required  by  the  court.  (680).  In  declaring  upon  an  unsealed  con- 
tract it  is  necessary  to  allege  a  consideration  or  the  contract  will  appear 
to  be  nudum  pactum  and  the  declaration  will,  consequently,  be  insuffi- 
cient. This  rule  of  pleading  does  not  apply  to  negotiable  instruments. 
(681). 

Sec.  ').  Pkukormance  of  Co.nditions,  When  it  Must  Bi;  Alleged.  As 
a  general  rule,  if  there  be  a  condition  precedent  incorporated  into  an 
agreement,  it  is  necessary  to  allege  and  prove  its  performance  as  a  pre- 
requisite to  the  plaintiff's  recovery.  If  there  be  covenants  to  be  per- 
formed by  each  party  at  the  same  time  and  the  same  place,  such  cove- 
nants are  dependent  and,  to  enable  one  of  the  parties  to  maintain  an 
action  against  the  other  for  a  breach  of  the  contract,  the  party  who  sues 
must  show  that  he  has  performed,  or  offered  to  perform,  his  part;  or  that 
there  is  some  legal  excuse  for  his  not  having  done  so.  But  if  the  cove- 
nants be  independent,  such  allegations  and  proof  are  unnecessarv.  (682- 
685 } . 

Sec.  6.  Slmmaky  PuocKEi)iNti.s  to  Collect  the  Plrciiasi:  Monkv   Due 


INTRODUCTION.  Ixxi 

ON  Property  Purchased  at  a  Jlt)ICIal  Sale.  A  purchaser  at  a  judicial 
sale  may  be  forced  to  complete  his  purchase  by  a  summary  order  in  the 
original  cause;  or  an  action  at  law  may  be  maintained  against  him  for 
the  price.  In  some  jurisdictions  no  separate  action  will  be  allowed. 
The  modern  practice  of  English  courts  is  to  order  a  resale  of  the  prem- 
ises at  the  cost  of  the  purchaser  and  to  hold  him  liable  for  the  defici- 
ency. Upon  a  judicial  sale  the  purchaser  may  be  put  into  possession 
by  a  writ  of  assistance;  or  he  may  recover  possession  by  an  action  of 
ejectment.  The  only  difference  between  judicial  sales  of  chattels  and 
those  of  realty,  is,  that  the  property  in  chattels  passes  by  the  sale; 
whereas  on  the  sale  of  lands  a  deed  is  necessary  to  convey  the  title. 
The  rights  of  the  buyer  are  fixed  in  both  instances,  when  the  bid  is  ac- 
cepted by  the  court  by  a  confirmation  of  the  sale.     (685). 

Sec.  7.  Actions  of  Deceit,  and  of  Deceit  and  F.a.lse  Warranty.     It  is 
said  that  an  action  on  the  case  lies  for  false  representations  in  the  sale 
of  property,  whereby  the  vendee  is  defrauded  and  deceived,  even  though 
the  vendor  be  not  aware  of  the  falsity  of  the  representations  which  he 
makes.     Such    representations    may   be    treated    as    warranties,    and    as- 
sumpsit  brought   thereon,   if  the   vendee   so   elect.     (690-693).     Joinder 
of  deceit  and  false  warranty  is  permitted  under  the  Code  practice;    and 
fraud  and  deceit  and  false  warranty  may  be  set  up  as  a  counterclaim 
where  they  grow  out  of  the  transaction  which  is  the  basis  of  the  plain- 
tiff's action.     To  sustain  an  action  upon  a  false  icarranty  it  is  not  nec- 
essary to  prove  the  scienter.     If  there  be  no  warranty  and  the  plaintiff 
relies  upon  the  deceit,  proof  of  the  scienter  is  a  sine  qua  non.     (693). 
The  law  implies  a  warranty  of  title  when  chattels  are  sold:    but  as  to 
the  quality  of  the  goods  no  warranty  is  implied.     A  mere  affirmation  as 
to  quality  does  not  amount  to  a  warranty  unless  it  be  shown  that  it 
was  so  intended.     The  remedy  on  a  warranty  is  indebitatus  assumpsit: 
but  if  there  be  any  fraud  in  the  case,  the  buyer  may  bring  an  action  of 
trespass  on  the  case.     Case,  indeed,  is  the  only  remedy  if  there  be  no 
warranty   of  soundness.     (693).     In   some  jurisdictions   it   is  held   that 
the  charge  of  a  fraudulent  intent,  in  an  action  of  deceit,  is  sustained 
by  proof  of  a  statement  made  as  of  the  party's  own  knowledge,  which  is 
false— provided  the  thing  stated  be  not  a  mere  matter  of  opinion,  esti- 
mate, or  judgment,  but  susceptible  of  actual   knowledge;    and   that,   in 
such  cases,  it  is  not  necessary  to  make  any  further  proof  of  an  actual 
intent  to  deceive.     The  fraud  consists  in  stating  that  the  person  knows 
a  thing  to  exist  when  he  does  not  know  it  to  exist.     If  he  does  not  know 
that  it  does  exist,  he  must,  ordinarilly,  be  deemed  to  know  that  It  does 
not.     A  mere  belief  of  its  existence  will  not  excuse  a  statement  of  actual 
knowledge.     (69.")).     If  an  unsound  chattel  be  sold,  the  purchaser  must 
prove  either  a  warranty  of  soundness  or  a  deceit  in  order  to  maintain 
nn  action.     In  regard  to  a  deceit,  the  distinction  is:  Where  the  unsound- 
ness is  /jn/.'«/,— that  is  such  as  cannot  be  discovered  by  the  exercise  of 
ordinary  diligenfe — merr  sih-vce  on   the  i)art  of  the  vendor   is  not  suffl- 
flent  to  establish  the  deceit,  although   he  knows  of  the  unsoundness— 
because  the  thing  speaks  for  itself  and  it  is  the  folly  of  the  purchaser 
not  to  harken  thereto.     In  such  cases  the  scienter  must  be  proven  and 
there  must  be  a  false  statement,  or  a  resort  to  some  trick  to  conceal  the 
unsoiindness   or   to   prevent   an   examination.     But   where   the   unsound- 
ness Is  Intent. — that  is,  such  as  can  not  be  discovered  by  the  exorcise  of 
ordinary   diligence- the   mere  silence  of  the  vendor   is   sufficient  to  es- 
tablish the  deceit,  provided  he  knows  thereof.     (097).     There  can  be  no 
rerovery  for  a  false  statement  alone.     Damage  also  must  be  alleged  and 
proved.      (700).     To  sustain  deceit  by  false  representations  three  things 
arf^  essential:    The  rei)resentation   must  be   false;    the   iiarty   making   it 
must  know  it  to  be  false;   the  false  representation  must  have  induced  the 
vendee  to  purchase.     The  measure  of  damages  is  the  difference  between 
the  value  of  the  chattel  at  the  time  of  the  purchase   if  sound,  and  Its 
value  if  diseased  at  that  time.     It  is   immaterial   what  disposition   the 
purchaser  subsequently  makes  of  the  chattel — whfthor  he  works  it  oft 
upon  some  one  else  nnd  gets  iih.k'  iIkiii   its  value,  ov  wiir'dicr  in-  gives  it 


Ixxii  iN'rudiiri'i'iox. 

away»  (700).  ■Tuffliip  ono's  wares" — t.  e.  expressions  of  commenda- 
tion or  of  opinion,  or  o\trava,u;iuU  statonients  as  to  value  or  iirosjjects, 
or  the  like — is  not  roKanlcd  as  IraiuUikMU  in  law:  but  representations 
purporting  to  be  statements  of  fact  as  distinguished  from  mere  matters 
of  opinion,  and  which  are  intended  to  be.  and  in  fact  are,  accepted  as 
farts,  do  not  come  witliin  the  exemption  as  to  "puinng  one's  wares."  A 
defrauded  purchaser  has  a  selection  of  remedies:  He  may  rescind  the 
trade  and  recover  the  price  or  such  portion  thereof  as  he  has  paid;  or 
set  up  the  fraud  as  a  defense  to  the  vendor's  action  for  the  price  or 
such  part  of  it  as  remains  uni)aid;  or  he  may  hold  the  vendor  to  the 
contract  and  sue  him  for  damages  sustained  in  consequence  of  the 
fraud.  Rut  in  order  to  rescind,  the  purchaser,  (1)  must  do  so  within 
a  reasonable  time  after  he  discovers  the  fraud  or  could  have  done  so 
by  the  exercise  of  due  diligence;  (2)  he  must  disaffirm  in  toto;  (3)  he 
must  be  able  to  restore  the  price;  (4)  he  must  have  done  no  act 
amounting  to  a  ratification.  (702).  It  has  been  said  that  no  action 
has  ever  been  maintained  by  a  seller  against  the  purchaser  for  a  cheat 
brought  about  by  the  misrepresentations  of  the  jnirchasc7-  as  to  the 
value  of  the  thing  sold.  But  it  has  also  been  said  that  this  doctrine 
does  not  go  so  far  as  to  protect  a  vendee  who  knows  that  there  is  a 
gold  mine  on  land  he  is  seeking  to  purchase  and  who  denies  such  knowl- 
edge when  interrogated  by  the  vendor  with  regard  to  the  matter.     (705). 

Sk(\  8.  CoNsi>iR.\(  Y.  One  may  maintain  an  action  on  the  case  against 
several  for  conspiring  to  do,  and  actually  doing,  some  unlawful  act  to  his 
damage.  But  no  action  lies  for  a  mere  conspiracy  unattended  with 
any  consequent  damage.  "A  simple  conspiracy,  however  atrocious,  un- 
less it  resulted  in  actual  damage,  never  was  the  subject  of  a  civil  ac- 
tion." "An  act  which,  if  done  by  one  alone,  constitutes  no  ground  of 
action  on  the  case,  cannot  be  made  the  ground  of  such  action  by  alleg- 
ing it  to  have  been  done  by  or  through  a  conspiracy  of  several."  It  is 
frequently  criminal  for  many  to  combine  to  effect  even  a  laicful  end; 
for  it  is  doing  a  lawful  thing  by  unlawful  means.  But  that  offense  is 
to  the  public,  and  a  private  person  cannot  complain  thereof  unless  it 
operates  to  his  injury — that  is  to  say,  when  as  to  him  individually  the 
object  of  the  conspiracy  is  unlawful  and  its  effect  an  injury.     (707). 

Sec.  9.  Ix.iunctiox  Against  Bke.\cii  of  Contract.  If  one  sell  his 
business  and  good  will,  he  may  lawfully  contract  not  to  engage  in  the 
same  business  in  competition  with  that  which  he  has  sold.  Such  con- 
tract is  in  partial  restraint  of  trade,  it  is  true,  but  it  is  one  which  has 
been  recognized  as  not  inimical  to  public  policy.  The  remedy  of  the 
purchaser  and  covenantee  in  such  cases  is  an  injunction  forbidding  the 
seller  to  engage  in  business  in  violation  of  his  covenant.  Contracts  of 
this  sort  must  be  no  more  extensive  than  is  reasonably  required  to  pro- 
tect the  purchaser  in  the  enjoyment  of  the  business  purchased.  (710). 
Equity  will  negatively  enforce  the  performance  of  certain  contracts  of 
service  by  enjoining  their  breach;  but  their  performance  positively,  by 
decree  of  specific  performance,  is  beyond  the  power  of  the  courts  to  en- 
force.    (712). 

Sec.  10.  "Breach  of  Promise."  Whatever  doubts  may  exist  as  to  the 
antiquity  of  the  remedy,  it  has  been  settled  for  a  long  time  that  an  ac- 
tion lies  to  recover  damages  for  the  breach  of  a  contract  to  marry. 
(714).  Such  an  action  is  commonly  called  an  action  for  "Breach  of 
Promise,"  and  its  usual  denouement  is  termed  by  the  elder  Mr.  Weller 
a  "Conwiction  o'  Breach." 

CHAPTER  IX. 

REMEDIES  IN  SPECIAL  CASES.— Sec.  1.  Bills  or  Advice  to  a  Fidi,- 
riARY.  When  a  fiduciary  Is  in  doubt  as  to  what  course  he  should  pur- 
sue in  a  matter  requiring  his  immediate  action,  he  may  avoid  the  evil 
consequences  of  error  by  filing  a  bill  in  equity  to  obtain  the  advice  of 
the  court.  The  court  will  advise  him,  and  such  advice  will  be  a  com- 
plete protection  and  res  judicata  as  to  all  who  are  parties  to  the  suit. 


INTRODUCTION.  IxxiiJ 

(716).  The  courts  will  not  give  advice  upon  such  applications  except 
when  their  present  action  is  necessary  for  the  protection  of  the  plain- 
tiff— they  will  not  give  an  abstract  opinion,  or  leap  before  coming  to  the 
hedge.     (718). 

Sec.  2.  Caveat  to  the  Probate  of  a  Will.  The  proceeding  to  probate 
a  will,  or  to  oppose  or  set  aside  such  probate,  is  not  like  an  ordinary 
action  or  special  proceeding  to  which  there  are  regular  parties  plaintiff 
and  defendant;  nor  is  the  purpose  of  it  to  litigate  a  cause  which  the 
plaintiff  may  abandon  by  suffering  a  nonsuit,  or  otherwise.  It  is  a 
proceeding  in  rem  to  which,  strictly  speaking,  there  are  no  parties; 
and  its  chief  purpose  is  not  to  settle  the  conflicting  claims  of  those 
claiming  under  or  against  the  wall,  but  to  ascertain  whether  the  sup- 
posed testator  died  testate  or  intestate;  and,  if  he  died  testate,  whether 
or  not  the  script  propounded,  or  any  part  thereof,  be  his  will.  Any 
person  before  the  court  may  withdraw  from  the  proceeding  upon  pay- 
ment of  his  proportion  of  the  costs;  but  in  that  case  the  script  is  still 
left  with  the  court  to  be  disposed  of  according  to  law.  The  persons  be- 
fore the  court  cannot  control  or  direct  the  proceedings;  that  is  the  sole 
province  of  the  court.  (720).  Persons  upon  whom  a  notice  "to  see 
proceedings"  is  served,  are  bound  by  the  proceedings.  It  is  true  they 
may  not  be  actors  in  the  cause,  but  unless  they  do  something  to  pre- 
clude themselves,  they  may  become  active  at  any  time  before  the  judg- 
ment is  pronounced — for  until  that  is  done,  any  person  interested  is 
entitled  to  be  heard  for  or  against  the  script.  The  proceeding  being  in 
rem,  any  one  may  intervene  to  protect  his  interest  while  the  thing  con- 
tinues sub  judice.  (721).  When  two  wills  are  propounded — the  pro- 
pounders  of  the  one  being  caveators  of  the  other — the  issues  as  to  both 
•  ripts  may  be  tried  in  one  proceeding.  (722).  The  status  of  the 
executor  while  caveat  proceedings  are  pending  is  a  matter  usually  regu- 
lated by  statute  or  local  practice.     (725). 

Sec.  3.  Partitiox.  At  common  law,  partition  was  effected  through  the 
courts  by  the  writ  of  partition,  which  has  become  obsolete.  The  more 
usual  mode  of  enforcing  partition  in  England  came  to  be  by  resort  to 
the  courts  of  equity.  In  this  country  it  is  usually  effected  by  proceed- 
ings prescribed  by  statute,  or  by  the  courts  of  equity  or  those  exercis- 
ing equity  jurisdiction.  In  the  absence  of  a  statute,  it  would  seem  that 
courts  of  equity  have  no  power  to  decree  a  sale  for  partition.  Where 
such  a  power  is  conferred,  it  must  be  exercised  reluctantly,  and  a  sale  will 
be  ordered  only  when  it  is  necessary  to  effect  an  equitable  division.  (726- 
732).  Where  a  designated  number  of  acres  of  a  tract  of  land  is  conveyed 
to  one  and  the  residue  of  the  land  is  given  to  another, — as  eighty  acres  to 
be  cut  off  of  the  north  end  of  a  tract — the  owners  are  called  "tenants  in 
common  with  a  partial  division."  As  it  is  necessary  that  the  dividing 
line  be  established  between  them,  this  will  be  done  by  the  courts  in  a 
proceeding  for  partition.  (732).  In  this  country,  lands  held  for  part- 
nership purposes  are  deemed  converted  into  personalty  only  to  the  ex- 
tent necessary  to  pay  the  partnership  debts  and  adjust  the  partnership 
afcounts.  All  lands  remaining  after  the  debts  are  i)aid  and  accounts 
adjusted  may  be  divided  by  i)artition  proceedings.  F'ormorly  the  same 
rule  held  in  England,  but  of  late  the  English  courts  hold  that  i)artner- 
shlp  lands  are  absolutely  converted  into  personalty  and  devolve  as  such 
on  dissolution  of  the  firm.  (734).  Caveat  emptor  applies  to  sales — and 
not  to  jtartition.  In  sales  of  realty  no  warranty  is  implied.  In  sales  of 
chattels  warranty  of  title,  but  not  of  soundness,  is  imi)lio(l.  In  ])artition 
of  realty  a  warranty  of  title  is  implied,  in  jiartition  of  chattels  a  war- 
ranty of  both  title  and  soundness  Is  implied.  If,  through  mistake,  a 
parcel  of  land  or  a  chattel  be  allotted  to  one  of  the  parties  at  a  valua- 
tion bnsed  upon  an  eirfinr  ous  inipif"^^ion  ris  to  the  number  of  acres  of 
land  fir  soundness  of  the  chattel,  such  i)arty  ean  obtain  comiiensation 
from  the  others,  in  money.  In  adjusting  such  matters,  the  iiroperty  is 
valued  as  of  the  time  of  i)artition;  and  that  value,  plus  interest  to  the 
time  of  contribution,  is  the  amount  the  injured  party  is  entitled  to  re- 
ceive— less  his  share  of  the  incidental  loss.     The  jurisdiction  for  parti- 


Ixxiv  l\TK(tl>rc  TlttN. 

tion  of  ihnttt'ls  is  in  equity.  (73G).  Land  is  not  to  be  divided  so  as  to 
give  each  tenant  a  sharo  In  iveiy  panel  of  the  common  i)ro|)erty:  but 
it  must  be  so  diviiit'd  tliat  earli  shall  receive  an  equal  share,  in  value, 
of  the  whole.  In  ordrr  to  brins  about  such  a  result,  chaises  may  be 
made  upon  allotments  of  Rieater  value  in  favor  of  those  of  inferior 
value.  Such  charges  are  called  owelty.  (738).  The  peculiarities  of  a 
partition  in  equity  arc:  (1)  That  such  part  of  the  land  as  may  be  more 
advantageous  to  a  party  on  account  of  its  proximity  to  his  other  land, 
or  for  any  other  reason,  will  be  directed  to  be  set  off  to  him  if  tliat  can 
be  done  without  injury  to  the  others;  (2)  that  when  the  lands  are  in 
several  parcels,  each  party  will  not  be  given  a  share  of  each  parcel,  but 
only  his  equal  share  of  the  whole;  (3)  that  where  a  partition  exactly 
equal  cannot  be  made  without  injury,  a  gross  sum  or  a  yearly  rent  may 
be  charged  upon  the  allotments  of  greater  value  in  favor  of  the  shares 
of  inferior  value,  as  owelty;  (4)  that  where  one  tenant  has  improved  the 
common  property,  he  shall  receive  compensation  for  such  improvements 
— either  by  having  the  improved  part  allotted  to  him  at  its  value  before 
improvement,  or  by  compensation  decreed  to  be  made  for  his  improve- 
ments. A  tenant  in  common  who  has  made  improvements  is  entitled  to 
a  partition  in  equity,  only  when  the  improvements  were  made  honestly 
for  the  purpose  of  improving  the  property,  and  not  for  embarrassing 
his  co-tenants,  or  encumbering  their  estate,  or  hindering  partition.  If 
it  appear  that  the  premises  cannot  be  otherwise  fairly  divided,  a  sale 
must  be  ordered  and  a  proper  allowance  made  out  of  the  proceeds  for 
the  value  of  the  improvements  put  upon  the  premises.  (739).  Wliat- 
ever  may  have  been  the  old  practice,  under  the  present  practice  the  pro- 
cedure for  enforcing  owelty  charges  is  by  a  writ  of  ven.  ex.  issued  upon 
a  motion  in  the  cause.  Such  method  should  always  be  observed,  except 
in  cases  involving  complicated  litigation.  (742).  It  is  well  settled, 
that  equity  has  exclusive  jurisdiction  of  the  partition  of  chattels,  even 
though  the  defendant  denies  the  plaintiff's  title.  The  entire  absence  of 
any  remedy  at  law  for  the  partition  of  chattels  induced  courts  of  equity 
to  "assume  jurisdiction  in  such  cases.  "At  what  time  and  under  what 
circumstances  this  jurisdiction  was  first  assumed,  we  are  unable  to  state; 
but  that  it  exists  and  is  exercised  by  the  courts  of  chancery  both  in 
England  and  the  United  States,  is  undisputed."  The  matter  is  now 
generally  regulated  by  statute.     (743). 

Sec.  4.  Sale  of  Real  Estate  and  Chattels  Belonging  to  Infants. — 
Whatever  may  be  the  doctrine  of  the  English  court  of  chancery,  or 
whatever  contrariety  of  opinion  may  prevail  in  the  different  states,  as 
to  the  jurisdiction  in  equity  to  decree  a  sale  of  an  infant's  land,  such 
jurisdiction  exists  in  Alabama.  It  rests  upon  the  power  and  duty  of  the 
courts  of  equity  to  protect  infants — to  preserve  their  estates  while  they 
are  under  disability.  Reversions  and  remainders  belonging  to  infants 
may  be  thus  sold,  though  the  courts  act  reluctantly  and  cautiously  in 
such  cases.  A  sale  of  an  infant's  realty  will  be  decreed  when  such  sale 
is  necessary  for  the  maintenance  and  education  of  the  infant  or  to  con- 
serve his  interests.  The  reasons  controlling  the  English  court  of  chan- 
cery for  repudiating  jurisdiction  in  such  cases  seem  to  have  been,  that 
on  the  death  of  the  infant,  the  course  of  descent  would  be  interrupted 
by  a  sale,  and  if  converted  into  money  the  infant  could  bequeath  it 
during  his  minority.  These  reasons  subordinate  the  interest  of  the  in- 
fant to  that  of  his  heirs;  while,  in  Alabama  at  least,  the  court  looks 
only  to  the  care,  protection,  and  advantage  of  the  infant.  In  some  states 
this  matter  is  regulated  by  statute.  When  not  so  regulated,  the  ruling 
of  the  Alabama  court  would  seem  to  be  the  proper  one  to  follow.  (744- 
749). 

Sec.  5.  Inquisitions  of  Lunacy. — The  custody  of  the  lands  of  natural 
fools  (idiots)  was  turned  over  to  the  King,  by  17  Edw.  2,  with  a  right 
to  take  the  profits,  and  the  duty  to  provide  for  the  idiot.  Upon  the 
idiot's  death  the  lands  went  to  his  heirs.  By  the  same  statute  the  King 
was  made  trustee  of  the  lands  of  lunatics,  but  without  any  beneficial 
interest  in  such  lands.     The  method  of  procedure  for  taking  charge  of 


IXTRODUCTIOX.  IxXV 

an  idiot's  or  lunatic's  land  was  a  writ  to  the  escheator  or  sheriff  of  the 
county  wherein  such  idiot  or  lunatic  resided.  The  object  of  the  writ  was  to 
ascertain  by  judicial  investigation  whether  or  not  the  person  proceeded 
against  was  an  idiot  or  lunatic;  for  the  King's  right  to  the  control  of 
such  persons  and  their  estates  did  not  commence  until  office  found.  Sub- 
sequently, authority  was  given  to  the  Chancellor  to  issue  the  writ  or 
commission  to  inquire  as  to  the  fact  of  idiocy  or  lunacy,  and  the  method 
of  procedure  was  by  petition  suggesting  the  lunacy,  etc.  Thus  tfie  law 
came  to  us  from  England;  and  after  the  Revolution  the  care  and  custody 
of  persons  of  unsound  mind  and  the  control  of  their  estates  became 
vested  in  the  people,  who  have  left  it  to  the  courts  of  equity  or  have 
regulated  it  by  statute.  The  modus  operandi  is  an  inquisition  of  lunacy, 
which  is  an  essential  step  preliminary  to  assuming  control  of  the  person 
and  estate  of  a  non  compos.  It  is  a  judicial  determination  that  the  per- 
son proceeded  against  is  one  of  that  class  whose  care  and  custody  has 
been  delegated  to  the  courts.  Although  it  involves  the  loss  or  suspen- 
sion of  civil  rights  over  person  and  property,  it  acts  only  upon  the 
status  of  the  individual.  The  whole  world  is  bound  by  the  inquisition. 
The  law  is  set  in  motion  by  information,  of  a  more  or  less  formal  char- 
acter, filed  with  the  court  by  some  one  who  assumes  to  act  in  the  matter 
but  who  does  not  thereby  become  a  pai-ty  to  the  proceeding,  and  who  de- 
rives no  direct  benefit  therefrom — the  advantage  to  him,  if  any,  is  only 
such  as  would  result  if  any  other  person  had  first  acted  in  the  matter. 
(749).  The  jurisdiction  over  the  persons  and  estates  of  lunatics,  etc., 
which  was  vested  in  the  Chancellor,  is  exercised,  under  the  Code  prac- 
tice, by  such  courts  as  the  statutes  designate.  The  same  general  prin- 
ciples which  prevailed  in  chancery  are  retained.  The  fact  of  lunacy, 
etc.,  must  be  ascertained  judicially  before  a  court  can  deprive  the  luna- 
tic of  the  custody  of  his  estate  or  submit  his  person  to  the  control  of  a 
committee.  The  person  proceeded  against  must  have  legal  notice  of  the 
proceeding,  which  notice,  as  a  general  rule,  must  be  personally  served; 
though  where  the  insanity  is  of  such  an  aggravated  type  as  to  render 
personal  service  harmful  or  useless,  it  may  be  dispensed  with.  "No  pre- 
caution should  be  omitted  which  may  apprise  the  party  of  the  proposed 
action  and  enable  him  to  appear  and  defend."     (754). 

Sec.  6.  Sai,k  of  Ri:.\l  Estatk  by  the  Personal  Representative  to  Make 

A.SSETS    FOR   the    PAYMENT   OF   THE    DEBTS    OF   A    DECEDENT. — The    praCtiCO   lu 

proceedings  for  the  sale  of  real  estate  by  a  personal  representative,  to 
make  assets  for  the  payment  of  a  decedent's  debts,  is  regulated  by  stat- 
ute in  the  several  states.  The  cases  selected  are  deemed  sufficient  to 
present  all  important  points  which  usually  arise  in  such  proceedings. 
(757-767). 

Sec.  7.  Creditors'  Bills. — Creditors'  bills  are  of  two  kinds,  General 
Creditors'  bills  and  Judgment  Creditors'  bills.  General  Creditors'  bills 
are  for  the  purpose  of  winding  up  the  insolvent  estates  of  deceased  per- 
sons, the  affairs  of  a  corporation,  and  the  like.  In  such  cases  there  are 
many  persons  standing  in  the  same  situation  as  to  their  respective 
rights  In,  or  claims  upon,  a  particular  estate  or  fund,  and  the  rights  of 
one  cannot  be  determined  until  the  rights  of  all  are  settled  or  ascer- 
tained. Of  this  nature,  also,  are  bills  brought  to  enforce  trusts  or  as- 
signments for  creditors,  and  other  instances  in  which  there  is  a  com- 
munity of  interest,  or  in  which  the  law  imposes  upon  the  courts  the 
duty  of  taking  a  fund  into  custody  and  distributing  it  according  to  the 
respective  intf  rests  of  the  parties.  In  such  bills  no  i)riority  can  be  ac- 
quired by  the  one  who  institutes  the  proceeding  or  who  makes  himself 
a  party  hfforo  others  conic  in.  .Iiidgnient  Creditors'  bills  are  Instituted 
by  one  or  more  creditors  against  a  Jiving  debtor.  Here  the  field  is  open 
to  all,  and  he  who  Institutes  the  proceeding  secures  a  priority  as  the 
reward  of  his  diligence.  Such  bills  are  In  the  nature  of  an  equitable 
fl.  fa.,  and  are  entertained  in  equity  for  the  i)urpose  of  subjecting  equi- 
table and  other  interests  which  cannot  l)e  reached  and  sold  under  execu- 
tion at  law;  and  also  for  removing  obstructions  to  legal  remedies,  as  by 
setting  aside  fraudulent  conveyances,  and  the  like.     When  thus  used,  It 


Ixwi  INTRODUCTION. 

1^  necessary,  under  the  equity  practice,  that  the  creditor  should  first  ob- 
tain judgment  at  law,  and  that  he  show  that  an  execution  proved  In- 
effoitual.  This  Is  dispensed  with  under  the  Code  practice.  (767).  The 
rule  of  the  Federal  courts  of  equity  is  this:  "When  it  is  sought  by 
equitable  protoss  to  reach  equitable  interests  of  a  debtor,  the  bill,  un- 
less otherwise  provided  by  statute,  must  set  forth  a  judgment  in  the 
Jurisdiiiioii  wlierc  tlu'  suit  in  e(|uil,v  is  lirdu.ulil,  llic  issuing  of  an  execu- 
tion thereon,  and  its  return  unsatisfied;  or  must  contain  allegations 
showing  that  it  is  impossible  to  obtain  such  a  judgment  in  any  court 
within  such  jurisdiction."  This  ruling  is  not  affected  by  the  practice  of 
the  courts  of  the  state  in  which  the  federal  court  is  held — for  the  equity 
Jurisdiction  and  practice  of  the  federal  courts  must  remain  distinct  from 
their  legal  jurisdiction  and  practice.  (771).  "The  court  will  generally, 
at  the  hearing,  allow  a  bill,  which  has  been  originally  filed  by  one  in- 
dividual of  a  numerous  class,  in  his  own  right,  to  be  so  amended  as  to 
convert  it  into  a  creditors'  bill."  The  filing  of  a  creditors'  bill  stops  the 
running  of  the  statute  of  limitations  as  to  all  creditors  who  subsequently 
make  themselves  parties  and  prove  their  claims.  As  long  as  any  assets 
remain  undistributed,  any  creditor  is  at  liberty  to  come  in,  prove  his 
claim,  and  participate  in  the  assets — not  disturbing  any  former  divi- 
dend: but  no  one  can  share  in  the  assets  unless  and  until  he  makes 
himself  a  party  to  the  proceeding  and  proves  his  claim.  Any  creditor 
who  makes  himself  a  party  has  the  right  to  contest  the  validity  of  the 
claim  of  any  other  creditor  except  that  of  the  plaintiff  whose  claim  is 
the  foundation  of  the  decree.  (772).  Although  the  language  of  the  de- 
cree be.  that  those  who  do  not  come  in  as  parties  by  a  given  time  shall 
be  excluded  from  participating  in  the  fund,  yet  the  practice  is  to  permit 
a  creditor  to  come  in  as  a  party  to  the  proceeding  and  participate  in  the 
fund  as  long  as  there  happens  to  be  any  fraction  of  the  fund  in  the 
hands  of  the  court.     (775). 

Sec.  8.  Remedy  ok  Creditors  Under  13  Elizabeth. — Where  courts  of 
law  and  equity  are  separate,  a  creditor  has  his  election:  (1)  To  reduce 
his  debt  to  judgment  and  sell  the  property  fraudulently  conveyed,  un- 
der execution.  If  he  purchase  at  such  sale,  he  may  bring  ejectment  and 
test  the  validity  of  the  alleged  fraudulent  conveyance;  (2)  he  may  file  a 
bill  in  equity  attacking  the  alleged  fraudulent  conveyance,  and  have  a 
decree  for  the  sale  of  the  property  should  the  fraud  be  adjudged.  If 
the  creditor  proceeds  at  law  and  purchases  the  property  of  the  debtor 
under  execution,  a  court  of  equity  will  not  entertain  a  bill,  by  either 
the  purchaser  or  the  alleged  fraudulent  donee,  to  pass  upon  the  validity 
of  the  alleged  fraudulent  conveyance  on  the  idea  of  removing  a  cloud 
from  the  title.  So  it  is  under  the  Code  practice,  where  the  courts  exer- 
cise both  legal  and  equitable  jurisdiction.  But  some  courts  hold  that 
one  who  purchases  land  under  execution  may  go  into  equity  to  attack 
the  title  of  his  debtor's  fraudulent  donee.  In  cases  where  the  legal  title 
to  the  property  is  such  that  it  cannot  be  seized  under  execution,  resort 
to  a  court  of  equity  is  necessary — as  where  the  legal  title  never  has  been 
in  the  debtor,  having  been  conveyed  to  another  in  secret  trust  for  the 
debtor,  with  the  fraudulent  intent  to  screen  it  from  his  creditors.  (777- 
780).  Some  courts  hold  that,  in  the  absence  of  a  statute,  an  adminis- 
trator cannot  maintain  an  action  for  setting  aside  a  transfer  of  chattels 
made  by  his  intestate  with  intent  to  defraud  creditors.  In  such  cases 
the  defrauded  creditors  must  themselves  proceed  against  the  fraudulent 
transferee  as  executor  de  son  tort.  Other  courts  permit  the  adminis- 
trator to  attack  the  fraudulent  transfers  of  the  decedent.     (780). 

CHAPTER   X. 

EXTRAORDINARY  REMEDIES.— Sec.  1.  Hahkas  Cokpis.— This  rem- 
edy has  been  sufficiently  treated  in  Chap.  5,  §  8,  a;  Chap.  6,  §  1,  a,  and 
§  2,  a. 

Sec.  2.  Pbohihition. — A  writ  of  prohibition  issues  from  the  highest 
common-law  courts,  and  is  the  proper  remedy  to  restrain  a  tribunal  of 


INTRODUCTION.  Ixxvii 

peculiar,   limited,   or   inferior  jurisdiction   from   taking  judicial   cogniz- 
ance of  a  case  not  within  its  jurisdiction.     The  writ  is  properly  sued  out 
in  the  name  of  the  crown  or  the  state;   the  only  necessary  defendant  is 
the  tribunal  whose  proceedings  are  sought  to  he  restrained,  controlled, 
or  quashed;    and  there  is  no  class  of  cases  in  which  the  authority  to 
issue  the  writ  is  better  established  than  those  in  which  courts  martial, 
ecclesiastical    courts,    or    inferior    common-law    courts    assume    to    take 
cognizance  of  criminal  prosecutions  over  which  they  have  no  jurisdic- 
tion.    (783).     The  writ  of  prohibition   is  the  converse  of  mandamus — 
it  prohibits  action,  while  mandamus  comjicls  it.     It  differs  from  an  in- 
junction in  that  it  issues  to  a  court  to  prevent  it  from  proceeding  in  a 
matter,   while   an    injunction    issues  to   a  persoti   forbidding  him   to  do 
some  act.     The  writ   of  prohibition   does  not   lie  for  grievances  which 
may   be  redressed,   in   the  ordinary   course   of   judicial    proceedings,   by 
appeal,  or  by  recordari  or  certiorari  as  substitutes  for  an  appeal.     Nor 
is  it  a  writ  of  right  granted  ex  debito  justitiae,  like  habeas  corpus;   but 
it  is  to  he  granted  or  withheld  according  to  the  circumstances  of  each 
l)articular  case.     Being  a  prerogative  writ,  it  is  to  be  used,  like  all  such, 
with  great  caution  and  forbearance,  to  prevent  usurpation  and  to  secure 
regularity    in   judicial    proceedings,   where    none   of    the    ordinary    legal 
remedies  will  afford  the  desired  relief.     The  writ  does  not  issue  to  re- 
strain ministerial  acts,  but  to  restrain  judicial  action  where  such  action 
would  be  a  usurpation  not  to  l3e  adequately  remedied  by  an  appeal.     The 
usual  course  is  to  issue  a  notice  to  the  lower  court  to  show  cause  why 
the  writ  should  not  issue,  and  to   order  a  stay  of  proceedings   in  the 
meantime.     It  is  never  used  as  a  remedy  for  acts  already  done,  but  only 
to  prohibit  the  commission  of  an  act  threatened,  or  the  continued  prose- 
cution of  a  pending  proceeding.     (785). 

Sec.   3.  M.vndamus. — A   mandamus   was    formerly   a   prerogative   writ, 
but  in  modern  times  it  rises  no  higher  than  an  extraordinary  remedy, 
(and  in  some  jurisdictions  it  has  sunk  to  the  low  level  of  an  ordinary 
remedy    (see  j).  801,  near  top).     It  was  introduced  to  prevent  disorder 
from  a  failure  of  justice  and  a  defect  of  police.     Therefore  it  ought  to 
be  used   upon  all   occasions  where   the  law   has  established   no  specific 
remedy  though  one  is  needed.     If  there  be  a  right  and  no  other  specific 
remedy    lies,    the    writ    should    issue.     Writs    of    mandamus    have    been 
granted  to  admit  lecturers,  clerks,  sextons,  scavengers,  etc.;    to  restore 
an  alderman  to  precedency,  an  attorney  to  practice  in  an  inferior  court, 
and  to  permit  one  so  entitled  "to  preach  in  a  meeting-house  appointed 
for  the  religious  worship  of  protestant  dissenters  commonly  called  Pres- 
l)yterians;"   and,    if   no  one   be   so   entitled,   to   force   the    congregation, 
stc-waids,  elders,  df  aeons,  vestrymen,  or  whoever  i)Osaesses  the  authority 
so  to  do,  to  elect  some  one  to  fill  the  pulpit — for  "should  the  court  deny 
this  remedy,  the  congregation  may  be  tempted  to  resist  violence  with 
force,  and  a  dispute  'who  shall  preach  Christian  charity,'  may  raise  im- 
placable   feuds  and   animosities   in   breach    of  the   public   peace,   in    the 
reproach  of  the  government,  and  to  the  scandal  of  religion."  says  Lord 
Mansfii  Id.     (787).     There  may  be  found   isolated  expressions  to  the  ef- 
fect that   this   writ   will    lie   only    where   there   is   a   i)ositive   statutory 
duty  and  an  entire  ahsenre  of  any  other  remedy:   but  these  exi)ressions 
are  not  a  correct  statement  of  the  law,  for  where  there  is  a  clear  right 
and    no   other   aderpiate   specific   remedy   at    law   exists,   the   writ   should 
is.sue.     It  is  the  inadequnty,  and  not  the  mere  ahNCiivc  of  all  other  legal 
remedies,  and  the  danger  of  the  failure  of  justice  without  it.  that  must 
ustially  d(  terniiue  tlie  ])ropriety  of  the  writ — for  where  none  but  sjiecific 
relief  will  do  ju.stice,  such  relief  should  be  granted  if  i)ra<'ticablo.      (790). 
The  writ  will  issue  from  a  sui)orior  to  an   inferior  court   couiiiKiDdiug  it 
to  i)roceed   to  judgment  of  .so?**"  I:iiiil.  l)nt    iu)t    to  coiuiikukI    ichnf   judg- 
ment  it  shall    render.     The   discretion   of  a   judge  :is   to   what   judgment 
he  shall  render  cannot  be  controlled  by  a  mandamus;    but  if  he  declines 
to  exercise  his  disfrefion  or  to  act  at  all,   when   it   Is  his  duty  (o  do  so, 
thf  writ  will    issue  to  comix'I   him   to  act.      (702).     The   usual   course   in 
mandamus  i)ro(<e(iiugs  is  to  flist  pass  upon  the  ri(/fit  involved  and,  If  It 


I\\\  INTROnrCTlOX. 

of  the  same  kiiul.  Tlie  equity  of  the  plaintiff  In  such  cases  arose  from 
the  protracted  liti.natiou  which  tiie  action  of  ejectment  permitted.  In 
tliat  action,  a  change  in  tlie  date  of  the  alleged  demise  being  sufhcient 
to  support  a  new  action,  the  party  In  possession,  though  successful  In 
every  Instance,  might  he  harrassed  and  vexed,  if  not  ruined,  by  a  litiga- 
tion constantly  renewed  by  some  land-grai)i)ing  Antaeus.  Bills  of  peace 
of  this  secomi  ilass  are  commonly  called  bills  to  "Remove  a  Cloud  on 
Title,"  or  to  "Quiet  Title."  or  to  "Quiet  the  Possession."  to  real  proi)erty. 
"A  bill  Quia  Timet  Is  generally  brought  to  prevent  future  litigation  by 
removing  existing  causes  of  controversy."  (821).  Any  court  of  record 
has  the  power,  whenever  several  actions  are  pending  by  the  same  plain- 
tiff against  the  same  defendant  for  causes  of  action  which  may  be  joined, 
to  order  the  several  actions  to  be  consolidated  into  one.  The  prosecu- 
tion of  a  multitude  of  actions  at  law,  all  of  which  depend,  for  their 
determination,  upon  the  same  facts  and  legal  principles,  Is  onerous  and 
oi)|iressive,  and  will  be  enjoined  in  equity.  (824).  The  relief  against 
Vexatious  litigation  afforded  by  the  courts  of  equity,  may  be  obtained, 
under  the  Code  practice,  by  a  motion  in  the  cause  for  an  injunction,  as 
for  a  consolidation  of  pending  actions.     (826). 

Si;c.  7.  Brt-Ls  or  Intkiu'leader. — A  bill  of  interpleader  is  for  the  pro- 
tection of  a  person  from  whom  several  claim,  legally  or  equitably,  the 
same  debt,  thing,  or  duty;  but  who  has  incurred  no  independent  liabil- 
iti/  to  any  of  them,  and  who  does  not  himself  claim  any  interest  in  the 
matter.  That  the  party  seeking  relief  has  incurred  no  independent  lia- 
bility to  either  claimant,  is  a  sine  qua  non;  and  so  is  the  further  prop- 
osition, that  the  claims  with  which  the  plaintiff  is  threatened  must  be 
such  as  antagonize  and  negative  each  other.  But  if  several  antagonis- 
tic claims  be  asserted  to  the  same  fund  the  remedy  lies.  (828).  The 
material  allegations  of  the  bill  are:  (1)  That  two  or  more  persons  have 
each  preferred  a  claim  against  the  complainant;  (2)  that  they  claim  the 
same  thing;  (3)  that  the  complainant  has  no  beneficial  interest  in  the 
thing  claimed;  and  (4)  that  he  cannot  determine,  without  hazard  to 
himself,  to  which  of  the  defendants  the  thing  belongs.  There  should  be 
annexed  to  the  bill  an  affidavit  that  there  Is  no  collusion  between  the 
complainant  and  any  of  the  parties.  The  thing  claimed  should  be 
brought  into  court  that  the  complainant  may  reap  no  benefit  from  the 
delay  incident  to  filing  the  bill.  This  remedy  is  given  in  order  to  pro- 
tect a  person  against  a  double  liability,  or,  to  speak  more  accurately, 
against  a  double  vexation  on  account  of  one  liability.  While  the  early 
authorities  were  very  exacting  upon  the  subject  of  privity  in  such  cases, 
many  of  the  later  cases  have  been  less  rigid  and  some  have  ignored  it 
altogether.  The  doctrine  of  privity  seems  to  have  been  abrogated  as  to 
such  cases,  partly  by  statute  and  partly  by  judicial  decisions;  and  the 
Code  practice  does  not  seem  to  recognize  it.     (828). 

Sec.  8.  Certioraiu. — In  the  old  English  law.  the  writ  of  certiorari  was 
used  to  bring  up  an  indictment  from  an  inferior  court  into  the  King's 
Bench  for  trial;  or  to  have  the  judgment  of  an  inferior  magistrate,  not 
proceeding  according  to  the  course  of  the  common  law,  reviewed.  In 
neither  instance  did  a  second  trial  of  the  facts  take  place.  In  this 
country  the  writ  may  be  used  as  a  w^rit  of  false  judgment,  merely  to 
have  the  matter  of  law  reviewed:  but  it  is  also  used  to  afford  a  means 
of  retrying  the  facts — a  use  unknown  to  the  English  law.  In  proper 
cases,  the  writ  is  used  as  a  substitute  for  an  appeal  when  a  party  has 
been  improperly  deprived  of  his  appeal,  or  has  lost  his  appeal  by  ac- 
cident or  excusable  neglect.  (832).  The  writ  is  in  the  nature  of  a  writ 
of  error  and  is  resorted  to  in  those  cases  in  which  a  writ  of  error  does 
not  lie.  When  courts  act  in  a  summary  way,  or  in  a  new  course  differ- 
ent from  that  of  the  common  law,  a  certiorari,  and  not  a  writ  of  error, 
is  the  proper  remedy.  The  only  legitimate  use  of  a  certiorari  is  to 
bring  up,  for  review,  the  final  decision  of  an  inferior  court.  If  parties 
were  permitted  to  procure  the  writ  at  any  time  during  the  progress  of 
a  cause,  it  would  lead  to  intolerable  interruptions  and  delays.  (833). 
The  writs  of  recordari   and  certiorari  are  used  most  commonly  as  sub- 


INTRODUCTION.  Ixxxi 

stitiues  for  an  aiipeal,  \Yhere  the  appellant  has  lost  or  been  improperly 
deprived  of  his  appeal  without  default  or  negligence  on  his  part.  The 
recordari  may  be  also  used  as  a  writ  of  false  judgment;  and  the  cer- 
tiorai  i  as  a  writ  of  error.  When  thus  used,  only  the  form  and  sufficiency 
of  the  proceedings  of  the  lower  court,  as  such  proceedings  appear  upon 
the  face  of  the  record,  can  be  passed  upon  by  the  appellate  court  which 
issues  the  writ.  The  writ  of  recordari  is  issued  only  to  an  inferior 
tribunal  whose  proceedings  are  not  recorded. — to  a  court  not  of  record. 
The  writ  of  certiorari  issues  to  a  court  of  record.  (835).  Certiorari 
will  issue  to  a  lower  court,  from  an  appellate  court  of  general  super- 
visory jurisdiction,  in  cases  in  which  no  appeal  is  provided  for  by  law. 
(S36).  A  certiorari  always  issues,  as  a  matter  of  course,  from  an  ap- 
pellate court  upon  a  "suggestion  of  a  diminution  of  the  record;"  and  the 
court  will  ex  mero  motu  order  the  writ  where  there  is  an  apparent  dimi- 
nution of  the  record  in  a  criminal  case.  (838).  The  writ  will  not  issue 
to  a  judge  to  command  him  to  correct,  change,  or  certify  a  "case  on  ap- 
peal."' unless  it  appear  by  a  written  statement  from  the  judge  that  he 
will  make  the  correction,  etc.,  which  the  applicant  for  the  writ  desires 
to  have  made.     (838). 

Sec.  9.  Recordari. — At  common  law  the  writ  of  recordari  served  a 
double  purpose,  (1)  as  a  substitute  for  an  appeal  lost  without  default  of 
the  petitioner;  (2)  as  a  writ  of  false  judgment  where  the  inferior  tri- 
bunal had  acted  beyond  its  jurisdiction,  or  the  judgment  was  taken  with- 
out service  of  procees.  The  practice  is  now  generally  regulated  by 
statute. 

Sec.  10.  Scire  Faci.xs — Sci.  Fa.— This  is  a  judicial  writ  founded  on 
some  matter  of  record,  as  a  recognizance,  etc.:  nevertheless  it  is  so  far 
treated  as  an  original  action  to  which  the  defendant  may  plead,  that  it 
must  contain  upon  its  face  a  legal  cause  of  action.  (841).  There  were 
two  forms  and  purposes  of  the  writ  at  common  law:  (1)  One  used  to 
remedy  defects  in,  or  as  a  continuation  of,  some  former  or  pending  ac- 
tion ;  (2)  another,  in  the  nature  of  an  original  writ,  used  to  commence 
some  proceeding.  Formerly  a  sci.  fa.  of  the  first  class  was  used  to  ob- 
tain an  execution  on  a  dormant  judgment;  to  prevent  the  abatement  of 
an  action;  and  to  remedy  defects  arising  from  a  change  of  parties,  etc. 
Writs  of  the  second  class  were  used  to  repeal  letters  patent;  to  subject 
bail;  to  enforce  an  amercement  against  a  sheriff,  etc.  These  matters  are 
now  generally  regulated  by  statute.     (843). 


CHAPTER  XI. 

ANCILLARY  REMEDIES. — Ixtroductory.  All  ancillary  remedies  are 
based  upon  an  affidavit  filed  in  the  cause;  and  while  the  contents  of  the 
affidavit  will  vary  according  to  the  particular  remedy  sought,  still  there 
is  one  rule  common  to  all  such  affidavits,  to  wit,  that  when  the  grounds 
ujjon  which  the  remedy  is  sought  consist  of  matters  suspected  or  antici- 
pated, as  distinguished  from  facts  which  actually  exist,  the  affidavit 
must  set  forth  all  the  facts  and  circumstances  which  constitute  the 
basis  of  the  i)laintiff'H  conjecture  or  inference  that  the  defendant  is 
al)Out  to  do  certain  things.  This  is  required  in  order  that  the  court 
may  draw  its  own  conclusions  from  the  facts  and  circumstances  dis- 
closed, and  be  guided  by  its  own  deductions,  and  not  by  those  of  an  in- 
terested plaintiff.     (845). 

Skc.  1.  AuRKST  ANr>  Bam..  A  constitutional  provision  prohibiting  im- 
prisoiinif-nt  for  d^bt  except  in  cases  of  fraud,  has  no  application  to  ac- 
tions for  pure  torts.  (840).  In  an  a|)pli(ation  for  an  order  of  arrest, 
the  plaintiff  should  state,  in  an  affidavit,  such  facts  as  clearly  disclose 
a  causf  of  action  for  which  the  defendant  may  be  lawfully  arrested. 
These  facts  should  be  set  forth  with  such  fullness  and  legal  i)recision 
a.H  to  fnablc  the  court  to  clearly  se<'  the  particular  cause  of  aitioii  in- 
tended. The  court  should  find  the  facts  from  the  plaintiffs  affidavit. 
A  party  should  not  be  arrested  upon  conjecture,  nor  upon  facts  which 


Ixxxii  INTROOUCTION. 

leave  the  mind  of  the  court  in  doul)!  and  uncertainty.  The  affidavit 
should  state  the  tacts  |)osiiiv«dy,  whiMi  (liis  can  ht>  done;  hut  if  it  is 
founded  uiion  tlie  intonuation  and  heliof  of  the  allianl,  llie  grounds  of 
such  belief  must  he  set  forth,  so  that  the  court  can  see  and  judge  of 
their  character  and  suffl«iency.  The  defendant  may  at  any  time  before 
judgment  move  to  vacate  the  order  of  arrest,  upon  the  ground  that 
It  was  iireguiarly  granted,  or  that  the  evidence  and  the  facts  found  were 
insuthcient  to  justify  it.  In  such  case  the  plaintiff  cannot  be  allowed  to 
offer  additional  evidence  to  sui)port  his  motion  theretofore  improi)erly 
granted.  Rut  the  defendant  may  sup|)ort  his  motion  by  producing  coun- 
ter-affidavits and  other  ajtpropriate  evidence  to  prove  that  the  plaintiff's 
motion  for  the  order  of  arrest  was  not  well  oi-  sufficiently  founded.  In 
this  case,  the  plaintitT  may  produce  additional  alhdavits  and  other  perti- 
nent evidence  to  cure  defects  and  strengthen  his  case.  The  court  will 
direct  that  the  order  remain  undisturbed,  that  it  be  modified  in  some 
particular,  or  vacated,  accordingly  as  it  may  be  of  opinion  one  way  or 
the  other.  The  oidei'.  regularly  and  propeiiy  granted,  should  not  be 
vacated  but  upon  convincing  proof  that  it  should  be.  (846).  Whether 
or  not  the  defendant  can  be  arrested  and  imprisoned  under  an  execu- 
tion issued  upon  a  judgment  founded  on  a  tort — where  no  ancillary  or- 
der of  arrest  has  been  sued  out — is  a  matter  of  local  statutes  and  prac- 
tice.    (848). 

Sec.  2.  Claim  and  Delivery.  This  is  an  ancillary  remedy  incident  to 
the  action  under  the  Code  practice  to  recover  the  possession  of  chattels 
— which  action  practically  corresponds  to  the  old  actions  of  detinue  and 
replevin.  If  the  plaintiff  be  content  to  let  the  chattel  continue  in  de- 
fendant's possession  pending  the  action,  there  is  no  need  tor  his  suing 
out  this  ancillary  remedy  of  claim  and  delivery.  This  action  is  then, 
in  effect,  the  old  action  of  detinue.  It  is  only  when  the  plaintiff  seeks  to 
have  the  property  delivered  to  him  instanter  and  to  have  the  possession 
pending  the  action,  as  in  the  old  action  of  replevin,  that  he  need  sue 
out  this  ancillary  remedy.     (850). 

Sec.  3.  Ixjunctiox.  It  is  a  mistaken  notion  that  seems  to  prevail 
extensively,  that  relief  by  Injunction  may  be  had  in  almost  any  case, 
and  as  a  matter  of  convenience,  under  the  Code  method  of  procedure. 
On  the  contrary,  it  is  only  to  be  granted  when  and  where  adequate  re- 
lief cannot  be  had  without  it.  It  is  extraordinary  and  provisional  in 
its  nature  and  purpose. 

Sec.  4.  Att.vciiment.  The  process  of  attachment,  as  it  existed  under 
the  common  law,  differed  in  its  nature  and  object  from  the  provisional 
remedy  now  known  by  that  name.  Its  original  purpose  was  to  acquire 
jurisdiction  of  the  defendant  by  compelling  him  to  ai)pear  in  court 
through  the  seizure  of  his  property,  which  he  forfeited  if  he  did  not  ap- 
pear or  furnish  sureties  for  his  appearance.  The  practice  of  attaching 
the  effects  of  a  defendant  and  holding  them  to  satisfy  a  judgment,  which 
the  plaintiff  may  recover,  when,  perhaps,  judgment  may  be  for  the  de- 
fendant, is  unknown  to  the  common  law,  and  is  founded  on  statute  law. 
Its  present  purpose  is  not  to  compel  appearance  by  the  debtor,  but  to 
secure  the  debt  or  claim  of  the  creditor.  It  is  a  proceeding  in  rem,  and 
the  process  may  issue,  in  certain  cases,  whether  the  defendant  has  been 
served  with  a  summons  or  not,  although  inability  to  serve  through  the 
fault  of  the  defendant,  is  a  ground  upon  which  the  warrant  may  be 
granted.  It  exists,  as  a  provisional  remedy,  only  when  authorized  by 
statute,  and,  as  such,  is  comparatively  recent  in  its  origin.  Under  the 
Code  practice  the  remedy  is  not  only  created  by  statute  but  has  sub- 
stantially none  of  the  features  peculiar  to  the  common-law  remedy. 
This  remedy  is  looked  upon  with  jealousy  by  some  courts  and  hence  we 
find  such  expressions  as  the  following:  It  amounts  to  the  involuntary 
dispossession  of  the  owner  prior  to  any  adjudication  to  determine  the 
rights  of  the  parties.  It  violates  every  principle  of  pro])rietary  right 
held  sacred  by  the  common  law.  It  is,  to  some  extent,  equivalent  to 
execution  in  advance  of  trial  and  judgment.  Owing  to  its  statutory 
origin   and    harsh    nature,   laws   conferring  this    remedy   should   be   con- 


iNTRoDrcTiON.  Ixxxiii 

strued,  in  accordance  with  the  general  rule  applicable  to  statutes  in  de- 
rogation of  the  common  law,  strictly  in  favor  of  those  against  whom  it 
may  be  employed. 

"Foreign  attachment"  is  a  peculiar  proceeding  to  compel  the  appear- 
ance of  a  debtor  by  seizing  his  property,  and,  in  default  of  appearance, 
appropriating  it  to  the  payment  of  the  debt.  It  is  strictly  a  proceed- 
ing in  rem.  With  respect  to  the  property  attached,  whether  it  be  real  or 
personal,  or  a  debt  due  the  defendant,  the  judgment  and  proceedings 
are  conclusive.  If  the  court  had  jurisdiction,  the  judgment  is  conclu- 
sive, and  cannot  be  called  in  question  for  mere  irregularities.  But  ex- 
cept with  respect  to  the  property  attached,  the  proceeding  has  no  effect. 
Xo  action  can  be  brought  on  the  judgment  recovered,  and  in  an  action 
on  the  original  demand  a  judgment  in  attachment  is  not  competent  as 
prima  facie  evidence  of  the  indebtedness.  The  proceeding  in  attach- 
ment had  its  origin  in  the  custom  of  London,  and  has  been  adopted  and 
modified  by  statutory  provisions.  One  of  the  peculiarities  of  the  pro- 
ceeding by  attachment  is,  that  the  defendant  may  appear  during  the 
pendency  of  the  suit  and  contest  the  plaintiff's  demand,  or,  within  the 
time  limited  after  judgment,  may  dispute  the  debt  for  which  the  at- 
tachment issued.  Both  these  remedies  are  given  in  the  alternative. 
The  defendant  has  his  election  to  pursue  either.  If  he  appears  to  the 
suit,  he  makes  the  judgment,  if  any  be  recovered,  a  judgment  in  per- 
sonam. He  is  under  no  obligation  to  give  the  plaintiff  that  advantage. 
He  may  leave  the  plaintiff  to  prosecute  his  proceedings  in  rtm.  and  avail 
himself  of  the  right  which  the  law  gives  him  of  recovering  back  the 
proceeds  realized,  if  the  debt  be  not  due.  (852-854).  The  practice  in 
granting,  vacating,  and  levying  attachments,  and  with  regard  to  serving 
notice  on  the  defendant  by  publication  or  otherwise,  is  regulated  by 
statute  in  the  different  states.  By  act  of  Congress  (U.  S.  Comp.  St. 
1901,  p.  3517)  it  is  provided  that  no  attachment  shall  be  brought  against 
a  national  bank  in  any  state  court,  and  this  has  been  held  to  be  the  law. 
not  only  as  to  state  courts,  but  also  as  to  United  States  courts.     (859). 

In  Pennoyer  v.  Neff  it  is  ruled  that  a  judgment  recovered  in  attach- 
ment proceedings  in  which  there  is  no  personal  service  of  i)rocess  is 
exhausted  by  a  sale  of  the  property  attached  and  the  appropriation  of 
the  proceeds  to  the  creditor's  debt,  and  possesses  no  other  legal  force. 
The  sale  of  other  land  of  the  debtor  under  such  judgment  was  held  to 
pass  no  title  to  the  plaintiff.  Other  courts  have  held  that  a  proceeding 
commenced  by  original  attachment  and  prosecuted,  on  due  notice  by 
publication  of  the  seizure  of  the  debtor's  property,  to  final  judgment, 
was  not  a  i)roceeding  in  rem,  but  the  judgment  is  personal.  The  at- 
tachment was,  in  its  nature  and  operated  as,  a  distress  to  compel  ap- 
I)parance;  and  if  it  did  not,  the  judgment  was  as  absolute  and  conclu- 
sive as  if  rendered  after  personal  service.  The  attachment  under  the 
Code  is  of  quite  a  different  nature,  and  subsidiary  only  towards  obtain- 
ing the  relief  which  is  the  object  of  the  action,  and  seems  to  be  intended 
to  be  more  comprehensive  and  more  fully  remedial  within  the  state  than 
is  admitted  in  the  opinion  in  Pennoyer  v.  Neff.  As  to  the  extra-terri- 
torial effect  of  such  a  judgment,  it  can  be  only  recognized  as  effectual 
so  far  as  it  appropriates  the  debtor's  |)roi)erty  to  the  creditor's  demand, 
and  is  wholly  inoperative  beyond  that  limit.     (SGO). 

Skc.  5.  Ht;(i;i\i;us  and  Si:qi"i;.stuati()n.  Nk  Hxdat.  The  original  and 
primary  jurisdiction  of  the  court  of  chancery  was  in  i)ersonani  merely. 
The  writ  of  assistance  to  deliver  i)ossession,  and  even  the  sequestration 
of  projicrty  to  cnmijfl  perforniance  of  a  decree,  are  of  conii)aratively 
recent  origin.  Th'-  jurisdiction  of  the  court  was  exercised  for  several 
centuries  by  the  sini|)lc  proceeding  of  an  attachment  against  the  bodies 
of  the  parties  to  compel  obedience  to  its  orders  and  decrees. 

A  receiver  is  the  repres<  ntat ive  of  the  court,  and  in;iy,  by  its  direction 
take  into  his  jjossession  every  kind  of  property  which  may  be  taken  in 
execution,  and  also  that  which  is  e(|uitable,  if  of  a  nature  to  be  reduced 
to  possession.  He  is  an  indifferent  i)erson  between  parties,  appointed 
by  the  cotirt  to  receive  rents,  issues,  or  profits  of  land,  or  other  thing  in 


Iwxiv  iNruonrcTiox. 

question  in  the  court,  pending  tlie  suit,  where  it  does  not  seem  reason- 
able to  the  court  that  either  party  should  do  it.  Me  is  an  officer  of  the 
court;  his  appointment  is  provisional.  He  is  appointed  in  behalf  of  all 
parties,  and  not  of  tlio  coiniilainant  or  the  defeiuiant  only.  He  is  ap- 
pointed for  the  benelit  of  all  parties  who  may  establish  rights  in  the 
cause.  The  money  in  his  hands  is  in  custodia  legis  for  whoever  can 
make  out  a  title  to  it.  It  is  the  court  itself  which  has  the  care  of  the 
property  in  dispute.  The  receiver  is  but  the  creature  of  the  court;  he 
has  no  powers  exceiit  such  as  avo  conferred  upon  him  by  the  order  of 
his  appointment  and  the  course  and  practice  of  the  court.  A  receiver 
being  an  officer  of  the  court,  the  court  has  control  over  the  parties  to  a 
suit  and  can  order  them  to  deliver  i)roperty  in  controversy  to  its  officer, 
and  if  they  fail  or  refuse  to  obey  such  order,  they  may  be  proceeded 
against  by  process  of  contem])t.  In  the  absence  of  a  statute  or  local 
ruling,  a  receiver  appointed  in  one  jurisdiction  can  bring  no  action  in 
any  other  jurisdiction.  In  fact,  he  cannot  commence  an  action  for  the 
recovery  of  outstanding  property  without  an  order  of  the  court;  and 
when  such  order  is  made,  the  action  must  be  brought  in  the  name  of  the 
legal  owner,  who  will  be  compelled  to  allow  the  use  of  his  name  upon 
being  properly  indemnified  out  of  the  estate  and  effects  under  the  con- 
trol of  the  court.  The  practice  of  the  court  of  chancery  in  England  on 
this  subject  is  well  settled  by  many  authorities,  has  long  been  the  course 
and  practice  of  our  courts,  and  has  not  been  materially  changed  by  the 
Code.  In  New  York,  in  matters  of  this  kind  the  common  law  powers  of 
receivers  have  been  greatly  enlarged  by  statute,  and  they  may  bring  an 
action  in  their  own  names  for  the  recovery  of  property  which  they  have 
been  directed  by  an  order  of  the  court  to  reduce  into  possession.  For- 
eign receivers  may  sue  in  the  courts  of  North  Carolina,  by  comity.  (861- 
863).  When  money  is  alone  the  demand,  the  common  law  security  is 
the  person  of  the  debtor,  nor  will  equity  go  farther;  but  when  property 
is  in  contest,  chancery  will,  in  cases  where  the  circumstances  authorize 
its  interference,  and  where  its  aid  is  invoked,  secure  the  property  itself 
during  the  existence  of  the  controversy.  Thus,  in  cases  of  waste,  the 
common  law  gave  the  writ  of  waste,  and,  to  aid  and  secure  to  the  plain- 
tiff the  full  benefit  of  the  process,  the  writ  of  estrepement,  to  stay  the 
further  injuring  of  the  property  during  the  contest,  was  awarded.  The 
writ  of  waste,  both  in  England  and  in  this  country,  from  its  peculiar 
features,  has  become  obsolete,  and  has  been  succeeded  by  the  more  con- 
venient and  less  cumbrous  "action  on  the  case  in  the  nature  of  waste." 
With  the  old  writ  fell  that  of  the  estrepement,  and  the  power  of  the 
court  of  equity  was  called  in  to  supply  its  place,  in  aid  of  the  more 
modern  action  on  the  case,  and  in  analogy  to  the  writ  of  estrepement. 
Equity,  when  it  interferes,  will  secure  the  property  in  contest  during 
the  litigation.  "WTiere  there  is  reason  to  apprehend  that  the  subject  of 
a  controversy  in  equity  will  be  destroyed,  removed,  or  otherwise  dis- 
posed of  by  the  defendant,  pending  the  suit,  so  that  the  comi)lainant 
may  lose  the  fruit  of  his  recovery,  or  be  hindered  and  delayed  in  ob- 
taining it.  the  court,  in  aid  of  the  primary  equity,  will  secure  the  fund 
by  the  writ  of  sequestration,  or  by  the  writs  of  sequestration  and  in- 
junction, until  the  main  equity  is  adjudicated  at  the  hearing  of  the 
cause.  These  writs  are  extraordinary  process,  and  to  sustain  them,  on 
a  motion  to  dissolve  the  injunction  and  remove  the  sequestration,  the 
court  must  be  satisfied:  (1)  That  the  complainant  does  not  sue  in  a 
mere  spirit  of  litigation,  and  seek  to  set  up  an  unfounded  claim,  but  has 
probable  cause,  and  may  at  the  hearing  be  able  to  establish  his  primary 
equity;  (2)  that  its  extraordinary  process  is  not  asked  for  simply  to 
vex  and  embarrass  the  defendant,  but  because  there  is  reasonable  ground 
for  apirebension  in  regard  to  the  securit>  of  the  fund  pending  the  litiga- 
tion. (86."),  866).  Property  in  the  hands  of  a  receiver  is  in  custodia 
legis,  and.  hence,  not  subject  to  execution  sale.  Any  person  claiming 
to  have  an  interest,  while  he  cannot  interfere  under  the  process  of  an- 
other court,  may  apply  to  the  court  which  has  jurisdiction  of  the  fund, 
pro  intensse  suo,  and  his  claim   will   be  heard.     (867).     A  motion   for 


INTRODUCTION.  I XXXV 

a  receiver  pending  a  suit  to  foreclose  a  mortgage,  granted  without  due 
caution,  might  put  it  in  the  power  of  an  irresponsible  or  reckless  mort- 
gagee to  ruin  a  mortgagor's  business.  \Miether  a  receiver  shall  be  ap- 
pointed in  any  case  is  left,  therefore,  largely  to  the  sound  judgment  of 
the  presiding  judge,  who  will  take  into  consideration  all  the  circum- 
stances, including  the  nature  of  the  property;  its  likelihood  to  be  de- 
stroved  or  spirited  away  during  the  litigation;  and  the  probability,  on 
the  other  hand,  of  its  value  being  seriously  impaired  by  its  being  placed 
in  the  hands  of  a  receiver,  as  would  be  particularly  the  case  with  such 
property  as  a  newspaper.  The  defendant's  insolvency  and  poverty,  taken 
alone,  is  not  sufficient  ground  for  placing  his  property  in  the  hands  of  a 
receiver — especially   when   he   denies  owing  anything  on   the  mortgage. 

(868). 

The  writ  of  ne  exeat  was  a  process  unknown  to  the  ancient  conmion 
law,  which,  in  the  freedom  of  its  spirit,  allowed  every  man  to  depart 
the  realm  at  his  pleasure.  From  an  early  period  it  was  used  as  an 
auxiliary  jurisdiction  of  courts  of  equity,  and  at  one  time  it  issued  at 
the  instance  of  the  king  as  a  prerogative  writ.  It  is  granted  wherever 
a  present  equitable  debt  is  owing,  which,  if  due  at  law,  would  warrant 
an  arrest,  and  also  to  enforce  arrears  of  alimony  in  aid  of  the  spiritual 
court,  because  of  the  inability  of  that  court  to  require  bail.  The  ne 
exeat,  as  now  undeistcod  and  used,  is  a  proceeding  in  equity  to  obtain 
bail  in  a  case  where  there  is  a  debt  due  in  equity,  though  not  at  law. 
The  general  rule  is,  that  where  you  can  get  bail  at  law,  equity  will  not 
grant  the  writ.  In  the  exercise  of  this  power,  courts  of  equity  will  be 
verv  cautious,  as  it  is  a  strong  stej),  tending  to  al)ridge  the  liberty  of 
the  citizen.  To  induce  that  court  to  issue  a  ne  exeat,  it  must  appear: 
(1)  That  there  is  a  precise  amount  of  debt  positively  due;  (2)  that  it 
is  an  equitable  demand,  upon  which  the  plaintiff  cannot  sue  at  law,  ex- 
cept in  account  and  some  other  cases  of  concurrent  jurisdiction;  (3)  that 
the  defendant  is  about  quitting  the  country  to  avoid  payment. 

The  affidavit  to  authorize  the  writ  must  be  as  positive  as  to  the  equi- 
table debt  as  an  affidavit  of  a  legal  debt  to  hold  to  bail.  The  writ  of  ne 
exeat  is  in  the  nature  of  equitable  bail— it  is  used  to  keep  the  person  of 
the  defendant  within  the  jurisdiction  of  the  court.  Sequestration,  of 
the  kind  here  discussed,  was  for  the  purpose  of  keeping  the  defendant's 
property  within  the  control  of  the  court  in  order  to  coerce  obedience  to 
the  decree.     (870). 

CHAPTER  Xll. 

.JI'RIHDirTIO.V.  If  a  court,  whether  of  law  or  of  equity,  have  no  juris- 
diction of  the  subject-matter  in  controversy,  it  can  render  no  valid  judg- 
ment or  decree  upon  the  merits  of  the  cause.  .lurisdiction  is  the  power 
to  hear  and  determine  the  matter  in  controversy  between  i)arties  to  a 
suit— to  adjudicate  or  exercise  judicial  power  over  them;  the  question 
is,  whether  on  the  case  before  a  court,  its  action  is  judicial  or  extra- 
judicial—with  or  without  the  authority  of  law  to  render  a  judgment  or 
decree  upon  the  rights  of  the  litigant  parties.  If  the  law  confers  the 
power  to  render  a  judgment  or  decree,  then  the  court  has  jurisdiction. 
To  decide  what  shall  be  adjudged  or  decreed  between  the  parties,  and 
with  which  i)arty  is  the  right  of  the  case,  is  judicial  action.  It  is  a 
necessarv  presumption  that  a  court  of  general  jurisdic  lion  can  act  upon 
the  given  case,  where  nothing  ai)pears  to  the  contrary.  Hence  has  arisen 
the  r\ile  that  the  party  <laiiiiing  cxemi)tion  from  its  process,  must  set 
out  the  reasons  by  a  sitecial  iilea  in  aliatement,  and  show  that  some  in- 
ferior court  of  law  or  equity  has  (^xilusivt-  <  ognizancc  of  the  case;  other- 
wise the  superior  court  must  proceed,  in  virtue  of  its  general  jurisdic- 
tion. This  rule  prevails  both  at  law  and  in  equity.  A  plaintiff  in  law 
or  equity  Is  not  to  be  driven  from  court  to  court  by  such  pleas;  If  a 
defendant  seeks  to  quash  a  writ  or  dismiss  a  bill  for  want  of  jurisdic- 
tion in  the  court,  he  must  designate  lli.-  i)ioper  court,  and  shall  never 
put  in  a  second  plea  to  the  jurisdiction  ol   that  court   to   which  he  has 

Remedies — g. 


Iwwi  IN  TKitDlTTKtN. 

driven   tho   plninlilT   bv    his   ploa.     An   oltj.ntion    to   jurisdiction,   on    tlio 
ground  of  ox.Mnption  from  tJie  proirss  of  tlie  court   in  whicli  the  suit  is 
broupht.  or   the  manner  in   whic-li   the  defendant   is   brought   into  it,  is 
waived  l>v  apiioarance  and  iileading  to  the  issue;   but  when  tlie  objection 
Roes  to   the   power  of  tlie  court   over   tlie   parties   or   the  subject-matter, 
the  defendant  need  not,  for  he  cannot,  give  the  plaintiff  a  l)etter  writ  or 
bill      As  a  United   States  court  is  one  of  limited   and   special   original 
jurisdiction,    its   action   must   be  confined   to   the   particular   cases,   con- 
troversies, and   parties  over  which   the  constitution  and  laws  have  au- 
thorized it  to  act:  anv  proceeding  without  the  limits  prescribed  is  coram 
non  judice,  and  a  nullitv.      (874,   ST.'.).     Letters  of  administration   upon 
the  estate  of  a  person  who  is  in  fact  alive  have  no  validity  or  effect  as 
against  him.     Hv  the  law  of  England  and  America,  before  the  Declara- 
tion of  Independence  and  for  almost  a  century  afterwards,  the  absolute 
nullity  of  such  letters  was  treated  as  beyond  dispute.     No  judgment  of 
a  court  is  due  process  of  law,  if  rendered   without  jurisdiction   in   the 
court,  or  without  notice  to  the  party.     Even  a  judgment  in  proceedings 
strictlv  in  rem  binds  only  those  who  could  have  made  themselves  par- 
ties to  the  proceedings,  and  who  had  notice,  either  actually  or  by  the 
thing  condemned   being   first   seized    into  the   custody   of   the   court.     A 
court  of  probate  must,  indeed.  Inquire  into  and  be  satisfied  of  the  fact 
of  the  death  of  the  person  whose  will  is  sought  to  be  proved  or  whose 
estate   is   sought   to   be   administered, — because,   without   that   fact,   the 
court  has  no  jurisdiction  over  his  estate;   and  not  because  its  decision 
upon  the  question,  whether  he  is  living  or  dead,  can  in  any  wise  bind  or 
estop   him,  or   deprive   him,  while  alive,  of  the  title  or   control   of  his 
property.     The  appointment  by  the  probate  court  of  an  administrator  of 
the  estate  of  a  living  person,  being  without  jurisdiction  and  wholly  void 
as  against  him.  all  acts  of  the  administrator,  whether  approved  by  that 
court  or  not,  are  equally  void.     The   receipt  of  money  by  such  admin- 
istrator is  no  discharge  of  a  debt,  and  a  conveyance  of  property  by  him 
passes  no  title.     The  fact  that  a  person  has  been  absent  and  not  heard 
from  for  seven  years,  may  create  such  a  presumption  of  his  death  as,  if 
not  overcome  by  other  proof,  is  such  prima  facie  evidence  of  his  death 
that  the  probate  court  may  assume  him  to  be  dead  and  appoint  an  ad- 
ministrator of  his  estate,  and  that  such  administrator  may  sue  upon  a 
debt   due  to  him.     But   proof,   under   proper   pleadings,   even    in    a   col- 
lateral suit,  that  he  was  alive  at  the  time  of  the  appointment  of  the  ad- 
ministrator,  controls   and   overthrows   the  prima    facie   evidence   of  his 
death,  and   establishes  that  the  court  had   no  jurisdiction   and   the  ad- 
ministrator no  authority.     The  supposed  decedent  is  not  bound   either 
by  the  order  appointing  the  administrator  or  by  the  judgment  in  any 
suit  brought  by  the  administrator  against   a  third   person— because  he 
was  not  party  to  and  had  no  notice  of  either.     (877). 

In  many  cases,  where  there  has  been  an  objection  to  the  jurisdiction, 
because  of  some  irregularity  or  defect  in  the  service,  or  some  merely 
technical  defect  in  the  process,  it  has  been  held  that  a  general  appear- 
ance by  the  defendant  is  a  waiver  of  such  objection.  But  this  rule  ap- 
plies only  in  cases  where  the  court  has  jurisdiction  of  the  subject-mat- 
ter. Consent  of  parties  may  in  a  certain  sense  give  jurisdiction  of  the 
person,  but  it  cannot  create  a  jurisdiction  over  the  cause  and  subject- 
matter  which  is  not  vested  in  the  court  by  law.  (882).  Where  a  court 
has  no  jurisdiction  of  the  subject-matter,  the  objection  can  be  taken  at 
any  time.  Indeed,  as  soon  as  this  fact  is  discovered,  the  court  ex  mero 
motu  will  take  notice  of  it  and  dismiss  the  action.  But  if  it  has  juris- 
diction of  the  subject-matter  and  the  venue  is  wrong,  the  objection  musr 
be  taken  in  apt  time;  and  if  the  defendant  pleads  to  the  merits  of  the  ac- 
tion, he  will  be  taken  to  have  waived  the  objection.  He  cannot  have 
two  chances.  (883).  Where  there  are  courts  of  equal  and  concurrent 
jurisdiction,  that  court  possesses  the  case  in  which  jurisdiction  first  at- 
taches.    (883). 

The  following  propositions  seem  to  be  settled:  First.  The  requirement 


INTRODUCTION.  IxXXvii 

of  the  constitution  is  not  that  some,  but  that  full,  faith  and  credit  shall 
be  given  by  states  to  the  judicial  decrees  of  other  states. 

Second.  Where  a  personal  judgment  has  been  rendered  in  the  courts 
of  a  state  against  a  non-resident  merely  upon  constructive  service — and, 
therefore,  without  acquiring  jurisdiction  over  the  person  of  the  defend- 
ant— such  judgment  may  not  be  enforced  in  another,  state  in  virtue  of  the 
full  faith  and  credit  clause.  Indeed,  a  personal  judgment  so  rendered  is. 
by  operation  of  the  due  process  clause  of  the  14th  Amendment,  void,  as 
against  the  non-resident,  even  in  the  state  where  rendered;  and,  there- 
fore, such  non-resident,  by  virtue  of  rights  granted  by  the  constitution  of 
the  United  States,  may  successfully  resist,  even  in  the  state  where  ren- 
dered, the  enforcement  of  such  a  judgment.  Process  from  the  tribunals 
of  one  state  cannot  run  into  another  state,  and  summon  parties  there 
domiciled  to  leave  its  territory  and  respond  to  proceedings  against  them; 
and  publication  of  process,  or  notice,  within  the  state  where  the  tribunal 
sits,  cannot  create  any  greater  obligation  upon  the  non-resident  to  ap- 
pear. Process  sent  to  him  out  of  the  state  and  process  published  within 
it  are  equally  unavailing  in  proceedings  to  establish  his  personal  lia- 
bility. 

Third.  The  principles,  however,  stated  in  the  second  proposition,  are 
controlling  only  as  to  judgments  in  personam,  and  do  not  relate  to  pro- 
ceedings in  rem. 

Fourth.  The  general  rule  stated  in  the  second  proposition  is,  more- 
over, limited  by  the  inherent  power  which  all  governments  must  possess 
over  the  marriage  relation— its  formation  and  dissolution— as  regards 
their  own  citizens.  From  this  exception  it  results  that  where  a  court 
of  one  state,  conformably  to  the  laws  of  such  state,  or  the  state  itself 
through  its  legislative  dei)artment,  has  acted  concerning  the  dissolution 
of  the  marriage  tie,  as  to  a  citizen  of  that  state,  such  action  is  binding 
in  that  state  as  to  such  citizen;  and  the  validity  of  the  judgment  may 
not  therein  be  questioned  on  the  ground  that  the  action  of  the  state  in 
dealing  with  its  own  citizen  concerning  the  marriage  relation,  was  re- 
•  lignant  to  the  due  i)iocess  clause  of  the  constitution.  And  as  a  corol- 
lary of  the  recognized  power  of  a  government  thus  to  deal  with  its  own 
citizen  by  a  decree  which  would  be  operative  within  its  own  borders, 
irrespective  of  any  extra-territorial  efficacy,  it  follows  that  the  right  of 
another  soveieigntv  exists,  under  i.ninciples  of  comity,  to  give  to  a  de- 
cree so  rendered  such  efficacy  as  to  that  government  may  seem  to  be  jus- 
tified by  its  conceptions  of  duty  and  i)ublic  policy. 

Fifth".  Where  husband  and  wife  are  domiciled  in  a  state,  there  exists 
jurisdiction  in  such  state,  for  good  cause,  to  enter  a  decree  of  divorce 
which  will  be  entitled  to  enforcement  in  another  state  by  virtue  of  the 
full  faith  and  credit  clause.  It  has,  moreover,  been  decided  that  where 
a  bona  fide  domicil  has  been  acquired  in  a  state  by  either  of  the  par- 
ties to  a  maniage,  and  a  suit  for  divorce  is  brought  by  the  domiciled 
party  in  such  state,  the  courts  of  that  state,  if  they  acquire' i)ersonal 
jurisdiction  of  the  other  party,  have  authority  to  enter  a  decree  of  di- 
vorce, entitlod  to  be  enforced  in  every  state  by  the  full  faith  and  credit 
flans*-. 

Sixth.  Wlit-rt'  the  (lonii<il  of  nuitrimony  was  in  a  particular  state,  and 
thf  husl)and  abandons  his  wife  and  goes  into  another  stale  in  order  to 
avoid  his  marital  obligations,  such  other  state  to  which  the  husband 
has  wrongfully  fled  does  not.  in  the  nature  of  things,  become  a  new 
domicil  of  riiatriinony.  and.  therefore,  is  not  to  be  treated  as  the  actual 
or  constructive  domicil  of  the  wife;  hence,  the  i)!;ue  where  the  wife  was 
domiciled  when  so  abandoned  constitutts  iicr  legal  domicil  until  a  new 
actual  domicil  be  by  her  elsewhere  acquired. 

Seventh.  So  also  It  is  settled  that  where  the  domicil  of  a  husband  Is 
in  a  particular  state,  and  that  state  is  also  the  domicil  of  matrimony, 
the  courts  of  such  state  having  jurisdiction  over  the  husband  may,  in 
virtue  of  the  duty  of  the  wife  to  be  at  the  mafriiuonial  domicil,  disre- 
Kartl  an  unjustifiable  absence  thereforni,  and  treat  the  wife  as  having 
her  domicil   in  fhf  staff  of  the  matrimonial  flomicil  for  the  i)urpose  of 


IxXXviii  INTKOniTCTlON. 

the  dissolution  of  the  iiiariiaKo,  and,  as  a  rosiilt  hnvo  power  to  render  a 
judgment  dissoivinp;  the  niarriaKe — whlcli  jwd>!;nient  will  be  binding 
upon  lioth  parties,  and  will  he  entitled  to  recognition  in  all  other  states 
l)y  virtue  of  the  full   faith  and  cndit  clause. 

These  propositions  settle  thrt^e  things  beyond  dispute:  (1)  In  view  of 
the  authority  which  government  possesses  over  the  marriage  relation, 
no  question  can  arise  concerning  the  right  of  a  state  within  its  own 
borders  to  give  effect  to  a  decree  of  divorce  rendered  in  favor  of  the 
husband  within  such  statt^ — he  being  domiciled  in  such  state  when  the 
decree  is  rendered:  ( l! )  where  the  husband  abamlons  his  wife  and  tlees 
from  the  state  of  her  domicil  and  of  the  matrimonial  domlcil.  It 
clearly  follows  from  the  sixth  proposition,  ante,  that  the  wife's  domicil 
remains  unchanged:  (3)  where  the  wife  is  neither  constructively  within 
a  state  nor  individually  domiciled  therein,  and  does  not  a|)i)ear  in  the 
divorce  cause  and  is  only  constructively  served  with  i)rocess  issued  in 
such  cause,  the  courts  of  the  divorcing  state  cannot  acquire  jurisdic- 
tion over  the  wife  within  the  fifth  and  seventh  propositions,  ante. 

A  proceeding  for  divorce  is  not  of  such  an  exceptional  character  as 
to  be  excepted  from  the  rule  which  limits  the  authority  of  a  state  to 
persons  within  is  jurisdiction.  While  a  state  may  enforce  within  its 
own  borders  a  divorce  rendered  without  personal  service  of  process — 
whether  such  divorce  be  rendered  in  one  of  its  own  courts  or  in  that  of 
another  state — yet  such  divorce  is  not  within  the  full  faith  and  credit 
clause,  unless  it  be  rendered  in  a  cause  in  which  personal  service  is 
dispensed  with  by  the  letter  or  spirit  of  the  doctrines  announced  in  the 
foregoing  seven  i)ropositions.     (885). 

When  a  judgment  rendered  by  a  court  of  one  state  becomes  the  cause 
of  action  in  the  courts  of  another  state,  and  the  transcript,  as  made  in 
such  state,  duly  certified  as  prescribed  by  the  act  of  congress,  is  pro- 
duced, it  imports  verity  and  can  be  attacked  for  only  one  purpose.  1  ne 
defendant  may  deny  that  the  court  had  jurisdiction  of  his  person  or  of 
the  subject-matter,  and  for  this  purpose  may  attack  the  recitals  in  the 
record.  Jurisdiction  will  be  presumed  until  the  contrary  is  shown.  If 
not  denied,  or  if  established  after  denial,  defendant  cannot  interpose 
the  plea  of  nil  debet.  In  some  of  the  states  where  the  formal  distinc- 
tion between  law  and  equity  is  abrogated,  the  law  allows  equitable  de- 
fenses to  be  set  up  in  an  action  at  law.  Hence,  in  those  states,  when 
the  suit  is  brought  upon  a  domestic  judgment,  the  defendant  is  al- 
lowed to  plead  any  circumstances  of  fraud  which  would  have  justified 
a  court  of  equity  in  interfering  in  his  behalf.  Now,  when  the  same 
judgment  is  made  the  basis  of  an  action  of  another  state,  he  ought  to 
be  allowed  the  same  latitude  of  defense;  for  if  it  were  otherwise,  the 
foreign  court  would  be  required  to  give  greater  faith  and  credit  to  the 
judgment  than  it  is  entitled  to  at  home.  This  the  constitution  does 
not  require.  Under  the  Code  practice,  the  fraud  may  be  set  up  in  the 
answer.     (891). 

A  plaintiff  having  a  number  of  items  of  charge  against  the  same  de- 
fendant may  unite  them  In  one  action,  and  where  the  aggregate  of  such 
claims  is  sufficient  to  bring  the  cau.se  within  the  jurisdiction  of  a  su- 
peror  court,  such  court  may  assume  jurisdiction  although  the  amount 
of  each  item  be  too  small  by  itself  to  come  within  such  jurisdiction. 
(895).  In  Indiana  it  is  held  that  when  a  statute  gives  jurisdiction  to 
a  justice  of  the  peace  of  causes  in  which  the  sum  demanded  does  not 
exceed  one  hundred  dollars,  the  intention  is  to  regulate  such  jurisdic- 
tion, not  by  the  penalty  of  a  bond,  but  by  the  amount  of  damages  ac- 
tually claimed  or  demanded  by  the  plaintiff.  That  is,  if  the  penalty  of 
the  trial  be  five  hundred  dollars,  but  the  plaintiff  claims  only  fifty  dol- 
lars as  damages  for  the  breach  of  the  bond,  the  justice  has  jurisdiction. 
The  contrary  is  held  in  North  Carolina.  (895).  When  the  jurisdic- 
tion of  a  justice  of  the  peace  in  matters  of  contract  depends  upon  the 
amount  in  controversy,  exclusive  of  interest,  the  amount  claimed  by 
the  plaintiff  is  the  sum  in  controversy,  and  determines  the  jurisdiction. 
If  the  amount  sued  for  be  within  the  jurisdiction  of  a  justice  of  the 


INTRODUCTION.  Ixxxix 

peace,  the  defendant  cannot  defeat  the  jurisdiction  by  showing  that  he 
owes  the  plaintiff  more  than  he  has  sued  for.  Whether  a  creditor 
whose  demand  is  created  by  express  contract,  such  as  a  promissory  note, 
can  voluntarily  abandon  a  part  of  his  claim,  or  enter  a  credit  upon  it 
for  the  express  purpose  of  reducing  it  within  the  jurisdiction  of  a  given 
court,  is  a  question  upon  which  the  authorities  differ.  It  is  probable 
that  the  weight  of  decision  is  with  the  affirmative.  This  matter  is  reg- 
ulated by  statute  in  some  states.  (896).  The  entry  of  a  credit  with- 
out having  received  a  corresponding  payment,  but  merely  for  the  pur- 
pose of  reducing  the  claim  so  as  to  bring  it  within  a  magistrate's  juris- 
diction, has  been  held  to  be  a  fraud  upon  the  jurisdiction.  Such  mat- 
ters are  usually  regulated  by  statute.  (898).  Statutes  fixing  jurisdic- 
tion are  based  upon  the  assumption  that  plaintiffs  will  act  fairly  and 
only  demand  such  an  amount  as  they  may  reasonably  expect  to  recover. 
When  the  contrary  appears,  it  is  the  duty  of  the  courts  ex  mere  motu 
to  interfere  and  prevent  an  evasion  of  the  law.  In  olden  times,  when  it 
was  found  that,  by  reason  of  the  vast  increase  in  commercial  dealings, 
the  court  of  Common  Pleas  in  England — to  which  was  assigned,  by 
statute,  all  actions  founded  on  contracts — was  oppressed  with  business, 
the  fiction  of  quo  minus  in  the  court  of  Exchequer  and  the  contrivance 
of  the  ac  etiam  clause  in  the  King's  Bench  were  winked  at  and  favored 
by  the  courts,  in  order  to  divide  the  jurisdiction  in  regard  to  contracts, 
and  to  relieve  the  court  of  Common  Pleas  of  a  part  of  a  burden  which 
was  too  heavy  for  it.  But  the  condition  of  things  here  is  entirely  dif- 
ferent, and  the  courts  are  not  at  liberty  to  wink  at,  or  favor,  an  attempt 
to  evade  the  laws  prescribing  the  jurisdiction  of  the  several  courts. 
(898).  Sometimes  a  superior  court  has  both  appellate  and  concurrent 
jurisdiction  of  matters  cognizable  by  an  inferior  court.  Where  it  is 
concurrent,  and  a  case  is  carried  by  appeal  to  the  superior  court,  and 
the  appellant  goes  to  trial  without  objection,  that  court  will  have 
cognizance  of  the  matter  by  virtue  of  its  original  jurisdiction  of  the 
subject-matter  of  the  action  and  of  the  consent  of  the  parties  thus  mani- 
fested, however  irregular  the  proceedings  may  have  been  in  the  infeiior 
iGurt.  But  when  the  inferior  court  takes  cognizance  of  an  action  of  which 
it  has  no  jurisdiction,  and  the  case  is  carried  by  appeal  to  the  superior 
court,  the  superior  court  acquires  no  jurisdiction,  because  in  such  cases 
its  jurisdiction  is  altogether  derivative,  and  depends  upon  that  of  the 
inferior  court.     (899). 

In  the  early  days  of  chancery  jurisdiction  in  England,  the  chancellors 
were  accustomed  to  deliver  their  judgments  without  regard  to  princi- 
ples or  precedents  and  in  that  way  the  process  of  building  up  a  system 
of  equity  went  on— the  chancellor  disregarding  absolutely  many  estab- 
lished principles  of  the  common  law.  In  their  work  the  chancellors 
were  guided  not  only  by  what  they  regard  as  the  eternal  i)rinciples  of 
absolute  right,  but  also  by  their  individual  consciences.  After  a  time 
this  theory  of  personal  conscience  was  abandoned;  and  the  conscience, 
which  is  an  element  of  the  equitable  jurisdiction,  came  to  be  regarded, 
and  has  so  continued  to  the  present  day,  as  a  metaphorical  term,  desig- 
nating the  common  standard  of  civil  right  and  expediency  combined— a 
judicial  and  not  a  personal  conscience.  Whenever  the  principles  of  the 
law  by  which  the  ordinary  courts  are  guided,  tolerate  a  right,  but  af- 
ford no  remedy;  or  where  the  law  is  silent,  and  interference  is  neces- 
sary to  prevent  a  wrong;  or  where  the  ordinary  courts  are  incompetent 
to  a  conii)lete  remedy,  a  court  of  equity  will  afford  relief.  So  also  in 
cases  where  it  is  essential  to  a  fair  trial  in  the  courts  of  law,  a  court 
of  equity  will  lend  assistant  aid,  by  compelling  discovery  of  matters 
net-essary  for  that  end.  In  this  respect  she  acts  as  a  handmaid  of  the 
law.  Hiit  in  no  instance  will  a  court  of  equity  interpose  where  the 
party  applying  has  a  fair  and  complete  remedy  at  law.  Whenever  a 
court  of  law  is  competent  to  take  cognizance  of  a  right,  and  has  power 
to  proceed  to  a  judgment  which  affords  a  plain,  adequate,  and  complete 
remedy,  without  the  aid  of  a  court  of  equity,  the  plaintiff  must  i)rocepd 
at  law.  lipcause  the  defendant  has  a  constitutional   right  to  a  trial   by 


Xf  INTRdlM   (  -llON. 

jury.  Hi'liol  will  not  he  granted  in  rhancery  when,  at  law,  a  complete 
rt-nu'dy  is  afforilod.  Equity  will  not  inteitain  a  bill  when  personal 
property  Is  the  subjotl-niatter,  unless  in  some  peculiar  cases;  nor  will 
it  interpose  and  enjoin  a  sale  of  personal  property,  taken  in  execution, 
either  on  the  ground  that  it  is  not  the  projicrty  of  the  defendant  in  the 
execution,  luit  belongs  to  a  third  person,  or  that  it  belongs  to  the  com- 
plainant, unless  it  be  shown  that  if  the  property  were  sold  the  com- 
plainant would  be  without  remedy  at  law.  The  remedy  at  law  must 
not  only  be  incomplete,  but  the  damages  not  an  adequate  compensation, 
to  authorize  a  court  of  equity  to  intori)ose.  Equity  interferes  in  no 
case  where  the  plaintiff  claims  as  encumbrancer  merely;  and,  where  he 
claims  as  owner,  only  in  liiose  cases  where,  from  the  peculiar  nature  of 
the  proiierty  and  circumstances  of  the  case,  the  remedy  at  law  is  in- 
oomiilete.  Where,  pending  a  litigation,  the  property  in  dispute  is  in 
danger  of  being  lost,  and  the  powers  of  the  court  in  which  the  con- 
troversy depends  are  insufficient  for  the  purpose,  equity  will  interpose 
to  preserve  it.  Equity  exercises  a  jurisdiction  to  put  an  end  to  the 
oppression  of  repeated  litigations,  after  satisfactory  determinations  of 
the  question,  upon  the  princijile  interest  reipublicae  ut  sit  finis  litium. 
In  cases  of  personal  property,  the  interposition  of  a  court  of  equity  is 
rare,  and  only  occurs  when  the  legal  remedy  is  incomi)lete,  and  damages 
are  not  an  adequate  compensation.  The  cases  of  the  ancient  silver 
altar  piece,  of  the  hern  l)y  which  an  estate  was  held,  of  the  silver  tobacco 
box  belonging  to  a  club,  and  some  others,  and  of  slaves,  are  examples  of 
such  interference  afforded  by  the  books,  and  show  that  in  those  cases 
the  remedy  at  law  was  incomplete.  Those  cases  rest  upon  their  own 
peculiar  grounds,  and  do  not  affect  the  rule.  Bills  of  peace  are  allowed 
in  equity  where  a  person  has  a  right  which  may  be  controverted  by 
various  persons,  at  different  times  and  by  different  actions.  The  court 
will  thereupon  prevent  a  multii)licity  of  suits  by  directing  an  issue  to 
determine  the  right,  and  will  ultimately  grant  an  injunction.  Another 
occasion  where  a  bill  of  this  kind  is  resorted  to.  is  where  there  have 
been  repeated  attempts  to  litigate  the  same  question  by  ejectment  and 
repeated  and  satisfactory  trials.  In  such  cases  the  court,  upon  a  bill 
preferred  by  all  the  parties  interested  or  by  some  of  them  in  the  names 
of  tlunisclves  and  the  rest,  will  grant  a  i)eipetual  injunction  to  re- 
strain further  litigation.  In  such  suits  the  plaintiff  ought  to  establish 
his  right  by  a  determination  of  a  court  of  law  in  his  favor,  before  filing 
his  bill  in  equity.     (900,  901). 

Under  the  Code  practice  legal  and  equitable  relief  must  be  admin- 
istered in  the  same  court,  and  may  be  in  the  same  action,  and  in  some 
cases  in  the  same  cause  of  action.  The  principles,  doctrines  and  rules 
of  law  are  distinct  from  those  of  equity,  but  they  may  be  administered 
together  by  the  same  court,  when  it  is  appropriate  and  necessary  to  do 
so.  Under  that  system  issues  of  fact  as  distinguished  from  questions 
of  fact,  arising  in  equitable  actions,  as  well  as  like  issues  arising  in  ac- 
tions at  law,  are  to  be  tried  by  a  jury.  The  law  contemplates  that  a 
jury  shall  find  such  issues,  as  nearly  as  may  be,  as  a  chancellor  would 
do  in  passing  upon  like  issues.  The  court  should  be  careful  to  instruct 
the  jury  in  such  cases,  as  to  the  nature  of  the  issue,  and  the  application 
of  the  evidence  produced  before  them.  The  peculiar  nature  of  such  is- 
sues renders  it  necessary  that  this  should  be  done.  In  the  trial  by  jury 
of  issues  arising  in  equitable  matters,  the  principles,  doctrines  and  rules 
of  equity  should  be  observed  and  applied,  as  nearly  as  may  be,  in  the 
ascertainment  of  the  facts.  Otherwise,  it  would  be  difficult  to  admin- 
ister equity  at  all  in  many  cases.  In  the  judicial  system  of  the  United 
States  government  the  courts  of  common  law  and  of  equity  are  still  as 
distinct  as  thf^y  were  in  the  time  of  Coke  and  Bacon,  though  the  same 
judge  has  jurisdiction  in  each.  The  Act  of  Congress  requiring  the  Fed- 
eral courts  to  conform  to  the  practice  of  the  state  in  which  they  are 
held,  does  not  apply  to  the  courts  of  equity  of  the  United  States.     (905). 

A  court  that  is  required  to  keep  a  record  of  its  proceedings  and  which 
may  fine  and  imprison,  is  a  court  of  record.     Whether  or  not  the  court 


INTRODUCTION.  XCl 

of  a  justice  of  the  peace  is  a  court  of  record,  is  a  question  on  which 
there  is  a  difference  of  opinion.  It  is  practically  a  local  question  de- 
pending upon  the  constitution  and  statutes  of  each  state.     (908). 

There  are  well  known  and  well  settled  rules  of  distinction  between 
local  and  transitory  actions.  Local  actions  are  such  as  require  the 
venue  to  be  laid  in  the  jurisdiction  in  which  the  cause  of  action  arose. 
These  embrace  all  actions  in  which  the  subject  or  thing  sought  to  be 
recovered  is  in  its  nature  local;  such  as  actions  of  waste,  brought  to 
recover  the  place  wasted,  and  actions  of  ejectment.  Some  other  actions 
which  do  not  seek  the  direct  rcovery  of  lands  or  tenements,  are  also 
local,  because  they  arise  out  of  a  local  subject  or  the  violation  of  some 
local  right  or  interest.  Of  this  class  are  waste  for  damages  only;  tres- 
pass quare  clausum  f regit;  trespass  on  the  case  for  injuries  to  things 
real,  as  nuisances  to  houses  or  lands,  disturbance  of  right  of  way;  and 
the  obstruction,  or  diversion  of  ancient  watercourses.  The  action  of 
replevin  is  local,  although  it  is  for  damages  only  and  does  not  rise  out 
of  any  local  subject,  because  of  the  necessity  of  giving  a  local  descrip- 
tion to  the  thing  taken. 

Transitory  actions  are  such  personal  actions  as  seek  only  the  recov- 
ery of  money  or  personal  chattels,  whether  they  sound  in  tort  or  con- 
tract. They  are  universally  founded  on  the  supposed  violation  of  rights, 
which,  in  contemplation  of  law,  have  no  locality.  In  such  actions  the 
venue  may  be  laid  in  the  jurisdiction  wherein  the  cause  of  action  arose, 
or  where  the  plaintiff  or  defendant  resides  at  the  time  of  instituting  the 
action.  The  amount  of  the  recovery  is  governed  by  the  lex  loci,  and 
not  by  the  lex  fori.     (909). 


CHAPTER  XIII. 

PROCESS. — Sec'.  1.  Intkodi-ctory.     From  the  opinions  of  two  eminent 
judges  the  following  summary  of  the  English  law  is  taken.     The  opin- 
ions were  written   in   1833   and   1835.     "In  England,   when   a   person   is 
about  to  commence  a  suit,  the  usual  course  of  proceeding  is.  in  the  first 
place,  to  execute  a  warrant  to  an  attorney  of  the  court  to  have  the  writ 
issued,   and   the   pleadings   in   the   cause   made   up.     The   attorney   then 
gives  instructions  for  the  original;    these  instructions  are  contained  in 
a  paper  called  the  praecipe,  in  which  he  sets  forth  the  cause  of  action. 
Formerly,  the  practice  was  to  take  the  warrant  and  the  praecipe  to  the 
chancery,   where  the  original   writ  was  caused  to  be  made  out  by  the 
-Master  of  the  Rolls;    which  original  recited  the  action  as  stated  in  the 
praecipe.     The  original    is   a  mandatory   letter   in   parchment   from    the 
king,  tested  in  his  name,  and  sealed  with  the  great  seal.     It  is  directed 
to  the  sheriff  or  oiher  returning  officer  of  the  county  where  the  plaintiff 
intends  to  lay  the  venue,  and  is  made  returnable  to  the  court  either  of 
the  King's  Bench  or  the  Common  Pleas,  at  Westminster.     If  the  sheriff 
return  on  the  original  non  est  inventus,  the  original  is  then  left  on  file 
in  the  court,  and  a  judicial  writ  or  process  issues,  called  a  special  capias 
ad  respondendum,  whieh   is  grounded  upon  the  original.     If  the  sheriff 
return  on  ihe  cai)ias,  non  est  inventus,  the  plaintiff  may  then  issue  an 
alias,  and  a  plurics.  and  so  on  to  outlawry,  to  compel  an  appearance  by 
the  defendant.     When  the  defendant  ai)i)ears  in  court  in  consequence  of 
the  service  of  the  original   or  of  an  arrest  on   any  process  which   issues 
upon    it.    tlif   plaintiff   then    files   his   declaration,   and   serves   a   copy   on 
the  defendant,  who  di'icnds  either  by  demurrer  or  plea.      If  he  pleads  to 
the  action,  then  the  whole  of  the  pleadings  to  the  making  up  of  the  is- 
sue are  eonipletod   in   the  sui)erior  court  of  Westminster.     A  nisi  priua 
rfcord   is  then   made  out  and   transmitted   to   the  court  of  nisi   i)rius,  or 
the  assizes  of  the  county  where  the  venue  is  laid,  that  the  issues  may  be 
ihi  re  tri<(l   by  a  jury.     When   a  trial   taUes  place,  and  a  verdict    is  ren- 
dered, it  is  entered  on  the  nisi  prlus  roll,  or  some  paper  attached  to  it 
which   is  called   the  postea.  and  delivered   to  the  party   in    whose   favor 
the  verdict   is  rendered,  who  returns  it  into  the  superior  court,  at  West- 


xcii  IN  ri{(ti>rci'i<)K'. 

minstoi-.  wluif  the  record  belongs;  ami  oti  notico  being  given  to  the 
advorso  i>arty,  a  motion  is  then  made  for  judgment;  which,  if  no  cause 
is  shown  to  tlie  contrary,  is  rendered  by  the  court,  upon  whicli  issues 
the  execution. 

In  modern  limes  the  practice  of  commencing  suit  by  original  pur- 
cliase  out  of  cliancery  has  been  tacitly  waived  by  the  profession.  The 
practice  is  now.  for  the  attorney  to  leave  the  praeciiie  and  a  memoran- 
dum of  his  warrant  at  the  Fihizcr's  uffhc.  and  the  Filazer  thereupon  is- 
sues a  capias  ad  respondendum  in  the  first  instance,  keci)ing  the  praecipe 
as  instructions  for  the  original,  if  such  original  should  afterwards  be- 
ccme  necessary  by  a  writ  of  error  being  brought  after  a  judgment  by 
default,  on  demurrer,  or  on  plea  of  nul  tiel  record:  for  the  want  of  an 
original  is  aided  after  verdict,  by  stat.  IS  Eliz.  c.  14.  If  a  writ  of  error 
should  be  brought  for  the  want  of  an  original,  in  any  of  those  cases 
where  the  defect  is  not  cured  by  the  statute  of  Elizabeth,  the  plaintiff 
may,  by  a  petition  to  the  Master  of  the  Rolls,  obtain  an  original  and 
move  the  court,  where  the  record  is,  to  amend  by  adding  the  original, 
which  is  always  granted;  so  that  the  record  is  complete,  when,  in  obedi- 
ence to  the  writ  of  certiorari,  it  is  transmitted  into  the  court  of  errors. 
The  plaintiff  in  error  will  then  have  nothing  in  the  record  upon  which 
he  can  assign  errors,  and  will  fail  in  his  efforts  to  reverse  the  judg- 
ment. By  the  rules  of  the  common  law  great  nicety  and  exactness  were 
required  in  the  proceedings  and  pleadings  in  a  suit;  small  errors  and 
inaccuracies  were  always  sure  to  be  fatal  to  the  party  making  them;  as 
for  Instance,  in  bailable  actions,  the  declaration  should  always  corre- 
spond with  the  writ  in  the  names  of  the  parties,  and  in  the  cause  of  ac- 
tion and  if  there  was  a  variance  in  these,  or  in  the  sum  demanded,  be- 
tween the  writ  and  the  declaration,  it  would  be  fatal.  The  legislature 
has  from  time  to  time  endeavored  to  remedy  what  it  considered  an  evil, 
and  has  passed  several  statutes  of  jeofails  and  for  the  amendment  of 
the  law,  to  prevent  justice  being  strangled  in  a  net  of  forms  and  tech- 
nicalities. The  legislature,  further  to  aid  the  administration  of  justice, 
passed  the  statute  'j  Geo.  1,  c  VA  (718)  which  was  a  very  liberal  statute 
of  jeofails."  "The  common-law  doctrine  respecting  process  is,  that 
mere  errors  in  writs  are  cured  by  the  appearance  of  the  defendant. 
But  there  is  a  distinction  between  errors  that  only  render  the  process 
voidable,  and  defects  that  render  it  void.  Simple  appearance  does  not 
cure  the  latter.  Process  in  England  and  writs  answering  to  those  called 
process  in  England,  form  no  part  of  the  record;  errors  in  them  cannot 
be  assigned  for  error;  nence  the  only  remedy  is  to  move  to  set  aside 
the  proceedings;  and  that  should  be  done  before  appearance,  unless  the 
writ  is  wholly  void.  In  the  latter  case,  a  mere  appearance  will  not  cure 
the  defect.  The  appearance,  however,  here  spokeu  of,  does  not  simply 
mean  the  coming  of  the  defendant  into  the  court-house;  it  means  an 
appearance  to  the  action,  such  as  perfecting  bail,  or  taking  some  step  in 
the  action  towards  the  defense.  At  common  law,  the  writ  had  to  be 
tested  in  the  name  of  the  i)resident  judge,  and  then  be  sealed  with  the 
seal  of  the  court,  and  officially  signed  by  the  clerk.  The  clerk  was  the 
keeper  of  the  seal  of  the  court  at  common  law;  and  when  he  sealed 
process,  he  signed  it  officially  to  show  that  it  was  sealed  at  the  proper 
mint  of  justice."     (911,  915). 

Sec.  2.  Sihi'ok.na  in  Eyrrrv.  Naming  persons  as  defendants  in  the 
title  of  a  bill  in  equity  does  not  make  them  parties,  for  the  title  is  no 
part  of  the  bill,  whether  it  precede  the  statement  of  the  bill,  or  be  writ- 
ten on  the  back  of  it.  The  stating  part  of  the  bill  ought  to  contain  the 
case  of  the  plaintiff,  showing  his  rights,  and  the  injury  done  to  him 
and  by  whom  it  was  done;  and.  even  then,  the  persons  thus  mentioned 
In  the  bill,  as  the  authors  of  the  wrong  complained  of,  are  not  thereby 
made  defendants,  but  only  those  persons  who  are  named  in  the  prayer 
for  process  and  against  whom  process  of  subpoena  is  prayed,  as  the 
means  of  comi)elling  their  appearance.  Prayer  for  process  against  "the 
defendants,"  without  naming  them,  will  not  do. 

Sfx'.  3.  Mks.nk  Piwkkss.     By  the  term  mesne  process,  is  generally  un- 


INTRODUCTION.  XClll 

derstood  any  writ  issued  between  the  original  writ  and  the  execution. 
By  original  process,  the  first  writ  at  the  common  law,  is  not  meant  the 
first  process,  under  modern  statutes.  Such  original  writ  is  not  used 
here.  All  our  writs  preceding  the  execution  are  mesne  process.  By 
mesne  process  is  meant  the  writ  or  proceeding  in  an  action  to  summon 
or  bring  the  defendant  into  court.     (920). 

Sec.  4.  Arrest.  "By  the  common  law,  no  man  could  be  arrested  in 
actions  upon  contract.  By  a  variety  of  statutes,  the  law  in  England  was 
entirely  changed,  and  in  process  of  time  every  man  in  such  actions  be- 
came liable-  to  imprisonment  without  redress.  Perhaps  the  common  law- 
was  too  lenient  for  a  commercial  people;  but  the  statute  law  certainly 
became  shamefully  oppressive.  These  evils,  however,  have  been  long 
since  remedied.  By  the  statutes  of  Henry  VI,  of  Eliz.,  and  more  es- 
pecially of  Geo.  I,  the  personal  liberty  of  the  debtor  and  the  right  of  the 
creditor  have  been  carefully  attended  to."  Imprisonment  for  debt  hav- 
ing been  abolished  both  in  England  and  in  this  country,  arrest  is  al- 
lowed only  in  criminal  prosecutions  and  in  civil  actions  founded  upon 
pure  torts.     See  ch.  11,  S  1,  ante.     (920). 

Sec.  5.  Wiiex  is  a  Writ  I.ssued?     It  has  been  said  that,  "as  the  teste 
of  the  writ  on  the  one  hand  is  not  the  commencement  of  the  suit,  for  the 
benefit  of  the  plaintiff;   so  on  the  other,  the  service  of  it,  or  its  delivery 
to  the  sheriff,  or  any  such  thing,  is  no  requisite  to  the  commencement  of 
the  suit,  for  the  benefit  of  the  defendant:  but  only  getting  the  writ— im- 
petratio    brevis.     There    are   many    cases    to    that    effect.     The    form    of 
pleading  establishes  this.     The  constant  form  is,  'that  the  defendant  did 
not   assume    within,    etc.,    ante   impetrationem    brevis.'     Why?     Because 
obtaining  the  writ,  sealed  and  complete  in  form,  is  in  fact  and  law  the 
commencing  suit."     But  is  also  said  that  "a  delivery  of  the  writ  to  the 
sheriff  for  service,  or  something  equivalent  to  such  delivery,  is  neces- 
sary,   in   order   that   the   action   be   deemed   to   have   been   commenced." 
(922,  923).     And  again  it  has  been  said  that  a  summons  is  issued  when 
it  goes  out  of  the  hands  of  the  clerk  to  be  delivered  to  the  sheriff  for 
service.     If  the  clerk  delivers  it  to  the  sheriff  to  be  served,  it  is  then 
issued;   or  if  the  clerk  delivers  it  to  the  plaintiff,  or  some  one  else,  to  be 
delivered  bv  him  to  the  sheriff,  this  is  an  issue  of  the  summons;    or,  as 
is  often  the  case,  the  summons  is  filled  out  by  the  plaintiff's  attorney 
and  put  into  the  hands  of  the  sheriff.     This  is  done  by  the  implied  con- 
sent of  the  clerk,  and  constitutes  an  issuance  from  the  time  it  is  placed 
in  the  hands  of  the  sheriff  for  service.     But  a  summons  simply  filled  up 
and  lying  in   the  office  of  an  attorney  would  not  constitute  an  issuing. 
Nor  would  the  fact  that  a  summons  had  been  filled  up  by  the  clerk,  but 
held  bv  him  for  a  prosecution  bond.     (925). 

Sk(  .  G.  St  M.MON.s  U.M»EK  THE  CoDE  PuACTiCE.     By  the  Code  practice  has 
been  adopted,  substantially,  the  practice  of  the  courts  of  equity  and  not 
that  of  the  courts  of  common  law.     In  equity  the  bill  precedes  the  sub- 
poena which   issues  to  bring  the  defendants   into  court.     It   is  used  to 
designate  and  bring  the  parties  into  court,  and  for  that  purpose  only. 
It  neither  specifies,  as  the  old  common  law  writ  frequently  did,  in  what 
right  the  jilaintiff  claims  relief,  nor  the  right  in  which  the  defendant  is 
sought  to  be  charged.     These  matters  are  set  forth  in  the  bill  only,  and 
the  subpoena  points  to  the  bill  as  containing  the  causes  of  suit  which 
are* to  bo  answered.     As  it   is  clearly   not  the  office  of  the  subjioena  to 
specify  the  iilaintiff's  claim  or  the  dofcndant's  liability,  there  can  be  no 
such  thing  as  a  variance  on  that  account.     The  only  difference  between 
the  practice  under  the  Code  and  that  of  a  court  of  equity   is,  that   by 
the  Code  the  summons  does  not  follow,  but  precedes  the  comi)laint.     In 
both  roiirts   its  only   operation   ami  office   is  to  give  notice  of  an   action 
begun,   the   parties   to   it.   and    where    the   complaint    will    be    filed.     The 
parties.  |)laintiff  and  defendant,  must  be  named  in  (lie  summons— a  sum- 
mons for  "the  heirs  of  A"   will  not  do.      (1)2G).     Service   is  the  judicial 
delivery  or  comnnmic ation   of  papers — execution   of  process;    the  opera- 
tion of  bringing  the  contents  or  effect   of  a  document    to  the  knowledge 
of  the   persons  concernid.     The  manner  of  service   is  regulated   by  stat- 
ute.     (9.30). 


XflV  INTKoDrci'lON. 

When  an  attorney  enters  an  appearance  for  a  party  without  qiialifira- 
tion.  tlu«  only  roasonablo  iut\  icnce  is,  that  the  appearance  is  a  general 
aiipcaranic — that  is,  tor  all  luirposes.  Snch  an  appearance  cures  all 
antecedent  irregularity  in  the  process,  and  places  the  defendant  upon 
the  same  ground  as  if  lie  had  been  personally  served  with  process. 
(932 ».  The  test  for  determining  the  character  of  an  appearance  Is  the 
relief  asked — tlie  law  looking  to  its  substance,  rather  than  to  its  form, 
ir  the  appearance  is  in  effect  geiu-ral.  the  fact  tliat  the  party  styles  it  a 
special  appearance  will  not  change  its  real  character.  The  question  al- 
ways is  what  a  party  has  done,  and  not  what  he  intended  to  do.  If  the 
relief  prayed  affects  the  merits,  or  the  motion  involves  the  merits — and 
a  motion  to  vacate  a  judgment  is  such  a  motion — then  the  appearance 
is.  in  law,  a  general  one.  The  court  will  not  hear  a  party  upon  a  special 
ai)i)earanie  except  for  the  purpose  of  moving  to  dismiss  an  action  or  to 
vaiate  a  judgment  for  want  of  jurisdiction,  and  the  authorities  seem  to 
hold  that  such  a  motion  cannot  be  coupled  with  another  based  upon 
grounds  which  relate  to  the  merits.  An  appearance  for  any  other  pur- 
pose than  to  question  the  jurisdiction  of  the  court  is,  general.  A  special 
appearance  may  be  entered  for  the  purpose  of  taking  advantage  of  any 
defect  in  the  notice  or  summons,  or  to  question  the  jurisdiction  of  the 
court  over  the  person  in  any  other  manner;  but  filing  a  demurrer  or 
motion  which  jiertains  to  the  merits  of  the  complaint  or  petition,  con- 
stitutes a  full  ai)pearance,  and  is  hence  a  submission  to  the  jurisdiction 
of  the  court.  If  one  duly  appears  to  the  merits,  no  statement  that  he 
does  not,  will  avail  him;  and,  if  he  makes  a  defense  which  can  only  be 
sustained  by  an  exercise  of  jurisdiction,  the  appearance  is  general, 
whether  it  is  in  terms  limited  to  a  s])ecial  luirpose  or  not.  (933).  If 
the  defendant  enter  a  special  ai)pearance  and  move  to  dismiss  and  his 
motion  be  overruled,  he  should  except  and  i)roceed  with  his  defense. 
He  does  not  thereby  waive  his  rights  under  his  motion;  for,  if  his  mo- 
tion be  improperly  overruled  in  the  lower  court,  it  will  be  allowed  on 
appeal  and  the  whole  case  will  be  dismissed  notwithstanding  the  fact 
that  it  has  been  tried  on  the  merits;  but  if  the  defendant  fail  to  except 
to  a  ruling  refusing  his  motion  to  dismiss,  and  proceed  with  his  defense, 
his  appearance  becomes  a  general  appearance  for  all  purposes.  No 
appeal  lies  from  the  refusal  to  dismiss,  until  final  judgment  in  the  ac- 
tion; for  the  judgment  overruling  the  motion  to  dismiss  is  merely  inter- 
locutory and  is  not  such  a  judgment  as  can  be  appealed  from  at  once. 
If  the  summons  be  void,  the  defendant  may  wholly  ignore  it,  or  he  may 
enter  a  special  appearance  and  move  to  dismiss,  just  as  he  prefers. 
When  there  is  a  dispute  about  the  fact  as  to  whether  a  defendant  en- 
tered a  general  or  a  special  appearance,  the  findings  of  the  lower  court 
are  final  and  not  reviewable.  There  is  no  appearance  unless  of  record, 
for  whether  he  appeared  or  not  ought  to  be  tried  by  the  record.  (935). 
Where  a  defendant  has  never  been  served  with  process,  nor  appeared 
in  person  or  by  attorney,  a  judgment  against  him  is  not  simply  voidable, 
but  void;  and  it  may  be  so  treated  whenever  and  wherever  offered,  with- 
out any  direct  proceedings  to  vacate  it.  It  would  be  otherwise  if  the 
record  showed  service  of  process  or  appearance,  when  In  fact  there  had 
been  none.  In  such  case  the  judgment  would  be  apparently  regular, 
and  would  be  conclusive  until  vacated  by  a  direct  proceeding  for  that 
purpose.  If  the  record  shows  one  to  be  ])laintiff,  when  in  fact  he  was 
not,  thru  it  stands  as  where  the  record  shows  one  to  be  defendant,  when 
he  was  not.  In  both  cases  the  record  is  conclusive  until  corrected  by  a 
direct  proceeding  for  that  purpose.  (936).  Substituted  service  by  pub- 
lication, or  in  any  other  authorized  form,  may  be  sufficient  to  inform 
parties  of  the  object  of  proceedings  taken,  where  property  is  once  brought 
under  the  control  of  the  court  by  seizure,  or  some  equivalent  act.  Such 
service  may  also  be  sufficient  in  cases  where  the  object  of  the  action  is 
to  reach  and  dispose  of  property  in  the  state,  or  of  some  interest  therein, 
by  enforcing  a  contract  or  lien  respecting  the  same,  or  to  partition  it 
among  different  owners:  or,  when  the  public  is  a  party,  to  condemn  and 
appropriate  it  for  a  public  purpose.  In  other  words,  such  service  may 
answer  in  all   actions  which  are  substantially  proceedings   in  rem.     An 


IN'TKUDL'fTlOX.  XCV 

act  allowing  personal  service  of  process,  issued  from  one  state,  upon  a 
person  in  another  state  does  not  and  cannot  extend  the  jurisdiction.  It 
is  a  convenient,  and  probably  a  more  sure,  way  of  bringing  home  to  the 
non-resident  the  notice  which  is  usually  made  by  publication.  But  the 
service  of  process  in  another  state  is  valid  only  in  those  cases  in  which 
publication  of  the  process  would  be  valid.  Not  only  has  the  process  is- 
suing from  one  state  no  extra-territorial  effect  when  served  in  another 
state  (except  as  notice  of  a  proceeding  in  rem,  or  quasi  in  rem,  which 
could  be  served  by  publication  of  the  notice),  but  even  in  the  federal 
courts,  whose  jurisdiction  extends  throughout  the  ITnion,  a  personal 
judgment  can  be  had  against  a  defendant  only  when  sued  in  the  district 
wherein  he  resUlPS.  A  personal  judgment  against  a  non-resident  can 
only  be  obtained  in  a  state  court  when  he  can  be  found  and  served  with 
process  while  in  the  state,  or,  if  a  corporation,  bv  service  on  its  agent 
there.     (936). 

Jurisdiction  is  acquired  in  one  of  two  modes — first,  as  against  the 
person  of  the  defendant,  by  personal  service  of  process;  or.  secondly,  by 
a  proceeding  against  the  property  of  the  defendant  within  the  jurisdic- 
tion of  the  couit.  In  the  latter  case,  the  defendant  is  not  bound  by  the 
judgment  beyond  the  property  in  question.  It  is  immaterial  whether 
the  proceeding  against  the  property  be  by  an  attachment  or  by  bill  in 
chancery,  but  it  must  be  substantially  a  proceeding  in  rem.  A  bill  for 
the  specific  performance  of  a  contract  to  convey  real  estate  is  not  strictly 
a  proceeding  in  rem  in  ordinary  cases;  but  where  such  a  procedure  Is 
authorized  by  statute  on  publication,  without  personal  service,  of  proc- 
ess, it  is  substantially  of  that  character.  IMortgage  liens,  mechanics' 
liens,  materialnun's  liens,  and  other  liens  are  foreclosed  against  non- 
resident defendants  upon  service  by  publication.  Lands  of  non-resident 
defendants  are  attached  and  sold  to  pay  their  debts;  and,  indeed,  almost 
any  kind  of  action  may  be  instituted  and  maintained  against  non-resi- 
dents to  the  extent  of  any  interest  in  propeity  they  may  have  in  a  state. 
Jurisdiction  to  hear  and  determine  such  cases  may  be  obtained  wholly 
and  entirely  by  publication.  All  the  states,  by  proper  statutes,  author- 
ize actions  against  non-residents  and  service  of  summons  on  them  by 
publication  or  in  some  other  form  no  better.  In  the  nature  of  things, 
such  must  be  done  in  every  jurisdiction  in  order  that  full  and  comi)]ete 
justice  may  be  done  where  some  of  the  i)arties  are  non-residents.  There 
are  three  modes  for  the  due  service  of  process — (a)  by  actual  service, 
or,  in  lieu  thereof,  acceptance  or  waiver  by  appearance;  (b)  by  publica- 
tion, in  cases  where  it  is  authorized  by  law,  in  proceedings  in  rem.  In 
which  case  the  court  already  has  juiisdiction  of  the  res — as  to  enforce 
some  lien  on,  or  a  |)artitioii  of,  piopciiy  in  its  conliol;  (c)  by  publication 
of  the  summons,  in  cases  authorized  by  law,  in  proceedings  quasi  in  rem, 
in  which  cases  the  court  acquires  jurisdiction  by  attaching  i)roperty  of 
a  non-resid(  i)t,  an  absconding  debtor,  etc.  A  judgment  obtained  under 
process  served  by  the  two  last-named  methods  has  no  i)ersonal  efliciency, 
but  acts  only  on  the  property.  (939).  The  prerequisites  to  the  valid 
service  of  process — whether  by  publication  or  other  method — are  regu- 
lated by  statute.      (942). 

CHAPTER  XIV. 

PARTIKS.  When  a  firm  is  a  ])arty,  the  name  of  each  of  the  mcml)ers 
must  be  set  out  in  the  summons  and  <oni|)laint,  for  there  is  no  ])rinciple 
more  certainly  and  satisfactorily  .settled  than  that,  in  all  actions,  the 
writ  and  declaration  must  both  set  forth,  accurately,  the  Christian  and 
Hurnanif  of  each  plaintiff  and  caih  defendant,  unless  the  i)arty  is  a  cor- 
poration and  is  aulhoii/ed  (o  sur'  and  lie  sued  in  such  coi'porate  name; 
b)it  the  addition  of  the  firm  name  lo  the  individual  names  composing 
the  firm  is  not  necessary.  If  addi  d.  it  can  do  no  harm  and  will  not  sub- 
ject the  plaintiffs  to  any  additional  proof.  (945-940).  A  statute  au- 
thorizing a  i)rocefding  against  non  resident  heirs,  does  not  authorize  it 
against  them  eo  nomine.  t)ut  leaves  to  the  rules  of  the  common  law  tho 
mode  of  enforcing  their  liability,  siibj' ct    to  the  particular   piovisions  of 


xt'Vi  IN  rivdhrcrioN. 

the  statute.  Thore  is  no  proceedinR  at  common  law  against  unknown 
heirs.  At  conunon  hiw  or  in  equity,  if  heirs  are  required  to  be  made 
detentiants  to  a  suit,  it  is  the  duty  of  the  i)laintiff  to  render  them  such 
by  their  proper  names.  ('.Mti).  If  only  the  suiiiaine  of  a  defendant  be 
set  forth  in  the  writ  and  pleadings,  and  the  defi-ndant  appear,  he  can- 
not object  to  such  detect  after  verdict  and  judgment.  (947).  Some  of 
the  doctrines  of  the  common  law  in  relation  to  the  joinder  of  parties 
seeni  to  be  somewhat  artiilrary.  In  actions  founded  on  contract,  if  any 
of  those  living,  to  whom  the  i>romisc  or  ot)li,gati()n  was  made,  be  omitted 
as  plaintiffs;  or  if  any  to  whom  it  was  not  made  be  joined,  and  that  fact 
appear  in  the  declaration,  it  is  fatal  on  demurrer,  in  arrest  of  judg- 
ment, or  upon  a  writ  of  error.  If  the  defect  is  not  shown  by  the  plead- 
ings, It  is  ground  of  nonsuit  under  the  general  issue,  in  actions  ex  con- 
tractu, if  a  part  only  of  several  joint  contractors  be  sued,  and  the  de- 
fendant wish  to  avail  himself  of  the  omission  of  the  others,  he  must  do 
it  by  a  plea  in  abatement.  If  he  omit  to  do  so,  he  cannot  afterwards 
urge  the  objection  in  any  form,  though  the  declaration  set  out  a  joint 
contract.  The  plea  in  abatement  for  the  nonjoinder  of  a  joint  contractor, 
must  show  not  only  that  the  omission  has  been  made,  but  that  the 
omitted  contractor  is  living.  (947).  In  a  court  of  equity,  a  defect  of 
parties  is  not  fatal.  The  cause  will  be  continued  in  order  that  all  proper 
parties  may  be  made.  (949).  At  common  law,  in  actions  ex  delicto, 
for  pure  torts,  and  not  for  the  breach  of  a  contract,  if  a  party  who  ought 
to  join  be  omitted,  the  objection  must  be  taken  by  a  plea  in  abatement, 
or  by  way  of  api)ortionment  of  damages  on  the  trial.  The  defendant 
cannot,  as  in  actions  ex  contractu,  give  in  evidence  the  nonjoinder  as  a 
ground  of  nonsuit  on  the  plea  of  the  general  issue.  Under  the  Code 
l)racti(e,  a  defect  of  parties — a  failure  to  join  those  who  should  be  joined 
— must  be  taken  ailvantage  of  by  demurrer  if  it  appear  on  the  face  of 
the  complaint,  and  by  answer  if  it  does  not  so  appear;  but  the  mis- 
joinder of  unnecessary  parties  is  a  mere  matter  of  surplusage.  (949). 
All  actions  by  and  against  a  corporation  should  be  in  its  corporate  name. 
(950).  At  common  law,  an  infant  could  neither  sue  nor  defend,  except 
by  guardian.  By  the  statutes  of  Westm.  1,  13  Edw.  1,  and  Westm.  2, 
13  Edw.  1.  he  is  authorized  to  sue  by  prochein  amy.  In  all  cases,  how- 
ever, it  is  error  if  an  infant,  though  sued  with  others,  does  not  defend 
by  guardian.  In  either  character,  as  plaintiff  or  defendant,  prior  to 
the  statutes  of  Westminster,  and  subsequent  thereto  when  defending, 
the  guaidian  is  by  special  appointment  of  the  court.  A  prochein  amy 
sues  by  the  permission  of  the  court,  and  the  fact  of  such  permission  be- 
ing given,  should  appear  in  the  declaration,  or  it  is  error.  It  is  the  duty 
of  a  court,  if  informed  that  a  suit  by  prochein  amy  is  not  for  the  interest 
of  the  infant,  to  arrest  the  proceeding.  This  power,  i)ossessed  by  the 
court,  is  connected  with  its  general  superintending  control  over  infants. 
The  right  to  sue  by  prochein  amy  being  dependent  upon  minority  and 
the  admission  of  the  prochein  amy  by  the  court,  these  facts  should  ap- 
pear in  the  declaration,  or  it  is  error.  (951).  Process  should  be  served 
upon  infant  defendants  in  the  same  manner  as  ui)on  adults;  and  to 
enable  them  to  plead,  answer,  or  demur,  a  guardian  is  necessary.  It 
was  regular,  according  to  the  English  practice,  to  appoint  a  guardian 
ad  litem  before  service  of  process  upon  the  infant:  but,  according  to  the 
practice  in  some  jurisdictions,  the  process  must  be  first  served.  In  all 
jurisdictions  the  record  must  show  both  service  upon  the  infant  and  the 
appointment  of  a  guardian  ad  litem.  Some  courts  hold  that  no  decree 
or  judgment  should  be  made  against  infants  upon  mere  admissions  in 
the  pleadings.  There  must  be  proof  in  the  same  manner  as  if  the  bill 
had  been  denied.  (952).  It  is  a  serious  mistake  to  supi)ose  that  a  next 
friend  or  a  guardian  ad  litem  should  be  appointed  upon  simple  sug- 
gestion. It  should  never  be  done  except  upon  proper  ai)p]ication  in 
writing,  and  due  consideration  by  the  court.  The  court  should  know 
who  is  appointed,  and  that  such  person  is  capable  and  trustworthy.  The 
method  of  ai)pointing  guardians  ad  litem,  and  their  duties,  are  usually 
prescribed  by  statute  or  by  rule  of  court.  Persons  having  any  interest, 
real  or  nominal,  antagonistic  to  that  of  the  infant,  must  not  be  selected 


INTRODUCTION.  XCVH 

to  prosecute  or  defend  on  behalf  of  such  infant.  A  plaintiff,  though  he 
be  but  a  mere  nominal  party  with  no  real  interest  in  the  controversy, 
must  not  act  as  guardian  ad  litem  for  an  infant  defendant.  The  plain- 
tiff's attorney  must  not  advise  or  draw  pleadings  for  the  guardian  ad 
litem  of  an  infant  defendant.  The  court  in  which  the  action  or  pro- 
ceeding is  pending  appoints  a  next  friend  or  guardian  ad  litem.  A 
justice  of  the  peace  may  appoint  a  next  friend  to  prosecute  an  action  on 
behalf  of  the  infant  in  such  justice's  court.  (953).  It  is  said  that  a 
judgment  against  an  infant  appearing  by  attorney,  though  erroneous, 
IS  of  full  force  and  effect  until  it  be  reversed;  and  that  objection  thereto 
can  be  taken  advantage  of  only  by  a  writ  of  error.  Where  writs  of  er- 
ror are  abolished  and  appeals  substituted,  the  objection  can  be  taken 
advantage  of  only  by  appeal.     (957). 

The  manner  of  serving  process  on  infants  is  regulated  by  statute  or 
rule  of  court.  An  infant  cannot  lawfully  accept  service  of  i)rocess;  but 
if  he  does  accept  service  and  a  guardian  ad  litem  is  thereafter  appointed 
who  properly  represents  him.  such  defect  in  the  service  of  the  process 
is  cured.  (959t.  It  has  been  held  that  an  infant  in  ventre  sa  mere 
cannot  be  made  a  party  to  an  action  or  proceeding,  and,  hence,  cannot 
be  estopped  by  a  judgment  in  partition  proceedings.  So  august  a  tribu- 
nal as  the  Sui)reme  Court  of  the  United  States  has  held  to  the  contrary. 
On  this  subject  it  has  been  said:  "The  old  writ  of  de  ventre  inspiciendo 
was  devised  by  the  courts  for  the  pur])ose  of  examining  the  widow,  and 
was  granted  in  a  case  where  a  widow,  whose  husband  had  lands  in  fee, 
marries  again  soon  after  his  death  and  declares  herself  i)regnant  by 
her  first  husband,  and  under  that  pretext  withholds  the  land  from  the 
next  heir.  Such  writ  commanded  the  sheriff  or  sergeant  to  summon  a 
jury  of  twelve  men  and  as  many  women,  by  whom  the  female  is  to  be 
examined  tractari  per  ubera  et  ventrem.'  Of  course,  no  such  unseemly 
proceeding  would  be  tolerated  in  this  age,  but  the  general  assembly 
could  easily  protect  the  unborn  child  as  well  as  the  innocent  purchaser 
by  prohibiting  the  sale  of  land  for  partition  until  twelve  months  after 
the  intestate's  death."     (960). 

The  genera!  rule  of  law  is  very  clear,  that  the  wife  cannot  sue  alone, 
but  must  join  with  her  husband.  The  rule  was  relaxed,  however,  in 
cases  in  which  the  reasons  ujjon  which  it  was  formed  ceased  to  exist. 
Thus,  where  the  husband  was  exiled,  his  wife  was  permitted  to  sue  in 
her  own  name.  And  the  same  reason  applying  where  the  husband  had 
abjured  the  realm,  the  wife,  in  that  case,  was  allowed  to  sue,  as  a 
widow,  for  her  dower.  The  wife  of  an  alien  enemy  has  also  been  held 
liable  to  suits,  as  the  husband  was  not  amenable  to  the  process  of  the 
court.  The  banishment  of  the  husband,  even  for  a  limited  time,  operates 
as  a  removal  of  the  disabilities  of  the  coverture,  so  far  as  to  enable  the 
wife  to  sue  anrl  Ijo  sued  as  a  feme  sole,  although  the  time  of  banishment 
be  expired  when  the  action  is  brought.  The  following  rhetorical  flourish 
may  not  be  amiss  in  this  connection:  "Miserable,  indeed,  would  be  the 
situation  of  those  unfortunate  women  whose  husbands  have  renounced 
their  society  and  country,  if  the  disabilities  of  coverlure  should  be  ap- 
plied to  them  during  the  continuance  of  such  desertion.  If  that  were 
the  case,  they  could  obtain  no  credit  on  account  of  their  husbands,  for 
no  process  could  reach  him;  and  they  could  not  recover  for  a  trespass 
upon  their  persons  or  their  property,  or  for  the  labor  of  their  hands. 
They  wouhl  he  left  the  wretclied  dejjcdents  upon  charity,  or  driven  to 
the  commission  of  crimes,  to  obtain  a  precarious  s>i[)i)ort."  (962).  The 
marriage  of  a  feme  sole  defendant  pendente  lite,  <ioes  not  prevent  (he 
progress  of  the  .'ution  against  her  alone.  (!tri5).  A  feme  covert  having 
a  separatf  estate  may.  in  a  court  of  crpiify,  be  sued  as  a  feme  sole,  and 
be  proceeded  against  without  her  husband;  for  in  respect  of  her  sejia- 
rate  estate  she  is  looked  upon  as  a  feme  sole.  In  that  court  baron  and 
feme  are  considered  as  two  distinct  persons  and,  therefore,  a  wife,  by 
her  next  friend,  may  sue  her  own  husband.  When  thf  husiiaiid  is  thus 
sued  by  his  wife,  the  invariable  i)ractice  is,  in  the  altsencc  of  a  statute, 
to  rerpiire  her   lo  sue  by   a  next    friend      The  object    of   this   rule   is   to 


xfviii  iNi'KDntcTioN. 

securo  tho  rosts  of  tlu'  aition  and  to  have  a  responsible  person  who  will 
be  lial)li>  if  the  prot'ess  of  the  court  should  be  abused,  and  also  that  a 
proper  and  lit  adviser  may  interpose  to  prevent  doniestie  feuds,  and  at 
the  same  time  protect  the  feme  from  the  frauds  and  power  of  the  hus- 
band. (IM;:.).  I'nder  the  Code  practice,  it  now  seems  to  be  generally 
settled,  after  groat  ctuifusion  in  the  decisions  growing  out  of  the  con- 
tlicting  statutes  of  the  several  states,  that  a  niai-ried  woman  is  invested 
with  the  legal  title  to  her  property,  and  may  maintain  in  her  own  name 
any  ai)propriate  action  to  preserve  and  secure  it  to  her  own  use.  (9(!6. 
967).  It  is  said  that  idiots  and  lunatics  may  sue  at  law  by  next  friend, 
to  be  appointed  by  the  court:  but  in  equity,  must  sue  by  the  committee 
or  guardian  of  their  t-states  duly  apiiointed.  When  the  idiocy  or  lunacy 
is  not  merely  partial,  and  in  all  cases  when  it  has  been  found  on  an 
inquisition,  a  court  of  equity  will  not  allow  a  suit  to  be  brought  by  an 
idiot  or  lunatic  in  his  own  name,  or  that  of  a  next  friend — whether 
nominated  by  himself  or  aiiiiointed  by  the  court.  His  guardian  or  com- 
mittee must  join  in  the  suit.  When  a  person  is  only  partially  incap- 
able, as  one  merely  deaf  and  dumb,  the  court  will  appoint  a  next  friend 
to  be  joined  with  him  in  the  suit,  and  to  conduct  it  for  him. 

The  authorities  all  agree  that  idiots  and  lunatics  must  sue  in  equity 
by  their  committees  or  guardians.  In  some  states  the  persons  to  whom 
the  estates  of  idiots  and  lunatics  are  committed  upon  inquisition  found, 
are  styled  their  guardians;  in  other  states,  and  in  England,  they  are 
called  their  committees.  It  is  further  said  that  no  case  or  authority 
can  be  found  in  which  it  is  held  that  they  may  sue  by  a  next  friend- 
either  a  volunteer  or  one  appointed  by  the  court.  But  it  is  also  said 
that,  where  there  has  been  no  inquisition,  the  lunatic  may  sue  by  next 
friend.  The  jurisdiction  is  expressly  recognized  and  upheld  by  Eng- 
lish chancery  courts.  When  a  person  is  in  fact,  insane,  but  has  not 
been  so  adjudged  by  a  competent  tribunal,  or  placed  in  charge  of  a  com- 
mittee or  guardian,  the  courts,  whether  of  law  or  equity,  have  jurisdic- 
tion to  entertain  suits  brought  by  one  as  the  next  friend  of  the  insane 
person.  Actions  at  law.  in  behalf  of  lunatics,  can  be  brought  in  no 
other  name  than  theirs:  they  must  not  be  brought  in  the  name  of  the 
committee.  They  appear  by  guardian  or  attorney,  according  as  they 
are  within  age  or  not.  But,  in  equity,  this  incapacity  to  sue  or  defend 
is  more  considerable.  In  that  court,  after  an  inquisition  has  taken 
place  and  a  committee  has  been  appointed,  the  joinder  of  the  name  of 
the  lunatic,  though  usual,  is  merely  a  formality.  In  England,  the  prac- 
tice is  to  bring  the  bill  in  the  name  of  the  committee.  Either  way  will 
be  good.  This  matter  of  the  appearance  of  parties  non  compos  mentis — 
whether  as  plaintiffs  or  defendants— as  well  as  all  other  matters  per- 
taining to  actions  and  proceedings  by  and  against  such  persons,  is  now 
generally  regulated  by  statute.     (969,  971). 

The  general  rule  as  to  parties  in  chancery  is,  that  all  ought  to  be  made 
parties  who  are  interested  in  the  controversy,  in  order  that  there  may 
be  an  end  of  litigation.  But  there  are  qualifications  of  this  rule  arising 
out  of  pui)lic  policy  and  the  necessities  of  particular  cases.  The  true 
distinction  appears  to  be  as  follows:  (1)  Where  a  person  will  be  directly 
affected  by  a  decree,  he  is  an  indispensable  party,  unless  the  parties  are 
too  numerous  to  be  brought  before  the  court— in  which  event  the  case 
is  subject  to  a  special  rule;  (2)  where  a  person  is  interested  in  the  con- 
troversy but  will  not  be  directly  affected  by  a  decree  made  in  his  al)- 
sence.  he  is  not  an  indispensable  party;  but  he  should  be  made  a  party 
if  possible,  and  the  court  will  not  proceed  to  a  decree  without  him  if  he 
can  be  reached;  (3)  where  he  is  not  interested  in  the  controversy  be- 
tween the  immediate  parties  litigant  but  has  an  interest  in  the  subject- 
matter  which  may  be  conveniently  settled  in  the  suit — and  thereby  pre- 
vent further  litigation — he  may  be  made  a  party  or  not,  at  the  option 
of  the  complainant.  When  the  parties  interested  are  so  very  numerous 
that  it  would  be  difficult  and  expensive  to  bring  them  all  before  the 
court  and  have  all  the  different  interests  fairly  tried,  the  court  will  not 
require  a  strict  adherence  to  the  rule.     (974,  976). 

WhUe   a   suit    is    pending,    the    plaintiff    is    considered    in    court,    and 


INTRODUCTIOX.  XCIX 

ready  to  support  his  right;  but  when  the  judgment  is  obtained,  judicial 
proceedings  are  at  an  end,  and  the  plaintiff  is  considered  to  be  in  court 
no  longer.  A  cause  is  pending  for  purposes  of  motions  until  the  judg- 
ment is  fully  performed — satisfied:  but  after  final  judgment  the  opposite 
party  must  be  given  due  notice  of  an  intended  motion.     (978). 

Where  a  contract  is  joint  and  several,  though  the  plaintiff  may  go 
against  one  or  all  of  the  contractors,  yet  he  ought  not  to  sue  an  inter- 
mediate number.  When  he  sues  more  than  one,  he  depends  upon  the 
joint  contract,  and  then  all  the  joint  contractors  living  should  be  par- 
ties; if  they  be  not  made  parties  it  is  good  ground  for  a  plea  in  abate- 
ment. The  plaintiff  will  not  be  permitted  to  enter  a  nolle  prosequi  as 
to  any  of  the  defendants  in  an  action  on  contract,  except  where  they 
sever  in  pleading  and  one  pleads  something  which  goes  to  his  personal 
discharge.  But  the  law  is  very  different  in  actions  founded  on  tort. 
In  such  actions,  the  persons  guilty  are  separately  liable  to  the  party  in- 
jured, and  he  has  a  right  to  sue  one  or  all.  or  any  number  of  them.  If 
the  plaintiff  commence  suit  against  several,  he  may,  at  any  time  before 
judgment,  enter  a  nolle  prosequi  as  to  any  of  them.  Even  after  a  joint 
plea  in  an  action  of  trespass,  and  after  a  verdict  that  the  defendants 
are  jointly  guilty,  the  plaintiff  may  enter  a  nolle  prosequi  as  to  some 
and  take  judgment  against  the  others.     (978). 


Tlie  annotations  to  the  Century  Dige.st.  Decennial  Digest  and 
American  Digest.  Key  Number  Series,  were  prepared  by  the  Edi- 
torial Staff  of  the  AVest  Publishing-  Comiiany.  These  annotations 
will  be  foiuid  throughout  the  volume  in  connection  with  the  cases 
cited.  The}'  give  references  to  the  title  and  section  number  under 
which  the  several  legal  propositions  are  placed  in  the  Century  Di- 
gest. Decennial  Digest  and  its  continuations,  the  Key  Number 
Series.  As  a  uniform  system  of  classification  and  section  number- 
ing is  now  followed  throughout  the  National  Reporter  System, 
these  Key  Number  references  make  it  practicable  for  the  reader  to 
find  other  decisions  on  the  same  point,  not  only  in  the  Centuiy  and 
Decennial  Digest,  but  in  the  current  is.sues  of  the  American  Digest 
}'nd  in  the  bound  volumes  and  advance  sheet  indexes  of  the 
various  Reporters  issued  by  tlie  We.st  Publishing  Company. 


REMEDIES. 


CHAPTER  I. 

REMEDIES    WITHOUT   JUDICIAL   PROCEEDINGS. 


Sec.  1. — Remedies  by  Operation  of  Law. 
(a)     Eemitter. 

"Remitter  is  ^vhere  he  who  hath  the  tnie  property  or  jus 
l)roprietati.s  in  lands,  but  is  out  of  possession  thereof,  and  hath 
no  right  to  enter  without  recovering  possession  in  an  action, 
hath  afterwards  the  freehold  east  upon  him  by  some  subsequent, 
and  of  course  defective  title;  in  this  case  he  is  remitted,  or  sent 
back  by  operation  of  law.  to  his  ancient  and  more  certain  title. 
The  right  of  entry,  which  he  hath  gained  by  a  bad  title,  shall  be 
ipso  facto  annexed  to  his  own  inherent  erood  title:  and  his  de- 
feasible estate  shall  be  utterly  defeated  and  annulled  by  the 
instantaneous  act  of  law.  without  his  participation  or  consent. 
As  if  A  disseizes  B.  that  is.  turns  him  out  of  possession,  and  dies, 
leaving  a  son  C;  hereby  the  estate  descends  to  C  the  son  of  A, 
and  P>  is  barred  from  entering  thereon  till  he  proves  his  right 
in  an  action;  now  if  aftciwards  C.  the  heir  of  the  disseizor, 
ftinkes  a  lease  for  life  to  1).  with  remainder  to  B.  the  disseizee, 
for  life.  ;iii(l  [)  (lies:  hfrcliy  1lie  remainder  accrues  to  B,  the  dis- 
scjzrc :  who  thus  gfiiuiiig  a  new  freehold  by  virtue  of  the  remain- 
ih'T.  whieh  is  a  had  lith'.  is  by  aet  of  law  i-emitted  [to.  and  is| 
in  of.  his  former  and  surer  estate.  For  he  hath  thereby  gained 
a  new  riL'lit  of  posse.ssion.  1o  wliieh  the  law  immediately  an- 
nexes Ills  aneient  right   of  property."     3  lilk.   10. 

"The  jirineiph'  f)f  remitter     .      .  applies  whei-e  on(>,  liav- 

ing  a  wroiijrful  po.ssession.  has  the  lille  llirowii  on  him  by 
aet  of  law — as  by  deseent ;  he  is  then  remitted  to  his  'more  an- 
eient and  better  title.'  but  not  where  he  ae(|nires  tlie  title  by 
his  f>wn  aet.  Coke  Lit.  Here  the  lessors  of  the  pliiintifT  ae- 
ReniedicK     1. 


2  WITMOCT  .iri>iri\i.   i'ix()(i:i:i)iNGS.  \('li.    I. 

(liiiivtl  both  tlio  posst'ssioii  ;mtl  llio  'more  iuiciciit  titU''  by  their 
own  acts.  It  follows  Ib.it  they  cannot  sustain  it  in  this  count." 
^Villianls  v.  Council.  4!)  N.  c'.  at  p.  210. 


PATE  V.  HAZELL,  107  N.  C  189,  11  S.  E.  1089.     1890. 
Restoration  of  Suspended  Title  to  a  Chattel. 

[This  was  a  civil  action  to  recover  possession  of  a  sewing-machine. 1 

Shepherd.  J.  The  defendant,  the  legal  owikm-  of  the  sevvinj,' 
machine,  leased  it  to  Annie  Smith  (now  ]\[rs.  Atkinson),  who, 
with  her  hasband,  pledged  it  to  the  plaintiff.  The  plaintiff 
hold  it  in  his  possession  about  fo\ir  yoai-s.  wlien  it  was  discov- 
ered, and  taken  by  the  defendant.  The  ])laiiitiff  claims  title 
by  reason  of  his  four  years'  possession.  Tt  is  argued  that  the 
possession  of  a  chattel  confers  title  when  the  possession  has  been 
of  sufficient  dui-ation  to  bar  an  action  for  its  recovery,  and,  for 
this  position,  the  case  of  Campbell  v.  Holt,  115  U.  S.  620,  G 
Sup.  Ct.  209,  is  cited.  AAHiatever  may  have  been  held  by  that 
court,  we  arc  of  the  opinion  that  no  such  principle  has  ever 
been  recognized  as  a  rule  of  the  common  law  in  North  Carolina. 
Such  was  the  statute  law  before  the  adoption  of  the  present 
Code  (see  chapter  65  §  20.  Rev.  Code),  but  this  was  repealed, 
leaving  no  fixed  period  when  such  possession  should  raise  a 
conclusive  presumption  "of  title.  There  is  no  doubt  that  the 
possession  of  a  chattel  is  prima  facie  evidence  of  ownership,  and 
this  possession,  if  adverse  and  long  continued,  may  ri])en  into 
a  good  title ;  but  we  cannot  hold,  in  the  absence  of  legislation, 
that  four  yeare'  pos.scssion,  especially  under  the  circumstances 
of  this  case,  can  have  the  effect  of  defeating  the  true  owner, 
who  is  in  the  actual  possession  of  his  property.     Affirmed 

See  "Adverse  Possession,"  Century  Dig.  §§  610-623;  Decennial  and 
Am.  Dig.  Key  No.  Series,  §  106. 


(h)     Retainer,  Lien,  etc. 

EVANS  V.  NORRIS'S  ADMR.,  2  N.  C.  411,  413.     1796. 

Retainer. 

I  Case.  Greneral  issue,  payment  and  plene  administravlt  pleaded. 
The  defendant  proved  that  his  intestate  was  indebted  to  him;  that 
the  debt  was  due  at  the  intestate's  death  and  l)efore  this  action  was 
begun;  and  that  he  had  retained  the  amount  so  due  to  him  out  of  the 
assets  which  came  to  his  hands  as  administrator.  Plaintiff's  action 
was  to  recover  on  a  note  made  liy  the  intestate.  The  defendant's  claim, 
which  he  had  retained,  was  based  upon  an  oral  contract.] 

Per  Curi.vm.  .  .  .  An  executor  or  adminstrator  can  only 
retain  to  satisfy  his  own  demand,  when  it  is  of  equal  dignity 
with  that  i>f  thf  i-r.-ditors  to  whose  disadvantage  it  is  retained 


Sec.   1    h.]  WITHOUT  JUDICIAL  PROCEEDINGS.  3 

.  as  the  executor  cannot  sue  himself,  he  is  allowed  to  pay 
himself  by  retainer.  The  law  in  his  favor  presumes,  that  had 
he  not  been  executor,  he  would  have  used  equal  diligence  with 
any  other  creditor  to  procure  payment,  and  places  him.  with  re-' 
spect  to  paying  himself,  in  the  s<ime  situation  as  if  he  had  used 
ihe  most  expeditioas  diligence;  but  he  cannot  retain  to  satisfy 
himself  whilst  there  axe  debts  of  superior  dignity  to  his.  By  the. 
act  of  1786.  notes  are  put  upon  the  same  footing  with  bonds,  and 
are  made  superior  to  any  simple  contract  debt,  where  the  debt  is 
not  liquidated,  and  settled  and  signed  by  the  party  to  be 
<-harged;  of  course,  the  debt  due  in  the  present  case  to  the  ad- 
ministrator cannot  be  satisfied  by  retainer  in  preference  to  the 
debt  of  the  plaintiff,  which  is  by  note  of  hand. 

See    "Executors   and    Administrators,"   Centurj'    Dig.    §§    1012,   1013; 
Decennial  and  Am.  Dig.  Key  No.  Series,  §  265. 


FARRELL  v.  RAILROAD.  102  X.  C.   390,  399-40.5,  9   S.  E.   302.     1889. 

Stoppage  in  Transitu. 

[Action  to  recover  damages  for  refusal  to  surrender  a  safe  which 
jdaintiffs  claimed  by  right  of  stoppage  in  transitu.  Plaintiffs  alleged 
a  sale  of  the  safe  on  credit  to  Robertson  &  Rankin,  and  that  they 
shipped  it  to  them  from  Philadelphia  to  Durham,  N.  C,  by  the  de- 
iVndant  company;  that  after  shipment  and  before  delivery  to  the  con- 
sifinepn.  the  plaint iiTs  learned  that  the  consignees  were  insolvent  and 
notified  the  defendant  not  to  deliver  the  safe  to  them;  that  plaintiffs 
tendered  the  freight  charges  due  for  transporting  the  safe,  but  that  de- 
fendant refused  to  surrender  the  safe  to  them.  The  defendant  claimed 
title  to  the  safe  under  a  sale  by  attachment  proceedings  instituted  by 
if  against  the  consignees,  and  set  up  other  defenses  which  appear  in 
the  opinion.  Verdict  and  judgment  for  the  plaintiffs,  and  defendant 
appealed.     Affirmed.] 

SiiEi'iiEKD.  J.  .  .  .  The  ]ilaintiffs'  action  is  l)ased  upon 
Ihcir  alleged  riglit  to  stop  the  property  in  transitu.  This  I'ight 
"arises  .solely  upon  the  insolvency  of  the  buyer,  and  is  based 
nn  the  plain  reason  of  justice  and  equity,  that  one  man's  goods 
shall  not  be  apj)Iicd  to  the  payment  of  anothei-  man's  delits.  If. 
therefore,  after  llie  ven<1<ir  lias  delivered  the  goods  out  of  his  own 
pos.se.ssion.  and  put  1liem  in  the  hands  of  a  carrier  foi-  deliv(M-y 
to  Ihe  buyer  f which,  as  we  have  seen,  is  such  a  constructive 
delivery  as  divests  the  vendor- 's  lien"),  he  discovers  Ihat  the 
buyer  is  insolvent,  lu;  may  retake  the  goods,  if  he  can.  before 
they  reach  the  buyer's  |)i>s.session.  ami  thus  avoid  having  his 
property  applied  to  paying  debts  due  by  the  buyer  to  oilier 
people."  it  is  "highlv  favored  on  account  of  its  intrinsic-  jn.s- 
tice."  2  Den.i.  Sales.  §5  1220-1231.  Tt  "is  but  an  equi1al)le  ex- 
tension or  enlargemejit  of  the  vendor's  common-law  lien  for  lit  • 


4'  w  iTiKM  r  ,iri>ici.\i.  i-witcKKniNcs.  [(7/.  7. 

prioo.   nnd   not    nil    indcjiciKlcnt   :uu\   dislinct    rii;li1.""     Noto   to 
section  1L"J!1.  siiprn.     "It  is  (|iiitc  iiimuitcrial  that  the  iiisolvcnoy 
existed  at  ll\c  time  of  tlio  sale,  provided  the  vendor  be  ignorant 
of  the  fact  at  tliat  tim.-.'     Loeb  v.  Peters.  G:^  Ala.  243,  and  a 
niiiiiber  of  cases  cited  in  note  to  section  1224.  Henj.  Sales,  snin-n. 
Tliesi'  last  authorities  fully  sustain  his  honoi-  in  refusing  the  Ihii'd 
instruction  asked  liy  the  defendant.     The  mere  fact  that  Rob- 
ertson &  Kankin.  the  consignees,  were  insolvent  at  the  time  of 
the  sale,  could  not  defeat  the  lien  of  the  ])laintiflfs.  unless  they 
knew  of  such   insolvency.     The  charge  as  given  was  correct  in 
this  particular,  and  the  jury    having  found  substantially  that 
the  plaintiffs  wei-e.  nothing  further  appearing,  entitled  to  avail 
themselves  of  the  right  of  sto]t])age  in  transitu,  and  that  they 
exercised   that   right  through   their  agent.  ^Mr.   Fuller,   we  will 
now  consider  the  several  defenses  made  by  the  defendant.     No 
agreement  or  usage  having  been  shown  to  the  contrary,  the  right 
of  stoppage  in   transitu  continued  until  the  safe  was  actually 
or  constructively  delivered  to  the  consignee.     Id.  §  1260;  Ilause 
V.  Judson.   2i)   Amer.   Dec.   377.   and  notes.     The  tirst  defense, 
though  not  seriously  pressed  upon  the  argument,  is  that  the  de-- 
fendant  acciuired  title  ])y  rea.son  of  the  sale  under  the  attach- 
ment proceedings  instituted  by  it  against  the  consignee  for  ar- 
rearages  of   freight  due   on   lumber.     "The  vendor's   right   of 
stoppage  in  transitu  is  paramount  to  all  liens  against  the  pur- 
chasers   (Hill.   Sales,  28f):   Blackman  v.   Pierce,  23  Cal.  508); 
even  to  a  lien  in  faA'or  of  the  carrier,  existing  by  usage,  for  a 
general   balance   due   him   from   the   consignee    (Oppenheim   v. 
Russell.  3  Bos.  &  P.  42).     An  attachment  or  execution  against 
the  vendee  does  not  preclude  the  stoppage  in  transitu,  for  this  is 
not  a  taking  ])ossession  by  the  vendee's  authority;  the  proceed- 
ing being  in  invitum."     Note  to  Hause  v.  Judson,  supra,  where 
a  large  numbei-  of  authorities  sustaining  the  text  are  collected. 
These  authorities  conclusively  settle  that  the  defense  under  the 
attachment  proceedings  cannot  be  maintained. 

The  second  defense  rests  upon  the  following  claase  of  the  bill 
of  lading:  "The  several  carriers  shall  have  a  lien  upon  the 
goods  [shippedl  for  all  arrearages  of  freight  and  charges  due 
by  the  said  owners  or  consignees  on  other  goods."  The  counsel 
for  the  defendant  could  give  us  no  authority  in  support  of  this 
defense,  and  none,  we  think,  can  be  foimd,  to  the  effect  that 
such  a  stipulation  should  be  construed  to  take  away  this 
"highly-favored"  and  most  important  right  of  the  vendor  to 
preserve  his  lien,  in  order  "that  his  goods  may  not  be  applied 
to  the  payment  of  another  man's  debts."  much  less  to  those  of 
his  agent  to  whom  he  delivers  them  for  carriage.  Shippers 
would  hardly  contemplate  that,  in  accepting  such  a  bill  of  lad- 
ing, the  well-established  and  cherished  right  of  stoppage  in 
transitu  was  to  be  made  dej)endcnt  upon  whether  a  distant  con- 


Sec.    1    h.]  WITHOUT  JUDICIAL  PROCEEDINGS.  5 

signee  was  indebted  to  the  earrier,  aud  the  commercial  world 
would  doubtless  be  surprised  if  it  were  understood  that,  when- 
ever such  a  stipulation  was  imposed  upon  consignors,  they  were 
in  effect  yielding  up  their  lien  for  the  purchase  money,  and  sub- 
stantially pledging  their  goods  for  the  payment  of  an  existing 
indebtedness  due  their  agent,  the  carrier,  by  a  possible  insolv- 
ent vendee.     If  such  is  the  proper  construction,  we  can  well 
appreciate  the  language  of  Lord  Alvanley,  in  Oppenheim  v. 
Russell.  3  Bos.  &  P.  42.  when  he  said  that  he  hoped  it  would 
"never  be  established  that  common  carriers,  who  are  bound  to 
take  all  goods  to  be  carried  for  a  reasonable  price  tendered  to 
them,  may  impose  such  a  condition  upon  persons  sending  goods 
ny  them."     He  doubts  whether  an  express  agreement  between 
the  carrier  and  the  consignor  would  be  binding,  and  Best.  J.. 
in  "Wright  v.  Snell.  5  Barn.  &  Aid.  350.  in  speaking  generally 
(if  such  contracts,  said  he  "doubted  whether  a  carrier  could 
make  so  unjust  a  stipulation."     Chancellor  Kent,  in  the  second 
volume  of  his  Commentaries,  remarks  that  "it  was  again  stated 
as  a  questionable  point  in  "Wright  v.  Snell  whether  such  a  gen- 
eral lien  could  exist  as  between  the  owner  of  the  goods  and  the 
carrier,  and  the  claim  was  intimated  to  be  unjust.     It  must, 
therefore,  be  considered  a  point  still  remaining  to  be  settled  by 
judicial  decision."     Page  638.     It  is  uiniecessary.  however,  for 
us  to  say  whethei-  such  a  condition  or  agreement  would  be  rea- 
sonable and  binding,  as  it  seems  very  clear  to  us  that  the  stip- 
iihition  in  the  present  ca.se  is  not  susceptible  of  the  constniction 
i-nntended  for.  and  that  it  is  entirely  subordinate  to  the  right 
of  .stoppage  in  transitu.     The  exercise  of  this  right  revested  the 
light  of  possession  in  the  plaintiffs,  and.  they  having  tendered 
all  they  owed  the  defendant,  no  interest  was  ever  acquired  by 
tlie  vendee  to  which  the  claim  of  the  defendant  could  attach. 

The  third  and  most  plausible  defense  is  that,  according  to 
the  testimony  of  the  agent.  Holt,  there  was  a  constructive  deliv- 
ery to  the  consignee,  and  that  this  defeated  the  rights  of  the 
plaintiffs.  The  doctrine  is  well  settled  that  "where  goods  are 
])lace(l  in  the  possession  of  a  carrier,  to  be  carried  for  the  ven- 
dor, to  be  delivered  to  the  purchaser.  Ilic  ti;msitus  is  not  at  an 
end  .  .  .  until  the  caiTier.  by  agreement  between  himself 
and  the  consignee,  undertakes  to  hold  tlie  goods  for  the  con- 
signee, not  as  carriei-.  but  as  his  agent;  and  Ihe  same  |)rinciple 
will  apply  to  a  warehous<iman  or  wharfinger."  2  Benj.  Sales, 
suf)ra.  §  12G0.  "Was  there  any  sucli  agreement  in  this  case? 
The  most  that  can  be  said  is  that  the  consignee  offered  to 
ple<lgf!  the  safe  to  the  defendant  for  the  freight  ali-eady  due  on 
lumber.  Tliere  was  no  actual  change  of  jiossession.  The  safe 
was  in  the  rlefendant's  wareliouse.  and  Uolt.  the  agent,  and  the 
consignee  were  })otli  leaning  upon  it.  The  consignee,  placing 
his  li.-md  on  it.  said  :     "T  place  this  safe  in  your  bands  as  secur- 


6  wiTiioiT  .irniciAL  troceedings.  [Ch.   /. 

it.v  t'di-  what   I  owe."     Tlurc  wji.s  no  response  whatever  by  Holt. 
lie  simply   stale's   that    lie  '"ln-hl    the  safe   till   soinii   little  time 
attiM-wanls."  when  he  heanl  that   the  consifiiiet'.  had  rnn  away, 
and  that  he  sued  (Mit  the  attaehnient  proceedinj^s  mentioned  in 
Ihe  aiiswci-.     Tlu'  majority  of  lis  are  of  the  opinion  that  there 
was   no    i-casunably    sniTieient   fvidenee   to   b<^   submitted   to   the 
jury  upon  tla*  acft-ptanee  of  the  offer  and  of  delivery.     There 
being  no  aetual  delivery,  a  constructive  one  can  only  be  effected 
by  a  valid  agreement  on  the  part  of  the  common  carrier  to  hold 
for    the    consignee.     ^\r.    Benjamin,    from    whom    we    have    so 
largely  (pioted.  says  "that  the  existence  of  the  carrier's  lien 
for  nni^aid   freight  raises  a  strong  presumption   that  the  car- 
rier continues  to  hold  the  goods  as  carrier  and  not  as  ware- 
houseman:  and,  in  order  to  rebut  this  presmnption   [the  italics 
are  ours]    there  must  be  proof  of  some  arrangement  or  agree- 
ment l)etween  the  buyer  and  the  carrier,  whereby  the  latter, 
while  retaining  his  lien,  becomes  the  agent  of  the  buyer  to  keep 
the  goods  for  him."     But,  conceding  that  the  acquiescence  of 
Holt  Avas  some  evidence  of  the  acceptance  of  the  offer,  would 
this  in  law  amount  to  such  a  delivery  as  will  defeat  the  plain- 
tiffs' right?     Passing  by  the  question  as  to  whether  the  defend- 
ant bailee  was  not  estopped  to  set  up  such  a  transaction  in  favor 
of  itself  and  against  its  principal  (2  AVait.  Act.  &  Def.  57),  and 
also  the  fact  that  the  alleged  agreement  was  not  to  hold   as 
agent  of  the  vendee,  but  for  itself,  we  are  of  the  opinion  that 
Avhat  transpired  between  the  defendant's  agent  and  the  vendee 
did  not  alter  in  the  slightest  degree  the  relation  in  which  they 
stood  to  each  other.     It  will  be  borne  in  mind  that  there  was 
no  actual  deliver}';  that  the  defendant  had  a  lien  for  the  freight 
due  on  the  property,  and  under  the  stipulation  in  the  bill  of 
lading  it  had,  as  against  the  consignee,  also  a  lien  for  the  ar- 
rearages of  freight  due  by  him.     There  was  no  new  considera- 
tion, and  the  proposition  of  the  consignee,  and  its  alleged  ac- 
ceptance by  the  defendant,  left  them  in  precisely  the  same  po- 
sition as  before.     It  amounted  virtually  to  the  defendant's  say- 
ing:    "If  you  will  pay  the  freight  and  aiTcarages,  I  will  delivcM- 
you  the  safe."     This  Avas.  as  we  have  seen,  the  effect  of  the 
bill  of  lading.     In  the  leading  case  upon  this  subject  (White- 
head V.  Anderson.  0  Mees.  &  W.  517,  cited  with  approval  by 
Benjamin,  supra),  the  agent  of  the  consignee  went  on   board 
of  the  ship  when  she  arrived  in  port,  and  told  the  captain  that 
he  had  come  to  take  possession  of  the  cargo.     He  went  into  the 
cabin,  into  which  the  ends  of  the  timber  projected,  and  saw  and 
touched  the  timber.     "When  the  agent  first  stated  that  he  came 
to  take  possession,  the  captain  made  no  reply,  but  subsequently, 
at  the  same  interview,  told  him  that  he  would  deliver  him  the 
cargo  when  he  was  satisfied  about  his  freight.     They  went  ashore 
together,  and  shortly  after  an  agent  of  the  consignor  served  a 


!S(C.    1    h.]  WITHOUT  JLIMCl-VL  PROCEEDINGS.  7 

notice  of  stoppage  in  transitu  upon  tlie  mate,  who  had  charge  of 
the  cargo:  "Held  that,  nnder  these  circumstances,  there  was  nd 
actual  possession  taken  of  the  goods  by  the  consignees,  and  that, 
as  there  was  no  contract  by  the  captain  to  hold  the  goods  as  their 
agent,  the  circumstances  did  not  amount  to  a  constructive  pos- 
session of  the  goods  by  them.  There  is  no  proof  of  any  such 
contract.  A  promise  by  the  captain  to  the  agent  of  the  con- 
signees is  stated,  but  it  is  no  more  tlian  a  promise,  without  a 
new  consideration,  to  fulfill  the  original  contract,  and  deliver 
in  due  course  to  the  consignee  on  payment  of  freight,  wdiieh 
leaves  the  cai)tain  in  the  same  situation  as  before.  After  the 
agreement  he  remained  a  mere  agent  for  expediting  the  cargo 
to  its  original  de.stination."  This,  it  seems  to  us.  is  conclusive 
of  our  case.  Here  there  was  no  new  consideration  whatever 
moving  from  the  vendee,  noi-  was  there  any  definite  under- 
standing that  the  defendant  was  to  forbear  pressing  the  vague 
proceedings  suggested  by  him.  1  Add.  Cont.  11.  note.  There 
was  therefore  no  new  contract,  and  the  defendant  held  the  safe 
in  the  same  character  as  he  did  before,  when,  as  we  have  shown, 
it  was  subject  to  the  paramount  claim  of  the  plaintiffs.  We 
have  been  able  to  find  no  case  where  a  pledge  of  this  kind  has 
been  asserted,  but  we  have  observed  that  all  the  cases  we  have 
examined  lay  down  the  rule  that  constructive  delivery  is  only 
made  by  the  carrier,  either  agreeing,  expressly  or  by  implica- 
tion, to  hold  as  the  agent  of  the  consignee. 

"While  the  amount  involved  in  this  suit  is  small,  we  have 
thought  it  our  duty,  in  view  of  the  importance  of  the  questions 
of  law  presented,  to  carefully  examine  many  of  the  multi- 
tude of  cases  upon  the  subject,  and  our  conclusion  is  that  his 
honor  was  correct  in  telling  the  jury  that  what  transpired  be- 
tween Holt  and  Robertson  (one  of  the  consignees)  did  not 
amoiuit  to  a  delivery,  and  was  not  sufficient  to  deprive  the 
[>laintifrs  of  any  rights  they  might  acquire  in  respect  to  the 
s;ifo.     There   is  no  error. 

See  .Jordan  v.  James,  T,  Ohio,  88;  see  "Carriers,"  Century  Dig.  §§  247, 
806,  900;  Decennial  and  Am.  Dip.  Key  No.  Series,  §§  74.  197;  "Sales," 
Century  Dig.  §g  829,  834;  Decennial  and  Am.  Dig.  Key  No.  Series, 
5§  291,  294. 


WINST.OW   V.   WALKER.  2  N.   C.   19?,.     1795. 
Liens. 

Trover  for  a  boat,  and  a  general  verdict  for  llic  j)laintiff, 
subject  to  the  opinion  of  the  court  ui)on  this  special  case,  viz.: 
The  boat  .sued  for  was  tlie  property  of  Die  jihiintiff,  and  was 
drifted  away  frojii  the  landing  at  rjiinpbellton.  and  floated  ^[ovn^ 
the  river  111   iriiles.  to  ;\   pjirl   of  \\\t'   river-  about   a   mile  wide, 


S  WITHOUT   JUDICIAL    PROCEEDINGS.  [CJl.    1. 

uud  was  tlu'iv  taUt'n  iq)  by  a  straiij^er;  it  ajjaiu  p;()t  adrift  and 
went  to  the  New  Inlot.  wlicre  the  river  empties  into  the  sea,  ten 
miles  wide:  there  it  was  again  taken  up  by  a  stranger  who 
knew  not  the  owner,  nor  from  whence  the  boat  had  come.  The 
boat  was  greatly  wrecked  and  damaged,  and  in  that  condition 
was  sold  to  the  defendant,  who  repaired  it:  upon  w'hich  the 
plaintitT  denuuided  it,  and  the  defendant  refused  to  deliver  it. 
If  on  the  above  facts  the  law  is  for  the  plaintiff,  the  judgment 
to  be  given  for  him  on  the  verdict;  if  for  the  defendant,  then  a 
nonsuit  to  be  entered. 

And  now  upon  argument  it  was  insisted  for  the  defendant, 
that  the  taker-up  of  the  boat  who  sold  it  to  him,  had  a  lien  on 
it  for  his  salvage,  to  which  he  Avas  entitled.  1  Ld.  Raym.  393; 
the  ease  of  Harford  &  Jones,  and  2  W.  Blk.  1117,  were  eitetl. 
The  court  took  time  to  advise,  and  the  next  day  gave  judg- 
ment for  the  plaintiff;  being  of  the  opinion  that  the  right  he 
had  to  detain  the  boat  until  paid  for  salvage,  was  in  the  nature 
of  a  demand  upon  the  plaintiff,  or  a  chose  in  action,  to  be  en- 
forced by  keeping  possession  of  the  boat  till  the  plaintiff  should 
satisfy  him,  which  could  not  be  transferred  w'ith  the  boat  to 
another;  and  being  founded  on  the  possession,  when  he  parted 
with  that,  he  lost  his  lien,  and  could  then  only  recover  his  salvage 
in  his  own  name  against  the  plaintiff.  1  Atk.  234,  235 ;  1  Burr. 
494;  5  Bac.  Abr.  270;  Doug.  105;  4  Burr.  2214.  And  there 
was  judgment  for  the  plaintiff. 

In  a  number  of  instances  the  common  law  and  the  statutes  of  the 
several  states  confer  upon  a  creditor  the  right  to  retain  possession  of 
the  chattels  of  his  debtor  until  the  debt  is  satisfied.  In  such  cases  the 
creditor  has  a  lien  on  such  chattels.  "A  lien  is  a  right  in  one  man  to 
retain  that  which  is  in  his  possession  belonging  to  another  till  certain 
demands  of  him,  the  person  in  possession,  are  satisfied."  Hammonds 
V.  Barclay,  2  East,  at  p.  23.5.  The  best  elucidation  of  the  law  of  Com- 
mon Law  Liens  is  in  1  Gray's  Cases,  241  et  seq.  See  also  Jordan  v. 
James,  5  Ohio,  88;  2.5  Cyc  661.  In  the  principal  case  the  lien  claimed 
is  for  salvage  which  is  only  one  of  many  instances  in  which  a  lien  is 
given  by  the  common  law.  Many  liens  are  given  in  North  Carolina 
by  the  Revisal,  chap.  48.  See  "Salvage."  Century  Dig.  §§  31,  106;  De- 
cennial and  Am.  Dig.  Key  No.  Series,  §§  18,  41;  "Liens,"  Century  Dig. 
§  11;   Decennial  and  Am.  Dig.  Key  No.  Series,  §  16. 


(c)     Removal  of  Trade  Fixtures. 

BROOKS  v.  STINSON,  44  N.  C.  72.     1852. 
Removal  of  Fixtures  by  Tenant  or  Licensee. 

fTrespas.s  quare  clausum  fregit  for  entering  a  school-house  on  plain- 
tiff's land  and  removing  a  table,  benches,  and  some  loose  plank.  De- 
fense, that  plaintiff  had  authorized  defendants,  as  public  school  com- 
mittee-men, to  conduct  a  school  in  the  house;  that  the  articles  removed 


:<ec.  2  a.]  without  judicial  proceedings.  9 

were  placed  in  the  house  and  removed  by  defendants  during  the  period 
covered  by  their  permit  to  conduct  the  scJiool.  Verdict  and  judgment 
for  defendants.     Appeal  by  plaintiff.     Affirmed.] 

Nash,  C.  J.  (After  disposing  of  the  question  as  to  whether 
plaintiff  had  such  a  i)ossession  of  tlie  locus  in  quo  at  the  time 
of  the  acts  complained  of.  as  would  sustain  the  action.)  But 
again:  The  articles  taken  were  carried  hy  the  committee  to 
the  house  and  placed  in  it  for  the  use  of  the  school  or  school- 
master, and  none  of  them  had  been  annexed  to  the  realty.  They 
therefore,  during  the  continuance  of  the  lease,  had  a  legal 
right  to  remove  them.  It  is  fully  established,  that  a  tenant  for 
years  may  take  down  erections  which  are  useful  and  necessary 
to  carry  on  his  trade  or  manufacture,  and  which  enable  him  to 
carry  it  on  with  more  advantage.  Bac.  Abr.  tit.  "Ex 're."  letter 
H;  2  East.  S8.  So  he  may  carry  away  ornamental  marble 
chimney  pieces,  and  wainscot  fixed  only  by  screws,  Elwes  v. 
Maw,  3  East,  38 ;  but  he  cannot,  after  he  has  left  the  premises, 
upon  the  expiration  of  his  lease,  return  and  take  them  away — if 
he  docs,  he  is  a  trespasser.  We  see  no  error,  and  the  judgment 
is  affirmed. 

For  the  right  of  tenants  to  remove  trade  fixtures,  manure,  etc.,  see 
Conron  v.  Glass.  84  X.  E.  1105,  18  L.  R.  A.  (N.  S.)  423.  and  note;  Munier 
v.  Zachary,  114  N.  W.  .525,  18  L.  R.  A.  (N.  S.)  572,  and  note;  electrical 
contrivances  and  devices,  Raymond  v.  Strickland,  52  S.  E.  619,  3  L.  R. 
A.  (N.  S.)  69,  and  note;  effect  of  renewing  lease  during  the  term  upon 
right  of  removal,  Wadman  v.  Burke.  1  L.  R.  A.  (N.  S.)  1192.  and  note; 
gas  stoves  and  fixtures,  window  and  door  screens  and  shades,  steam 
heating  apparatus,  Hook  v.  Bolton.  85  N.  E.  175,  17  L.  R.  A.  (N.  S.) 
f".99,  and  note.  See  "Fixtures,"  Century  Dig.  §§  22-31;  Decennial  and 
Am.  Dig.  Key  No.  Series,  §§  14-17. 


Sec.  2.     Remedies  by  the  Act  of  the  P.\rty  Tnmured. 

(a)     Self-defense. 

POND  V.  THE  PEOPLE,  8  Mich.  150,  175-179.     1860. 
Life  and  Limb  of  Self,  Family,  and  Servants. 

fPond  was  convicted  of  manslaughter,  in  the  district  court  of  Afackl- 
nac  county,  being  tried  upon  an  information  for  the  murder  of  Isaac 
Blanchard.  Ho  took  the  case  to  the  supreme  court  by  writ  of  error. 
.TwdgTricnt   reversed. 

It  appeared  in  evidence  that  Pond  together  with  his  wife,  three 
children  under  13,  and  two  hlrod  men,  Whitney  and  rull,  lived  on  his 
own  promises,  and  that  ho  carried  on  the  business  of  Tishing.  On  the 
premises  was  a  small  dwelling,  occuijjed  by  I'ond  and  his  family,  and. 
36  feet  therefroiu.  another  bouse  used  as  a  net  house  in  which  Cull  and 
the  other  hired  man  slept.  Within  a  week  before  the  homicide,  one 
Plant  said.  In  the  presence  of  Pond's  daughter,  that  he  would  whip 
Pond,  wbirb  threat  was  communicated  to  him      The  deceased  was  pres- 


10  wiiiioir  .uhMiAi.  i-K(>(i.i;itiN(is.  |(7j.  ;'. 

eut  whi  II  iin'  tlin'iit  was  made.  Later  in  the  day  Plant  and  a  nunilxM 
of  jiersons.  huludinK  deci'asod.  surrounded  I'ond,  and  Plant  struck  him 
in  tlie  tiue  with  liis  fist  and  luiUed  him.  Pond  did  not  resent  this 
but  dranlv  wiiisivey  witli  Plant.  I'ond  then  escaped  to  the  woods. 
That  nigrht  the  same  "gang,"  with  about  15  or  20  associates,  tore  down 
the  door  of  the  ni't  ho\ise  where  Pond's  servants  were  asleep;  demanded 
10  be  let  into  I'ond's  <l\ve]ling;  and  made  a  search  lor  him,  but  refused 
to  tell  what  they  wanted  with  him.  I^ter  in  the  week  Plant  and  de- 
ceased met  Pond  and  Plant  again  threatened  to  whip  him.  That  night, 
they  went  to  Pond's  house  and  demanded  him.  He  concealed  himself 
under  the  bed.  After  committing  other  acts  of  violence,  Plant  and 
liecevased  departed.  Thereafter  Pond  borrowed  a  shot-gun,  loaded  with 
pigeon  shot,  from  his  brother-in-law,  who  lived  a  short  distance  from 
him.  and  returned  to  his  home.  Later  on  the  "gang"  retunied  to 
Ponds  and  asked  his  wife  to  admit  them  to  his  dwelling  that  they  might 
search  for  him.  Upon  her  refusal,  they  went  to  the  net-house,  in  whiih 
Cull  was  asleej).  and  tore  down  part  of  it  and  beat  Cull.  Pond  went 
to  the  door  and  asked  who  was  tearing  down  his  net-house.  He  re- 
teived  no  rejdy,  but  heard  cries  of  distress  from  a  woman  and  child 
and  from  Cull.  He  then  cried  out  loudly,  "Leave,  or  Pll  shoot."  The 
noise  continuing,  he  gave  the  same  warning  again  and  in  a  few  sec- 
onds fired.  The  deceased  was  found  dead  next  morning.  Pond  imme- 
diately surrendered  himself. 

There  were  several  excei)tions  to  the  judge's  refusal  to  give  certain 
sjietial  instructions  and  to  the  charge  as  given.  The  gist  of  all  which 
was,  so  far  as  relates  to  self-defense,  that  the  jury  were  instructed, 
contrary  to  the  prisoner's  prayers,  that  the  prisoner  was  not  excused 
or  justified  in  shooting  ujjon  an  apparent  and  reasonably  founded  cause 
for  apprehending  injury  of  a  serious  or  felonious  character  to  himself, 
his  property,  family  and  servants;  but  that  he  must  show  the  actval 
existence  of  such  danger.] 

Campbell.  J.  .  .  .  In  order  to  detcmiinf  the  matoi-i- 
ality  of  the  questions  of  hi\v  raised,  it  heeonics  necessary  to  de- 
termine nnder  what  cirenmstanees  homicide  is  excusable  or  jus- 
tifia1)le.  In  doing  this,  it  Avill  be  proper  to  advert  merely  to 
those  instances  wliich  may  be  regarded  as  coming  nearest  to 
the  circumstances  of  the  case  before  us.  The  other  cases  we 
are  not  called  upon  to  detine  or  consider;  and  what  we  say  is 
to  be  interpreted  by  the  case  before  us. 

The  only  variety  of  exciLsable  homicide  (as  contradistin- 
guished from  justifiable  homicide  at  common  law)  which  we 
need  advert  to.  is  that  which  is  technically  called  homicide  se 
aut  sua  defendendo.  and  which  embraces  the  defense  of  one's 
own  life,  or  that  of  his  family,  relatives,  or  dependents,  within 
those  relatirms  where  the  law  permits  the  defense  of  others  as 
of  one's  self.  Practically,  so  far  as  punishment  is  concerned, 
there  is  no  distinction  with  us  between  excusable  and  justi- 
fiable homicide;  but  a  resort  to  common-law  distinctions  will 
nevertheless  be  convenient,  in  order  to  illustrate  the  difference 
between  the  various  instances  of  homicide  in  repelling  assaults, 
according  as  they  are.  or  are  not,  felonious.  Homicide  se  de- 
fendendo was  excusable  at  common  law  when  it  occurred  in  a 
sudden  affray,  or  in  repelling  an  attack  not  made  with  a  felo- 


Sec.  2  a.\  avithout  jldicial  proceedings.  11 

nious  design.  According  to  ]\Ir.  Hawkins,  it  Avas  excusable 
and  not  justifiable,  because,  occurring  in  a  fjuarrel.  it  generally 
assumed  some  fault  on  both  sides.  Hawk.  P.  C.  B.  1,  ch.  28. 
sec.  24.  In  these  cases,  the  original  assault  not  being  with  a 
felonious  intent,  and  the  danger  arising  in  the  heat  of  blood  on 
one  or  both  sides,  the  homicide  is  not  excused  unless  the  slayer 
does  all  Avhich  is  reasonably  in  his  power  to  avoid  the  necessity 
of  extreme  resistance,  by  retreating  where  retreat  is  safe,  or 
by  any  other  expedient  which  is  attainable.  He  is  boimd.  if 
possible,  to  get  out  of  his  adversaiy's  way,  and  has  no  right  to 
stand  up  and  resist  if  he  can  safely  retreat  or  escape.  See  2 
Bish.  Cr.  L.  sees.  543  to  552,  560  to  562,  564  to  568 ;  People  v. 
Sullivan.  3  Seld.  396;  1  Kuss.  Cr.  660,  et  seq.  Mr.  Russell  lays 
down  the  rule  very  concisely  as  follows  (p.  661)  :  ''The  party 
assaulted  must  therefore  flee,  as  far  as  he  conveniently  can. 
either  by  reason  of  some  wall,  ditch,  or  other  impediment  or  as 
far  as  the  fierceness  of  the  a.ssault  will  permit  him;  for  it  may 
be  so  fierce  as  not  to  allow  him  to  yield  a  step  without  manifest 
danger  of  his  life  or  great  bodily  harm;  and  then,  in  his  de- 
fense, he  may  kill  his  assailant  instantly.  Before  a  person  can 
avail  himself  of  the  defense  that  he  used  a  weapon  in  defense 
of  his  life,  he  mn.st  satisfy  the  jury  that  that  defense  was  nec- 
essary-; that  he  did  all  that  he  could  to  avoid  it;  and  that  it  was 
necessary  to  protect  his  own  life,  or  to  protect  himself  from  such 
serious  bodily  harm  as  would  give  him  a  reasonable  apprehen- 
sion that  his  life  was  in  immediate  danger.  If  he  used  the 
weapon,  having  no  other  means  of  resistance,  and  no  means  of 
escape,  in  such  case,  if  he  retreated  as  far  as  he  could,  he  would 
be  ju.stified."  A  man  may  defend  his  family,  his  servants,  or 
his  mastei-.  whenever  he  may  defend  himself.  [Compare  Lew- 
ard  V.  l>a.sely.  inserted  post.]  How  much  farther  this  mutual 
i-ight  exists,  it  is  unnecessarv^  in  this  ca.se  to  consider.  See 
Bi.sh.  Cr.  L.  sec.  581.  and  cases  cited;  1  Russ.  Cr.  62;  4  Blk. 
Cotn.  184. 

There  aro  many  curious  and  nice  questions  concerning  the  ex- 
tent of  the  right  of  self-defense,  where  tlie  assailed  party  is  at 
fault.  But  as  neither  Pond  nor  Cull  were  in  any  way  to  blame 
in  bringing  about  the  events  of  Friday  night,  which  led  to  the 
shootitig  of  P.lancharfl.  it  is  not  important  to  examine  thein. 
The  (langei-  to  be  resisted  must  be  to  life,  or  of  serious  bodily 
harm  of  a  permanent  character:  and  it  nuist  be  unavoidable  by 
other  means.  Of  coui-se.  we  refer  to  means  within  the  power  of 
the  slayer.  sf>  far  as  he  is  able  to  judge  from  the  circumstances 
as  they  appear  tf»  him  at  the  time.  A  man  is  not,  however, 
obliged  to  retreat  if  Mssa\ilted  in  his  dwelling,  but  may  use  such 
means  as  ar-e  absoliilcly  necessary  to  repel  the  a.ssailant  from 
his  house,  or  to  prevent  his  forcible  entr\'.  even  \jct  the  taking  of 
life.      P.ut   hej-e.   as  iti   the  otiier  eases,  lie  ttiust    not    take  life   if 


12  NVmiOUT    Jl'DlCIAI.    rKOCEEDlNOS.  [CJl.    1. 

lie  can  olhorwiso  arrost  or  v^^\^A  the  assailant:  'J  liish.  Cr.  L.  see. 
:>00;  3  Givenl.  Kv.  s«v.  117;  Hawk.  J'.  (\.  U.  1.  di.  28,  sec.  23. 
Whore  the  assanll  in-  Iji-cakiiif;  is  felonious,  the  lioinicide  becomes 
jiistitiablo.  and  not  merely  excusable 

The  essential  (lilTcrcnci'  hctwiMMi  excusable  and  justifiable 
homicide  rests  not  nuM-cly  in  the  fact  that  at  eoiiuiion  law  tlie  one 
was  felonious,  althoujjh  ])ardoned  of  eoui-se,  while  the  other  was 
innocent.  Those  only  were  justifiable  homicides  where  the 
slayer  was  retrarded  ;us  pi'omotint;  justice,  and  performing  a  pub- 
lic duty,  and  the  ((uestion  of  pei-sonal  danger  did  not  necessarily 
arise,  although  it  does  generally. 

It  is  lield  to  be  the  duty  of  every  man  who  sees  a  felony  at- 
tempted by  violence,  to  prevent  it  if  possible,  and  in  the  per- 
formance of  that  duty,  which  is  an  active  one,  there  is  a  legal 
right  to  use  all  necessary  means  to  make  the  resistance  effectual. 
Where  a  felonious  act  is  not  of  a  violent  or  forcible  character, 
as  in  picking  pockets,  and  crimes  partaking  of  fraud  rather 
than  force,  there  is  no  necessity,  and,  therefore,  no  jnstifica- 
tiou.  for  homicide,  unless  possibly  in  some  exceptional  cases. 
The  rule  extends  only  to  cases  of  felony,  and  in  those  it  is  lawful 
to  resist  force  by  force.  If  any  forcible  attempt  is  made,  with  a 
felonious  intent  against  person  or  property,  the  person  resist- 
ing is  not  obliged  to  retreat,  but  may  pursue  his  adversary,  if 
necessary,  till  he  finds  himself  out  of  danger.  Life  may  not 
properly  be  taken  under  this  rule  where  the  evil  may  be  pre- 
vented by  other  means  within  the  power  of  the  person  who  in- 
terferes against  the  felon.  Reasonable  apprehension,  however, 
is  sufficient  here,  precisely  as  in  all  other  cases. 

It  has  also  been  laid  down  by  the  authorities,  that  private 
persons  may  forcibly  interfere  to  suppress  a  riot  or  resist  rioters, 
although  a  riot  is  not  necessarily  a  felony  in  itself.  This  is 
owing  to  the  nature  of  the  offense,  which  requires  the  combina- 
tion of  three  or  more  persons,  as.sembling  together  and  actually 
accomplishing  some  object  calculated  to  terrify  others.  Private 
pei'sons  who  cannot  othenvise  suppress  tliom,  or  defend  them- 
selves from  them,  may  justify  liomicide  in  killing  them,  as  it  is 
their  right  and  duty  to  aid  in  preserving  the  peace.  And  per- 
haps no  case  can  arise  where  a  felonious  attempt  by  a  single 
individual  will  be  as  likely  to  insj^ire  terror  as  the  turbulent 
acts  of  rioters.  And  a  very  limited  laiowledge  of  human  nature 
is  sufificient  to  inform  us,  that  when  men  combine  to  do  an  injury 
to  the  person  or  the  property  of  others,  of  such  a  nature  as  to  in- 
volve excitement  and  provoke  resistance,  they  are  not  likely  to 
stop  at  halfway  measures,  or  to  scan  closely  the  dividing  line 
between  felonies  and  misdemeanors.  But  wdien  the  act  they 
meditate  is  in  itself  feloniovLS,  and  of  a  violent  character,  it  is 
manifest  that  strong  measures  will  generally  be  required  for 
their  cfFoctual  suppression,  and  a  man  who  defends  liimself,  his 


Sec.  2  a.]  without  judicial  proceedings.  13 

family  or  his  property,  under  such  circumstances,  is  justified  in 
making  as  complete  a  defense  as  is  necessary. 

"When  we  look  at  the  facts  of  this  case,  we  find  veiy  strong 
circumstances  to  bring  the  act  of  Pond  within  each  of  the  de- 
fenses we  have  referred  to.  ...  It  was  for  the  jury  to  con- 
sider the  whole  chain  of  proof,  but  if  they  believed  the  evidence 
as  spread  out  upon  the  ease,  we  feel  constrained  to  say  that 
there  are  very  few  of  the  precedents  which  have  shown  stronger 
grounds  of  justification  than  those  which  are  foimd  here.  In- 
stead of  reckless  ferocity,  the  facts  display  a  verv  commendable 
moderation.  .  .  .  "We  think  there  was  error  in  requiring 
the  actual  instead  of  apparent  and  reasonably  founded  causes 
of  apprehension  of  injury:  in  holding  that  the  protection  of  the 
net-house  could  not  be  made  by  using  a  dangerous  weapon ;  and 
that  the  conduct  of  the  as.sailing  party  was  not  felonious;  and 
also  in  using  language  calculated  to  mislead  the  jury  upon  the 
means  and  extent  of  resistance  justifiable  in  resisting  a  felony. 
.  .  .  The  judgment  below  must  be  reversed,  and  a  new  trial 
granted. 

The  court  further  held  that  the  net-house  was  within  the  curtilage, 
and,  being  occupied  as  a  permanent  dwelling  by  Pond's  servants,  it  was 
a  felony  to  break  into  it:  and  that  whether  such  breaking  was  a  felony 
at  common  law  or  under  the  Michigan  statute  was  immaterial  so  far 
as  this  case  is  concerned. 

"The  law  of  self-defense  justifies  an  act  done  in  honest  and  reason- 
able belief  of  immediate  danger:  and,  if  an  injury  be  thereby  inflicted 
upon  the  person  from  whom  the  danger  was  apprehended,  no  liability, 
civil  or  criminal,  follows.  [That  no  civil  liability  follows,  see  also 
23  L.  R.  A.   (X.  S.)   996.1 

"If  an  act  of  an  employee  be  lawful  and  one  which  he  is  justified  in 
doing,  and  which  casts  no  personal  responsibility  upon  him,  no  re- 
sponsibility attaches  to  his  employer  therefor."  N.  O.  &  N.  E.  R.  R.  \. 
.lopes,  142  r.  S.  18,  12  Sup.  Ct.  109,  headnotes  2  and  3.  Compare  Dan- 
iel V.  R.  R..  117  N.  C.  .592,  23  S.  E.  327. 

"When  a  man  i)uts  himself  in  a  state  of  resistance  and  openly  defies 
the  officers  of  the  law.  he  is  not  allowed  to  take  advantage  of  his  own 
wrong,  if  his  life  is  thereby  endangered,  and  set  up  the  excuse  of  self- 
defense."  State  V.  Horner.  139  N.  C.  603,  headnote  7,  52  S.  E.  136. 
"When  the  j)risoner  knew  that  the  deceased  was  a  deputy  sheiiff.  and 
that  he  had  a  warrant  for  his  arrest  for  a  misdemeanor,  it  was  his 
duty  to  submit  to  arrest.  In  resisting  it.  with  a  gun  in  his  hand,  it 
is  not  open  to  him  to  say  that  he  acted  in  self-defense:  and  this  is  not 
affected  by  the  fact  that  the  officer  was  not  justified  in  shooting  him 
to  make   the  arrest."     Ibid,   headnote   6. 

See  •noniifidc."  Century  Dig.  §S  131  183;  Decennial  and  Am.  Dig. 
Kev  No.  Series,  §§  101  123;  "Criminal  Law."  Ccnt\iry  Dig.  §  333f,:  De- 
cennial and  Am.  Dig.  Key  Xo.  Series,  §  122.'j. 


STATE  V.  HOUGH.  138  X.  C.  663,  666   668.  !".0  S.  E,  709.     190.x 
Jjife  and  Limb,     lictrvatiiuj  to  the  Wall. 

[Indictment  for  the  murder  of  Cfeorge  Hartsell.  Conviction  of  niau- 
Hlaughter.  Appeal  bv  prisoner.  In  the  course  of  the  opinion  it  is 
said :  1 


14  WI'I'llOl  'l'    .HDUIAI,    riv'OCKKDINUS.  K'//.     /. 

BuMtwN',  J.  .  .  .  It  is  iiiitl(>ubt(Mlly  Inu'  that  if  two  cn- 
sratro  ill  a  tii;ht  upon  a.  sudden  tiiiai-r(>],  ono  boinj?  unarniod  and 
tlio  otluM-  arinod.  and  one  kills  tho  othor  with  a  deadly  weapon, 
it  is  at  least  nianslausjhter.  State  v.  Curry,  40  N.  C.  280.  lint 
if  the  defendant's  evidence  is  to  1)e  holieved,  this  was  not  a 
tiffht  upon  a  sudden  (inai-rel.  lie  had  a  rifjht  to  suppose  that 
the  di'ceased  was  advaneinpr  on  liiin  for  the  purpose  of  carrying 
into  execution  his  previous  threats;  and  if.  under  such  cireuni- 
sfaiKH's.  the  jury  should  find  Ihat  Ihe  def(Midant  liad  reasonable 
•ri'onnd  to  believe  that  the  deceased  intended  to  do  liini  *?reat 
bodily  harm,  then  he  had  a  right  to  defend  himself,  and  if  the 
jury  should  find  that  the  use  of  a  deadly  Aveapon  under  such 
cire\niistanc(»s.  considering  the  enormous  difference  in  the  size 
and  strength  of  the  two  men.  was  neeessai-y  in  order  to  make  his 
defense  effectual,  then  the  defendant  would  not  be  guilty.  If 
the  assault  was  committed  under  such  circumstances  as  w'ould 
naturally  induce  the  defendant  to  believe  that  the  deceased 
was  capable  of  doing  him  great  bodily  harm,  and  intended  to  do 
it.  then  the  law  would  excuse  the  killing,  because  any  man  who  is 
not  himself  legally  in  fault  has  the  right  to  save  his  own  life,  or 
to  prevent  enormous  bodily  harm  to  himself.  State  v.  Lipscomb. 
]-'U  N.  C.  692.  47  S.  E.  44.  The  general  rule  is  that  "one  may 
oppose  another  attempting  the  perpetration  of  a  felony,  if  need 
be.  to  the  taking  of  the  felon's  life.  as.  in  the  case  of  a  person 
attacked  by  another  intending  to  kill  him.  w'ho  thereupon  kills 
his  assailant,  he  is  justified."  2  Bishop's  Criminal  Law,  §  ^532. 
There  is  a  distinction  made  by  the  text-writers  on  criminal  law. 
which  seems  to  be  reasonable  and  supported  by  authority,  be- 
tween a.ssaults  wnth  felonious  intent  and  assaults  without  felo- 
nious intent.  "In  the  latter  the  person  assaulted  may  not  stand 
his  ground  and  kill  his  adversary  if  there  is  any  way  of  escape 
open  to  him,  though  he  is  allowed  to  repel  force  with  force  and 
give  blow  for  blow.  In  the  fonuer  class,  where  the  attack  is 
made  with  murderous  intent,  the  person  attacked  is  under  no 
obligation  to  fly.  but  may  stand  his  groiuid  and  kill  his  adver- 
?ary.  if  need  be."  2  Bishop's  Criminal  Law,  §  6333,  and  cases 
cited.  It  is  said  in  1  East,  Pleas  of  the  Crown,  271:  "A  man 
may  repel  force  by  force  in  defense  of  his  person,  habitation,  or 
property  against  one  who  manifestly  intends  or  endeavors  by 
violence  to  connait  a  felony,  such  as  murder,  rape,  burglary, 
robberv^  and  the  like,  upon  either.  In  these  cases  he  is  not 
obliged  to  retreat,  but  luay  pursue  his  adversary  until  he  has 
secured  himself  fi-om  all  danger,  and.  if  he  kill  him  in  so  doing, 
it  is  called  justifiable  s(;lf-def ense. "  The  American  doctrine  is 
to  the  same  effect.     See  State  v.  Dixon.  75  N.  C.  275. 

It  is  true  there  is  no  evidence  that  the  deceased  was  armed 
wilh  a  deadly  weapon.  At  least,  none  was  exhibited.  But  the 
evidence  drxis  show  that  the  deceased  had  sent  word  to  the  defend- 
ant that  he  intended  to  kill  him.  aiid  the  defendant  had  a  right 
to  suppos"  that  the  deceased  was  endeavoring  to  carry  out  his 


:<(c.  2  a.]  WITHOUT  judicial  proceedixgs.  15 

Threat,  and  was  prepared  to  do  it.  Tlien.  again,  the  evidence 
shows  there  was  an  enormous  disparity  in  the  relative  strength 
and  power  of  the  defendant  and  deceased:  the  one  being  a 
weakly,  delicate  man.  of  very  small  stature :  the  other,  in  com- 
parison, beine:  a  giant  of  violent  nature,  and  evidently  capable 
of  either  killing  the  defendant  or  doing  him  great  bodily  harm 
Avithout  the  aid  of  a  weapon.  The  defendant  was  on  his  own 
]u-emises.  engaged  in  his  peaceful  pui-suits.  at  the  time  the  de- 
ceased advanced  on  him  in  a  mamier  giving  unmistakable  evi- 
dence of  his  purpose  to  do  the  defendant  bodily  harm.  How  was 
the  defendant  expected  to  receive  him?  In  the  oft-ciuoted  lan- 
guage of  Judge  Pearson  in  State  v.  Floyd.  51  N.  C.  392,  "One 
cannot  be  expected  to  encounter  a  lion  as  he  would  a  lamb." 
and  the  measure  of  foive  which  the  defendant  was  permitted  to 
use  under  such  circuuLstances  ought  not  to  be  weighed  in  "golden 
scales."     New  trial. 

"On  the  question  of  the  applicahility  of  the  rule  of  reasonable  doubt 
to  self-defense  in  homicide,  or  the  requisite  i)roof  of  self-defense,  the 
authorities,  as  shown  by  a  note  in  19  L.  R.  A.  (N.  S.)  483.  are  not  har- 
monious, some  cases  going  to  the  extent  of  holding  that  the  defendant 
must  show  self-defense  beyond  a  reasonable  doubt,  and  some  to  the 
other  extreme  of  holding  that  the  burden  is  ui)on  the  prosecution  af- 
firmatively to  prove  the  absence  of  self-defense.  Between  these  two 
extreme  views  the  cases  ai)parently  take  every  possible  position.  In 
the  case  to  which  the  note  is  appended— Com.  v.  Palmer  (Pa.)  71  Atl. 
100,  it  is  held  that,  where  an  intentional  killing  by  the  use  of  a  deadly 
weapon  has  been  established,  accused  has  the  Ijurden  of  showing  that 
ir  was  in  self-defense  by  a  fair  preponderance  of  the  facts."  Case  and 
Comment. 

It  is  ruled  in  Miller  v.  State,  139  Wis.  :>!  (1909).  that  the  common 
law  rule  as  to  "retreating  to  the  wall" — the  "flight  rule" — is  no  longer 
The  law. 

P"or  an  elaborate  note  on  "retreat  to  the  wail,"  see  2  L.  R.  A.  (N.  S.) 
49;  for  plea  of  self-defense  when  homicide  is  committed  in  resisting 
an  officer,  see  State  v.  Durham,  141  X.  C.  741,  .^3  S.  E.  720,  5  L.  R.  A. 
(.\'.  S.)  lOlG.  and  note.  See  "Homicide,"  Century  Dig.  §§  138.-176;  De- 
fennia!  and  Am.  Dig.  Key  No.  Series,  §§  108-121. 


LEWARD  ET  T'X.  v.  BASELY.  1  Loid  Raymond,  62.     1696. 
Drfrnsr  itf  Wife.  Husband.  Master.     Extent  of  Force  AUou)ed. 

Tres|)a.ss.  a.ssault  and  l)a<tory,  for  a  battery  committed  upon 
llio  wife.  The  di'f('ii<biiit  pleads  de  son  assault  demesne  of  the 
wife.  Tlie  i>l;iiiit  ill's  n-jily.  I  hat  the  dd'enilant  went  ont  to  tight 
tlie  husl)an(i.  ami  llial  slu-  i)eing  desii'ous  1o  a.ssist  her  luisband, 
aii<l  to  keep  hiiii  from  Ix'ing  woiindrd.  insnlliiin  I'eeit  upon  the 
defendant.  The  dr-rcndanl  demuiN.  .\iid  Mr.  ('ai-fh<>w  argued, 
tliat  tliis  insult  Mill  fecit  was  ill.  .\iid  for  that  he  cited  a  ease 
between  Jones  and  Tresillian.  iiilr.  Triii.  Ill  <'ar.  _'  l'>  \\.  Rol. 
S41;  1  :\[od.  :{(;;  1  Sid.  441  :  1  Lev.  2S2;  2  Kch.  ."•!»?.  Trespass 
a.ssault    .iiid    liatlcrv;    the   dcrendant    pli-ad.-d    ,]i-    smi    assault    de- 


IG  AVlTIH>ri'  .iriMClAI,   pkockkdikos.  \(')i.    1. 

mesne;  the  plaiiitilT  rei^licd.  lluit  he  \v;i.s  possessed  of  a  close 
(•ailed  Cupner's  close,  and  that,  the  dcretidaui  hi'okc  the  s^^te 
and  elijised  his  liorses  in  the  close,  and  the  plaint ilT  for  defendinsr 
liis  possession  niolliter  insultnin  fecit  npon  tlic  defendant:  and 
upon  denmrnM-  adjiidp^l  a  had  replication,  for  he  sliould  liave 
said  niollitci-  iiiauus  iiiiposnit :  hut  he  could  not  justify  an  a.s- 
sault  in  defense  of  his  possession.  And  this  case  the  court 
agreed  to  be  crood  law.  but  different  from  the  present  case;  for 
this  is  a  .iiistifiablc  assault,  for  the  wife  may  lawfully  make  an 
jjssault  to  keeji  her  husband  from  harm,  and  she  has  pleaded  it 
so.  In  tlie  same  manner  a  ser^^ant  may  justify  an  assault  in  de- 
fense of  his  master,  but  not  e  contra,  because  the  master  might 
have  an  action  per  (|uod  servitium  amisit.  So  in  this  case,  if 
the  defendant  lifted  his  hand  to  strike  the  husband,  the  wife 
might  well  justify  an  assault  to  prevent  the  blow.  And  if  the 
fact  had  been  othei-wise.  the  defendant  ought  to  have  rejoined, 
de  son  tort  demesne,  and  then  it  had  been  against  the  plaintiff. 
liut  a  man  cannot  justify  an  assault  in  defense  of  his  horse,  or 
his  possession,  for  there  he  ought  to  say,  molliter  manus  imposuit. 
Judgment  for  the  plaintiff,  nisi.  etc. 

See  State  v.  Cook,  59  S.  E.  862,  15  L.  R.  A.  (N.  S.)  1013,  and  note; 
Pond  V.  The  People,  inserted  in  ch.  1.  sec.  2  (a);  also  State  v.  Bullock, 
ftl  N.  C.  614;  State  v.  Johnson,  75  N.  C.  174;  2  Kent,  *261;  3  Cyc.  1075; 
14  L.  R.  A.  317,  and  note;  .Johnson  v.  Perry.  56  Vt.  703.  inserted  in 
ch.  1,  sec.  2,  (b).  See  "Assault  and  Battery,"  Century  Dig.  §  12;  De- 
cennial and  Am.  Dig.  Key  No.  Series,  §  14. 


PERRY  V.  PHIPPS.  32  N.  C.   259.     1849. 
Defense  of  Person.     Unnecessary  Violence. 

[Action  of  trespass  for  killing  plaintiff's  dog  on  the  premises  of 
l)lainti£f.  Verdict  and  judgment  for  plaintiff.  Apeal  by  defendant. 
Affirmed. 

Defendant  entered  the  yard  of  plaintiff  on  a  visit.  The  dog  attacked 
him  and  was  only  prevented  from  biting  him  by  being  driven  off  by 
jdaintitTs  daughter.  After  the  dog  had  been  driven  off  and  while  it 
was  going  under  the  house,  it  was  shot  and  killed  by  the  defendant, 
against  the  protest  of  the  plaintiff's  daughter.  Defendant  offered  to 
show  that  "the  dog  had  attacked  persons  off  the  plaintiff's  land"  on 
Three  occasions;  but  the  evidence  was  rejected.  The  jury  were  in- 
."tructed  that  "defendant  was  not  justifiable  in  killing  the  dog  unless 
in  defense  of  himself;  and  if  the  dog  had  retreated  and  was  still  re- 
treating, the  jury  might  infer  therefrom  that  the  defendant  did  not 
shoot  the  dog  to  protect  himself."] 

EuFFiN,  C.  J.  .  .  .  The  instructions  appear  to  the  court 
to  be  unexceptionable.  A  person  is  not  bound  to  stand  quietly 
and  be  bitten  by  a  dog.  nor  to  give  him  what  might  be  called  a 
fair  fight  among  men.  But  if  a  fierce  and  vicious  dog  be  allowed 
to  go  at  large,  and  he  runs  at  a  person,  as  he  lawfully  gets  to  a 
house,  or  in  pa.ssing  along  the  road,  apparently  to  set  on  the  per- 


Sec.    '3   a.]  WITHOIT    JUDICIAL    PROCEEDINGS.  17 

son,  or.  for  example,  on  the  horse  he  is  riding,  it  seems  but  rea- 
sonable the  person  should  protect  himself  from  the  injiirj'^  of  a 
bite  to  himself  or  his  horse,  by  killing  the  dog;  for,  althongh  a 
man  has  a  right  to  keep  a  dog  for  the  protection  of  his  house  and 
yard,  yet  he  ought  to  keep  him  secured,  and  not  let  him  loose 
and  uncontrolled  at  such  hours  and  in  such  places  as  will  en- 
danger peaceable  and  honest  people  engaged  in  their  lawful 
business.  If.  therefore,  this  dog  Avere  one  of  the  kind  supposed 
and  the  defendant  had  shot  him,  as  he  came  at  him.  and  when 
he  had  reasonable  grounds  to  think,  that  the  dog  could  not  be 
restrained  by  the  owner  or  his  family,  and  would  bite  him,  we 
should  hold,  that  he  did  no  more  than  he  had  a  right  to  do.  But 
when  the  plaintiff's  family  were  at  home.  and.  by  their  imme- 
diate interference  and  commands  and  punisliment.  governed 
and  drove  away  the  dog.  so  as  not  only  to  prevent  him  from 
biting  the  defendant  at  that  time,  but  also  to  save  the  defendant 
from  all  danger  then,  by  driving  the  dog  away,  the  killing  of 
the  dog  after  that,  and  against  the  urgent  entreaties  of  the 
family,  could  have  been  only  on  the  pretense,  and  not  on  the 
reality  of  protecting  the  defendant  from  an  attack  at  that  time, 
and  the  circumstances  were  properly  left  to  the  jury,  as  evidence 
on  which  they  might  find,  that  the  defendant  did  not  act  on 

the  defensive.     Judgment   affirmed. 

See  "Aninials,"   Century   Dig.   §   252;    Decennial   and   Am.   Dig.   Key 
Xo.  Series,  §  73. 


STATE  V.  CRATOX,  28  N.  C.  164,  174-176.     1845. 
A  Husband  May  "Preserve  His  Honor." 

[Craton  was  indicted  for  the  murder  of  Harrison.     Verdict  and  judg 
ment   against  defendant.     Appeal   by  defendant.     Affirmed. 

The  material  facts,  as  to  the  point  presented  by  that  part  of  the 
opinion  hero  inserted,  may  be  thus  summarized:  Harrison  had  reason 
to  believe  that  imijroper  relations  existed,  or  were  likely  to  exist,  be- 
tween his  wife  and  Craton.  On  the  day  of  the  homicide  Harrison's 
wife  insisted  upon  riding  behind  Craton  on  a  horse,  against  her  hus- 
1  and's  jirotest.  Craton  and  the  woman  being  on  one  horse  and  Har- 
ri.son  on  another,  ihoy  all  proceeded  along  the  same  road  for  some  dis- 
tance. Then  Harrison  demanded  that  Craton  surrender  his  wife  to 
him,  threatening  to  kill  him  if  he  refused.  After  several  demands  of 
this  kind  and  sundry  threats  as  above,  Harrison  turned  his  horse 
across  Ih^  road  so  as  to  intercept  Craton,  and,  with  an  open  knife  in 
his  hand,  again  demanded  the  surrender  of  his  wife  by  Craton.  threat- 
ening to  kill  Craton.  should  he  refuse.  Craton  turned  out  of  the  road; 
liut  Harrison  got  l)t-fore  him  again.  Craton  dismounted  and  told  Har- 
rison that  he  would  beat  him  if  he  did  not  leave.  Craton  then  killed 
Harrison  by  striking  him  with  a  stick.) 

TxiFFiN.    ('.    J.     .     .     .     The    question,    tlu-ii.    in    this    ca.se. 
turns  ujioii  thi-  right  of  the  deceased  to  coerce  the  prisoner  to 
surrender  to  liiiii  his  wife,  and  tliat  depends  much  on  the  author- 
ity  of  ;i    ]msl)an(l   over  liis   wife     There    is   no   suspicion,   that 
Uemedies — 2. 


18  wrnior'f  .irniciAi.  I'woci-.i.hiNdS.  \('li.    I. 

tilt'  prisoinT  (li't;iiiii,Ml  llif  wife  ;ii;;iiiist  her  will.  li'  tli;il  had 
lii'fu  llic  case,  till'  liusUaiiii  could  liavf  jiislilicd  a  liatlcry  in  lior 
tlt't'i'iise  and  I'or  Iht  i-<siut'.  Hut,  llioiiiili  slic  was  detained  by 
\\\o  prisnnei-  with  lier  eonsent.  tlie  courl  is  ol'  opinion,  tliat  undiT 
tho  ciivunistanoos  Ihe  deceased  had  a  right,  after  demanding 
liis  wife,  to  stop  the  prisoner,  as  he  did.  until  he  should  give 
her  up.  In  general,  a  man  has  a  right  to  the  exelusive  eustody 
of  his  wife.  It  may  he  true,  that  any  ])erson  has  a  right  to  pro- 
tt'et  her  from  the  violence  of  her  husband,  and  to  take  her  from 
cruel  u.sage  under  his  hand.  And  it  may  also  be  true,  that  the 
husband  would  not  have  a  right  to  take  her  by  force  from  the 
house  of  a  parent  or  any  proper  protection  during  a  difference 
between  them,  nor.  indeed,  to  confine  her,  when;  there  is  not 
l)lainly  a  sufficient  reason  for  imposing  the  restraint  upon  her. 
lUit  in  Lister's  Case,  8  Mod.  22,  1  Str.  478,  it  was  agreed  by  all 
the  court,  that  where  a  wife  makes  an  undue  use  of  her  liberty, 
as  by  going  into  lewd  company,  it  is  lawful  for  the  husband,  in 
order  to  preserve  his  honor,  to  lay  his  wife  under  a  restraint; 
tliough  when  nothing  of  that  appears,  he  cannot  justify  depriving 
her  of  her  liberty.  Xow,  that  is  a  full  authority,  and  founded, 
as  we  think,  upon  the  veiy  best  reason,  that  Harrison  might 
have  restrained  his  wife  by  force,  from  criminal  conversation 
with  the  prisoner;  and,  by  consequence,  that  he  might  compel 
her  to  leave  the  society  of  the  prisoner,  if  he  had  any  reasonable 
grounds  to  suspect,  that  those  persons  had  porjiet rated,  or  that 
they  were  forming  the  guilty  purpose  of  peri)etrating.  a  violation 
of  his  rights  and  honor,  or  were  contracting  those  regards 
towards  each  other,  which  would  probably  icsult  in  that  stigma. 
That  such  was  the  state  of  the  case  between  these  parties,  there  is 
very  strong  ground  to  affirm.  The  avowal  by  the  prisoner  of 
an  affection  for  this  woman — the  inference  that  she  returned  it, 
to  be  deduced  from  numerous  circumstances,  as  that  lie  said  he 
could  elope  and  leave  the  country  with  her;  and  the  familiarity 
with  which  she  lay  on  the  same  bed  with  the  prisoner,  with  her 
arm  around  his  neck,  and  they  both  )'efused  to  cliange  their  sit- 
uation, though  the  husband  remonstrated ;  her  pertinaciously  in- 
sisting to  ride  home  behind  the  prisoner,  and  refusing  to  go  in 
any  other  manner;  her  being  found  by  the  husband  on  the  road 
with  the  prisoner  alone,  and  not  also  in  the  company  of  Mrs. 
Garman,  her  sister-in-law;  and  the  oft-repeated  refusals  of  both 
the  wife  and  the  prisoner  to  let  the  husband  take  her,  after  he 
overtook  them,  and  after  he  had  explicitly  stated,  as  proved  by 
the  pri.soner's  witness.  INIurphy.  that  the  reason  why  he  insisted 
on  having  her  was.  that  the  prisoner  kept  her;  these  circum- 
stances leave  no  room  to  doubt,  that  the  husband  entertained 
the  belief,  and  that  upon  strong  grounds  of  presumption,  that 
it  was  essential  to  his  wife's  purity  and  his  honor,  that  he  should 
separate  her  from  the  company  of  the  prisoner.  Such  a  cause 
would  justify  the  husband  in  effecting  that  end  by  compulsion 
on  his  wife,  foi-  it  was  obvious  that  nothing  sliort  of  it  would 


S(C.    2    a.]  WITHOUT    JUDICIAL    PROCEEDINGS.  19 

be  effectual.  And  it  would  seem  necesarily  to  follow,  that  he 
mi^ht  use  actual  force  towards  the  paramour  also,  in  order  to 
regain  his  wife  from  him.  But  we  need  not  consider  that,  as 
we  have  already  seen,  there  was  no  actual  assault  l)y  the  deceased. 
Tliere  was  merely  a  stopping  of  the  prisoner  by  the  deceased- 
drawing  up  his  hoi-se  in  front  of  the  prisoner  several  times, 
accompanied  by  a  demand  for  his  wife,  and  a  declaration  that 
the  prisoner  should  not  go  on,  unless  he  gave  up  the  wife. 
Those  acts,  we  think,  were  not  an  injurious  restraint  on  the 
prisoner's  liberty,  but  only  a  lawful  impediment  to  his  carrjnng 
away  the  decea.sed's  wife,  to  her  ruin  and  the  husband's  dis- 
honor. There  was.  consequently,  no  provocation  to  extenuate 
the  killing  of  Harrison. 

See  Drvsdale  v.  State.  83  Ga.  744.  10  S.  E.  358.  6  L.  R.  A.  424.  and 
note:  State  v.  Weathers.  98  N.  C  68-5.  4  S.  E.  512;  State  v.  Young.  96 
Pac.  — ,  18  L.  R.  A.  (X.  S.)  688,  and  note.  See  "Homicide,"  Century 
Dig.  §  33;   Decennial  and  Am.  Dig.  Key  Xo.  Series.  §  20. 


STATE  V.  HARMAX,  78  X.  C.  51-5.     1878. 
A  Husband  May  -Preserve  His  Honor:' 

[Harman  was  indicted  for  the  murder  of  Trivett.  Verdict  and  judg- 
ment against  defendant,  and  he  appealed.  Reversed.  The  facts  ap- 
\>p&r  in  the  opinion.  Only  so  much  of  the  opinion  as  bears  upon  the 
point  under  consideration  is  inserted.] 

Reade.  J.  ].  "Should  he  deal  with  our  sister  as  with  an 
liarlot?"  is  the  voice  of  unrestrained  human  nature,  since 
Shechem  defiled  the  daughter  of  Jacob  and  was  slain  by  her 
brothers.     Gen.  ch.  34. 

We  have  restrained  human  nature  in  so  far  as  we  say,  you 
shall  not  slay  in  redress  of  a  past  wrong,  but  if  you  slay  the 
wrongdoer  in  the  veiy  act,  it  will  not  be  murder,  but  man- 
slauL'hter.  The  redress  for  past  offenses  must  be  .sought  through 
tlic  process  of  the  coui'fs. 

Ill  the  case  before  u.s.  the  prisoner  looked  through  a  crack  of 
liis  house,  and  saw  the  deceased,  whom  h<'  had  before  suspected, 
with  his  arms  around  his  wife's  neck  and  saw  enough  to  satisfy 
bim.  and  ran  aroimd  to  the  door  and  into  his  house,  when  Ihe 
(JccfascHl  cairie  at  him  with  a  knife,  and  he  kille<l  bim.  Tlie 
situation  was  not  tlie  very  act,  ])ut  it  was  severely  proxiniate, 
;iii<l  fine  distinctions  need  not  be  made.  This  is  ch\Trly  not 
iiiui-<|er.  but  maiisbiiiirhter.  State  v.  Samuel.  4S  X.  C.  74; 
State  v.  Jolin.  ^'/i  \   ^'   •>''>'*      •     .     •     Venire  de  novo. 

In  State  V.  \.-vilIe.  .'.1  X.  TV  at  pp.  433.  4:M.  it  is  said  by  Ruffln,  .T.: 
"A  husband  finding  a  man  violating  or  attempting  to  violate  liis  wife, 
and  killing  him  on  the  spot,  might  plead  that  furor  brevis  whieh  so 
atrorlous  a  wrong,  Iwth  to  the  wife  and  to  tlie  huaban<l.  would  naturally 


■20  ^\^l'll(U  r  .irnicivT.  rRiirr.i'.niNcs.  |r/(.   7. 

inspire;  nay,  if  ufodfiil  to  lucvciit  llie  aci'omiilislnm'iit  of  the  pinpose, 
wo  tliiiiii  that  he  wouhl  lie  justiliiMl  in  slaying-  liini;  as  the  woman 
would  be.  .  .  .  ^Vitll  respect  to  tlie  case  of  adultery  the  law  Is 
found  in  the  most  ancient  archives  of  the  common  law,  .  .  .  and 
a  court  at  this  day  lias  no  more  authority  to  interpolate  new  qualifica- 
tions or  exceptions  into  it.  llian  i)0wer  to  malic  a  statute.  .  .  . 
Homicide  is  extenuated  to  nuinslaunhter.  not  by  the  fact  that  it  was 
perpetrated  in  a  fury  of  high  passion,  but  by  such  fury's  being  excite<l 
by  a  present  provocation,  which  the  law  deems  sufficient  for  the  time 
to  de|u-ivt>  men  in  general  of  that  power  of  reasoning  and  reflection 
which  ouglit  to  lead  them  to  apiieal  for  redress  to  Hie  hiw.  and  instead 
thereof  prompts  them  to  tal<e  it  into  their  own  hands.  The  wrong  is 
thus  infallibly  known,  and  the  wrong-doer  is  thus  made  instantly  to 
expiate  it  with  his  blood.  But  where  a  husband  only  hears  of  the 
adultery  of  his  wife,  no  matter  how  well  authenticated  the  information 
may  be,  or  how  much  credence  he  may  give  to  the  informer,  and  kills 
either  the  wife  or  her  paramour,  he  does  it  not  upon  present  provoca- 
tion, but  for  a  past  wrong— a  grievous  one  indeed!  but  it  is  evident 
he  kills  for  revenge.  .  .  .  It  is  obvious  that  these  observations 
apply  with  equal  force  to  an  alleged  rape  or  an  attempt  to  commit  a 
rape  on  the  wife  at  a  past  time." 

"The  human  cur  who  has  invaded  the  domestic  fold,  and  who  is  likely 
to  invade  it  further,  may  be  killed  though  the  injured  person  does  not 
catch  him  in  the  very  act."  Powell,  J.,  in  Miller  v.  State,  63  S.  E. 
at  mid.  p.  573,  inserted  post  in  this  section. 

"See  "Homicide,"  Century  Dig.  §  71;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §  47. 


STATE  V.  RAMSEY,  50  N.  C.  195.     1857. 
Defense  of  Liberty.    Excessive  Force. 

[Indictment  for  the  murder  of  Benjamin  Walker.  Verdict  and  judg- 
ment against  defendant,  and  he  appealed.  Reversed.  The  facts  are 
set  out  in  the  opinion.] 

Battle.  J.  There  are  some  ea,ses  of  homicide  -which  are  so 
near  the  dividinp:  line  between  manslaughter  and  murder  upon 
implied  malice,  that  it  is  difficult  to  ascertain  on  Avhich  side 
they  are  to  be  foinid.  Tlie  present  case  is  one  of  that  number, 
and  it  is  only  after  a  full  examination  of  various  instances  of 
killing  upon  provocation  more  or  less  slight,  and  reflection 
upon  the  principles  on  which  they  have  been  decided,  that  we 
have  been  enabled  to  deteriiiine  in  Avhich  grade  of  guilt  it  is  to 
be  classed.  In  the  case  of  the  State  v.  Curry,  46  N.  C.  280,  we 
attempted  the  difficult  ta.sk  of  stating,  with  some  precision,  the 
general  rule,  with  the  exceptions  to  it.  which  the  judges  and  the 
sages  of  the  law  have  established  upon  this  subject.  The  gen- 
eral rule  is.  that  a  killing  upon  provocation  is  not  murder,  but 
manslaughter.     But  there  are  three  well-defined  exceptions: 

"1.  AYhere  there  is  a  provocation,  no  matter  how  strong,  if 
the  killing  is  done  in  an  unusual  manner,  evincing  thereby  de- 
liberate wickedness  of  heart,  it  is  murder. 

"2.  "Wlifre  there  is  but  slight  provocation,  if  the  killing  is 
done  with  an  excess  of  violence  out  of  all  proportion  to  the 
provocation,  it    is  murder. 


Sec.  2  a.]  without  judicial  proceedings.  21 

"3.  Where  the  right  to  chastise  is  abused,  if  the  measure 
of  chastisement,  or  the  weapons  used,  be  likely  to  kill,  it  is 
nnirder. ' ' 

His  Honor  in  the  court  below  thought  this  case  came  within 
the  second  exception  to  the  general  rule,  and  the  question  is 
whether  the  circumstances,  under  which  the  homicide  was  com- 
iiiitted.  justify  his  opinion. 

In  the  consideration  of  this  question,  the  first  inquiry  which  is 
to  be  made  is.  whether  the  provocation  which  the  prisoner  re- 
ceived before  he  stnick  the  fatal  blow,  is  to  be  deemed  a  slight 
or  trivial  one.  as  it  was  held  to  be  by  his  Honor.  The  injurious 
and  unlawful  restraint  of  a  pei"son's  liberty,  is  undoubtedly- 
considered  a  provocation  of  a  grade  sufficient  to  extenuate  a 
killing:  as  where  a  creditor  placed  a  man  at  a  chamber-door  of 
his  debtor  with  a  sword  undrawn,  to  prevent  him  from  escaping, 
while  a  bailiff  was  sent  for  to  arrest  him;  and  the  debtor  stabbed 
the  creditor,  who  was  discoursing  with  him  in  the  chamber,  it 
was  held  to  be  manslaughter  only.  Kex  v.  Buekner,  Style's  Rep. 
467.  So.  where  a  sergeant  in  the  army  laid  hold  of  a  fifer,  and 
insisted  upon  cariying  him  to  prison;  the  fifer  resisted;  and 
wliilst  the  sergeant  had  hold  of  him  to  force  him,  he  drew  the 
sergeant's  sword,  plunged  it  into  his  body,  and  killed  him.  The 
sergeant  had  no  right  to  make  the  arrest,  except  under  the 
articles  of  war  and  they  were  not  proved.  ''Buller,  J.,  consid- 
<-red  it  in  two  lights;  first,  if  the  sergeant  had  authority;  and 
secondly,  if  he  had  not,  on  account  of  the  coolness,  deliberation 
;ind  reflection,  with  which  the  stab  was  given."  The  jury 
found  the  prisoner  guilty  of  murder;  but  the  judges  were  unan- 
imous that,  as  the  articles  of  war  were  not  proved,  to  show  the 
authority  of  the  sergeant  to  arrest,  the  conviction  was  wrong. 
Hex  v.  Withers,  reported  in  East's  P.  C.  p.  233.  See  also  1 
Russ.  on  Cr.  and  INI.  488.  The  same  doctrine  was  recognized 
;is  law  in  this  state  in  the  case  of  State  v.  Craton,  28  N.  C.  173, 
where  the  two  cases,  above  mentioned,  were  cited  with  approba- 
tion. It  is  not  stated  in  either  case,  whether  the  illegal  restraint 
of  the  pnsoner's  liberty  was  deemed  a  slight  or  a  great  provo- 
•  ation;  but  we  must  suppose  that  it  could  not  have  been  either 
sli«j:ht  or  trivial  in  tht^  f-ase  of  Withers,  else  the  judges  would 
hardly  have  been  unanimous  in  holding  that  an  act  of  stabbing 
with  a  very  deadly  weapon,  done  apparently  "with  coolness, 
deliboration  and  relied  ion,"  was  only  manslanghter.  The  cir- 
cnnistanccs  under  which  the  homicide  was  conmiitted  in  the 
present  case,  made  out  a  ca.se  of  provocation,  certainly  not  less 
nggravnted  tlian  in  tliat  of  Withei*s. 

[FACTS.]  The  parties  were  neighbors,  friends,  and  distant 
relatives,  and  h;id  been  drinking  together  in  a  friendly  manner 
only  a  short  time  before  tlie  fatal  transadion.  The  prisoner 
got  his  horse,  mounted  liirn  and  took  his  bag,  having  in  it  a  jug 
oontnininir   n    ealloji    of    mola.sses,    ;ind    stniied    lunne.     Tl(>    hnd 


22  WlllHMT    JIDICIAI.    riUtCKKlMNGS.  [Ck.    1. 

l>nH-<.TdiHl  about  twi'iily  ni-  ihirt\-  sti'ps.  wlnii  tlur  deceased,  who 
was  ilrunU.  rallfd  to  liini  to  sin|.  imd  (•(uuc  Imck  and  take  another 
drink,  lie  did  stop,  and  the  lU-iH'a.^ed  i-aiiic  up  and  took  hold  of 
the  reins  ol'  his  l)ridle  antl  woukl  not  let  hiui  ^o.  The  prisoner 
tried  to  jret  ItKxse.  hut  the  deeea.sed  held  on  initil  the  bridle  rein 
broke.  He  then  became  angry  and  got  olt'  his  horse  and  struck 
the  deceased  with  his  jug  in  the  bag.  This  was  from  ten  min- 
utes to  three  quartei"s  of  an  hour  after  the  deceased  stopped 
the  prisoner,  the  witnesses  dilfering  as  to  the  length  of  time 
the  parties  wen-  together  before  the  blow  was  struck.  When 
that  was  done,  both  the  prisoner  and  the  deceased  fell  to  the 
ground,  and.  upon  rising,  the  former  knocked  the  latter  down 
again  with  tlie  jug.  aud  then  stnick  him,  Avhile  down,  two  more 
blows  with  the  jug  which  was  still  in  the  bag.  The  prisoner, 
then  saying  to  the  deceased,  "damn  you,  lie  there,"  mounted  his 
horse  and  rode  olf. 

It  cannot  be  denied  that  the  act  of  the  deceased  was  an  illegal 
restraint  of  the  prisoner's  liberty,  nor  that  his  holding  on  to 
the  bridle  rein,  against  his  remonstrances,  until  the  rein  broke, 
was  well  calculated  to  excite  his  passions,  and  they  naturally 
jtrompted  him  to  strike  the  deceased  with  what  was  most  con- 
venient, which  was  the  jug  in  the  bag  then  in  his  hands.  The 
fall  was  Mell  calculated  to  excite  his  passions  still  higher;  and 
then,  to  strike  again  and  again  with  what  he  still  had  in  his 
hands,  was  the  impulse  of  blind  h\ry.  There  was  no  appear- 
ance of  "coolness,  deliberation  and  reflection,"  in  his  conduct, 
and  the  exclamation  which  follows,  "damn  you,  lie  there,"  was 
the  dictate,  and  the  evidence,  of  the  furor  brevis,  Avhich  had  so 
fatally  expended  itself.  That  the  act  of  the  prisoner  was  highly 
culpable,  no  one  can  deny,  yet  no  one  can  say  that  it  did  not  pro.- 
eeed  from  the  transport  of  passion  naturally  excited  by  the  un- 
hxAvful  conduct  of  the  deeea.sed.  It  was  the  act  of  an  infirm 
human  being,  during  the  brief  period  when  the  sway  of  his 
reason  was  disturbed,  and  before  it  could  be  calmed  by  reflection. 
He  did  not  seek  an  instrument  of  death ;  and  though  he  used  a 
deadly  weapon,  it  was  one  which  the  deceased,  by  making  it 
necessary  for  him  to  dismount,  compelled  him  to  have  in  his 
hands  at  the  moment. 

We  do  not  think  that  the  provocation  was  slight,  nor  was  it 
great.  It  was  sufficient  to  arouse  passion  even  in  an  ordinarily 
well-balanced  mind,  and  the  killing,  though  done  with  an  excess 
of  violence,  was  not  out  of  all  proportion  to  the  provocation. 
Our  opinion,  therefore,  is,  that  the  conviction  for  murder  was 
wrong,  and  as  it  Mas  produced  by  an  improper  charge  from 
the  court  to  the  jury,  the  judgment  must  be  reversed,  and  a 
venire  de  novo  awarded. 

See  "Homicide,"  Century  Dig.  §  67;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §  43. 


SlC:    .^    a.]  WITHOUT    JUDICIAL    PROCEEDINGS.  23 


PLOOF  V.  PUTNAM,  SI  Vt.  471,  71  Atl.  Rep.  188.     1908. 
Self-Pi-eservation. 

[Ploof  sued  Putnam  for  damages  resulting  from  the  act  of  Putnam's 
servant  in  unmooring  Ploofs  boat  from  Putnam's  dock  during  a  storm. 
Defendant  demurred  to  the  declaration.  Demurrer  overruled.  Judg- 
ment for  plaintiff.     Defendant  appealed.     Affirmed.] 

]\ruNSOX.  J.  It  is  alleged  a.s  the  groniic'l  of  recovery  that  on 
the  13th  day  of  November.  1904,  the  defendant  Avas  the  owner 
of  a  certain  island  in  Lake  Champlain.  and  of  a  certain  dock 
attached  thereto,  which  island  and  dock  were  then  in  charge 
of  the  defendant's  servant:  that  the  plaintiff  was  then  possessed 
of  and  sailing  ni)on  said  lake  a  certain  loaded  sloop,  on  wliieh 
were  the  plaintiff  and  his  wife  and  two  minor  children;  that 
there  then  arose  a  sudden  and  violent  tempest,  wherebj'  the 
sloop  and  the  proi)erty  and  ])ersons  therein  were  placed  in  great 
danger  of  destruction ;  that,  to  save  these  from  destruction  or  in- 
jury, the  ])laintiff'  was  compelled  to,  and  did.  moor  the  sloop  to 
defendant's  dock;  that  the  defendant,  hy  his  servant,  unmoored 
the  sloop,  whereupon  it  was  driven  upon  the  shore  by  the  tem- 
})est,  without  the  plaintiff's  fault:  and  that  the  sloop  and  its 
contents  were  thereby  destroyed,  and  the  plaintiff'  and  his.  wife 
and  children  cast  into  the  lake  and  upon  the  shore,  receiving 
injuries.  This  claim  is  set  forth  in  two  counts — one  in  tres- 
pass, charginu'  that  the  defendant  by  his  servant  with  force 
aiid  arms  willfully  and  designedly  unmoored  the  sloop;  the 
other  in  ease,  alleging  that  it  was  the  duty  of  the  defendant  by 
his  servant  to  permit  the  plaintiff  to  moor  his  sloop  to  the  dock, 
and  to  permit  it  to  remain  so  moored  during  the  continuance 
of  the  tempest,  but  that  the  defendant  by  his  servant,  in  disre- 
gard of  Ibis  duly,  negligently,  carelessly,  and  wrongfully  un- 
moored the  sloop.  Both  counts  are  dennirred  to  generally. 
Tiiere  are  niany  cases  in  the  books  which  hold  that  necessity,  and 
an  inability  to  control  movements  inaugurated  in  the  proper 
exercise  of  a  strict  rigiit.  will  justify  entries  ujton  land  and  in- 
terferences witli  ])ersonal  property  that  would  otherwise  have 
l)een  trespa.sses.  A  reference  to  a  few  of  these  will  be  sufficient 
to  illustrate  the  doctrine. 

In  Miller  v.  Fandrye.  rapli.  IGl.  trespass  was  bro\ight  for 
chasing  sheep,  and  the  defendant  pleaded  that  the  sheep  were 
trespa.ssijig  upon  liis  land,  and  that  be  with  a  little  dog  chased 
tlieii)  out.  and  tliat.  as  soon  as  the  sheep  were  off  bis  land,  he 
called  in  the  do<r.  It  was  argued  that,  although  the  defendan! 
might  lawfully  drive  the  sheep  from  his  own  ground  with  a  dog. 
be  had  no  riglit  to  pursue  them  inli>  the  next  groiuid  ;  but  tlie 
court  considered  that  the  defeiid;uit  might  drive  the  sheep  from 
liis  land  with  a  dng.  :uid  that  the  nature  of  a  dog  is  such  that 
lie  cannot  be  withdrawn  in  an  instant,  and  that,  as  the  defendant 
had  done  his  best   to  recall  tlie  dr.fr.  tre^f.ass  would   not    lie.      In 


24  WITHOUT   JL'DK  l.\l.    PKUCKKHINGS.  [Ck.    1. 

trespass  of  oaltlo  taktMi  in  A.,  ilcrcmliiiit  pleaded  that  he  was 
seised  of  C.  ami  louiul  the  eat  tie  there  damajiie  feasant,  and 
I'hased  them  tcnvinds  ilu'  jiond,  and  they  escaped  from  him  and 
went  into  A.,  .ind  he  prcscntlv  retook  tliem ;  and  this  was  held 
a  good  plea.  LM  Kdw.  IV.  (i4;'  Vin.  Ah.  Trespass.  11.  a,  4,  pi.  10. 
If  one  have  a  way  over  the  land  of  another  for  his  beasts  to  pass, 
and  the  beasts,  beinj?  properly  driven,  feed  tlie  grass  by  moi'sels 
in  passing,  or  run  out  of  the  way  and  arc  promptly  pursued 
and  brought  back,  ti'esj^ass  will  not  lie.  See  Vin.  Ab.  Trespass, 
K.  a,  pi.  1.  A  traveler  on  a  highway  who  finds  it  obstructed 
from  a  sudden  and  temporary  cause  may  pass  npon  the  adjoin- 
ing land  without  becoming  a  trespasser  because  of  the  necessity. 
TTenn's  Case.  W.  Jones,  296;  Campbell  v.  Race,  7  Cush.  (Mass.) 
408,  54  Am.  Dec.  728;  ITyde  v.  Jamaica.  27  Vt.  443  (459); 
:\rorey  v.  Fitzgerald,  56  Vt.  487,  48  Am.  Rep.  811.  An  entiy 
upon  land  to  save  goods  which  are  in  danger  of  being  lost  or  de- 
stroyed l\v  water  or  fire  is  not  a  trespass.  21  Hen.  VII,  27; 
Vin.  Ab.  Trespass,  H.  a,  4,  pi.  24,  K.  a,  pi.  3.  In  Proctor  v. 
Adams.  113  ]\Iass.  376,  18  Am.  Rep.  500,  the  defendant  went 
upon  the  plaintiff's  beach  for  the  purpose  of  saving  and  restor- 
ing to  the  lawful  o^^^^er  a  boat  which  had  been  driven  ashore, 
and  was  in  danger  of  being  carried  off  by  the  sea ;  and  it  was 
held  no  trespass.  See,  also,  Dunwick  v.  Sterry,  ]  B.  »&  Ad.  831. 
This  doctrine  of  necessity  applies  with  special  force  to  the 
preservation  of  human  life.  One  a.ssaulted  and  in  peril  of 
his  life  may  run  through  the  close  of  another  to  escape  from  his 
assailant.  37  Hen.  VII,  pi.  26.  One  may  sacrifice  the  per- 
sonal property  of  another  to  save  his  life  or  the  lives  of  his 
fellows.  In  ^Mouse's  Case,  12  Co.  63.  the  defendant  was  sued 
for  taking  and  carrying  away  the  plaintiff's  casket  and  its  con- 
tents. It  appeared  that  the  ferryman  of  Gravesend  took  47 
passengers  into  liis  barge  to  pass  to  London,  among  whom  were 
the  plaintiff  and  defendant;  and  the  barge  being  upon  the 
water  a  great  tempest  happened,  and  a  strong  wind,  so  that  the 
barge  and  all  the  passengers  were  in  danger  of  being  lost  if 
certain  ponderous  things  were  not  ca.st  out,  and  the  defendant 
thereupon  cast  out  the  plaintiff's  casket.  It  w^as  resolved  that  in 
case  of  necessity,  to  save  the  lives  of  the  passengers,  it  was  lawful 
for  the  defendant,  being  a  passenger,  to  cast  the  ]ilaintiff's 
casket  out  of  the  barge;  that,  if  the  ferryman  surcharge  the 
barge,  the  owner  shall  have  his  remedy  upon  the  surcharge 
against  the  ferryman,  but  that  if  there  be  no  surcharge,  and  the 
danger  acci-nc  only  by  the  act  of  God,  as  by  tempest,  without 
fault  of  the  fenyman.  every  one  ought  to  bear  his  loss  to  safe- 
guard the  life  of  a  man.  It  is  clear  that  an  entry  upon  the  land 
of  another  may  be  .iustified  by  necessity.  ;ind  that  the  declara- 
tion before  ns  discloses  a  necessity  for  mooring  the  sloop.  But 
the  defendant  questions  the  sufficiency  of  the  counts  because  they 
do  not  negative  the  existence  of  natural  objects  to  which  the 
plaintiff   could    have    moored    with    equal    safety.     The    allega- 


Sec.  2  a.\  without  judicial  proceedings.  25 

tions  are,  iu  substance,  that  the  stress  of  a  sudden  and  violent 
tempest  compelled  the  plaintift"  to  moor  to  defendant's  dock  to 
save  his  sloop  and  the  people  in  it.  The  averment  of  necessity 
is  complete,  for  it  covers  not  only  the  necessity  of  mooring,  but 
the  necessity  of  mooring  to  the  dock;  and  the  details  of  the  situa- 
tion which  created  this  necessity,  whatever  the  legal  reciuirements 
regarding  them,  are  mattei"s  of  proof,  and  need  not  be  alleged.  It 
is  certain  that  the  rule  suggested  cannot  be  held  applicable,  irre- 
spective of  circumstance,  and  the  question  must  be  left  for  ad- 
judication upon  proceedings  had  with  reference  to  the  evidence 
or  the  charge. 

The  defendant  insists  that  the  counts  are  defective,  in  that 
they  fail  to  show  that  the  sei-vant  in  casting  off  the  rope  was 
acting  within  the  scope  of  his  employment.  It  is  .said  that  the 
allegation  that  the  ishind  and  dock  were  in  charge  of  the  servant 
does  not  imply  authority  to  do  an  unlawful  act,  and  that  the 
allegations  a.s'  a  whole  fairly  indicate  that  the  ser\^ant  un- 
moored the  sloop  for  a  wrongful  purpose  of  his  own.  and  not  by 
virtue  of  any  general  authority  or  special  instruction  received 
from  the  defendant.  But  we  think  the  coimts  are  sufficient  in 
this  respect.  The  allegation  is  that  the  defendant  did  this  by 
his  servant.  The  words  "willfully  and  designedly"  in  one 
rount.  and  "negligently,  carelessly,  and  wrongfully"  in  the 
other,  are  not  applied  to  the  servant,  but  to  the  defendant  acting 
through  the  servant.  The  necessary  implication  is  that  the  serv- 
iint  was  acting  within  the  scope  of  his  employment.  13  Enc. 
PI.  &  Pr.  022;  Voegel  v.  Pickel  ^Marble  Co.  49  Mo.  App.  643; 
Wabash  Hv.  Co.  v.  Savage.  110  Ind.  156.  9  N.  E.  85.  See.  also. 
Palmer  v.'St.  Albans,  60  Vt.  427.  13  Atl.  569,  6  Am.  St.  Rep. 
125.     Judgment  affirmed  and  cause  remanded. 

See  the  note  to  the  principal  case  in  20  L.  R.  A.  fX.  S.)  152.  See 
T.aidlaw  v.  Russell  Sage,  1.58  X.  Y.  73.  at  pp.  89  et  seq.,  52  X.  E.  670. 
for  an  interesting  discussion,  from  the  standpoint  of  the  law,  of  the 
maxim,  'self-preservation  is  the  first  law  of  nature,"  and  of  the  prin- 
'  iple.  that,  when  it  is  a  question  which  of  two  men  shall  suffer,  each 
i.s  justified  in  doing  the  hest  he  can  for  himself.— "Every  man  for  him- 
self, God  for  )ise  all,  and  the  devil  take  the  hindmost,"  so  to  speak. 
See  "Torts."  Century  Dig.  §§  3,  33;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §§  3,  26. 


SIMPSON  V.  STATE,  59  Ala.  1,  31  Am.  Rep.  1.     1877. 
Drfrusc   (if   Property,     f^princj   Guns.   rlr. 

f Tndiftmcnl,  uikIit  Ilfv.  Code  of  Alaltania,  s.  3670.  for  assault  with 
intent  to  murder  .Mi<hael  Ford.  Ford  was  injured  hy  a  spring  gun 
upon  Simpson's  land.  Verdict  and  judgment  against  Simpson,  who 
'arried  the  case  to  the  Supreme  Tourt  hy  writ   of  error.     Reversed. 

Only  so  much  of  the  opinion  is  inserted  as  discusses  the  right  of  the 
owner  of  itreniises  to  protect  his  property  from  trespassers  l)y  such 
means  as  spriug  guns,  and  the  lintiilities  inclined  In  the  use  of  such 
instnimentM.  I 


26  wniioiT  .11  i>uiAi.  1'K-(hi;ki)inus.  \('lt.   I. 

• 

I'KicKKi.i.,  (',  J.  .  'IMii'   p.irticiilai-   fncls  of  llic  case   in 

out'  jthiisi'  ill  wliicli  tlic  cNidfiicc'  itrcsciits  it.  arc  so  intorwovcMi 
with  tile  it'iiiaiiiiii^'  instructions,  that  a  (Ictci'iiiiiiation  of  the 
primary  »ni»'stion  they  involve  is  necessary  to  a  correct  under- 
staiulin^  of  tticm.  'I'liis  (|iicstioii  is  the  rifjlit  of  a,  Lindowiicr 
to  phmt  spi'inir  jruiis  on  his  ])reiiiises.  by  Avliich  trespassers  may 
he  wouiuled.  and  wliat  is  liis  liability,  if  thereby  a  tresjiasscr 
receives  firievous  bodily  harm.  AVhethcr  lie  was  civilly  liable 
at  connnon  law.  was  airitatcd  in  Deano  v.  Clayton,  7  Taunt.  51 S. 
but  not  decided,  the  iiidires  being  equally  divided  in  opinion. 
In  llott  V.  AVilkcs.  :\  B.  &  Aid.  304.  the  Court  of  Kinfj's  Bench 
luianiniously  decided  that  a  "trcs]>a.sser  liavin<f  knowledge  that 
there  are  spring  guns  in  a  wood,  although  he  may  be  ignorant 
of  the  particular  spots  where  they  are  placed,  cannot  maintain 
an  action  for  an  injury  received  in  conserpience  of  his  accident- 
ally treading  on  the  latent  wire  connnunicating  with  the  gun. 
and  thereby  letting  it  oif. "  Statutes  followed  soon  after  this 
decision,  rendering  the  setting  or  placing  spring  guns,  and  other 
like  agencies  c;ilculated  to  destroy  human  life,  or  to  inflict 
grievous  bodily  harm  on  trespassers,  or  others  coming  in  con- 
tact with  them,  a  misdemeanor.  1  Rnss.  Cr.  783.  It  is  not 
our  province  to  deny  that  the  decision  in  llott  v.  "Wilkes  is  a 
correct  ex])osition  of  the  common  law  of  England  as  it  then 
existed.  The  common  law  of  England  is  not  in  all  respects  the 
common  law  of  this  country.  A^anness  v.  Packard,  2  Pet.  1-1:4. 
This  court  has  frequently  said  that,  in  this  state,  only  its  general 
principles,  which  are  adajited  to  our  situation,  and  not  incon- 
sistent with  our  policy,  legislation  and  institutions,  are  of  force, 
and  prevail.  State  v.  Cawood.  2  Stew.  3G0-,  N.  &  C.  R.  R.  Co. 
V.  Peacock.  25  Ala.  229;  Barlow  v.  Lambert,  28  id.  704.  AVe 
concur  in  the  conclusions  reached  by  the  Supreme  Court  of 
Connecticut  in  Johnson  v.  Patterson.  14  Conn.  1;  State  v. 
jMoore.  31  id.  479.  after  a  careful  examination,  that  the  ])rin- 
ciple  announced  in  llott  v.  AVilkes  is  not  in  harmony  w^ith  our 
conditions  or  our  institutions,  and  that  it  had  its  origin  in  a 
state  of  society  not  existing  here,  and  the  necessity  for  the  pro- 
tection to  a  species  of  property  not  here  recognized,  or  if  rec- 
ognized, of  less  importance  and  value  than  the  legislation  of 
Great  Britain,  and  the  common  law  there  prevailing  attached 
to  it. 

Tt  is  a  settled  principle  of  our  law.  that  every  one  has  the 
right  to  defend  his  person  and  property  against  unlawful  vio- 
lence, and  may  employ  a.s  much  force  as  is  necessary  to  prevent 
its  invasion.  Property  would  be  of  little  value,  if  the  owner 
was  bound  to  stand  with  folded  arms  and  suffer  it  to  be  taken 
by  him  who  is  bold  and  unscrupulous  enough  to  seize  it.  But 
when  it  is  said  a  man  may  rightfully  use  as  much  force  as  is 
necessary  for  the  protection  of  his  person  and  property,  it  must 
be  recollected  the  principle  is  subject  to  this  most  important 
qualification,  that  he  shall  not.  except  in  extreme  cases,  inflict 


<SfC.    i    a.]  WITHOUT    JUDICIAL    PROCEEDINGS.  27 

great  bodily  harm,  or  endanger  human  life.     State  v.  Morgan, 
3  Ired.  186.     The  preservation  of  human  life,  and  of  limb  and 
member  from  grievous. harm,  is  of  more  importance  to  society 
than  the  protection  of  property.     Compensation  may  be  made 
for  injuries  to.   or  the  destruction   of.   property;   but  for  the 
deprivation   of  life  there  is  no  recompense:   and  for  grievous 
bodily  harm,  at  most  but  a  poor  equivalent.     It  is  an  inflexible 
principle  of  the  criminal  law  of  this  state,  and  we  believe  of 
all  the  states,  as  it  is  of  the  common  law.  that  for  the  pre- 
vention  of  a  bare   trespass  upon   property,   not   the   dwelling 
house,  human  life  cannot  be  taken,  nor  grievous  bodily  harm  in- 
flicted.    If  in  the  defense  of  property,  not  the  dwelling  house, 
life  is  taken  with  a  deadly  weapon,  it  is  murder,  though  the 
killing  may  be  actually  necessary  to  prevent  the  trespass.     The 
character  of  the  weapon  fixes  the  degree  of  the  offense.     But 
if  the  killing  is  not  with  a  deadly  weapon — if  it  is  with  an  in- 
strument suited  rather  for  the  purpose  of  alarm,  or  of  chas- 
tisement,   ami   there   is   no   intent   to   kill,   it   is   manslaughter. 
Carroll  v.  State.  23  Ala.  2S ;  TTarrison  v.  State.  24  id.  21 ;  State 
v.  ]\Iorgan.  3  Ired.  86;  Commonwealth  v.  Drew.  4  ]\Iass.  301; 
.AIcDaniel  v.  State,  8  Sm.  &  IMar.  401;  State  v.  Vance,  17  Iowa. 
138;  AYhart.  Horn.  ss.  414-417.     However  true  this  may  be  of 
violence  the  owner  directly   in   person   inflicts,   for  a  trespass, 
or  in  defense,   or  prevention   of   a  trespass,   committed   in   his 
presence,  the  argument  now  made  by  the  counsel  for  appellant 
is  that  of  the  court  in  Tlott  v.  Wilkes,  that  for  the  prevention 
of  secret  trespasses,  conunitted  in  the  absence  of  the  owner,  he 
may  employ  means  of  defense  and  protection  to  which  he  could 
not    resort    if    pi-esent.    (»if('ring    personal    resistance.     The    in- 
structions requested  place  the  proposition  in  its  most  imposing 
form,   of   protection    against  repeated   acts   of   aggression    com- 
mitted in  the  nighttime  by  unknown  trespa.ssers.     For  the  pre- 
vention   of   such    trespa.sses.    he    may.    it    is    said,    employ    any 
agency  or  instrumentality  adequate  to  the  end.  even  though   it 
involves   of  necessity,   grievous   bodily   barm,   or   death    to   tin' 
Irespa.sser.      The    profiosition    itself    subordinates    hiunnii    life. 
and  the  preservation  of  the  body  in  its  organized  state,  to  tin' 
protection    of  ])roi)('iiy.     It   subjects  the   man   to  loss  of  limb 
or  iiM'inber.  or  to  tlu-  deprivation  of  life,  for  a  mere  trespa.ss. 
eapable   of  compensation   in   money.     How   else   can   the   owner 
protect  himself?   it   is  asked.     The  answer  may  well   be.   he   is 
not  entitled  to  protection  at  the  expense  of  the  life,  or  limb  or 
member  of  the  trespas.ser.     All   that   the  latter  forfeits  by  the 
wrong  is  the  penalty  the  law  ])ronounces.     At  comirlon  law.  he 
would    be    comjx'lled    1f>    fmake)    compensation,    for    particulai- 
trespasses,  and  of  the  nature,  in  one  resi^eet.  the  defendant  in- 
tcn(led  to  guard  against     the  severance  from  the  freehold  of  its 
prodnct.s — not  only   is  he  eompelled   to  compensation,   but  un- 
der our  statutes,  indictable  for  a  misdemeanor.     It  may  well  be 
asked,    in    return,    if    the    (.wner   li;is    the    right    to    visit    on    the 


28  WinioLT    .ILI>HIA1.    rivOCKEDJNGS.  [CJl.    1. 

Irospnssor  a  liij^luM-  ])('ii;ilty  tluiii  the  law  would  visit?  Has  he 
,1  rii^ht  to  ]iunisli  n  www  tr('si>iiss  as  llic  law  will  i)nnish  the 
most  ag^ravaled  foloiiirs.  which  not  only  shock  the  moral  sense, 
evince  an  abandoned,  nialisxnant,  depraved  spirit,  but  offend 
the  whole  social  orjjanization .'  There  are  hut  few  offenses  the 
law  siitVers  1o  he  nunislunl  with  death.  Whether  this  extreme 
penally  shall  be  visited  the  law  submits  to  the  discretion  and  to 
the  mercy  of  the  jury — they  may  consign  the  offender  to  im- 
prisonment for  life  in  the  peniteiitiary.  There  is  no  offense 
which  is  punished  by  the  hicei-ation  of  the  body,  or  by  loss 
of  limb  or  menibei'.  Shall  the  owner,  for  the  prevention  of 
a  trespass,  inliict  absolutely  the  penalty  of  death,  a  jury  could 
not  inlliet,  nor  a  court  sanction  ?  Inflict  it  without  the  oppor- 
tunity the  jury  has,  when  they  may  lawfully  intlict  it,  of  less- 
ening it  in  their  mercy  and  discretion  to  im])risonment?  Shall 
he,  in  protection  of  his  property,  lacerate  the  body,  a  punish- 
ment so  revolting  that  it  has  long  been  excluded  from  our 
criminal  code?  If  the  owner  is  vexed  by  secret  trespasses, 
and  their  repetition,  his  own  vigilance  nmst,  within  the  limits 
of  the  law,  find  means  of  protection.  Stronger  enclosures,  and 
a  more  constant  watch  must  be  resorted  to,  and  a  stricter  en- 
forcement of  the  remedies  the  law  provides  will  furnish  ade- 
•  luate  protection.  If  these  fail,  it  is  within  legislative  compe- 
tency to  adopt  remedies  to  the  exigencies  and  necessities  of  the 
o\\Tier. 

It  is  said  the  spring  gun,  or  like  engine,  is  harmless,  if  of 
his  own  wrong  the  trespasser  does  not  come  in  contact  with  it. 
Admit  it,  and  the  controlling,  underlying  consideration  is  not 
met.  If  it  was  conceded  thereby  he  lost  his  right  to  recover 
compensation  for  the  injury  sustained,  the  state  does  not  lose 
the  right,  nor  is  its  duty  lessened,  to  demand  retribution  for 
its  broken  laws,  and  the  imlawful  death  or  wounding  of  one 
of  its  citizens.  With  certainty  the  measure  of  protection  to 
property  is  declared,  and  the  force  which  may  be  employed  in 
its  defen.se  is  defined.  The  secrecy  of  the  trespa.ss,  or  the  fre- 
quency of  its  repetition,  does  not  enlarge  the  one  or  the  other. 
Life  must  not  be  taken,  nor  grievous  bodily  harm  inflicted. 
The  trespasser  is  alwaj^s  in  fault — it  is  his  own  wrong,  which 
justifies  force,  to  the  extent  it  may  be  lawfully  used,  or  to  the 
extent  it  may  be  provoked  and  exerted.  The  secrecy  and  fre- 
quency of  the  trespass  would  not  justify  the  owner  in  conceal- 
ing himself,  and  with  a  deadly  weapon,  taking  the  life,  or 
grievously  wounding  the  trespasser,  as  he  crept  stealthily  to 
do  the  wrong  intended.  What  difference  is  there  in  his  con- 
cealing his  person,  and  weapon,  and  inflicting  unlawful  vio- 
lence, and  contriving  and  setting  a  mute,  concealed  agency  or 
instrumentality  wliicli  will  inflict  the  same,  or  it  may  be  greater 
violence?  In  each  case,  the  intention  is  the  same,  and  it  is  to 
exceed  the  degree  of  force  the  law  allows  to  be  exerted.  In 
the  one  ca.se,  if  the  frespa.sser  came  not  with  an  unlawful  in- 


Sec.  2  a.]  without  judicial  proceedings.  29 

tent — if  his  trespass  was  merely  technical — if  it  was  a  child, 
a  madman,  an  idiot,  carelessly,  thoughtlessly,  entering  and  wan- 
dering on  the  premises,  the  owner  would  withhold  all  violence. 
Or  he  could  exercise  a  discretion,  and  graduate  his  violence  to 
the  character  of  the  trespass.  The  mechanical  agency  is  sen- 
sitive only  to  the  touch — it  is  without  mercy,  or  discretion,  its 
violence  falls  on  whatever  comes  in  contact  with  it.  What- 
ever may  not  be  done  directly  cannot  be  done  by  circuity  or 
indirection.  If  an  owner,  by  means  of  spring  guns  or  other 
mischievous  engines  planted  on  his  premises,  capable  of  caus- 
ing death  or  of  inflicting  great  bodily  harm  on  ordinary  tres- 
passers, does  cause  death,  he  is  guilty  of  criminal  homicide. 
Whart.  Cr.  L.  ss.  418.  553. 

The  degree  of  the  homicide  depends   on   the   facts   already 
stated.     If  the  engine  is  of  the  character  of  a  deadly  weapon, 
the  killing  is  murder.     It  could  not  be  employed  without  the 
intent  to  injure,  and  without  indifference  whether  the   injury 
would  be  death,  or  great  bodily  harm.     But  if  not  deadly  in 
its  character,  if  it  is  intended  only  for  alarm,  and  for  inflicting 
slight  chastisement,  or  mere  detention  of  the  trespasser  until 
he  shall  be  freed  from  it.  there  may  be  no  offense,  or  at  most 
but  manslaughter.     The   character  of  the   instrument,   and  its 
probable  capacity  for  injury,  may  repel  all  presumption  to  do 
more   than   merely   alarm,   or  without   inflicting   any   corporal 
harm,  merely  to  detain  the  trespasser,  and  stay  him  in  his  ef- 
forts to  wrong,  and  if  death  should  ensue,  it  would  be  beyond 
the  intention  of  the  owner,  and  an  unforeseen,  and  not  a  nat- 
ural or  probable,  consequence  of  an  act  in  itself  not  unlawful. 
For  it  is  lawful  to  frighten  away  the  trespasser,  or  by  detain- 
ing him  and  staying  the  wrong  he  contemplates,  to  involve  him 
in  disgrace;  to  detect  him.  and  to  deter  him  from  future  tres- 
passes.    If  the  instrument  is  adapted  only  to  the  purposes  of 
punishment,   and   it   should    inflict    a    punishment   from    which 
death   ensued,   the   oflPense   is   manslaughter,    as   it  would    have 
been   if  the   owner  in   person   had   inflicted   the  violence.     The 
instructions  requested  by  the  appellant  were  inconsistent  with 
these  views,  and  were  properly  refused. 

The  instnictinns  given  by  the  city  court  are  some  of  them 
based  on  the  tlieory,  that  if  death  had  ensued  from  the  wound- 
ing of  the  prosecutor,  by  the  spring  gun,  it  would  have  been 
nnirdf'?-.  it  is  a  legal  sequence,  that  the  defendant  is  guilty  of 
an  assault  with  intent  to  murder.  Olhcrs  proceed  ou  tlie  tlie- 
or>'  that  he  is  guilty  of  an  assault  with  intent  lo  murder,  if  tlie 
spring  gun  was  set  with  the  specific  inlctit  to  Idil  llie  i)i'osecutor, 
whom  ho  suspected  as  tlie  trespasser,  and  against  whom  he  bore 
malice,  altbougii  there  was  also  a  general  intent  to  kill  wlui- 
ever  was  tlie  trespasser,  coming  in  contact  witli  it.  AVc  regard 
each  class  of  instructions  as  erroneous. 

j\n  error  pervading  the  first  is.  tliat  a  geneial  felonious  intent 
is  made  the  equivalent  of  tlie  specific  felonious  intent,  which  we 


30  wrnioi  r  .11  niri.\i.  1'i;(1(i;i;i)|N(,s.  \('Ii.    I. 

li;i\('  s:ii(|  is  tlic  iii(li.s|>('iisal)lL'  clciiu'iij  til'  tlic  offense,  witli 
:vlucli  the  iM-isoiu'i-  stands  cliai-^t'd.  A  ^cnoral  felonious  inten- 
tion, l>y  implication  of  law,  will  convei-t  the  killin«r  of  a  hiniian 
hein^r  into  nuirder.  tliouirh  his  death  or  injury  wa.s  not  within 
the  intention  of  the  slayer.  So.  also,  if  there  is  the  felonious 
intention  to  kill  one.  and  the  fatal  hlow  falls  on  another,  eaus- 
intr  death,  it  is  nnirder.  The  net  is  referred  to  the  felonious 
intent  existiuir  in  the  mind  of  the  aetor,  and  hy  implication 
of  law  supjilies  the  place  of  nuUiee  to  the  person  slain.  Whart. 
Ilom.  s.  183;  4  Hlaek.  L'lil -,  Hratton  v.  State,  10  Humph.  103. 
The  doetrine  of  an  intent  implied  by  law,  ditTerent  from  the 
intent  in  faet.  ean  have  no  aiijilication  to  the  offenses  the  stat- 
ute punishes.  It  is  excluded  by  the  terms  of  the  statute  which 
inelude  only  direct  a.ssaults  on  the  person  of  the  party  it  is 
averred  there  was  the  intent  to  nnirder.  If  in  fact  there  was 
not  the  intent  to  nuirdcr  him,  whether  there  was  a  fjenei-al  felo- 
nious intent,  or  an  intent  to  do  harm  to  some  other  individual, 
is  not  important — there  ean  be  no  conviction  of  the  aggravated 
otfense.  Moi-gan  v.  State,  13  Sm.  &  Mnv.  242;  Jones  v.  State, 
11  id.  315;  Norman  v.  State,  24  :\Iiss.  54. 

An  assault  is  defined  as  an  intentional  attempt,  by  violence, 
to  do  a  corporal  injury  to  another.  In  Johnson  v.  State,  35 
Ala.  363,  it  is  defined  as  "an  attempt  or  offer,  to  do  another 
personal  violence,  without  actually  accomplishing  it.  A  men- 
ace is  not  an  assault,  neither  is  a  conditional  offer  of  violene(^ 
There  must  be  a  present  intention  to  sfi-ike."  In  Lawson  v. 
State,  30  Ala.  14,  it  is  said:  "To  constitute  an  assault  there 
must  be  the  commencement  of  an  act,  which  if  not  prevented, 
would  produce  a  battery;"  the  di-awing  of  a  pjstol,  without 
cocking  or  presenting  it,  is  not  an  assault.  In  State  v.  Davis, 
1  Ired.  125,  it  is  said  by  Gaston,  J.:  "It  is  difficult  in  prac- 
tice to  draw  the  precise  line  which  separates  violence  menaced, 
from  violence  begun  to  be  executed,  for  until  the  execution  of  it 
is  begun,  there  can  be  no  a,ssault.  We  think,  however,  that 
where  an  unequivocal  purpose  of  violence  is  accompanied  by  an 
act.  which  if  not  stopped  or  diverted,  will  be  followed  by  per- 
sonal injury,  the  execution  of  the  purpose  is  then  begun,  and 
the  battery  is  attemi)t(Hl."  Constructive  assaults  are  not  within 
the  statute.  The  ulterior  offense;  the  principal  felony  intended, 
and  the  intent  to  accomplish  which  is  the  aggravating  quality 
of  the  offense,  consists  in  actual  violence  and  wrong  done  to 
the  person.  The  assault  must,  therefore,  consist  of  an  act  be- 
gun, -which  if  not  stoi)ped  or  diverted,  will  result,  or  may  result 
in  the  ulterior  offense,  and  the  act  when  begun  must  be  directed 
against  the  pei-son  who  is  to  be  injured.  Evans  v.  State,  1 
ITumph.  394;  State  v.  Freels.  3  id.  228.  It  miLst  also  be  an 
act  which,  when  begun,  the  person  against  whom  it  is  directiMl 
has  the  right  to  resist  by  force.     2  Arch.  Cr.  PI.  224,  2  note. 

The  setting  a  spring  gun  on  his  premises,  by  the  owner,  is 
culpable  only  because  of  the  intent   with  wliicli  it  is  done.     T'^n- 


<SVC.    2    a.]  WITHOUT    JLDICIAL    PROCEEDINGS.  31 

less  the  public  safety  is  thereby  endangered,  it  is  not  indictable. 
State  V.  Moore.  31  Conn.  479.  If  dangerous  to  the  public,  it  is 
indictable  as  a  nuisance.  Resistance  by  force  to  the  setting  of 
it.  by  any  individual  (if  not  dangerous  to  the  public),  the  law 
Avouid  not  sanction,  though  he  may  apprehend  injury  to  him  is 
intended  if  he  trespciss  on  the  premises.  The  injury  exists  only 
in  menace — it  is  conditional.  an<l  his  own  act  must  intervene 
and  put  in  motion  the  force  froiii  which  injury  will  proceed. 
AYhile.  because  of  the  unlawful  intention  with  which  the  gun 
is  set  the  owner  is  made  criminally  liable  for  the  consequences 
he  eonteini)lates.  it  is  not  his  violence,  except  by  implication  of 
law.  which  ])roduces  the  injury.  It  is  not.  consequently,  an 
assault  which,  connected  with  an  intent  to  murder,  is  punish- 
able under  the  statute.  If  the  gun  is  set  with  intent  to  kill  a 
]>articular  pei-son.  who  is  injured  by  it.  whether  it  is  not  an 
attempt  to  murder  conuiiitted  by  means  not  amounting  to  an 
assault,  indictable  under  another  clause  of  the  .statute,  is  a 
question  this  record  does  not  present. 

The  result  is  that  the  judgment  of  the  city  court  is  reversed 
and  the  cause  remanded.  The  ]>risoner  will  remain  iti  custody 
nntil  discharged  by  due  c(mrse  of  law. 

The  decision  in  Ilott  v.  Wilkes,  3  B.  &  Aid.  304.  referred  to  in  this 
opinion,  iirodiiced  a  controversy  between  Sidney  Smith  and  Best,  J., 
10  be  found  in  Smith's  ^Miscellanies,  vol.  1.  p.  347,  and  vol  2,  p.  136. 
For  further  discussion  as  to  civil  and  criminal  liability  for  setting 
sjiring  guns,  see  Bish.  Xon-Cont.  Law.  ss.  847,  943;  Loomis  v.  Terry. 
17  AVend.  496.  and  note;  State  v.  Barr,  11  Wash.  481,  39  Pac.  1080,  29 
L.  R.  A.  l.'.l.  and  note;  Bish.  Cr.  Law.  ss.  8.^4-S57;  Clark's  Cr.  Law, 
174;  McCIain's  Cr.  Law.  ss.  142,  32.'),  1184;  State  v.  Marfaudille,  92  Pac. 
939.  14  L.  R.  A.  (X.  S. )  346,  and  note.  See  "Homicide,"  Century  Dig. 
§§  112,  187.  188;   Decennial  and  Am.  Dig.  Key  No.  Series.  §§  86,  124. 


CONWAY  V.  GRANT.  88  Ga.  40,  14  L.  R.  A.  196,  13  S.  E.  S03.     1891. 
Drfciise  of  Property.     Guard  Doris. 

[Action  by  Conway  to  recover  damages  for  injuries  received  from 
being  bitten  by  defpudant's  dogs.  .Judgment  for  defendant,  dismissing 
the  action.  Conway  larricd  the  ( ase  to  the  siunomc  court  by  writ  of 
error.  Reversed.  Conway  went  into  tbe  l)ack  yard  of  dt^fendant  to 
seek  work  as  a  carpenter,  and  was  bitten  by  defendant's  dogs.] 

l>i.i:rKi,KV.  ('.  J.  TIm'  ferocious  ciiaraelec  ol'  the  dugs  and 
the  knowledge  of  the  (iwiief  afc  su("HeiiMitl>-  alleged.  The  only 
matter  of  eonlroversy  is  toucliiug  llie  f.iiill  ol"  the  |.laititi(T  in 
exposing  liiiiiself  to  attack  by  entering  the  preini.ses  of  the  de- 
fendant where  the  dogs  weiv  kept.  There  was  an  opon  gate  in 
re;ir  of  the  premises,  and  the  plainlilT.  according  to  his  de<'lara- 
tion.  was  on  lawful  luisiness.  I^'ing  in  se;irc|i  of  enqiloyineiit 
as  a  carpentt-r.  .-nul  seeing  indie;i1iniK  that   such   woi-k   was  pi-ob- 


32  A\  rriKM  i'  .irniciAi,  I'Koci'.F.niNGS.  \('h.  1. 

ably  earritHl  on  in  a  oortaiii  li(>iis(\  lie  cntri-cd  tlu'  pri'iniscs  ['ov 
the  purpose  of  inakiiifl:  onij:a«:tMnoiil  or  to  work,  liaving  no  notice 
or  knowloilire  of  tlie  dotrs.     In  tliis  way  ho  hecanie  exposed  and 
was   bitten.     AVe   tliink   a    cause   of   action    is  snbstantially   set 
forth.     Code.  §  12!)()4.  declares:     "A  person  Avho  owns  or  keeps 
a  vicious  or  dangrerons  animal  of  any  K'ind,  and.  by  the  care- 
less management  of  the  same,  or  by  allowinji-  the  same  to  go  at 
liberty,  another,  without  fault  on  his  pai-t,  is  injured  thereby, 
such  owner  or  keeper  shall  be  liable  in  damages. for  such  in- 
jury."    The  fault  here  referred  to  is  not  that  of  being  a  tres- 
passer, but  that  of  being  in  some  way  instnimental  in  provok- 
ing or  bringing  on   the  attack   complained  of.     "Tt  must,   af 
the  same  time,  be  understood  that  the  right  of  redress  of  the 
injured  person  will  be  defeated  if  the  injury  was  caused  by  his 
own  fault.     A  pereon  who  irritates  an  animal,  and  is  bitten  or 
kicked  in  turn,  is  deemed  in  law  to  have  consented  to  the  dam- 
age sustained,  and  cannot  recover.     But  if  the  fault  of  the  in- 
jured party  had  no  necessary  or  natural  and  usual  connection 
with  the  injury,  operating  to  produce  the  injury  as  cause  pro- 
duces effect,  the  owner  of  the  animal  will  be  liable.     For  exam- 
ple, the  defendant  keeps  upon  his  premises  a  ferocious  dog,  and 
the  plaintift',   having  no  notice   that  such   dog   is  there,  tres- 
passes in  the  daytime  upon  the  premises,  and  the  dog  rushes 
upon  him  and  bites  him.     The  defendant  is  liable,  since  it  is  not 
the  necessary  or  natural  and  usual  consequence  of  a  person's 
trespassing  upon  a  man's  premises  by  day  that  he  should  be 
attacked  by   a  savage   dog."       Bigelow,   Torts,   pp.   249,   250. 
Though  the  gate  was  open,   and  the  plaintiff  was  ^n   lawful 
business,  it  may  be  that  he  had  no  strict  legal  right  to  enter 
the  premises  from  the  rear.     But  this  Avould  be  no  justification 
for  leaving  dangerous  dogs  loose  on  the  premises  to  bite  him 
or  others  that  might  so  intrude.     Such   dangerous   means   of 
defense  against  mere  trespassers  the  law  will  not  countenance. 
As  general  authorities  on  the  subject,  see  Brock  v.  Copeland.  1 
Esp.   203:    Sarch  v.   Blackburn.   4   Car.   &   P.   297;    Curtis  v. 
Mills,  5  Car.  &  P.  489 ;  Loomis  v.  Teriy.  17  Wend.  496 ;  Pier- 
ret  V.  Moller.  3  E.  D.  Smith.  574;  Kelly  v.  Tilton.  *42  N.  Y. 
263;   Sherfey  v.  Bartley,  4  Sneed.   58;  Woolf  v.   Chalker,  31 
Conn.  121 ;  Laverone  v.  Mangiante.  41  Cal.  138 ;  notes  to  Knowles 
V.  Mulder   (Mich.).  41  N.  W.  Rep.  896;  Cooley,  Torts,  *345: 
Bish.     Non-Cont.   Law,   1235   et   seq.;   1    Thomp.    Neg.   p.   220 
§  34;  Muller  v.  iMcKesson,  73  N.  Y.  195;  Rider  v.  White.  65 
N.  Y.  54.     It  will  be  observed  that  the  most  that  could  possibly 
be  said  against  the  plaintiff  is  that  he  trespa.ssed  by  going  upon 
the  premises.     This  is  a  milder  fault  than  going  there  to  com- 
mit a  trespa.ss.     If  his  purpose  had  been  to  commit  a  crime, 
the  dogs  would  have  been  properly  employed  in  resisting  him. 
But  he  seems  to  have  had  a  virtuous  and  worthy  object,  although 
his   mode   of  executing   it  was   doubtless   injudicious.     It   wa.s 


Sec.  2  a.]  without  judicial  proceedings.  33 

not  lawful  to  bite  him  by  the  instinimentality  of  dogs  or  other 
dangerous  animals.  The  court  erred  in  dismissing  the  action. 
Judgment  revei'sed. 

See  the  notes  to  this  case  in  14  L.  R.  A.  196.     See  "Animals,"  Cen- 
tury Dig.  §  236;   Decennial  and  Am.  Dig.  Key  No.  Series,  §  70. 


BROCK  V.  COPELAND,  1  Espinasse,  203.     1794. 
Defense  of  Property.     Guard  Dogs. 

[Action  on  the  case  for  damages  caused  by  defendant's  dog.  Judg- 
ment for  defendant  nonsuiting  plaintiff.  The  declaration  stated  that 
defendant  knowingly  kept  a  dog  used  to  bite  and  that  plaintiff  was 
injured  by  the  dog.     Not  guilty  pleaded.] 

It  was  given  in  evidence  that  the  defendant  was  a  carpenter, 
and  that  the  dog  was  kept  for  the  protection  of  his  yard;  that 
he  was  kept  tied  up  all  day.  and  was  at  that  time  very  quiet  and 
gentle,  but  was  lot  loose  at  night.  It  was  further  proved  that 
the  plaintiff,  who  was  foreman  to  the  defendant,  had  gone 
into  the  yard  after  it  had  been  shut  up  for  the  night,  and  the 
dog  let  out ;  at  which  time  the  injury  happened,  the  dog  hav- 
ing then  bit  and  torn  him. 

On  this  evidence  Lord  Kenyon  ruled,  that  the  action  would 
not  lie.     He  said  that  every  man  had  a  right  to  keep  a  dog  for 
the  protection  of  his  yard  or  house;  that  the  injury  which  this 
action  was  calculated  to  redress,  was  where  an  animal  kno^vn 
to  be  mischievous  was  permitted  to  go  at  large,  and  the  injury 
therefore   arose   from   the   fault  of  the   owner  in   not   securing 
such  animal,  so  as  not  to  endanger  or  injure  the  public;  that 
here  the  dog  had  been  properly  let  loose:  and  the  injury  had 
arisen  from  the  plaintiff's  own  fault,  in  incautiously  going  into 
defendant's   yard    after   it   had   been    shut   up.     His   Lordship 
added,  that  in  a  former  case,  where  in  an  action  against  a  man 
for   keeping   a    mischievous   bull,   that    had   hurt   the   plaintiff, 
it    having   appeared    in    evidence  that    the    plaintiff   was    cross- 
ing a  field   of  Ihe  defendant's   whei-e  the  bidl    was  kept,   and 
where  he  had  received  the  injniy.  the  def(Midant's  counsel  con- 
lended.  that   the  phiinliff  having  gone  there  of  his  own  head, 
and  having  received  the  injiiry  of  his  own  fault,  that  an  action 
would  not  lie:  but  that  it  appearing  also  in  evidence  that  there 
was  a  contest  concerning  a  right  of  way  over  this  field  wherein 
the  bull   was  kept,  and  that  the  defendant  had   permitted  sev- 
eral persons  to  go  over  it  a.s  an   open   way.  that    be  bad  ruled 
in  that  ease,  and  the  court  of  King's  Tieneh  bad  concurred  in 
opinion    with    biin:     That    tlie    plaintiff   having    gone    into    the 
field,  supposing  that  he  had  a  right  to  g.i  there,  and  the  defend- 
ant having  permitted  persons  to  go  there,  as  over  a  legal  way, 
that  he  should  not   then  be  allowed  to  set  up  in  bis  defense  the 
Rpmedies — 3. 


34  \\  iTiioi  r  .iihiciAi,   i'K(i(i;i:i)iN(is.  \('li.    I. 

riirlit   of  ki'('|tiiiir  siicli  ,'iii  .-iiiiiii.'il   tlnTi'  ;i.s  in   liis  cldsc;   Iml    lliat 
tin-  .-let inn  was  inaiiitainahlo. 

Soe  "Animals,"  t'oniiiry  Dij;.  j§  2l'r>.  22(>,  2:5:I   2:'.();    ntnoniiial  and  Am. 
nig.  Key  No.  Series.  §§  68.  70. 


STATE  V.  STEELE.  UK)  X.  C    706,  782  787,  11  S.  E.  478.     1890. 
Defense  of  Person  ami  Property.     Evivtlng  Persons  from   Hotels,  etc., 

by  Force. 

I  Criminal  prosecution  begun  in  a  justice's  court  of  Buncombe  county 
and  carried  by  appeal  to  the  criminal  court  of  Buncombe  county,  where 
there  was  a  verdict  and  judgment  against  the  defendant.  Defendant 
a|)iiealed  to  the  supreme  court.     Reversed. 

Joseph  Weaver,  the  prosecutor,  had  been  notified,  in  writing,  by  de- 
fendant, not  to  go  upon  the  premises  of  the  Battery  Park  Hotel;  but, 
notwithstanding  such  notice.  Weaver  did  go  upon  the  porch  of  the 
hotel  and  was  directed  by  defendant  to  leave.  As  he  was  leaving,  de- 
fendant pushed  him  off  the  porch.  Defendant  was  manager  of  the 
hotel.  Weaver  was  on  the  porch  contrary  to  the  rules  of  the  hotel, 
which  required  persons  representing  livery-men — and  such  was  Wea- 
ver's business  on  this  occasion — to  keep  off  the  porch,  and  to  transact 
their  business  with  the  guests  of  the  hotel  through  servants  of  the 
hotel  stationed  at  a  designated  part  of  the  premises  for  that  puri)ose. 
There  was  evidence  tending  to  prove  that  the  i)rosecutor  was  discrim- 
inated against  in  the  enforcement  of  the  rules  of  the  hotel.  The  de- 
fendants  third  exception  was  as  follows:  3.  That  the  court  erred  in 
the  following  instructions  given  to  the  jury:  "If  you  shall  find  from 
the  evidence  that  others  engaged  in  the  same  business  as  the  prose- 
cutor were  permitted  by  the  defendant  to  go  to  the  Battery  Park  Hotel 
for  the  same  purpose  for  which  the  ;)rosecutor  went  there — that  is,  to 
secure  and  transact  business  for  his  employer's  liver.v-stable — then 
the  prosecutor  had  also  the  right  to  go  there  for  that  purpose  at  rea- 
sonable times,  and  to  remain  there  a  reasonable  length  of  time  for  the 
tiansaction  of  such  business;  and  it  would  not  matter  that  the  rules 
of  the  hotel  forbade  his  entering  the  premises  of  the  hotel  for  that 
purpose,  or  that  he  had  been  previously  forbidden,  in  writing,  to  come 
upon  the  premises  of  the  hotel." 

Only  so  much  of  the  opinion  is  here  inserted  as  discusses  the  rights 
and  liabilities  of  hotel  proprietors,  and  others  having  i)roperty  used 
for  similar  puiposes,  with  regard  to  defending  I  heir  property  from 
trespassers  and  others.] 

Avery,  J.  .  .  .  T'pon  a  review  of  all  tlie  authorities  ac- 
cessible to  us.  and  upon  the  application  of  well-established  prin- 
ciples of  law  to  the  admitted  facts  of  this  particular  case,  we  nv 
constrained  to  conclude  that  there  Avas  error  in  the  charge  p^ivcn 
by  the  court  to  the  jury,  because: 

1 .  Guests  of  an  hotel,  and  travelers  or  other  persons  entering  it 
with  the  bona  fide  intent  of  becoming  guests,  cannot  be  lawfully 
prevented  from  going  in  or  put  out  by  force,  after  entrance, 
])rovid(^d  they  are  able  to  pay  the  charges  and  tender  the  money 
necessary  for  that  ])urp()se.  if  requested  by  tin-  landlord,  uidess 
they  be  persons  of  bad  or  suspicious  character,  or  of  vulgar  hab- 
its, or  so  objectionable  to  tlie  patrons  of  the  liouse.  on  accoinit  of 


.Sm;.    :>    a.]  WITHOfT    .TIUICIAI,    PROCEKDIXGS.  35 

the  race  to  which  they  beloug.  that  it  would  injure  the  business 
to  admit  them  to  all  portions  of  the  house,  or  unless  they  attempt 
to  take  advantage  of  the  freedom  of  tlie  hotel  to  injure  the  land- 
lord's chances  of  profit  derived  either  from  his  inn  or  any  other 
business  incidental  to  or  connected  with  its  management,  and 
constituting  a  part  of  the  provision  for  the  wants  or  pleasure  of 
his  patrons.  Jeneks  v.  Coleman,  supra  ;  Com.  v.  Mitchell,  supra; 
Com.  V.  Power.  sui)ra  ;  Pinkerton  v.  AVoodward.  91  xVmer.  Dec. 
G60;  Baniey  v.  Steamboat  Co..  supra;  1  Whart.  Crim.  Law, 
§  621;  Ang.  Carr.  ^^  525.  529.  530;  Britt«m  v.  Railroad  Co..  88 
N.  C.  536. 

2.  AVhen  persons  unobjectionable  on  account  of  character  or 
race  entei-  an  hotel,  not  as  guests,  but  intent  on  pleasure  or  profit, 
to  be  derived  from  intercourse  with  its  inmates,  they  are  there, 
not  of  right,  but  under  an  implied  license  that  the  landlord  may 
revoke  at  any  time;  because,  barring  the  limitation  imposed  by 
liokling  out  inducements  to  the  public  to  seek  accommodation  at 
his  inn,  the  proprietor  occupies  it  as  his  dwelling  house,  from 
which  he  may  expel  all  who  have  not  acquired  rights,  growing 
out  of  the  relation  of  guest,  and  nuist  drive  out  all  who.  by  their 
1>ad  conduct,  create  a  nuisance  and  prove  an  annoyance  to  his 
l)atrons.  Ilan-is  v.  Stevens.  31  Vt.  79:  1  Whart.  Crim.  Law, 
§  625. 

3.  The  regulation,  if  made  by  any  innkeeper,  that  the  proi)rie- 
tors  of  liv«M-y  stables,  and  their  agents  or  servants,  shall  not  be 
allowed  to  enter  his  hotel  for  the  purpose  of  soliciting  patronage 
for  their  business  from  his  guests,  is  a  reasonable  one.  and.  after 
notice  to  desist,  a  person  violating  it  may  be  lawfully  expelled 
from  his  hcmse.  if  cxct'ssivi-  force  be  not  used  in  ejecting  him. 
Com.  v.  Power,  supra;  llai-ris  v.  Stevens,  supra.  See.  also.  Gris- 
wold  v.  Webb,  recently  reported  in  19  Atl.  Hep.  U3  (a  Rhode 
Island  case)  ;  Railroad  Co.  v.  Tripp,  supra. 

4.  An  iinikeept'i-  has  unquestionably  lln'  I'ight  to  establish  a 
news-stand  or  a  barbershop  in  his  hotel,  and  to  exclude  persons 
who  come  for  tlit*  i)urpose  of  vending  newspapers  or  books,  or  of 
soliciting  employnifnt  as  barbci's:  ami.  in  oinb'r  to  render  his 
business  more  lucrative,  he  may  establish  a  laundry  or  a  liveiw 
stable  in  connection  with  his  hotel,  oi-  contract  with  the  proprie- 
tor of  a  livery  stal)li'  in  the  vicinity  to  secure  for  the  latter,  as 
far  as  he  legitimately  can.  tli.-  patronage  of  his  guests  in  ihat  line 
fur  a  per  centum  of  the  proeeeds  or  |M-otits  derived  by  such  owm-r 
of  veliicles  ;iii«l  horses  from  dealing  with  the  jtatrons  of  the  pub- 
lie  liouse.  .\fler  eonehiding  such  a  <'ontraet.  the  innkeeper  may 
make,  and  after  pei-soiud  notice  to  violators,  enforce,  a  rule  e.\- 
«'lnding  from  his  hotel  tli.-  agents  ;ind  representatives  of  other 
livery  stables  win*  enter  to  solicit  the  i>alr«>nage  of  his  guests;  and 
when^  one  has  persisted  in  visiting  the  hotel  I'oi-  that  purpose, 
aher  notiee  to  desist,  the  prn|»rietor  may  \ise  suflieienl  force  to 
expel  bill)  if  lie  refuse  to  Irjive  when  re.|uesled,  ;ind  ni;iy  eject 
liim,  even  though  on  ;i   parliculiir  oeejision   lie  in.iy   li;i\i'  entered 


3(j  wiriioiT  .MhiciAi.   i'W(ni;i:i)iN(is.  1C7(.  1. 

for  a  law  ful  luirposc.  if  lir  tl^n-^  not  discloso  his  Inic  iiilcnt  wlu'ii 
requested  \o  leave,  or  whatever  may  lia\i'  been  liis  purpose  in 
enterinir.  if  he  in  fait  has  en«iai;ed  in  soliciting;  the  patronage  of 
the  fjuests.  Uaiiie.N  \.  Steauilu.at  Co..  supra;  Jeneks  v.  Cole- 
man, and  Ilari-is  v.  Stevens,  snpra;  x\n};.  i*v:  A.  ('orp.  §  530. 

5.  The  ])road  rule  laid  down  hy  Wharton  (^  Crim.  Law,  §  625) 
is  tliat  "the  iirojtrielor  of  a  |»nhlic  inn  has  a  i-ip;ht,  to  riMpiest  a 
person  who  visits  it.  not  as  a  irnest  or  on  business  with  a  piiest. 
to  dejiai't.  and  if  he  refuse  the  innkeeper  has  a  I'ifiht  to  lay  his 
hands  <rently  upon  him.  and  lead  him  out.  and,  if  resistance  he 
made,  to  emjiloy  sufHeient  force  to  put  him  out;  and  for  so  doinj,' 
he  can  justify  his  conduct  on  a  prosecution  for  assault  and  bat- 
tery." It  will  be  observed  that  the  author  adopts  in  ])art  1lie 
laiiguarre  already  quoted  from  the  courts  of  Pennsylvania. 

6.  If  it  be  conceded  that  the  prosecutor  went  into  the  hotel  at 
the  request  of  a  guest,  and  for  the  ]un7)ose  of  conferring  with  the 
latter  on  business,  still,  in  any  view  of  the  case,  if,  after  enterinor, 
he  engaged  in  "drunnning"  for  his  employer  when  he  had  been 
previously  notified  to  desist  in  obedience  to  a  regulation  of  the 
house,  the  defendant  had  a  right  to  expel  him  if  he  did  not  use 
more  force  than  was  necessary,  and  if  the  prosecutor,  having 
entered  t^  see  a  guest,  did  not  then  solicit  business  from  the  pa- 
trons of  the  hotel,  but  had  done  so  previously,  the  defendant,  see- 
ing him  there,  had  a  right  to  use  sufficient  force  to  eject  him.  un- 
less he  explained.  Avhen  requested  to  leave,  \vhat  his  real  intent 
was.  Harris  v.  Stevens,  and  Com.  v.  Power,  supra.  The  guest, 
by  sending  for  a  hackman.  could  not  delegate  to  him  the  right  to 
do  an  act  for  which  even  the  guest  himself  might  lawfully  be  put 
out  of  the  hotel. 

7.  If  we  go  further,  and  admit,  for  the  sake  of  argument,  that 
the  principle  declaivd  in  IMarkham  v.  Hrown.  8  N.  H.  530.  and 
relied  on  to  sustain  the  view  of  the  court  below,  is  not  inconsistent 
with  the  law  on  the  same  subject,  as  Ave  find  it  laid  down  by 
Wharton  and  other  recognized  authoT'ities.  still  our  case  will  be 
found  to  fall  under  the  exception  to  the  general  rule  stated  in 
express  terms  in  that  case.  The  court  said:  ''If  one  comes  to 
injure  his  [the  innkeeper's]  house,  or  if  his  business  operates  di- 
rectly as  an  injury,  that  may  alter  the  case;  but  that  has  not  been 
alleged  here :  and  perhaps  there  may  be  cases  in  which  he  may 
have  a  right  to  exclude  all  but  travelers  and  those  who  have  been 
sent  for  by  them.  It  is  not  necessary  to  settle  that  at  this  time." 
There  Avas  no  evidence  in  Markham  v.  Brown  that  the  proprietor 
of  the  hotel  had  any  contract  with  another  stage  line,  or  would 
suffer  pecuniar^'  loss  or  injury,  if  the  agent  who  was  expelled  was 
successful  in  his  solicitations :  and  it  seems  that  Angell  and  othei-s. 
who  cite  as  authority  that  case,  as  well  as  Jeneks  v.  Coleman  and 
Barney  v.  Steamboat  Co..  reconcile  them  by  drawing  the  distinc- 
tion that  in  the  latter  cases,  and  in  the  hypothetical  case  of  an 
innkeeper,  put  by  Justice  Story,  the  person  whose  expulsion  Avas 
justified  Avas  doing  an  injurv  to  the  proprietor,  Avho  had  him  re- 


Sec.  2  a.]  without  judicial  proceedings.  37 

moved,  by  diminishiug  his  profits  derived  legitimately  from  a 
business  used  as  an  adjunct  to  that  of  common  carrier  or  inn- 
keeper. In  using  the  language  quoted  above,  Justice  Parker 
seems  to  have  had  in  his  mind,  without  referring  to  it,  the  opinion 
of  Justice  Story,  delivered  in  the  circuit  court  but  two  years  be- 
fore ( Jencks  V.  Coleman,  supra). 

8.  The  defendant,  as  manager  of  the  hotel,  could  make  a  valid 
contract,  for  a  valuable  consideration,  with  Sevier,  to  give  him 
the  exclusive  privilege  of  remaining  in  the  house  and  soliciting 
patronage  from  the  guests  in  any  business  that  grew  out  of  pro- 
viding for  the  comfort  or  pleasure  of  the  patrons  of  the  house. 
The  proprietors  of  the  public  house  might  legitimately  share  in 
the  profits  of  any  such  incidental  business,  as  furnishing  car- 
riages, buggies,  or  horses  to  the  ]iatron,s.  and  for  that  purpose  had 
as  full  right  to  close  their  house  against  one  who  attempted  to  in- 
jure the  business  in  which  they  had  such  interest  as  the  owner  of 
a  private  house  would  have  had,  and  this  view  of  the  case  is  con- 
sistent with  the  doctrine  enunciated  in  Markham  v.  Brown. 
There  was  no  evidence  tending  to  show  that  Chambers  had  actual 
jiermission  from  the  proprietors  to  approach  the  inmates  of  the 
hotel  on  the  subject  of  patronizing  him,  nor  that  they  had  actual 
knowledge  of  the  fact  that  he  had  continued  his  solicitations  after 
receiving  a  similar  notice  to  tliat  sent  to  the  prosecutor.  The  fact 
that  he  was  overlooked  or  passively  allowed  to  remain  in  the  hotel 
(\i  may  be  under  the  impression  on  the  part  of  the  defendant  that 
lie  had  desisted  from  his  objectionable  practices)  cannot,  in  anj^ 
view  of  the  law,  work  a  forfeiture  of  the  right  to  enforce  a  rea- 
sonable regulation,  made  to  protect  their  legitimate  bu.siness  from 
injury.  If,  therefore,  a  permit  on  the  part  of  the  defendant  to 
Chambers  to  "drum"  gratuitously  in  the  house  would  at  once 
have  opened  his  doors  to  all  of  the  competitors  of  the  latter  (a 
proposition  that  we  are  not  prepared  to  admit),  the  defendant  did 
not,  so  far  as  the  testimony  discloses  the  facts,  speak  to  him  on  the 
subject;  and  the  soundness  of  the  doctrine  that,  without  interfer- 
ing with  the  legal  rights  of  the  guests,  the  proprietor  of  a  hotel  is 
prohibited  by  the  organic  law  from  granting  such  exclusive  privi- 
leges to  any  individual,  as  to  the  use  or  occupancy  of  his  prem- 
ises, as  any  other  owner  of  land  may  extend,  is  not  drawn  in  ques- 
tion. We  therefore  sustain  the  second  and  third  assignments  of 
<'rror.  Ills  honor  erred,  for  tho  reasons  given,  in  instructing  the 
jury  that  the  guilt  of  the  defendant  depended  \\\nm  the  ((uestion 
wliether  he  pennitted  Chambers  or  Sevier  to  solicit  custom  in  the 
house.  lie  had  a  lawful  right  to  discriminate,  for  a  considera- 
tion, in  favor  of  Sevier,  while  it  does  not  apjx'ar  fi'om  the  evidence 
that  he  granted  any  exchisive  |)rivileges  to  ('hainhers.  We  hold 
that  the  regulation  was  such  a  one  as  an  innkeeper  had  the  power 
to  make,  and  must  not  be  uruh^rstood  as  approving  the  idea  that 
the  sanetion  of  the  iiiunieiy);il  authorities  eould  impart  validity  to 
it,  if  it  were  not  reasonal)lc  in  itself,  and  within  the  powers  whicli 
the  law  crives  tf)  pi-oj)rietors  of  public  houses  in  order  that  they 


;iS  wri'iuii  r  .in>ici.\i.  i'uuckkiuncjs.  \('h.    I. 

iii;i.\  LTUiird  llu'ii-  own  riirlils  .-iiul  protci-t  tlicir  pntiHtiis  from  aii- 
iu)\iim-i'.  b'of  I  lie  rciisoiis  ^mm'Ii  tlic  (IcrciidMiil  is  ciilitlcd  to  a 
ut'w  trial. 


See  note  to  Hex  v.  C'lushuiit.  1  li.  &  A.  41'A,  inserted  post  in  this  sec- 
tion. See  "Assault  and  Hatleiy,"  Century  Hit?.  S  100;  Decennial  and 
Am.  Dig.  Key  No.  Series,  §  69,  and  "Innkeepers,"  Century  Dig.  §  it; 
Decennial  and  Am.  Dig.  Key  No.  Series,  §  6. 


STATE  V.  DAVIS,  80  N.  C.  351.     1879. 
Defense  of  Person  and  Property.     Trespasser  in  PubUv  Road. 

t Indictment  for  an  affray  against  Davis  and  Lassiter.  Lassiter  was 
acquitted.  Verdict  and  judgment  against  Davis,  who  appealed.  Af- 
firmed.    The  facts  appear  in  the  beginning  of  the  opinion.! 

Ashe,  J.  The  defendant  and  one  Evans  were  quarrelling  near 
the  dwelling  house  of  Mrs.  Laws  in  a  public  road  running  over 
her  land.  The  defendant,  armed  with  a  ])istol  Avhieh  he  had  in 
his  hand,  was  vaporing,  eursing.  and  using  \Gxy  vulgar  language 
in  the  hearing  of  the  inmates  of  the  house.  Lassiter,  who  was  the 
son  of  IMrs.  Laws  and  lived  >vith  her,  came  out  with  an  ordinary 
walking  stick  in  his  hand  and  remonstrated  with  the  defendant, 
who.  still  holding  his  pistol,  cursed  and  denounced  him,  saying 
he  was  in  the  public  road,  and  he  Avould  curse  as  much  as  he 
pleased.  After  the  interchange  of  a  few  Avords.  the  lie  was  given 
by  defendant,  and  Lassiter  struck  him  witli  his  stick,  when  the  de- 
fendant attempted  to  use  his  pistol,  but  was  prevented  by  those 
present. 

He  seems  to  have  rested  his  defense  upon  the  ground  that  he 
was  in  the  public  road  and  liad  the  right  to  do  there  as  he  pleased. 
In  this  he  was  mistaken.  The  public  have  only  an  easement  in  a 
highway — that  is.  the  right  of  passing  and  repassing  along  it. 
The  soil  remains  in  the  owner,  and  where  one  stops  in  the  road 
and  conducts  himself  as  the  defendant  is  charged  to  have  done, 
he  becomes  a  trespasser,  and  the  owner  has  the  right  to  abate  the 
nuisance  which  he  is  creating.  The  principle  of  molliter  man  us 
does  not  apply  in  a  case  like  this,  where  the  trespasser  armed  with 
a  pistol  is  acting  in  such  belligerent  defiance.  See  State  v.  Buck- 
x\Qr,  6]  N.  C.  431 . 

The  defendant  used  language  which  was  calculated  and  in- 
tended to  bring  on  a  fight,  and  a  fight  ensued.  He  is  guilty. 
State  V.  Perry.  50  N.  C.  9;  State  v.  Kobbins.  78  N.  C.  431.  No 
error. 

See  "Affray,"  Century  Dig.  §§  1-5;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §§  1,  2;  "Assault  and  Battery."  Century  Dig.  §  90;  Decennial 
and  Am.  Dig.  Key  No.  Series,  §  64. 


6ic.  2  a-.]  wiTiioiT  .nniciAi.  proceedings.  39 


STATE  V.  GOODE.  130  N.  C.   651.  41   S.  E.  3.     1902. 
"A  Man's  House  is  His  Castle."     The  Foree  That  May  Be  Used  to  Pro- 
tect It.     Fiiniitiire  Sold  on   Installment  Plan. 

(Indictment  against  Liuinda  Goode  for  an  assault  and  battery  upon 
the  prosecutor  (whose  name  does  not  appear  in  the  report  of  the  case). 
Verdict  and  judgment  against  the  defendant,  who  appealed.  Reversed. 
The  prosecutor  went  to  the  defendants  house  to  collect  some  money 
due  on  furniture  which  had  been  sold  to  her  husband  on  the  installment 
plan.     The  other  facts  are  stated  in  the  ojiening  of  the  opinion. 1 

Clark.  J.  AVhetlier  there  was  excessive  foree  used  or  not  was 
a  question  for  the  jury,  not  for  the  court.  The  defendant's  testi- 
mony wa.s  fuller  than  that  of  the  prosecutor.  l)iit  Ava.s  not  contra- 
dieted  by  him  ;  and  taking  it  to  be  true,  as  liis  honor  assumed,  and 
as  must  be  done  on  the  virtual  demurrer  to  her  evidence,  these  are 
the  facts :  Two  strangers,  one  of  them  a  white  man,  came  to  the 
defendant's  home.  Slie  invites  the  latter  in  y)olitely.  and  gives 
him  her  rocking  chair.  Without  showing  any  credentials,  he  de- 
mands pay  for  her  bed.stead.  Upon  her  saying  she  had  no 
money,  and  asking  him  to  wait  till  her  husband  came,  the  prosecu- 
tor jumps  up  violently,  and.  swearing  he  would  take  the  bedstead, 
or  go  to  hell  trying,  he  throws  her  tablecloth  and  underskirt  on 
the  floor.  Slie  tells  him  to  let  her  things  alone.  As  she  wa.s  iron- 
ing, presumably  those  things  were  freshly  washed,  and  nicely 
starched  and  ironed,  and  he  tnust  have  known  that  to  throw  them 
on  the  floor  would  arouse  her  ire.  Then  he  laid  his  profane  hands 
on  the  paraphernalia  of  her  bed,  and  began  to  throw  back  the 
bwlclothes  and  to  lift  the  mattress,  all  of  which  would  speedily 
have  gone,  of  course,  upon  the  floor.  The  defendant  would  not 
liave  been  a  woman  if  she  had  stood  that.  She  seized  her  little 
hoy's  baseball  bat.  and  lold  him  to  let  her  things  alone  and  leave 
the  house,  when  he  scfuared  off  at  her,  drawing  back  his  fist,  and 
called  her  a  "damned  fool,"  whereupon,  very  naturally,  .she  bat- 
ted the  back  of  his  heatl.  It  was  probably  a  "left  fielder,"  for 
the  prosecutoi-  soon  after  left  that  field.  The  counsel  for  the 
f)rosecutor  tells  us  he  left  because  he  did  not  wish  to  provoke  a 
diffifidty.  It  is  doubtful  if  he  could  do  more  to  provoke  a  woman, 
whicli  is  sometimes  worse,  and  it  W(»uld  seem  that  he  left  rathiM* 
than  to  eollect  another  installment  on  the  batting.  The  woman 
was  in  her  own  house.  If  her  evidence  is  true. — and  it  must  be 
so  taken  on  this  appeal, — she  treated  the  i>rosecutoi-  politely,  and 
he  returned  her  |)f)liteness  by  swearing,  throwing  her  things  on 
the  floor,  throwing  Iciek  the  liedelothes  ;ind  jiiattress  ;ind  nvowing 
liis  intention  to  e;ii-ry  off  her  hedste;id.  ill  the  diresl  lia/,;ird  to  his 
sftnl.  and  drawimr  back  his  flst  at  her  ;iii(l  eiirsing  licr  when  iigaiii 
told  to  desist.  It  i-;innot  be  said,  as  ;i  matter  of  law.  with  two- 
men  against  liei*.  Mod  in  her  own  lionse.  she  nsed  excessive  force  in 
f>r(»teeting  her  pei'soii.  Iier  home  jnid  lier  propei'ty.  In  view  of 
his  vifdent  eondnet  and  language,  and  refus;d  to  behave  or  to 
leave,  eou'd  she  have  secured  Imt  riirhts  in  her  own  home  (»r  his 


40  WlTllol  T   .n  DiclAl,   rROCEEOlNGS.  [Ch.    1. 

dopnrtuiv  l>y  tlu'  us.'  of  loss  foiro?     Could  she.  with  safety  to  her 
person,  have  laid  hands  on   him  more  gently?     If.  on  another 
trial,  the  evidenee  heinjr  the  same,  it  shall  he  held  that  this  was 
excessive  force,  a  jury  must  so  declare  it.     This  court  cannot. 
Sir  Edward  Coke  (3  lust.  U)2)  says:  "A  man's  house  is  his  castle, 
et  domns  sua  cuique  tutissinnim  refugium."  which  last  is  a  little 
< (notation  by  him  from  the  famous  Corpus  Juris  Civilis  of  Jus- 
tinian, and  is  to  be  found  in  the  Pandects  (lib.  2,  tit.  4,  "De  in 
Jus  Vocando  " ) .     And  another  great  lawyer  and  statesman,  whose 
name  is  borne  with  honor  by  two  of  our  counties, — William  Pitt, 
earl  of  Chatham, — used  this  ever-memorable  expression:  "Tlie 
poorest  man.  may.  in  Ids  cottage,  bid  defiance  to  all  the  forces  of 
the  cro\vn.     It  niay  be  frail,  its  roof  may  shake,  the  wind  may 
blow  through  it.  the  storms  may  enter,  the  rain  may  enter,  but  the 
king  of  England  cannot  enter.     All  his  forces  dare  not  pass  the 
threshold  of  the  ruined  tenement."     This  home  was  a  humble 
one.     The  bedstead  on  which  defendant  slept  may  not  have  been 
fidly  paid  for.     But  the  prosecutor  had  no  right  to  enter  that 
home  and  misbehave,  or  refuse  to  leave  when  ordered  out, — still 
less,  to  carry  off  any  property  therefrom  unless  he  had  been  an 
officer  with  a  legal  precept  so  to  do;  and  the  occupant  of  that 
home  had  the  right  to  use  sufficient  force  to  make  him  leave,  and 
to  abandon  his  attempt  to  carry  off  the  bedstead,  and  to  stop  his 
handling  of  the  other  property;  in  short,  to  make  him  "leave  her 
things  alone."   as   the   defendant   repeatedly   told   him   to   do. 
Whether  the  force  used  by  the  defendant. was  excessive  is  matter 
for  a  jury,  but,  if  this  evidence  is  to  be  believed,  the  prosecutor 
w^as  a  lawbreaker,  and  is  himself  in  jeopardy  of  the  judgment  for 
his  violence  and  his  defiant  disregard  of  the  rights  of  the  defend- 
ant.    Suppose  this  defendant  had  been  white,  and  the  prosecutoi- 
a  negro  man.     The  law  is  impartial,  and  extends  the  same  protec- 
tion to  all  alike.    Error. 

While  it  is  to  be  hoped  that  the  judges,  lawmalters,  and  orators  will 
ever  bear  in  mind  the  eloquence  of  the  Earl  of  Chatham,  it  is  well— in 
order  to  be  on  the  safe  side — that  the  private  individual  bear  in  mind 
the  sententious  utterance  of  the  immortal  and  practical  Mr.  Grummer: 
"No  room's  private  to  his  majesty  when  the  street  door  is  once  passed. 
That's  law.     Some  people  maintains  that  an  Englishman's  house  is  his 
castle.     That's  gammon."     The   truth   lies   between   the   eloquent   Earl 
and   the   practiral    constable.     A    man's   house   may   be   broken    into — 
whether  the  outer  door  be  closed  or  not— for  the  purpose  of  serving 
criminal  process,  Coolev's  Const.  Lim.  p.  429;    Bish.  New  Crim.  Proc. 
(a  most  admirably   prepared  book),  sees.   194-209;    and  even  in  civil 
cases,  in  North  Carolina,  if  the  civil  process  be  a  fiat  in  claim  and  de- 
livery   proceedings.     But,    ordinarily,    his    dwelling    house    cannot    be 
broken   into  for  the  purpose  of  serving  civil   process;    though,  if  the 
outer  door  be  open,  inner  doors  may  be  broken  to  serve  such  process. 
Hence,  a  man's  house  is  a  city  of  refuge  against  creditors,  but  not  for 
criminals   against   criminal    process.     Neither   is    it    a   "fence"    for   ill- 
gotten  chattels  in  North  Carolina.     That  is,  if  "building,"  in  the  stat- 
ute, shall  be  held  to  include  "dwelling  house."     See  Revisal.  sec.  798. 
See  McLeod  v.  Jones,  10.5  Mass.  403,  inserted  at  sec.  2,  post,  and  note. 
It  has  been  held  by  some  courts  that  the  vendor  of  chattels  under  a 


Sec.  2  a.]  witholt  judicial  proceedings.  41 

conditional  sale,  by  the  terms  of  which  siuh  a  right  is  stipulated  for, 
may  enter  and  forcibly  seize  the  subject-matter  of  tlie  contract,  without 
thereby  subjecting  himself  to  an  action  of  trespass;  provided  he  use  no 
unnecessary  force.  There  is  a  conflict  of  authority  on  this  point.  See 
19  L.  R.  A.  (N.  S.)  607,  and  note. 

See  "Assault  and  Battery,"  Century  Dig.  §§  99-101,  141;    Decennial 
and  Am.  Dig.  Key  No.  Series,  §§  69,  95. 


GREEN  V.  GODDARD,  2  Salkeld,  G41.     1706. 
Defense  of  Person  and  Property.     MoUiter  Manus. 

Trespa.ss,  assault  and  l>attery  laid  on  the  first  of  October,  3  Reg. 
The  defendant  as  to  the  vi  et  arniis  pleaded  Xon  eul.  And  as  to 
the  residue  says,  that  long  before,  viz.  on  the  13th  of  September,  a 
stranger's  bull  had  broke  into  his  close,  that  he  was  driving  him 
out  to  put  him  in  the  pound,  and  the  plaintiff  came  into  the  said 
close,  et  manu  forti  impcdivit  ipsum  ac  taurum  praed.  rescussisse 
voluit,  et  quod  ad  praeveniend,  &c.  ipse  idem  defend,  parvum 
flagellum  super  querentem  molliter  imposuit.  quod  est  idem  resi- 
dum,  &c.  absque  hoc  quod  cul.  fuit  ad  aliquod  tempus  ante 
eundem  13  diem.  The  plaintiff  demurred.  ^\v.  Eyre  for  the 
plaintiff  argued,  that  they  should  have  requested  him  to  go  out  of 
the  close.  19  H.  6,  31.  11  H.  6,  23.  2  Ro.  Tresp.  547,  548,  549, 
and  that  flagellum  molliter  imponere  is  repugnant.  1  Sid.  4. 
Lastly,  the  traverse  is  short,  and  no  answer  to  the  time  after.  1 
Leon.'  307.  3  Cro.  87.  1  Ro.  Rep.  406.  Et  Per  Curiam,  there  is 
force  in  law,  as  in  every  trespass  quare  elausum  fregit :  As  if 
one  enters  into  my  ground,  in  that  case  the  owner  must  request 
him  to  depart  before  he  can  lay  hands  on  him  to  turn  him  out;  for 
every  iinpositio  manuum  is  an  assault  and  battery  which  cannot 
bo  justified  upon  the  account  of  breaking  the  clase  in  law,  without 
a  request.  The  other  is  an  actual  force,  as  in  burglary,  as  break- 
ing open  a  door  or  gate-,  and  in  that  case  it  is  lawful  to  oppose 
force  to  force;  anrl  if  one  bi-caks  down  the  gate,  or  comes  into  my 
(•lose  vi  et  armis.  I  need  not  request  him  to  be  gone,  but  may  lay 
hands  on  him  immediately,  for  it  is  but  returning  violence  with 
violence:  So  if  one  comes  forcibly  and  takes  away  my  goods,  I 
may  oppose  hirti  withont  more  ado,  for  there  is  no  time  to  make  a 
request. 

2dly.  PowEiJ-.  J.,  held.  Iliat  the  attempt  to  take  and  rescue  the 
bull  was  an  a.ssault  on  liis  person  and  a  taking  from  his  person  ; 
for  if  TT.  is  clriving  r-attl*'  on  the  highway,  and  one  comes  and 
takes  tliciii  from  him.  it  is  robbory.  whicli  cannot  be  without  a 
taking  from  his  person  ;  quod  non  fuit  negatuni.  Vide  29  H.  fifi. 
2  Ro.  54!)     Plncito  11      1  Ro   R.-p.  10. 

Sep  "A.s.'^ault  and  Ratferv."  Century  Dip.  §  l.'<:  Dcccnni.il  ami  Am. 
Dip.   Key   No.   Serios,   §   15. 


42  w  1111(11  1'  .11  hiciM,   ri;(iti;KiiiN(is.  Cli.    I. 


STATK    \.    TAYLOR.    Sli    X.   V.   :.:.4.      ISSd. 
Dflciisi    {if    hKiIlin;/.     MaUitci    Manns. 

I  liHlinnu'iu  of  Taylor  and  I^ssiter  tor  an  aflra.v.  Veidirt  and  jikIk- 
iiuMil  apaiiist  both.  Taylor  alone  appealed.  Reversed.  The- facts  ai)- 
pear   in   the  ojiinionl 

AsiiE.  J.  Till'  alU'^c'd  atVi-ay  occun-cd  in  llio  liotise  of  tlie  d"-- 
l\'ud;uit.  and  only  llircc  witnesses  were  examined,  two  for  llu- 
stnte  iuid  one  for  defendant. 

The  court  diarixed  tlie  jury  tliat  if  they  Ix'lieved  tlie  testimony 
(if  any  of  tlie  witnesses  on  bi'half  of  the  state  or  defendant,  both 
defendants  were  guilty;  that  aeeordiug  to  the  testimony  of  any 
witness  examined  botli  defendants  were  guilty.  And  after  the 
case  was  submitted  to  th(>  jury  with  this  charge,  they  eame  into 
court  and  asked  liis  lionor  to  iustruet  them  as  to  the  amount  of 
foree  that  might  l)e  lawfully  used  by  the  defendant  Taylor,  in 
order  to  expel  the  other  defendant  from  his  house.  The  court 
told  the  jury  that  the  question  did  not  arise  from  the  testimony, 
and  that  it  was  not  made  necessary  or  proper  by  the  testimony-  of 
any  witness  who  had  been  examined  for  the  court  to  instruct  them 
upon  this  point.  To  this  ruling  of  his  hoiioi'  the  defendant  ex- 
cepted. 

If  then  tliere  was  any  one  witness  exatnined  who  testitied  to  a 
state  of  facts,  taken  l)y  itself,  from  which  it  might  reasonably  be 
inferred  that  the  purpose  of  Taylor  in  advancing  on  Williams, 
the  other  defendant,  with  the  whip-staff,  was  to  renwvc  him  from 
his  hons<\  that  question  should  have  been  left  to  the  jury,  and 
then  the  further  c|uestion  would  necessarily  arise  as  to  the  amount 
of  force  the  defendant  might  use  to  accomplish  his  purpose.  TTow 
tlicn  stands  the  ease? 

(FACTS.]  One  witness.  Bryan  Smith,  testitied  that  the  first 
he  saw  was  Williams  at  the  door  of  Taylor's  house  "cutting  or 
reaching  into  the  door,  and  Taylor  came  out  striking  at  Williams 
with  a  whip-stafF.  while  AVilliams  was  cutting  at  Taylor  with  a 
razf»r;  that  Williams  walked  backwards  cutting  with  his  i-azor 
some  ten  or  fifteen  feet  from  Taylor's  door,  and  Taylor  continued 
lo  advance  upon  liim,  with  his  wliip-staff. " 

When  a  trespa.sser  or  unwelcome  visitor  invades  the  premises 
of  another,  the  latter  has  the  right  to  remove  him.  and  the  law  re- 
quires that  he  should  first  rer|uest  him  to  leave,  and  if  he  does  not 
do  so.  that  he  should  lay  his  hands  gently  upon  him,  and  if  he  re- 
sists he  may  use  sufficient  force  to  remove  him,  taking  care  how- 
ever to  use  no  more  foree  than  is  necessary  to  accomplish  that  ob- 
ject. T*>ut  if  the  intruder  drfiaHthi  fifnvfJs  his  grouvd  armed  iritJi 
a  flrndh)  wrapoii.  Hit  doctrine  of  mottiti  r  niainis  does  not  applji. 
and  the  owner  may  at  once  resort  to  physical  foree ;  and  it  is  a 
<|uestion  for  the  jury  whether  he  used  more  force  than  was  neces- 
snr>'.     State  v.  Davis.  80  N.  C.  351 . 

As  Williams  was  at  the  door  of  defendant 's  house,  reaching  in 


SfC.    :.'    a.]  WITHOl'T    JUDICIAL    PROCEEDINGS.  43 

the  door  and  cutting  witli  a  razor  and  the  defendant  was  striking 
at  him  with  a  staff,  we  tliink  the  jury  might  liave  bet^n  warranted 
in  coming  to  the  eonchisiou  that  it  was  the  purpase  of  defendant 
to  expel  iiim  from  his  house  as  he  had  the  right  to  do;  and  then  it 
would  have  been  a  material  inquiry  for  the  jury  whether  the  de- 
fendant had  used  more  force  than  was  neeessar^^  In  this  view 
of  the  case  it  was  proper  for  the  jury  to  ask  the  court  for  instruc- 
tions as  to  the  amount  of  force  that  might  lawfully  be  used  by  the 
defendant.  Taylor,  in  order  to  expel  Williams  from  his  house, 
and  we  are  of  the  opinion  it  was  the  duty  of  the  court  to  give  the 
instructions,  and  in  its  failure  to  do  so  there  iras  error.     .     .     . 

-  In  such  cases  "the  true  questions  are:  (1)  Whether  the  party  justi- 
fying had  a  .a:ood  reason  for  using  force;  and,  if  so.  (2)  Whether  such 
force  was  ai)i)ro|)riate  in  kind  and  suitable  in  degree  to  accomplish 
the  purpose.  ...  As  the  kind  and  degree  of  force  proper  to  re- 
move a  trespasser,  must  depend  upon  the  conduct  of  the  trespasser  in 
each  particular  case,  the  question  whether  it  was  suitable  and  mod- 
erate in  anv  particular  case,  is  a  question  of  fact  to  be  left  to  the  jury.' 
Commonwealth  v.  Clark,  2  Metcalf  (Mass.).  at  p.  25.  See  22  L.  R.  A. 
(N.  S.)  724,  and  note.  See  ■Assault  and  Battery,"  Century  Dig.  §  100; 
Decennial  and  Am.  Dig.  Key  No.  Series,  §  69. 


HAMLIN  V.   MACK,  33  Mich.   103,  105.     1875. 
Defense  of   Property  from    Trespassing   Animnls.     Distress. 

[Action,  based  ui)on  a  statute,  for  damages,  and  for  the  penalty  im- 
Ijosed  for  the  rescue  of  anv  beast  distrained  for  any  cause.  Verdict 
and  judgment  against  the  jilaintiff.  and  he  ai)pealed.     Reversed. 

The  declaration  alleged  that  Hamlin  seized  a  heifer  doing  damage 
in  his  field:  that  Mack  rescued  her;  that  iilaintiff  was  damaged  by  the 
rescue.  The  case  being  on  trial  before  a  jury,  the  judge  intimated  that 
the  plaintiff  could  not  recover  unless  he  showed  a  regular  iniiiounding 
under  the  statute  and  strict  adherence  to  the  requirements  of  the  stat- 
ute. Thereupon  plaintiff's  counsel  proposed  to  shorten  the  trial  by 
stating,  in  the  form  of  an  offer  of  proof,  the  precise  facts  he  proposed  to 
Iirove.  This  course  being  assented  to  by  defendant's  counsel,  the  plain- 
tiffs counsel  made  offer  to  prove  (in  substance)  that  in  November. 
1873,  plaintiff  took  up  the  heifer  while  damage  feasant  on  his  land, 
and,  be<ause  there  was  no  public  pound,  confined  it  in  his  barn  and 
fared  for  it  nroperly  luitil  February  thereafter,  when  "the  defendant 
look  the  heifer  from  plaintiff's  i)ossession  without  his  consent."  He 
further  offered  to  show  various  acts  of  notification  to  certain  persons 
.supposed  to  be  ownei-s  of  the  heifer,  and  that  plaintiff  had  filed  a  no- 
tice with  the  town  clerk  to  the  effect  that  he  had  taken  u|)  the  heifer: 
and  that  he  bad  published  a  notice  in  a  newspaper  to  like  effect. 

On  objection  by  defendant's  counsel,  the  court  rejected  this  offer  of 
proof  and  directed  the  jury  to  find  for  the  defendant,  which  they  did 
There  was  no  proof  or  offer  to  prove  that  defendant  used  any  threats 
or  violence  when  hf  took  the  heiff-r  from  the  plaintiff.  Tin-  |)laintiff's 
offer  of  proof  showed  that  he  had  not  fnllv  coniplicd  with  the  re:|uire- 
ments  of  the  statute  regulating  the  distraining  of  animals.  Neverthe- 
less bH  roiinscl  insisted  tliat  Ibf  dcfi'nd.inl  was  liable  for  rescue,  not- 
withstanding such  irregularities  on  the  part  of  the  plilnliff.  He  also 
insisted  that  the  f(uts  he  offerrti  to  prove  rsfnhlishnl  a  lairful  distress 
ntiil  imTifiundinn  hy  plnivliff  and  an  unlawful   rcscur-  by  defendant. 1 


44  wniiorT  judiciai.  pkdceedings.  [Ch.  1. 

Gr.W'ES,  Ch.  J.  .  .  .  The  loai-iiod  counsel  for  the  dcfeud- 
ant  contends  that  tlio  remedy  sono:l\t  hy  the  jilainlilT  is  purely 
statutory  and  deroji:alory  to  the  common  law  rij^hts  oi"  i)ro])erty 
owners  and  sho\dd  be  construed  strictly,  and  that  a  compliance 
with  all  material  jn-ovisions  of  the  statute  oupfht  to  be  insisted  on; 
that  under  ch.  214.  C.  L..  the  pai'ty  trespassed  u]M^n  by  cattle  haa 
an  election  of  remedies,  and  may  sue  in  tresj)ass.  or  distrain  and 
impoiuid.  and  that  in  case  he  distrains  and  impounds,  the  distress 
can  only  be  rendered  lawful  by  strict  compliance  with  the  statu- 
tory requirements.  And  that  a  rescue  involves  a  forcible  taking 
liack  of  the  beast  when  lawfully  impounded,  and  requires  some- 
thing more  than  a  mere  taking  without  leave;  that  there  must  be 
violent  acts  or  menacing  or  threatening  words. 

The  right  of  distress  damage  feasant  existed  at  common  law 
and  was  not  introduced  by  statute.    1  Inst.  142a,  161a. 

It  sprang  from  a  felt  necessity  for  a  summary  and  direct  rem- 
edy against  the  beasts  committing  damage,  and  also  for  some 
guard  against  possible  incentives  to  do  hurt  to  them  or  put  them 
out  of  the  way.  The  owner  might  not  be  discoverable,  or  be  in  a 
situation  to  be  reached  by  process,  or,  if  discovered  and  within 
reach  of  process,  there  might  be  impediments  to  any  redress  by  an 
ordinary  action.  And  if  the  beasts  could  not  be  held,  the  injured 
party  might  be  moved  to  misuse  them  or  put  them  in  a  way  to  be 
lost  to  the  owner.  Tlie  right  itself,  with  several  incidents,  being 
established  at  common  law,  acts  were  passed  in  England  to  regu- 
late its  exercise,  and  the  same  course  has  been  taken  here. 

It  is  scarcely  correct,  therefore,  to  speak  of  the  remedy  by  dis- 
tress damage  feasant  as  something  merely  statutory  and  in  dero- 
gation of  the  common  law  rights  of  property. 

The  right  being  admitted,  it  was  needful  to  frame  guards,  not 
only  against  AATongs  likely  to  be  done  under  color  of  it,  but  also 
acrainst  violations  likely  to  be  committed  against  the  right  itself, 
under  color  of  the  very  guards  intended  merely  to  prevent  its 
being  resorted  to  as  a  cloak  for  wrong. 

As  a  safeguard  in  certain  cases  against  the  carrying  on  of  pro- 
ceedings in  the  a.ssumed  exercise  or  furtherance  of  the  right  of 
distress,  the  law  admitted  the  right  of  rescue,  but  as  this  latter 
right  was  subject  to  be  perverted  and  made  an  instrument  to 
thwart  the  right  of  distress  in  cases  when  it  was  considered  it 
ought  not  to  be  interfered  with,  and  also  subject  to  be  resorted  to 
in  such  manner  and  on  such  occasions  as  to  give  rise  to  unseemly 
wrangles  and  collisions,  it  was  at  length  settled  that  generally,  in 
case  of  an  asserted  distress,  the  regularity  of  the  proceedings 
should  not  be  left  to  the  judgment  or  caprice  of  the  party,  but 
should  be  triable  exclusively  in  a  court  of  law.  and  in  a  specific 
proceefling,  to  be  instituted  by  the  party  clainu'ng  the  distrained 
beasts.     Our  law  now  in  question  is  framed  on  this  principle. 

The  offer  of  the  plaintiff  cmbi-aced  facts  to  show  a  lawful  dis- 
tress damage  feasant.     There  was  no  township  pound,  and  the 


SVc.    2   a.]  WITHOUT    JUDICIAL   PROCEEDINGS.  45 

plaintiff  personally  took  the  beast  when  trespassing  on  his  land, 
and  confined  it  in  his  barn  there.  Before  this  act  the  beast  in 
contemplation  of  law  was  in  the  owTier's  possession,  but  the  seiz- 
ure of  it  damage  feasant,  and  immediate  confinement  of  it  by  the 
plaintiff  in  his  barn  there,  took  it  out  of  the  owner's  possession 
and  into  the  plaintift"s  custody,  and  this  Avas  enough  to  constitute 
a  distress  damage  feasant.  3  B.  C.  6;  Broom  and  Had.  Cora. 
B.  2.  p.  74. 

The  offer  made  included  sufficient  matter  to  prove  a  rescue.  It 
was  not  necessaiw  that  positive  violence,  or  menacing  or  threaten- 
ing Avords  should  be  employed  to  characterize  the  act  as  a  rescue 
of  the  beast.  The  taking  away  and  setting  at  liberty  against  law 
the  distrained  animal,  constitutes  a  rescue.  1  Inst.  160  b;  Bac. 
Ab.  "Rescue"  a:  1  AVheat.  Sel.  680.  Such  a  taking  is  esteemed 
in  law  a  violent  taking. 

The  facts  offered  showed  a  lawful  distress  and  impounding,  and 
the  taking  away  and  setting  at  liberty  by  the  defendant,  without 
the  consent  of  the  plaintiff,  was  a  taking  away  and  setting  at 
liberty  against  law.  The  proposed  facts,  then,  if  admitted,  would 
have  shown,  in  the  absence  of  any  countervailing  circumstance,  a 
rescue  by  the  defendant.  And  the  statute  forbade  any  showing 
by  the  latter  of  irregularities  alleged  by  the  defendant  in  the 
course  taken  by  the  plaintiff. 

The  plaintiff  was  therefore  warranted  in  his  offer,  and  the  court 
erred  in  re.ieeting  it.  No  question  has  been  made  as  to  what  were 
proper  items  of  damage,  and  we  are  not  to  be  understood  as  saying 
that  those  claimed  for  iiTCgular  proceedings,  or  for  the  keep  of  the 
animal  in  the  course  of  such  proceedings,  would  be  recoverable. 
The  .iudgment  should  be  reversed,  with  costs,  and  a  new  trial  or- 
dered. 

See  "Animals,"  Century  Dig.  §§  390,  396,  422;  Decennial  and  Am. 
Dig.  Key  No.  Series,   §§  UT,.  101. 


MILLKR  V.  STATE,  .".  Ca.  App.  4(;3,  63  S.  E.  .^.71.     1909. 
Trespnssinfi  Anivials.     Dof/s  That  Kill  Hhecp.  Svck  Eggs,  etc. 

I  Miller  wa.s  indifted  for  cruelty  to  aiiiinals.  Verdict  and  .iudgment 
against  liini.  and  he  carried  the  case  up  by  writ  of  error.     Reversed. 

Miller  killed  a  dog  ujion  its  owner's  premises,  in  the  presence  of  the 
owner's  family.  The  dog  had  killed  several  sheep,  at  different  times, 
wliich  sheep  hclotigeil  to  .Miller's  father.  Owing  to  its  shyness,  the  dog 
could  not  he  killed  while  in  the  act  of  cliasing  llie  shee]).  Complaint 
was  made  to  the  owner  of  the  dog;  but  he  refused  to  confine  it,  saying, 
however,  that  if  the  dog  killed  any  more  sheep.  It  might  be  killed,  or 
might  be  killed  while  in  the  act  of  killing  the  slicep.  The  judge 
charged  that  Miller  had  no  right  to  kill  the  dog.  even  on  Miller's  own 
premises,  lailrss  rchilc  the  dug  nits  in  the  act  of  killing  or  iuti'rfvHng 
xjcilh  the  defendant's  sheep.  The  killing  of  the  dog  was  done  under 
Instructions  given  by  Miller's  father.) 


4(>  wrnioiT  .11  i>i»i\i.   ri{()(i:i;i)iN(.s.  |(7(.    /. 

l'»'\Ni;ii  .  'I  -IikIi,^!'  Ilainilton.  wlio  ti'ictl  I  lie  t-asc  in  the  (iourt 
IxjJow  ami  who  is  usually  so  well  versed  in  all  iiiallcfs  of  general 
jurispiMuleiU'e.  st'eins  to  have  <;oiu'  wroiijj:  when  lie  encountered 
the  intrieaeies  of  lh<'  do<;  law.  lie  was  (h)ul)tless  misled  by  tlie 
preeedents  of  the  modern  Kni,dish  cases  when  he  should  have 
looked  further  hack  to  the  ancicnl  wisdom  of  the  common-law 
autlioi'ities.  lie  seems  to  have  overlooked  the  ])rovision  of  the 
eanine  code  which  makes  th»>  practices  of  rrig-suckiitg  and  sIk cp- 
liilliiiti  copifal  felonies.  Such  is  the  law.  and  so  it  has  been  so  lonj^ 
that  the  memoi-y  of  doirs  and  men  runneth  not  to  the  contrary.  In- 
deed, in  the  case  of  AVadhui-st  v.  Danune.  Cro.  Jae.  45,  decided  by 
the  court  of  Kinsf's  limich  over  'MM)  years  ago.  Sir  John  Pophani, 
Kut..  Chief  Justice,  in  a  case  where  tlie  warrener  killed  a  dog 
which  had  been  killinp;  conies  in  his  warren,  said:  "The  common 
u.se  of  Enfrland  is  to  kill  doj»'s  and  eats  in  all  warrens,  as  well  as 
any  vermin:  wliicli  shows  that  the  law  hath  Ix^en  always  taken  to 
be  that  they  may  well  kill  them."  And  all  the  court  joined  in 
holdinor  the  defendant  not  liable,  saying:  "It  is  p^ood  cause  for 
the  killing:  him  in  salvation  of  his  conies,  for.  having  used  to  hunt 
the  wai'ren,  he  cannot  otherwise  be  i-estj-aincd. " 

The  cynical  (the  word  may  be  taken  here  in  its  etymological  as 
well  as  in  its  popular  meaning)  reflection  of  the  modem  philoso- 
]>her  that  the  more  he  sees  of  some  dogs  the  less  he  thinks  of  some 
men.  has  no  reference  to  suck-egg  dogs  or  to  sheep-killing  dogs. 
In  some  state:^  (e.  g..  ^lassachusetts.  ^Missouri,  and  California)  the 
sheep-killing  dog  is  made  an  outlaw  by  statnte.  In  this  state  his 
statns  is  a  part  of  the  higher  or  unwritten  law.  We  think  that 
the  court  erred  in  holding  that  it  was  necessaiy  to  kill  the  dog  in 
flagrante  delicto  to  make  tlie  act  justifiable.  It  may  be  true — and 
there  is  respectable  authority  to  support  the  ])roposition — that  the 
sucking  of  a  single  egg  or  the  worrying  of  sheep  one  time  ma>  not 
establish  a.  dog's  status  as  an  outlaw  and  a  nuisance  so  as  to  jus- 
tify his  summaiy  execution  whenever  and  wherever  he  may  there- 
after be  met  (see  Brent  v.  Kimball.  GO  111.  211.  1-4  Am.  Rep.  :^5; 
Wells  V.  Head.  4  Car.  &  P.  568 ;  Dodson  v.  IMock.  20  N.  C.  282,  32 
Am.  Dec.  677;  Bowers  v.  Horan.  93  :\Iich.  420.  53  N.  W.  535.  17 
L.  R.  A.  773.  32  Am.  St.  Rep.  513).  but.  when  a  dog  acquires  the 
egg-sucking  or  sheep-killing  ha])it.  Jic  Ixconus  a  nuisance  and  man 
he  destrojjed  as  such  (Throne  v.  :Mead.  122  Mich.  273.  80  N.  W. 
1080.  80  Am.  St.  Rej).  568;  Dodson  v.  :\loek.  supra;  Hinckley  v. 
Emerson.  4  Cow.  (N.-Y.)  351.  15  Am.  Dec.  383;  Brown  v.  Car- 
penter. 26  Vt.  638.  62  Am.  Dec.  603;  Hubbard  v.  Preston,  i)0 
:\lich.  221.  51  N.  W.  209.  15  L.  R.  A.  249,  30  Am.  St.  R.  426.  and 
notes;  Simmonds  v.  Holmes.  61  Conn.  1.  23  Atl.  702,  15  L.  R.  A. 
253:  Xesbett  v.  Wilbur.  177  :\Iass.  200.  58  N.  E.  586;  Wood  on 
Nuisances  (3d  ed.).  s.  771).  In  Boulton  v.  Banks.  Cro.  Car.  254 
CB.  R.).  a  dog  alleged  to  have  been  "affectus  ad  mordcndum  por-. 
cos"  was  held  not  to  be  a  dog  which  one  might  lawfully  keep.  We 
cannot  agree  with  those  courts  which  hold  that  a  dog  is  not  a  do- 
mestic animal  within  the  purview  of  statutes  ])unishing  cruelty  to 
.lon>esti<-  animals  (see  Wilcox  v.  State.  101  Ga.  563.  28  S.  E.  981, 


Sir.  .2  a.\  wiTHoi'T  .iiDiciAi.  pi?()('F.KniX(;s.  47 

:j!i  L.  R.  A.  7(1!) :  :\r;iy  v.  State.  120  0;i.  497.  48  S.  E.  153)  ;  but,  as 
much  as  we  love  some  dogs  (for  the  writer  admits  that  he  loves 
some  doers'),  we  must  eoiK-ede  the  correctness  of  the  doctrine,  al- 
most imivci'sally  recognized  by  the  courts,  that  the  dog  is  not  in 
full  fellowship  and  standing  in  this  circle  of  domestic  proteges, 
that  his  rights  are  more  limited,  and  his  protection  les.s  complete. 
See  Blair  v.  Forehand.  100  :\rass.  140.  97  Am.  Dec.  82.  1  Am. 
Rep.  94. 

AVhether  the  killing  of  a  dog  is  justifiable  or  uot.  as  related  to  a 
livil  case,  seems  to  depend  upon  whether  the  killing  was  done. 
not  neccssarilij  ichilr  sowe  act  of  depredation  was  In  progress,  hut 
under  such  circutnstances  as  that  the  hilling  was  a  fair  act  of  pru- 
d(  nee  on  the  part  of  the  person  doing  the  Txilling,  reasonable  re- 
gard being  had  as  to  the  value  of  the  dog.  the  value  of  the  prop- 
erty menaced,  and  the  lu-obability  of  present  or  future  depreda- 
tions.    Compare  Ilodges  v.  Causey.  77  ^liss.  ^oo.  26  South.  945, 
4S  L.  R.  A.  95.  78  Am.  St.  Rep.  525.     Tn  a  criminal  prosecution 
under  a  statute  preventing  wilful  and  unjustifiable  cruelty  to  a 
dojiiestic  animal,  such  as  the  one  undei-  which  the  pi-esent  defend- 
ant was  accused  and  ti-ied.  the  defendant  should  not  be  convicted 
if  the  dog  was  killed  not  in  a  spirit  of  cruelty,  but  because  it  had 
sliown  itself  to  be  a  menace  to  property  more  valuable  than  it- 
self; the  defendant's  motive  and  the  spirit  actuating  him  being 
<_:<'nerally  f|uestions  for  the  jury.   The  Avell  known  habits  of  sheep- 
killing  dogs,  of  being  so  sly  and  wary  when  engaged  in  their  ne- 
farious practices  as  to  elude  every  approach  of  the  owner  of  the 
sheep,  woidd  render  the  privilege  of  killing  only  when  the  ma- 
ijiuder  w;is   in    flagrante   delicto   a   very   inadequate  protection. 
Kven  the  human  cui-  who  has  invaded  the  domestic  fold,  and  who 
is  likely  to  invade  it  further,  may  be  killed,  though  the  injured 
person  does  not  catch  him  in  the  very  act.    Biggs  v.  State.  29  Ga. 
723(4).  70  Am.  Dec.  630;  Drysdalc  v.  State.  83  Ga.  744.  10  S.  E. 
358.  6  L.  R.  .\.  424.  20  Am.  St.  Rep.  340.     ... 

Yoiuig  ^Ir.  Miller  if  must  be  conceded  committed  a  serious 
bn-ach  of  propriety  and  a  lack  of  neighboi-jy  consideration  in  kill- 
iiiir  the  dog  in  "Mr.  Stanton's  yard  in  the  lu'cscncc  of  the  hitter's 
family.  They  doubth-ss  loved  the  little  fice.  These  little  animals, 
however  worthless  they  may  be,  have  a  way  of  endearing  them- 
selves, especial! v  to  the  women  and  children  of  the  family.  T  well 
remember  how  in  the  da>s  gone  by  my  childish  tears  flowed  as  in 
poitmant  grief  T  stood  broken-hearted  and  viewed  the  cohl  re- 
mains of  my  fine  dog.  Buster,  who  had  met  an  untimely  death. 
I'.nt  under  the  recoi-d  we  are  inclined  tn  lliinl<  that  the  defend- 
ant's crnclfv  was  operative  against  Mr.  Stanton's  family  rather 
than  against  the  doe.  which  seems  to  have  been  worfhh'ss  and  of  a 
vicious  teMiperamcnt.  He  did  wrom,'  to  .shoot  when  and  where  he 
dirl.  bnt  he  is  entitled  to  a  new  trial  as  to  the  pen;!)  olTense  willi 
which  he  stands  charired.    JiidgMcnf  reversed. 

See  Rpvisal.  s.  ?,?,(\\\  State  v.  Clnni  liill.  US  Pnc  — .  10  I..  H.  A.  ( .V.  S.) 
835.  anrl  notes.  See  "Animals."  rentnry  DIr.  §?  282-2S7:  Decennial 
nnrl  Am    Diu    K^-y  No.  Series.  5§  St.  S4. 


48  wiTiKMT  .irniciAi.  ru-ncKKniNr.s.  |(7/.  J. 

AMICK  V.  O'HARA.  C  lllackford.  lif.S.     1842. 

Defense   of   Propertii    from    I'rcspassiup   Animals.     Kcglipcjue.     Force. 

IHslrvss. 

Blackford.  J.  O'lTara  biouirhl  an  ac-lioii  of  li'osj)ass  for  an 
injury  done  to  liis  inare  by  [Ainiek  wlio  was  the  dcfoiidant  in  tho 
lower  court. 1  Plea,  not  guilty.  Verdict  for  tho  plainlift' 
lO'IIara].  Motion  for  a  new  trial  overruled,  and  judpfment  on 
the  verdict.     [Aflinned.J 

The  evidence  shows  the  following'  facts:  The  defendant.  Ainick. 
had  a  field  in  Avhich  corn  Avas  growing,  enclosed  by  a  good  fence. 
The  defendant,  finding  the  plaintiff's,  O'Hara's,  mare  in  the  field 
late  at  night,  set  his  dogs  on  her.  one  a  small  dog.  the  other  a 
large,  fierce  one.  and  thus  drove  her  out  of  the  field.  The  mare 
was  bit  in  the  nose  by  one  of  the  dogs,  and  in  running  from  tlieiii. 
had  a  snag  run  into  her.  which,  in  a  day  or  two,  caused  her  death. 

The  defendant.  Amick,  moved  the  court  to  instruct  the  jury, 
that  if  they  believed  from  the  evidence  that  the  mare  was  tres- 
passing on  his  field  of  corn ;  that  he  used  ordinary  care  and  dili- 
gence in  driving  her  from  the  field;  and  that  he  did  not  intend  to 
injure  her;  they  should  find  for  him.  This  instruction  Avas 
rightly  refused.  There  are  tA\'o  objections  to  it.  First,  it  was 
not  applicable  to  the  case.  There  Avas  no  evidence,  that  the  de- 
fendant used  ordinary  care  and  diligence  in  driving  the  mare 
from  his  premises.  The  evidence  on  the  subject  is  the  other  way. 
Secondly,  it  Avas  not  essential  to  the  support  of  the  action,  that 
the  defendant  intended  to  injure  the  mare.  If  a  person  unlaw- 
fully injure  another's  property,  he  is  liable  to  an  action  for  the 
damage.  Avithout  regard  to  the  intention  Avith  Avhich  the  act  Avas 
done.  It  is  upon  that  principle,  that  even  a  lunatic  is  liable, 
civiliter,  for  a  trespass  against  the  person  or  property  of  another. 
Weaver  v.  Ward.  Hobart.  134;  ITaycraft  v.  Creasy,  2  East.  92. 
per  Ld.  Kenyon. 

The  court  gave  the  folloAving  instruction :  If  the  defendant. 
Amick.  hunted  the  mare  from  the  field  Avith  a  dog.  and  she  Avas 
thereby  injured,  he  is  liable  for  the  damages.  This  in.struction 
Avas  objected  to.  The  laAv  on  the  subject  is  stated  in  Bacon's 
Abr.  as  follows:  "If  J.  S.  chase  the  beast  of  J.  N.  Avith  a  little 
dog  out  of  land  in  the  possession  of  J.  S.,  an  action  of  trespass 
does  not  lie.  inasmuch  as  J.  S.  has  an  election  to  do  this,  or  to 
distrain  the  bea.st.  But  if  J.  S.  chase  the  beast  of  J.  N.  Avith  a 
mastiff  dog  out  of  land  in  the  posses.sion  of  J.  S.,  and  any  hurt 
be  thereby  done  to  the  beast,  this  action  does  lie;  the  chasing 
Avith  such  a  dog  being  unlawful."  Bac.  Abr.  tit.  Trespass.  E. 
According  to  that  doctrine,  the  instruction  given  was  not  strictly 
correct;  but  still  Ave  do  not  consider  that  to  be  a  sufficient  reason 
for  rcA'ersing  the  judgment  in  this  case.  AVe  have  the  evidence 
before  us,  and  as  it  fully  sustains  the  verdict,  the  objection  to 
the  instruction  is  not  material.  The  evidence  shoAvs  that  the  de- 
fendant cha.sed  the  mare  out  of  his  field  Avith  a  large,  fierce  dog. 


Sec.  2  a.]  wiTiioi  T  judicial  proceedings.  49 

which  was  an  unlawful  act,  and  he  must  be  held  liable  for  the  in- 
jury which  that  act  occasioned. 
Per  Curiam.     The  judgment  is  affirmed. 

See  "Animals,"'  Century  Dig.  §  373;   Decennial  and  Am.  Dig.  Key  No 
Series,  §  94. 


BOST  V.  MINGUES,  64   X.  C.  44,  46.     1870. 
Defense  of  Property  from  Trespassing  Animals.    Excessive  Force. 

[Plaintiff  sued  Mingues  for  damages  caused  by  his  killing  plaintiff's 
boar.  Verdict  and  judgment  against  defendant,  and  he  appealed. 
Affirmed. 

There  was  evidence  that  the  boar  in  question  had  on  three  occasions 
broken  through  defendant's  fence  and  entered  his  field,  letting  in  also 
a  number  of  other  hogs  and  thereby  destroying  about  seventy-five 
bushels  of  defendant's  corn.  On  each  occasion,  except  the  last,  the 
boar  had  been  turned  out  of  the  field  uninjured  and  the  fence  had  been 
properly  repaired.  At  length  the  boar  was  shot  by  orders  of  the  de- 
fendant under  the  following  circumstances:  The  boar  was  attempting 
to  break  into  the  defendant's  corn  field.  Defendant  ordered  his  hands 
to  drive  it  away,  which  they  endeavored  to  do  with  the  aid  of  dogs. 
The  boar,  after  routing  both  hands  and  dogs  on  two  occasions,  broke 
through  the  fence  where  it  was  five  feet  in  height,  and  entered  the 
field.  Immediately  thereupon  the  defendant  caused  the  boar  to  be 
shot.  Ther*^  was  a  conflict  of  evidence  as  to  the  height  and  strength 
of  defendant's  fence.  Tlie  boar  was  unmarked,  and  the  defendant,  after 
inquiry,  was  unable  to  ascertain  who  was  its  owner.  The  judge  refused, 
to  charge  that  under  the  proof  the  defendant  had  a  right  to  kill  the 
l.oar  as  a  nuisante:  but  did  instruct  them  that  if  the  fence  around  de- 
fendant's field,  in  which  the  boar  was  killed,  was  not  five  feet  high  at 
all  points,  the  killing  of  the  boar  was  unlawful  and  plaintiff  was  en- 
titled to  damages  if  the  boar  was  his  propeity.     Defendant  excepted.] 

Re.\de.  J.  The  defendant  had  no  right  to  kill  the  hog  for 
what  he  had  already  done:  that  were  to  take  vengeance.  Nor  had 
he  tlic  riglit  to  kill  him  to  prevent  an  anticipated  mischief;  for 
that  might  never  happen.  Nor  had  he  the  right  to  kill  him  for 
hreaking  over  the  fence,  to  get  away  from  the  dogs;  for  that 
was  tlic  instinct  (if  sclf-pre.servalidii.  incilcd  hy  llic  violence 
of  thf  pui"siiit. 

It  is  the  custom  ol'  the  country  tliat  stock  shall  run  at  large; 
;'nd  hecau.sc  of  tin-  unneceswiry  expense,  eveiy  owner  of  stock 
dftes  not  keep  a  hull  or  a  boar.  A  few  in  each  ncigldiorhood  are 
sufficient.  They  arc  regarded  Jis  public  conveniences,  and  are 
indulged  t(i  eonsidei'ahle  latitude,  in  "the  freedom  of  tin;  neigh- 
ixtrlmod. 

The  hog  in  (|uestion  seems  to  have  been  improved  stock,  a 
rhestr'f  hoar,  wfittli  .+.')().  Vroiu  tlw  fact  that  he  was  not  marked, 
and  was  ajlowcil  the  range,  he  seems  to  Inive  been  devoted  to  the 
service  ol"  the  public  hy  his  liberal  owner,  .-ind  \\;is  in  no  sense  a 
nuisance.  To  kill  sneli  a  hog.  was  an  injury  1o  tin-  plaint  ilT  and 
a  loss  tfi  the  imhlie.  and  would  have  been  bad  neighbotship  in  thi^ 
fbferidant.  if  it  were  not  apparent  that  the  killing  was  done  un- 
Remedies — 4. 


50  WITIIOIT    .irniClAI.    l-lJOCKKDINOts,  \<'ll.     I. 

dor  ooiisidorable  provocation,  iiiul  uiulci-  the  imimlsc  ol"  tlic  iiio- 

IlUMlt. 

It  was  plausibly  urfrod  for  the  defendant  that,  inasnuich  as  the 
ho*?  was  not  niarlved.  and  the  owner  was  unknown,  he  could  have 
no  redress  for  the  depredations  upon  his  crop ;  hut  that  is  not  so, 
for  the  stray-law  irave  an  aiiii)le  remedy.  To  this  supr^estion  it 
was  objected  by  the  defendant,  that  he  could  not  catch  him.  It 
seems  that  with  doges  he  could  not,  but  milder  means  would 
doubtless  have  been  effective,  and  tliey  were  not  tried.  His  hon- 
or's instructions  that  the  defcMidant  had  no  ri^ht  to  kill  the  hof; 
uidess  his  fence  were  five  feet  high  "all  ai'ound,"  did  the  defend- 
ant no  injustice,  and  was  more  favorable  to  him  than  the  law  al- 
lows, for  he  had  no  ri^rht  to  kill  under  the  circumstances,  if  his 
fence  had  been  tive  feet  all  around.  "Morse  v.  Nixon.  51  N.  C. 
293.    There  is  no  error. 

See  Williams  v.  Dixon,  6.^.  X.  C.  416.  and  State  v.  Neal,  120  N.  C.  613. 
27  S.  E.  SI.  for  other  cases  of  killing;  trespassing  animals  and  fowls 
while  damage  feasant.  See  "Animals,"  Century  Dig.  §  375;  Decennial 
and  Am.  Dig.  Key  No.  Series,  §  96. 


(h)  Recaption  of  Property. 

JOHNSON  V.  PERRY.  .56  Vt.  703,  48  Am.  Rep.  826.     1884. 
Retaking   Chattels   from    Tort-feasor.     What  Force  May   Be   Used. 

IJohnson  sued  Perry  for  assault.  Judgment  against  plaintiff.  Plain- 
tiff appealed.  Affirmed.  The  facts  are  stated  in  the  beginning  of  the 
opinion.] 

Veazey,  J.  The  slabs  in  question  belonged  to  the  defendant, 
but  were  in  the  possession  of  the  plaintiff,  on  his  sled,  on 
defendant's  premises.  The  plaintiff  had  got  the  possession  with- 
out pennission  of  the  defendant.  Under  these  circumstances  the 
defendant  was  proceeding  to  repossess  himself  of  the  slabs,  by 
throwing  them  from  the  sled,  when  the  plaintiff  interfered,  by 
throwing  the  slabs  back  on  to  the  sled ;  and  the  defendant  used 
what  force  was  necessary  to  prevent  the  interference,  and  to  un- 
load the  slabs. 

For  the  assault  of  the  defendant,  under  these  circumstances, 
this  suit  was  brought.  Had  the  defendant  the  legal  right  to  use 
this  force  upon  the  plaintiff,  is  the  question  to  be  determined. 

In  Yale  v.  Seeley.  L5  Vt.  221,  it  was  held  that  one  has  a  legal 
right  to  enter  upon  the  land  of  another  to  take  away  wood  be- 
longing to  the  former;  and  should  the  owner  of  the  land  attempt 
to  hinder  him  in  the  enjoyment  of  the  right,  he  would  be  justified 
in  using  such  force  as  might  be  neeesary  to  overcome  the  hinder- 
ance.  He  had.  in  that  case,  bought  the  trees  of  a  former  owner 
of  the  land,  and  cut  them  before  the  sale  of  the  land.    It  was  in- 


Sec.    2   &.]  WITHOUT   JUDICIAL   PROCEEDINGS.  51 

sisted  in  that  case,  that  the  party,  chiiming  the  right  to  go  upon 
another's  hind  for  sueli  purpose,  is  entitled  to  the  enjoyment  of 
it  only  when  it  can  be  done  in  a  "peaceable  manner."  The  court 
said  upon  this  point :  ' '  This  is  a  qualification  that  is  sometimes 
affixed  to  the  right  of  recapture  and  reprisal,  and  applies  to  the 
regaining  of  personal  property  that  has  been  wrongfully  taken 
or  withheld;  and  the  law  recognizes  the  right  only  within  that 
qualification.  But  it  is  not  so  vnth.  regard  to  the  right  to  enter 
upon  another's  land.  If  it  is  my  right,  the  law  will  protect  me  in 
the  enjoyment  of  it.  and  the  person  who  attempts  to  hinder  or 
obstruct  me  is  the  aggressor,  and  the  first  in  the  wrong." 

In  Hodgeden  v.  Hubbard.  18  Vt.  504,  it  was  held  that  if  a  per- 
son purchase  personal  property,  such  as  a  stove,  by  means  of 
false  and  fraudulent  representations  as  to  his  solvency  and  means 
of  payment  for  it,  he  acquires  no  right  either  of  property  or  pos- 
session, and  the  vendor  will  be  justified  in  pursuing  him  and  re- 
taking the  property,  and  to  effect  this  object,  even  against  the  re- 
sistance of  the  purchaser,  he  may  use  as  much  force  as  may  be 
necessary.  In  delivering  the  judgment  of  the  court.  Chief  Jus- 
tice Williams  said :  "  In  the  prasent  case  the  defendant  had  clearly 
a  right  to  retake  the  property  thus  fraudulently  obtained  from 
him,  if  it  could  be  done  without  unnecessary^  violence  to  the  per- 
son, or  without  breach  of  the  peace.  It  is  admitted  by  the  coun- 
sel for  the  plaintiff,  that  a  right  to  recapture  existed  in  the  de- 
fendant, if  it  could  be  done  without  violence,  or  breach  of  the 
peace,  and  how  far  this  qualification  of  the  right  to  retake  prop- 
erty, thus  taken,  was  intended  for  the  security  or  benefit  of  the 
fraudulent  possessor,  may  admit  of  some  doubt.  Whoever  is  guilty 
of  a  breach  of  the  peace,  or  of  doing  unnecesary  violence  to  the 
person  of  another,  although  it  may  bo  in  the  assertion  of  an  un- 
questioned and  undoubted  right,  is  liable  to  be  prosecuted  there- 
for. But  the  fraudulent  possessor  is  not  the  protector  of  the  pub- 
lic interest.  To  obtain  possession  of  the  property  in  question,  no 
violence  to  the  person  of  the  plaintiff  was  necessary  or  required, 
unless  from  his  resistance.  It  was  not  like  property  carried  about 
the  person,  as  a  watch  or  money,  nor  did  it  require  a  number  of 
people  to  effect  the  object.  The  plaintiff  had  no  lawful  posses- 
sion, nor  any  right  to  resist  the  attempt  of  the  defendant  to  re- 
gain the  property." 

These  cases  were  criticised  in  Dust  in  v.  Cowdry,  23  Vt.  631, 
but  not  overruled.  When  the  case  at  bar  was  before  this  court  at 
the  February  term.  1882,  reported  in  54  Vt.  450.  Judge  Ross 
said  :  "On  the  doctrine  of  these  cases,  the  plaintiff  was  entitled  to 
have  his  request  eomi>lied  with."  The  eliarge  to  the  jury  con- 
formed to  the  doctrine  of  these  cases,  and  must  be  held  correct,  or 
these  cases  practically  overruled. 

Indeed  this  cjise  is  sejireely  as  strong  for  tlie  pinintiff  as  was 
that  of  Tlodgeden  v.  IIul)l)ard.  TIkmv  lli."  defendant  had  put  the 
plaintiff  in  po.ssession  of  the  stove,  and  the  latter  had  departed, 
and  was  on  his  way  home.    In  this  case  the  plaintiff  had  gone  on 


52  WrilltUT    .llhlClAI,    riUK'KKDINd'S.  \('li.     I. 

to  1  lu>  ilt'li'iuljiiit  "s  ])rcmis('s  niid  loaded  llic  sl;d)s  witliout  any 
right  or  litcnst'.  and  lu-t'oiv  \\v  hail  departed,  the  owner  inter- 
fered. The  property  was  of  a  kind  that  eould  be  retaken  without 
violatiup  the  person  oi'  the  plaintHT.  miless  he  beeanie  the  a^;- 
gressor  by  wi-ong fully  hinderinir  tlie  dereiuhml  in  his  lawful  aet. 
AVe  should  not  be  disposed  to  extend  the  law  of  the  ITodgeden 
V.  Ilubbai-d  ease.  liut  Ave  are  not  disposed  to  overrule  it,  espe- 
cially in  tliis  ease;  or  to  adopt  a  rule  that  when  one  man  goes  on 
to  another's  ]Mvmises.  without  right  or  license,  and  undertakes 
to  earry  away  liis  property,  the  latter  cannot  interfere  to  stop  it, 
and  to  use  suiTieient  force  for  the  purpose,  even  against  the  re- 
sistance of  the  wrongdoer,  when  in  order  for  the  owner  to  assert 
bis  right,  be  can  do  it  without  violating  the  person  of  the  wrong- 
doer, unless  he  interferes  and  ]>ersists  in  bis  wrongdoing.  Judg- 
ment affirmed. 


See  Lewaid  v.  Basely,  2  Ld.  Raym.  62,  supra,  sec.  2  (o).  See  also 
for  a  valuable  discussion  of  the  right  to  recapture  chattels  and  the 
amount  of  force  that  may  be  used,  22  Atl.  1111.  14  L.  R.  A.  317.  and 
note;  Mikell's  Cases  on  Crini.  Law  ( Orig.  Ed  )  40(i.  See  "Assault  and 
Battery,"  Century  Dig.  §  14;  Decennial  and  Am.  Dig.  Key  No.  Series, 
§  15. 


BARNES  V.  MARTIN,  15  Wis.  263.     1862. 

Resisting  Unlaufnl  Attempt  to  Retake  Chattels.     Force  That  May  Be 

Used. 

[Martin  and  his  wife  were  the  plaintiffs  lielow.  They  sued  Barnes 
for  an  assault  and  battery  upon  ^Irs.  Martin.  There  was  a  verdict  and 
judgment  in  their  favor,  and  Barnes  carried  the  case  to  the  supreme 
court  by  writ  of  error.     Reversed. 

The  defendant  below,  Barnes,  pleaded  that,  at  the  time  the  alleged 
assault  took  place,  he  was  possessed  of  a  certain  close  and  of  a  cow 
therein,  and  that  Mrs.  :\Iartin  bioke  into  the  close  by  force  and  endeav- 
ored to  take  away  the  cow  forcibly;  whereupon  'he.  Barnes,  resisted 
her,  and  if  she  suffered  any  injury,  it  happened  of  her  own  wrong,  etc. 
The  gist  of  the  case  was,  that  Barnes  had  distrained  Martin's  cow 
while  it  was  on  Barnes'  premises  damage  feasant;  and  Mis.  Martin 
was  injured  by  Barnes,  while  she  was  attempting  to  rescue  the  cow. 
The  fourth  and  sixth  instructions  referred  to  in  the  opinion  are  as 
follows: 

4.  That  if  the  jury  should  find  that  the  plaintiff  Barbara  intended 
by  her  acts,  in  order  to  obtain  the  cow,  to  commit  violence  upon,  or 
menaced  violence  to,  the  defendant,  with  the  butcher  knife,  then  her 
acts  on  coming  up  to  the  defendant  on  the  occasion  referred  to  in  the 
case,  with  the  intention  of  executing  her  purpose,  amounted  to  an  as- 
sault first  upon  the  defendant.  ...  6.  That  the  jury  had  no  right 
to  find  punitive  or  exemplary  damages,  unless  they  first  found  that 
the  acts  of  the  defendant  in  resisting  the  taking  of  the  cow  from  him 
were  governed  by  wanton  or  malicious  motives,  and  were  without  ap- 
parent cause. 

Only  so  much  of  the  opinion  as  bears  upon  the  subject  under  discus- 
sion, is  inserted.! 


Sec.    2    h.]  WITHOUT    JUDICIAL    PROCEEDINGS.  53 

Dixon,  C.  J.  All  the  witnesses  coiicur  in  saying  that  the 
plaintiff  in  error  had  taken  up  and  was  peaceably  possessed  of  the 
cow  at  the  time  of  the  affray.  The  defendant  in  error,  Barbara, 
came  for  and  demanded  that  the  cow  be  delivered  up,  which  the 
plaintiff'  refused.  She  then  went  home,  and  soon  aftenvard  re- 
turned with  a  knife  in  her  hand,  avowing  her  purpose  to  take 
the  cow  by  force.  The  plaintiff  resisted,  and  it  was  in  the  prose- 
cution of  this  unlawful  enterprise  that  she  received  her  injuries. 
For  whether  the  plaintiff'  was  authorized  to  take  up  the  cow,  and 
might  lawfuly  detain  her  or  not,  the  defendant  Barbara  had  no 
right  to  retake  her  by  force.  The  law  affords  ample  redress  for 
all  injuries  of  that  kind,  and  will  not  justify  parties  in  resorting 
to  violence  and  breaking  the  public  peace.  The  defendant  was, 
therefore,  acting  in  her  own  wrong  in  thus  endeavoring  to  dis- 
possess the  plaintiff",  and  that  whether  his  possession  was  lawful 
or  unlawful.  Under  these  circumstances,  we  think  it  clear  that 
the  judge  should  have  given  the  fourth  and  sixth  instructions 
asked  by  the  plaintiff".  It  cannot  be  disputed,  if  the  jury  had 
found  that  the  defendant  in  error,  in  order  to  obtain  the  cow, 
threatened  and  intended  to  commit  violence  upon  the  plaintiff 
with  the  knife,  that  her  acts  in  coming  up  to  him  with  the  inten- 
tion of  executing  such  purpose,  would  have  amounted  to  an  as- 
sault. Neither  can  it  be  claimed  that  vindictive  damages  should 
be  given  in  such  a  case,  unless  the  jury  should  find  that  the  acts 
of  the  party  resisting  were  A\'ithout  apparent  cause,  and  proceeded 
from  wanton  or  malicious  motives.  It  would  seem  to  be  one  of 
the  clearest  principles  of  jastiee,  that  a  party  resisting  the  for- 
cible and  unlawful  act  of  another  ought  not  to  be  punished  by 
way  of  exemplary  damages,  unless  he  be  guilty  of  excess  and  act 
from  motives  of  malice.  .  .  .  Judgment  reversed,  and  a  new 
trial  awarded. 

See  Hamlin  v.  Mack,  33  Mich.  103,  inserted  sec.  2  (a),  supra,  and  the 
'•ases  immediately  following  that  case.  See  also  Andre  v.  Johnson, 
•.  Blackford,  37.=;.  See  "Assault  and  Battery,"  Century  Dig.  §§  3,  14; 
Decennial  and  Am.  Dig.  Key  No.  Series,  §§  5,  ]:". 


COMMONWEALTH  v.  DOXAHUE,  148  Mass.  .529,  20  N.  E.  171.     1889. 

Retaking  Property  by  Force. 

f Donahue  was  indicted  for  robbery.  II«^  was  convicted  of  an  assault. 
.Fudgment  against  him.  and  he  appealed.  Rover.sed.  Mitchelman 
•  laimed  that  Donahue  owed  him  $21.."i.">.  Donaliuc  placed  $20  on  a  ta- 
ble, and  placpd  some  clothes— the  price  of  which  was  the  casus  belli — 
iipon  a  chair.  He  then  told  Mitchelman  that  he  could  have  the  money 
or  the  cInthcH.  Mitchclninn  pocketed  the  money,  but  still  ilnimed  $1..'».5 
more.  Donaliuc  tlwrcupoii  dt-mimdcil  the  return  of  the  $20,  which  be- 
ing refused,  he  choked  .Mitchelman  until  it  was  surrendered.  Tlie 
iury  were  instructed  that  they  ronld  render  a  verdict  of  guilty  if  satis- 
fled  thnt  Donahue  choked  and  assaulted  Mitchelninti,  .ilthough  for  the 
sole  pur|)ose  of  getting  imssesslon  of  the  money  which  he  honestly  be- 
lieved to  !).■  his  own.     Defendant  excepted. | 


54  AvrnioiT  .11  niciAi,  pwocekdings.  [Gh.  1. 

Ihii.MKs,  J.  .  .  .  On  the  cviiloiu'c  for  llio  coiimioiiwcaltli, 
it  appcari'tl  Ihat  the  (Icrcmlniil  iilTcnul  the  '^"lO  to  Miti'lieliiuui 
only  on  condition  tlial  Mitclu'lman  should  accept  that  sum  as  full 
payment  of  his  disputed  bill,  and  that  Mitchelman  took  the 
money,  antl  at  the  same  moment,  or  just  afterwards,  as  part  of 
the  same  transaction.  r(^i)ndiated  the  condition.  If  this  was  the 
case,  since  IMitchelman,  of  course,  whatever  the  sum  dut^  him, 
had  no  right  to  that  particular  money  except  on  the  conditions 
on  which  it  was  offered  (Com.  v.  Stebbins.  8  Gray,  4D2),  he  took 
the  money  wrongfully  from  the  possession  of  the  defendant ;  or 
the  jury  mi<;ht  have  found  that  he  did.  wliether  the  true  view  be 
that  the  defendant  did  not  give  up  possession,  or  that  it  was  ob- 
tained from  him  by  iMitchelman's  fraud  (Com.  v.  Devlin,  141 
Mass.  428.  6  N.  E.  Rep.  64;  Chiifer's  Case,  T.  Raym.  275,  276; 
Reg.  V.  Thompson,  Leigh  &  C.  225 ;  Reg.  v.  Slowly,  12  Cox,  Crim. 
Cas.  269;  Reg.  v.  Rodway,  9  Car.  &  P.  784;  Rex  v.  Williams,  6 
Car.  &  P.  390;  2  East,  P.  C.  c.  16,  §§  110-113).  See  Reg.  v.  Co- 
hen. 2  Denison,  Cr.  Cas.  249,  and  cases  infra.  The  defendant 
made  a  demand,  if  that  w^as  necefssary, — which  wo  do  not  im- 
ply,— before  using  force.  Green  v.  Goddard,  2  Salk.  641 ;  Polk- 
inhom  v.  Wright,  8  Q.  B.  197;  Com.  v.  Clark,  2  Mete.  23,  25; 
and  cases  infra.  It  is  settled  by  ancient  and  modem  authority 
that  under  such  eircum.stances  a  man  may  defend  or  regain  his 
momentarily  interrupted  possession  by  the  use  of  reasonable 
force,  short  of  wounding,  or  the  employment  of  a  dangerous 
weapon.  Com.  v.  Lynn,  123  Mass.  218;  Com.  v.  Kennard,  8  Pick. 
133;  Anderson  v.  State,  6  Baxt.  608;  State  v.  Elliot.  11  N.  11. 
540,  545;  Rex  v.  Milton,  Moody  &  M.  107,  Y.  B.  9  Edw.  IV.  28, 
pi.  42,  19  Hen.  VI.  31,  pi.  59,  21  Hen.  VI.  27,  pi.  9.  See  Sea- 
man V.  Cuppledick,  Owen,  150;  Taylor  v.  Markham,  Cro.  Jac. 
224.  Yelv.  157.  1  Brownl.  215;  Shingleton  v.  Smith,  Lutw.  1481, 
1483.  2  Inst.  316,  Finch,  Law  208.  1  Hawk.  P.  C.  c.  60.  §  23,  3 
Bl.  Comm.  121.  To  this  extent  the  right  to  protect  one's  posses- 
sion has  been  regarded  as  an  extension  of  the  right  to  protect 
one's  person,  with  which  it  is  generally  mentioned.  Baldwin  v. 
Ilavden.  6  Conn.  453.  Y.  B.  19  Hen.  VI.  pi.  59;  Rogers  v.  Spence. 
13  Mees.  &  W.  579,  591,  1  Hawk.  P.  C.  c.  60,  §  23,  3  Bl.  Comm. 
120.  131. 

We  need  not  consider  whether  this  explanation  is  quite  ade- 
quate. There  are  weighty  decisions  which  go  further  than  those 
above  cited,  and  which  hardly  can  stand  on  the  right  of  self-de- 
fense, but  involve  other  considerations  of  policy.  It  has  been 
held  that  even  where  a  considerable  time  had  elapsed  between  the 
wrongful  taking  of  the  defendant's  property  and  the  assault,  the 
defendant  had  a  right  to  regain  possession  by  reasonable  force,- 
after  demand  upon  the  third  person  in  po.ssession  in  like  man- 
ner as  he  might  have  protected  it  without  civil  liability.  What- 
ever the  true  rule  may  be.  probably  there  is  no  difference  in  this 
respect  between  the  civil  and  the  criminal  law.  Blades  v.  Hiergs. 
10  C.  B.  (N.  S.)  713.  12  C.  B.  (N.  S.)  501,  13  C.  B.  (N.  S.)  844. 


Sec.    -^    &.]  WITHOUT    JUDICl-VL    PROCEEDINGS.  55 

11  H.  L.  Cas.  621;  Com.  v.  McCue,  16  Gray,  226,  227.  The  prin- 
ciple has  been  extended  to  a  ease  where  the  defendant  had  yielded 
possession  to  the  pereon  assaulted,  through  the  fraud  of  the  lat- 
ter. Hodgeden  v.  Hubbard.  18  Vt.  504.  See  Johnson  v.  Perry, 
56  Vt.  703.  On  the  other  hand,  a  distinction  has  been  taken  be- 
tween right  to  maintain  possession  and  the  right  to  regain  it  from 
another  who  is  peaceably  established  in  it.  although  the  posses- 
sion of  the  latter  is  wrongful.  Bobb  v.  Bosworth.  Litt.  Sel.  Cas. 
81.  See  Barnes  v.  ^Martin.  15  \Yis.  240:  Andre  v.  Johnson,  6 
Blackf .  375 ;  Davis  v.  Whitridge.  2  Strob.  232 ;  3  Bl.  Comm.  4. 
It  is  unuecessaiy  to  decide  whether  in  this  case,  if  Mitchelman 
had  taken  the  money  with  a  fraudulent  intent,  but  had  not  repu- 
diated the  condition  until  afterwards,  the  defendant  would  have 
had  any  other  remedy  than  to  hold  him  to  his  bargain,  if  he 
could,  even  if  he  know  that  ^Mitchelman  still  had  the  identical 
money  upon  his  person.  If  the  force  used  by  the  defendant  was 
excessive,  the  jury  would  have  been  warranted  in  finding  him 
guilty.  Whether  it  was  excessive  or  not  Avas  a  question  for  them; 
the  judge  could  not  rule  that  it  was  not.  as  matter  of  law.  Com. 
V.  Clark,  2  ^lete.  23.  Therefore  the  instruction  given  to  them, 
taken  only  literally,  was  correct.  But  the  preliminary  statement 
went  further,  and  was  erroneous;  and.  coupling  that  statement 
with  the  defendant's  offer  of  proof,  and  his  course  after  the  rul- 
ings, we  think  it  fair  to  assume  that  the  instruction  was  not  un- 
derstood to  be  limited,  or  indeed  to  be  directed,  to  the  case  of  ex- 
cessive force,  which,  so  far  as  appears,  had  not  been  mentioned, 
but  that  it  was  intended  and  understood  to  mean  that  any  as- 
sault to  regain  his  own  money  would  warrant  finding  the  defend- 
ant guilty.     Therefore  the  exceptions  nuist  be  sustained.     .     .     . 

See  "Assault  and  Battery,"  Century  Dig.  §§  99,  145;    Decennial  and 
Am.  Dig.  Kpv  No.  Series,  §§  69,  14.5  (4). 


McLEOD  V.  JONES.  105  Mass.  403.     1870. 
Entering  Upon  Another's  Land  to  Retake  Chattels. 

[Tort  for  forribly  entering  the  plaintiffs  close  and  removing,  and 
ronverting  to  the  defendant's  usp.  household  furniture  found  therein. 
Verdict  and  judginont  against  defendant,  and   he  appealed.     AfTimied. 

McLeod  once  lived  in  Providence  and.  wiiilc  living  tliere,  gave  Jones 
a  bill  of  sale  for  certain  furniture.  Thereafter  McT.eod  moved  to 
Taunton  and  carried  Jones'  furniture  with  him  together  with  certain 
other  chattels  which  he  had  i)revionsly  mortgaged  to  Jones.  All  of 
these  goods  werp  in  plaintiff'.^  dwelling  in  Taunton  when  he  and  his 
ffimllv  left  Taunton  for  a  visit— he  going  to  New  York  and  his  wife 
and  children  to  Fall  River.  Three  or  four  days  after  their  departure. 
Jones,  helifving.  and  having  rea.sons  for  so  believing,  that  McLeod  had 
left  with  no  intention  U)  K-fiiiii  to  Trninton.  entered  McTyCod's  dwelling 
in  Taunton,  and  removed  the  fiirnittire  enil)raced  in  the  bill  of  sale 
which  McLeod  had  made  to  him.  The  judge  below  ruled  that  under 
such  circumstances  Jones  was  liable  in  this  action  for  a  forcible  entry, 


5t)  WlTlliM    r    .M   PICIM.    PKOCKKOlXl^S.  \('Jl.    1. 

although  his  only  purpose  wiis  to  pet  possession  of  his  own  i)roperty; 
that  Jones  liad  no  right  to  onter  Mcliood's  honse  for  surh  i)urpo8e, 
witlioiit  permission  or  license,  express  or  inii'Hod,  from  MeLeod;  and 
that  the  mere  fact  that  Jones*  goods  were  in  the  honse  under  the  clr 
eumstiinces  stated,  did  not  ainounl  to  sudi  license  or  permission.  D©- 
fendant  excepted.] 

AVeij.s.  J.  Tlu!  (let"eii(l;ml  vvius  liable  as  a  tr('s]ta,s,s(n'  for  enter- 
ing tlu'  plaintiff's  close,  unless  he  can  justify  his  entry  by  some 
legal  right,  or  by  some  license  or  ]>erniission  so  to  do.  The  plain- 
tiff's absence  will  not  excuse  him.  Reasonable  cause  to  believe, 
and  actual  belief  that  the  j^IaintilV  and  his  family  did  not  intend 
to  return,  are  no  defense.  The  only  question  is,  whether  the  rul- 
ing of  the  court  below  was  correct,  that  "the  mere  fact  that  his 
goods  were  in  said  premises  under  the  circumstances  stated"  did 
not  furnish  a  siitTRcient  ground  from  which  a  license,  permission 
or  legal  right  could  be  inferred. 

In  the  decision  of  this  question,  we  nuist  assume  that  the  de- 
fendant's claim  would  have  been  sustained,  that  his  title,  as  mort- 
gagee of  all  the  property  taken  away  by  him,  was  valid,  and  his 
mortgage  debt  unpaid.  Tie  had  then  a  right  to  the  possession  of 
the  property  which  he  took. 

But  the  possession  of  the  plaintiff,  as  mortgagor,  was  not 
wrongful.  The  goods  were  rightfully  upon  his  premises.  There 
is  nothing  to  show  that  the  terms  of  the  mortgage,  or  bill  of  sale, 
under  which  the  defendant  claimed  them,  gave  him  any  special 
authority  to  enter  for  the  purpose  of  recovering  the  property,  in 
any  event ;  nor  that  the  removal  of  the  goods  from  the  shop  to  the 
house,  or  from  Providence  to  Taunton,  was  inconsistent  with  the 
rights  of  the  mortgagee,  or  against  his  wishes.  The  removal  from 
Providence  was  about  two  years  before  the  time  of  his  entry. 

The  goods  then  were  rightfully  in  the  custody  of  the  plaintiff, 
and  within  his  close.  The  defendant  was  the  owner  of  the  legal 
title,  with  a  present  right  of  possession.  Does  that  alone  justify 
him  in  a  breach  of  the  plaintiff's  close?  A  majority  of  the  court, 
are  of  the  opinion  that  it  does  not. 

One  whose  goods  are  stolen,  or  otherwise  illegally  taken  from 
hijii.  may  pursue  and  retake  them  wherever  they  may  be  found. 
Xo  one  can  deprive  him  of  this  right,  by  wrongfullj^  placing  them 
upon  his  own  close.  Patrick  v.  Colerick.  8  M.  &  W.  483 ;  Webb  v. 
Reavan.  6  M.  &  G.  1055,  and  note;  Com.  Dig.  Trespass  D,  citing 
2  Rol.  Ab.  565.  L.  54;  Bac.  Ab.  Trespa.ss  F.  1.  But  if  they  are 
deposited  ti]»on  the  land  of  another,  who  is  not  a  participant  in 
the  wrongful  taking,  the  owner  eannot  enter  upon  his  land  to  re- 
take them;  unless  in  case  of  theft,  and  fresh  pursuit.  20  Vin. 
Ab.  506,  Tr(?spa.ss  H.  a.  2.  pi.  4.  5.  So.  from  the  necessity  of  the 
case,  one  whose  cattle  escape  upon  the  land  of  another  may  follow 
and  drive  them  back,  without  being  a  trespasser,  unless  the  escape 
itself  w^as  a  trespa.ss.  Com.  Dig.  Trespa,ss  D,  citing  2  Rol.  Ab. 
565.  L.  35.  In  these  cases,  the  law  gives  the  party  a  right  to  enter 
for  that  particular  purpose. 


Sec.  2  h.]  wiTHorx  .tldiciaf.  proceedings.  o7 

In  other  eases  a  right  or  license  to  enter  upon  land  results,  or 
may  be  inferred,  from  the  contracts  of  the  parties  in  relation  to 
personalty.  Permission  to  keep,  or  the  right  to  have  one's  per- 
sonal property  upon  the  land  of  another,  involves  the  right  to  en- 
ter for  its  removal.  Doty  v.  Gorham.  5  I'irk.  -187 ;  Bac.  Ab.  Tres- 
pass F.  1 ;  White  V.  Elwell,  48  Maine,  360. 

A  sale  of  chattels,  which  are  at  the  time  ujion  the  land  of  the 
seller,  will  authorize  an  entry  upon  the  land  to  remove  them,  if, 
by  the  express  or  imi)lied  terms  of  the  sale,  that  is  the  place  where 
the  purchaser  is  to  take  them.  "Wood  v.  ^lanley,  11  Ad.  &  El.  34; 
Xettleton  v.  Sikes.  8  Met.  34;  Giles  v.  Simonds.  15  Gray,  441; 
Drake  V.  Wells.  U  Allen,  141;  McNeal  v.  Emei-son.  15  Gray.  384. 

A  license  is  implied,  because  it  is  necessary  in  order  to  carry 
the  sale  into  complete  effect;  and  is  therefore  presumed  to  have 
been  in  contemplation  of  the  parties.  It  forms  a  part  of  the  con- 
tract of  sale  The  seller  cannot  deprive  the  purchaser  of  his  prop- 
frty,  or  drive  him  to  an  action  for  its  recovery,  by  withdrawing 
his  implied  permission  to  come  and  take  it.  This  proposition  does 
not  apply,  of  course,  to  a  case  where  a  severance  from  the  realty 
is  necessary  to  convert  the  subject  of  the  sale  into  personalty,  and 
the  revocation  is  made  before  such  severance. 

But  there  is  no  such  inference  to  be  drawn,  when  the  property, 
at  the  time  of  sale,  is  not  upon  the  seller's  premises;  or  when,  by 
The  terms  of  the  contract,  it  is  to  be  delivered  elsewhere.  And 
when  there  is  nothing  executory  or  incomplete  betwt^en  the 
parties  in  respect  to  the  property,  and  there  is  no  relation  of 
contract  between  them  affecting  it,  except  what  results  from  the 
facts  of  ownership  or  legal  title  in  one  and  possession  in  the 
uther.  no  inference  of  a  license  to  enter  upon  lands  for  the  recov- 
ery- of  the  property  can  be  drawn  from  that  relation  alone.  20 
Vin.  Ab.  508,  Trespass  II.  a.  2  pi.  18.  Anthonv  v.  Ilaneys  8 
Bing.  186;  Williams  v.  I\rorris.  8  M.  c<:  AV.  488.  '  We  think  the 
;tuthoritios  cited  illustratt*  and  establish  these  distinctions. 

It  is  said  in  Com.  Dig.  Trespass  1),  citing  2  Rol.  Ab.  566,  L  30, 
that  I  may  not  enter  lands  "for  retaking  goods,  which  he,  who 
liolds  them  in  common  with  me,  put  there;  for  though  a  ten- 
nnt  in  eommon  may  retake  goods  in  connnon.  when  the  other  takes 
them,  yt't  he  cannot  justify  a  trespass  to  do  it." 

In  Wood  V.  Alanley.  11  Ad.  &  El.  34,  where  the  doctrine  that  a 
sale  of  goods,  to  be  taken  on  the  premises  of  the  seller,  gives  a  li- 
'•ense  to  the  y)urcha.ser  to  enter  and  taki^  them,  is  laid  down,  it  is 
'.'uarded  by  tin-  i-ernark  of  Patteson.  J..  "T  do  not  say  that  a  mere 
purchase  will  give  a  license." 

In  Bac.  Ab.  Tres|)ass  \'\  1.  it  is  said:  "But  if  J.  S.  have  com- 
manded A.  if>  deliver  a  beast  to  J.  N.  and  J.  N.  go  into  the  close 
f'f  J.  S  to  receive  the  beast,  the  action  does  lie;  for,  as  the  beast 
might  have  been  delivered  ;it  the  irate  nf  tlu'  I'lose.  the  going  of 
J.  N.  thereinto  is  not  necessaiy." 

In  the  note  to  Webb  v.  Beavan.  6  M.  &  0.  1055,  is  a  citation 
from  the  ve;ir  books.  I)  Ivlw.  TV.  35.  in  which  Tiittleton,  J.,  after 


58  wniiofi'  .11  niciAi,  PRocKKPiNcis.  [Cli.   I. 

l;iyin«;  (.low  n  llu'  doclriiir  thai  a  man  may  ciilcr  tlu'  i-loso  (tl"  an- 
Dtlier  to  rotako  his  ow  ii  iroods  wronirruUy  put  there,  is  reported  to 
liave  said  :  "  Hut  it  is  otluTwise  ii"  I  bail  goods  to  a  man.  I  t-ajinot 
outer  his  lumse  aud  take  the  jroods.  For  they  did  uot  come  there 
by  Avroui?,  but  by  the  aet  ol"  us  both." 

It  is  by  aet  of  both,  that  jxoods.  upon  whieh  the  defendant  had 
only  a  chattel  mortjjaire.  leaving  the  possession  riprlitfuUy  with 
the  i>laiutiff.  were  in  the  plaintitf's  liouse.  In  20  Vin.  Ab.  507, 
TresjKiss  II.  a.  2.  pi.  32.  it  is  said:  "If  a  man  takes  my  goods  and 
])uts  them  ui)ttn  his  land.  I  nuiy  enter  and  retake  them.  Contrary 
upon  bailment  of  goods."  citing  the  above  authority  of  Littleton. 
A  note  contains  the  following:  "When  a  man  bails  goods  to  an- 
other to  keei>,  it  is  not  lawful  foi-  liim.  though  the  doors  are  open, 
to  enter  into  the  house  of  the  bailee  and  to  take  the  goods,  but 
ought  to  demand  tliem ;  and  if  they  are  denied,  to  bring  writ  of 
detinue,  and  to  obtain  them  by  law,"  citing  Bro.  Ab.  Trespass, 
])1.  208.  and  21  Hen.  VII.  13.  A  right  to  enter  the  premises  of 
the  mortgagor,  without  legal  process,  is  not  essential  to  the  se- 
curity of  the  mortgagee  of  personal  property.  Permission  to  do 
so  is  not  implied,  therefore,  from  the  existence  of  that  relation 
alone.  If  there  was  anything  in  the  form  of  the  mortgage  or  bill 
of  sale,  or  in  the  nature  and  circumstances  of  the  plaintiff's  pos- 
session of  the  property,  which  gave  the  defendant  a  right  to  seek 
it  within  the  close  of  the  plaintiflP.  where  it  had  been  deposited 
since  the  date  of  the  mortgage  or  bill  of  sale,  it  should  have  been 
made  to  appear.  The  burden  was  upon  the  defendant  to  estab- 
lish the  special  right  which  he  set  up  in  justification  of  his  entry. 
At  the  trial,  he  hosed  his  right  to  enter,  solely  upon  his  title  to 
the  personal  property,  and  the  supposed  abandonment  of  the 
premises  by  the  plaintiff;  and  asked  the  court  to  rule  that  that 
was  sufficient.  The  court  held  it  to  be  insufficient  "without  some 
license  or  permission  from  the  plaintiff,  express  or  implied."  The 
defendant  does  not  show^  that  there  was  anything  in  the  terms  of 
his  bill  of  sale  or  mortgage,  or  in  the  situation  of  the  property  at 
the  time  it  was  made,  or  in  the  circumstances  of  the  plaintiff''s 
possession  at  the  time  of  the  ent^^^  from  which  such  license  or 
permission  could  be  implied;  and  he  asked  no  instructions  upon 
the  evidence  upon  that  point,  if  any  existed,  at  the  trial. 

In  McNeal  v.  Emerson,  15  Gray.  384,  the  property  mortgaged 
was  furniture,  which  remained  in  the  same  situation  as  when  the 
mortgage  was  made,  and  the  circum.stances  left  the  case  in  the 
same  position  substantially  as  a  sale  of  personal  property  to  be  re- 
moved by  the  purchaser. 

In  the  ease  of  Heath  v.  Randall.  -4  Cush.  195,  the  jury  must  have 
found,  under  the  instructions  given  them,  that  the  contract  was 
that  the  defendant  had  a  right  to  take  the  property  away  any  day 
until  paid  for.  which  was  plainly  understood  to  mean  a  right  to 
take  it  from  the  premises  of  the  bailee.  It  is  to  be  observed  also, 
that  in  that  case  the  question  pressed  in  the  argument,  and  to 
which  the  discussion  by  the  court  was  mainly  directed,  was  that 


Sec.   2   C]  WITHOUT   JUDICIAL   PROCEEDINGS.  S^ 

of  the  right  to  terminate  the  baibiient  without  demand  of  the  bal- 
ance due  upon  the  conditional  purchase ;  the  right  of  entry  upon 
the  plaintitf 's  close  being  considered  only  incidentally. 

A  majority  of  the  court  are  of  the  opinion  that  the  facts  re- 
ported in  this  case  are  not  sufficient  to  sustain  the  justification 
relied  on  by  the  defendant,  and  that  the  instructions  upon  that 
point  were  correct.  If  the  defendant  established  his  title  to  the 
property  taken  away,  he  would  of  course  be  liable  only  for  such 
injury  as  he  did  to  the  plaintiff's  house.  But  no  question  ap- 
pears to  be  raised  as  to  the  measure  of  damages,  and  we  are  to 
presume  that  proper  instructions  upon  that  point  were  given. 
Exceptions  overruled. 

See  further  on  this  subject,  Finch's  Cases,  789,  at  pp.  791,  792;  State 
V.  Goode.  130  N.  C.  651,  41  S.  E.  3.  inserted  ante,  in  section  1,  and 
note  to  that  case;  Stanley  v.  Payne,  62  Atl.  49.5,  3  L.  R.  A.  (N.  S.)  251 
and  note.  See  "Trespass,"  Century  Dig.  §  63;  Decennial  and  Am.  Dig. 
Key  No.  Series,  §  27. 


(c)    Entity. 


RANSOM  V.  LEWIS,  63  N.  C.  43,  45.     186S. 
What  Constitutes  an  Entry. 

[Action  of  ejectment,  in  which  Ransom  was  "lessor  of  plaintiff," 
against  Lewis.  Judgment  of  nonsuit  against  the  plaintiff,  and  he  ap- 
pealed.    Affirmed. 

The  defendant  and  those  under  whom  he  claimed  had  been  in  pos- 
session, claiming  title  under  a  devise,  from  1845  to  the  trial  in  1868. 
In  1864  Ransom  on  various  occasions  cut  wood  on  the  land  and  carried 
It  away.  He  also  demised  the  land  to  a  tenant,  but  the  tenant  did 
not  enter  under  such  demise.  These  acts  were  done  by  Ransom  under 
a  claim  of  owning  the  land,  but  his  acts  were  unknown  to  any  one 
except  himself  and  his  lessee.  These  facts  being  admitted,  a  verdict 
was,  by  consent,  entered  for  the  plaintiff,  subject  to  the  opinion  of  the 
'ourt.  The  court  set  aside  the  verdict  and  nonsuited  the  plaintiff. 
The  defendant  claimed  title  by  the  adverse  possession  of  himself  and 
his  predecessors,  under  color  of  title.  Ransom  claimed  title  under  a 
deed  made  in  1862.  The  question  was,  whether  or  not  Ransom's  acts 
in  1864  amounted  to  an  entry  which  would  internipt  the  adverse 
holding  of  the  defendant,  who  was  in  possession.! 

Pearkon.  C.  J.  .  .  .  In  our  ca.sc  the  lessoi-  of  Ibc  plaintiff, 
so  far  from  taking  exclusive  possession,  or  even  making  an  entry 
openly  and  aboveboard,  merely  slipped  over  upon  tlic  land  occa- 
sionally and  cut  wood,  and  split  and  carried  away  some  fence- 
rails  and  some  7)ine  straw,  wliieh  Ava.s  unknown  to  the  defendant 
or  any  one  else,  so  far  as  tlie  evidence  sliows.  It  is  tnie  Ihe  lessor 
of  the  plaintiff  leased  llic  laml,  hut  llie  tenant,  before  entrv',  con- 
tracted willi  tlie  defendant  for  Ihe  use  and  occupation  of  the 
land.  ;ind  paid  liiiii  the  rent;  so  that  amounts  to  nothing. 

"We  bold  tliat..  in  order  to  revest  an  estate  wliieb  is  divested  by 
adverse  po.s.se.ssion  under  color  of  title,  there  must  be  an  open  en- 


»»0  \viTiioi"r  .irniciAi.  vkoceedings.  [Ch.  1. 

try  uuilor  claim  (>!"  riu;lit.  so  as  (d  yirr  noforichj  In  the  matter, 
wliieh  is  all  that  is  iieeossary  to  cleoidf  to  (.lispose  of  this  case. 
There  is  no  error.    AniriiuHl. 

See  "Adverse  I'ossessiou, "  c'eulmy   Dig.   §   235;    Decennial  and  Am. 
Dig.  Key  No.  Series.  §   47. 


ALSBROOK  V.  SHIELDS,  67  N.  C.  333,   336.     1872. 
Effect  of  Entry.    Fieri  Non  Debet  Bed  Factum  Valet. 

I  Plaiutiff  sued  Shields  for  the  conversion  of  a  bale  of  cotton.  Ver- 
(lict  and  .iudgnient  against  defendant,  and  he  appealed.     Reversed. 

Alsbrook  and  Shields  each  claimed  title  to  a  bale  of  cotton — Alsbrook 
as  purchaser  thereof  from  the  tenant  of  Shields;  and  Shields  under  a 
landlord's  lien  for  rent,  etc.  Shields  took  the  cotton  from  a  public  gin 
at  which  it  had  been  left  by  Alsbrook,  and  converted  it  to  his  own 
use  without  Alsbrook's  consent.  The  judge  instructed  the  jury  that, 
as  Alsbrook  was  in  possession  of  the  cotton  when  it  was  taken  by 
Shields,  he  was  entitled  to  recover;  because,  even  if  Shields  was  owner 
of  the  cotton,  he  could  not  lawfully  retake  possession  thereof — as  such 
recaption  was  calculated  to  produce  a  breach  of  the  peace.  To  this 
Shields  excepted.  Only  so  much  of  the  opinion  is  inserted  as  bears 
upon  the  point  under  consideration.! 

BoYDEN,  J.  .  .  .  "We  understand  his  honor  as  instructing 
the  jury  that  if  the  owner  of  property  takes  it  out  of  the  posses- 
sion of  another  under  circumstances  calculated  to  produce  a 
breach  of  the  peace,  he  may  be  sued  for  such  taking  by  the  pos- 
sessor, and  the  value  of  the  property  recovered. 

The  court  had  supposed  that  it  was  familiar  learning  that  the 
o^vIler  of  property  thus  taken  could  not  be  sued  for  the  property ; 
and  that  if  the  owner  of  real  estate  had  taken  possession  under 
circumstances  calculated  to  produce  a  breach  of  the  peace,  and 
even  if  he  committed  a  breach  of  the  peace  by  ousting  the  posses- 
sor, still,  he  [the  possessor]  could  not  sustain  a  suit  for  the  land 
against  the  real  owner,  who  had  thus  violently  deprived  him  of 
the  possession,  and  that  a  plea  of  liberum  tenementum,  if  estab- 
lished, would  bar  the  plaintiff's  recovery.  .  .  .  Venire  de 
novo. 

See  "Trover  and  Conversion,"  Century  Dig.  §§  164,  163:  Decennial 
and  Am.  Dig.  Key  No.  Series.  §  23. 


ROBERTS  ET  AL.  v.  PRESTON,  106  N.  C.  411,  420.  10  S.  E.  983.     1890. 

Effect  of  Entry  Continued. 

[Plaintiffs  sued  Preston  for  damages  for  alleged  trespasses  on  land. 
Verdict  and  judgment  against  plaintiffs,  and  they  appealed.     Affirmed. 

Both  parties  claimed  the  locus  in  quo  under  Mills  Roberts.  Preston 
claimed  that   bis  acts  of  alleged  trespass  were  done  under   authority 


Sec.   2   C]  WITHOUT   JUDICIAL   PROCEEDINGS.  61 

from  one  Hettrick  to  whom  the  locus  in  quo  had  come,  by  mesne  con- 
veyances, from  Mills  Roberts.  Plaintiffs  claimed  title  by  descent  from 
Mills  Roberts.  Some  weeks  previous  to  the  acts  complained  of,  Het- 
trick had  entered  upon  the  locus  in  cjuo  and  taken  possession  thereof. 
The  alleged  trespasses  by  Preston  were  committed  under  a  claim  of 
right  as  assignee  of  Hettrick,  or  by  his  permission.  There  was  evi- 
dence tending  to  prove  that  plaintiffs  were  in  the  actual  possession  at 
the  time  of  Hettriok"s  entry. 

"The  plaintiffs  reciuested  the  court  to  charge  the  iury  as  follows: 
'Whether  plaintiffs  have  proven  title  or  not  to  the  land  in  controversy, 
yet  if  they  were  in  the  actual  possession  of  the  land,  or  any  part  of  it, 
and  the  defendant,  while  they  were  there  in  possession  of  the  land,  en- 
teied  upon  the  land  so  in  their  possession,  and  built  a  tramway  or  cut 
down  tre*^s  without  the  i)laintiffs'  permission,  he  was  guilty  of  trespass, 
as  charged  in  the  complaint.'  .  .  .  This  was  given  by  the  court, 
.with  the  qualification:  'Unless  the  jury  find  from  the  evidence  that  at 
the  time  of  Preston's  entry,  Hettrick  was  the  owner  of  said  land,  had 
previously  entered  thereon,  and  taken  possession  thereof,  and  was  at  the 
time  of  Preston's  entry  in  actual  possession,  and  had  authorized  Pren- 
ton  to  enter.'     .     .     .     Plaintiffs  excepted." 

There  were  other  exceptions  to  the  charge,  but  this  exception  is  suf- 
ficient for  the  purpose  in  view.] 

Merrimox,  C.  J.  .  .  .  TliL-re  was  evidence  going  to  prove 
that  TTettriek.  under  whom  the  defendant  claims  and  justifies, 
had  title  to  the  land  in  question  at  and  before  the  time  of  the  al- 
leged trespasses,  and  that  he  then  had  actual  possession  and  con- 
trol thereof,  and  that  wliile  he  was  so  in  possession,  he  allowed 
the  defendant  to  cut  timber,  and  do  other  things  complained  of, 
on  the  laud.    Then:  was  also  evidence  to  the  contrary. 

T"fnquestionably.  the  o^^^ler  of  land  having  the  right  of  posses- 
sion may  peaceably  enter  upon  it.  whili'  another  person,  who  has 
no    right,    has   previously    taken,    and    has.    possession    thereof. 
"When  the  lawful  owner  thus  enters  and  takes  possession,  the  pos- 
session extends  to  the  whole  tract  unless  a  person  is  in  the  wrong- 
ful possession  of  some  part,  in  Avhich  case,  his  wrongful  posses- 
sion is  confined  to  the  part  of  which  he  has  actual  possession. 
When  the  lawful  owner  thus  takes  possession,  the  law  favors  and 
helps  him  in  the  assertion  of  his  right.    Thus  he  has  perfect  title, 
and  he  jiiay  do  whalevei-  he  may  lawfully  do  Avitli  his  own  prop- 
erty.    Tie  cainiot  be  treated  as  a  trespasser  in  such  case    TTc;  may 
put  his  agents  and  servants  in  possession  of  the  land,  or  any  part 
of  it.  under  him.  and  tiiay  authorize  other  p(>rsons  to  cut  timber, 
construct  roads,  and  do  otliei-  things  on  his  land,  and  have  the 
right  to  ingress.  cL'ress  and  regress.     Nor  can  the  person  having 
such  wrongful  f)Ossession  maintain  trespass  in  such  case  against 
the  lawful  owner,  or  tlK).se  in   possession   under  liim.  oi-  cutting 
timber,  and  doiji'_'  other  like  things  on  the  land  by  liis  i)ei-mission 
or  direction.     This  is  so.  because  he  goes  into,  and  has.  possessic»n 
of  riglit.     King  v.  King.  20  N.  C.  ;]01  :  Tredwell  v.  Keddick.  23 
N.  C.  56:  Everett  v.  Smith,  44  N.  C.  30:h  White  v.  Cooper,  53  N. 
r.  48:  r.adsbv  v,  Dver.  fH  N.  C   311  :  Logan  v,  Fit/,«rerald.  02  N. 
C    644:  Oavlord  v.  "Respa.ss.  ibid.  HHr^ ;  Nixon  v    Willinms,  05  N. 

r.  10.3. 

The  court,   therefore,   projierly  deelirMd    lo  give   tlic    jury  in- 


(VJ  wii'iuM'i"  .nniciAi,  i'K(U'i;i:niN(is.  |r//.    /. 

stnu'titnis  as  specially  ilciiiaiuli'd  l)y  tlic  |)laitililTs,  williout  iiiod- 
itii'atioii \riirm(>(l. 

A  had  possession  of  a  tenenient,  consisting  of  a  main  building 
and  a  shetl  attached.  He  locked  the  door  of  the  shed  in  which  he  had 
some  tools,  etc..  and.  leaving  a  tenant  in  possession,  went  away  intend- 
in.g  (o  return.  Aftoi-wards  tlie  tenant  admitted  B.  who  had  the  title  and 
right  of  possession,  into  the  peateahle  i)ossession  of  the  main  building; 
held,  that  B  was  not  indictable  for  a  forcible  entry  in  breaking  into  the 
shed  and  assuming  possession  of  that  too.     State  v.  Pridgen,  30  N.  C.  84. 

In  '<:)  N.  C.  at  I).  .'>:?,  Pearson.  C.  J.,  says:  "The  plaintiff  in  this  case 
by  making  an  attual  entry  on  the  land  by  force  of  his  title,  was  then 
in  i)ossession  notwithstanding  the  presence  of  defendant;  for  it  is  set- 
tled, that  when  two  are  on  the  land,  the  law  adjudges  the  possession  to 
be  in  the  party  who  has  title."  See  "Trespass,"  Century  Dig.  §§  54-56; 
Decennial  and  Am.  Dig.  Key  No.  Series,  §  25. 


LOW  V.  ELWELL  ET  AL.,  121   Mass.  309,  23  Am.  Rep.  272.     1876. 
Entry.     Eviction  of  Tenant  by  Svfferance. 

[Tort  for  an  assault  in  forcibly  e.iecting  the  plaintiff  from  her  dwell- 
ing-house. By  consent  of  parties,  the  case  was  carried  to  the  supreme 
court  upon  agreed  facts.  If  defendant  was  adjudged  liable,  the  case 
was  to  stand  merely  for  assessment  of  damages;  if  otherwise,  the  plain- 
tiff should  become  nonsuit.     The  Supreme  Court  nonsuited  the  plaintiff. 

The  plaintiff,  Ellen  B.  Low,  was  in  possession  of  a  house  under  an 
oral  lease  made  to  her  husband,  John  C.  Low,  by  the  owner  in  fee 
thereof.  In  March,  1873,  while  she  was  thus  in  possession,  the  owner 
of  the  house  duly  demised  it  to  the  defendant,  Zeno  P.  Elwell.  and  both 
the  owner  and  Elwell  gave  written  notice  to  John  C.  Low  of  this  lease 
and  to  quit  the  premises.  Under  the  law  of  Massachusetts  the  oral 
lease  to  John  C.  Low  gave  him  no  greater  estate  than  a  tenancy  at  will, 
which  estate  was  terminated  by  the  acts  stated  above,  and,  therefore, 
at  the  time  of  the  alleged  assault,  .John  C.  Low  was  a  mere  tenant  at 
sufferance.  As  plaintiff  did  not  quit  the  premises,  the  defendants,  El- 
well and  his  wife,  forcibly  broke  open  the  house  at  ten  o'clock  in  the 
morning  of  April  15,  1873,  and  put  the  plaintiff  and  all  of  her  effects 
out  of  the  house  against  her  protest.  Elwell  directed  the  plaintiff  to 
leave  the  house,  which  she  refused  to  do.  Thereupon  he  took  her  by 
the  shoulders  and  "ran  her  into  the  street."  Elwell  and  his  wife  then 
kept  possession  of  the  house.] 

Gray.  C.  J.  A  tenant  holdinor  over  after  the  expiration  of  his 
tenancy  is  a  mere  tenant  at  snffcranee,  havinfj  no  ri^ht  of  pos.ses- 
sion  agrainst  his  lanrlhjnl.  Tf  the  landlord  forcibly  enters  and 
expels  him.  the  landlord  may  be  indicted  for  the  forcible  entry. 
Bnt  he  is  not  liable  to  an  action  of  tort  for  damages,  either  for 
his  entry  npon  the  premi.ses.  or  for  an  assault  in  expelling  the 
tenant,  provided  he  uses  no  more  force  than  is  necessary.  The 
tenant  cannot  maintain  an  action  in  the  nature  of  trespass  quare 
clau.sum  frcfjit.  becau.sp  the  title  and  the  lawful  ri<?ht  to  posses- 
sion are  in  the  landlord,  and  the  tenant,  a.s  against  him,  has  no 
right  of  occupation  whatever.  He  cannot  maintain  an  action,  in 
the  nature  of  trespa.ss  to  his  person,  for  a  subsequent  expulsion 


Sec.    2    C]  WITHOUT    JUDICIAL    PROCEEDIXGS.  63 

with  no  more  force  than  necessary-  to  accomplish  the  pui*pose; 
became  the  landlord,  having  obtained  possession  by  an  act  which, 
though  subject  to  be  punished  by  the  public  as  a  breach  of  the 
peace,  is  not  one  of  which  the  tenant  has  any  right  to  complain, 
has.  as  against  the  tenant,  the  right  of  possession  of  the  prem- 
isas :  and  the  landlord,  not  being  liable  to  the  tenant  in  an  action 
of  tort  for  the  principal  act  of  entry  upon  the  land,  cannot  be 
made  liable  to  an  action  for  the  incidental  act  of  expulsion,  which 
the  landlord,  merely  because  of  the  tenant 's  own  unlawful  resist- 
ance, has  been  obliged  to  resort  to  in  order  to  make  his  entry 
effectual.  To  hold  otherwise  would  enable  a  person,  occupying 
land  utterly  without  right,  to  keep  out  the  lawful  owner  until 
the  end  of  a  suit  by  the  latter  to  recover  the  possession  to  which 
he  is  legally  entitled. 

This  view  of  the  law.  notwithstanding  some  inconsistent  opin- 
ions, is  in  accordance  with  the  current  of  recent  decisions  in  Eng- 
land and  in  this  commonwealth. 

In  Turner  v.  Meymott.  7  Moore,  574;  S.  C.  1  Ring.  158;  it  was 
decided  that  a  tenant  whose  term  had  expired  coidd  not  main- 
tain trespass  against  his  landlord  for  forciUy  breaking  and  en- 
tering the  house  in  his  absence.  In  Hillary  v.  Gay.  6  C.  &  P.  284, 
indeed.  Lord  Lyndhurst  at  nisi  prius,  while  recognizing  the  au- 
tlioritv  of  that  decision,  ruled  that  if  the  landlord,  after  the  ex- 
piration  of  the  tenancy,  by  force  put  the  tenant's  wife  and  furni- 
ture into  the  street,  he  was  liable  to  an  action  of  trespass  quare 
clausum  f regit.  And  in  Xewtou  v.  Ilarland.  1  ]\Ian.  &  Gr.  644; 
S.  C.  1  Scott  X.  R.  474.  a  majority  of  the  court  of  Common  Pleas, 
overruling  decisions  of  Baron  Parke  and  Baron  Aldei-son  at  nisi 
pi-ius.  held  that  under  such  circumstances  the  landlord  was  liable 
to  an  action  of  trespa.ss  for  assault  and  battery. 

But  in  Harvey  v.  lirydges.  14  ^l.  &  W.  437,  Baron  Parke  stated 
his  opinion,  upon  the  point  raised  in  Newton  v.  Harland,  as  fol- 
lows: "Where  a  breach  of  the  peace  is  conunitted  by  a  freeholder, 
wlio.  in  order  to  get  into  possession  of  his  land,  a.ssaults  a  pei-son 
wi-oiigfully  holding  i)oss('ssion  of  it  against  his  will,  although  the 
freeholder  may  be  responsible  to  the  public  in  the  shape  of  an 
indictment  for  a  forcible  entrv\  he  is  not  liable  to  the  other  party. 
I  cannot  see  liow  it  is  possible  to  doubt  that  it  is  a  peT-f(H'tly  good 
justification  to  say  tliat  llic  plain!  itV  was  in  possession  of  the  land 
against  the  will  of  the  defendant,  who  was  owner,  and  that  he 
eutired  uixiii  it  accordingly;  even  though,  in  so  doing,  a  breach 
of  llie  ]H';ie<'  was  eommitted."  P.aroii  Alderson  emicurred.  and 
said  tbat  he  i-etain<'<l  the  opinion  tliat  be  expi-essed  in  Xewton  v. 
Ilarland.  notwithstanding  tbe  deeision  of  the  majority  of  the 
eoiii't  of  eoinmon  pleas  to  tbe  contrary.  Tbe  opinion  Ibus  de- 
liberately .'idbered  to  and  |)ositively  declared  by  tbose  eminent 
jti'lu'es.  tbougb  not  required  by  tlie  adjudication  in  Harvey  v. 
P.rydgcs.  is  of  much  w<'igli1.  In  Davis  v.  P.urrell.  10  C'.  TV  H21. 
825.  ;\Ir.  Justice  Creswell  said,  tbat  tbe  doctrine  f»f  Xewton  v. 
Harbuel    b;ir1   l)i'rii    verv   iiincb   riuestioned.      .\n<l    it    was   linally 


(i4  WTI'IIorT    .11   IMClAl,    I'KdCKKDlN'US.  \('ll.    1. 

i.v(MTuled  ill  Uliulcs  Y.  lli^ii^s.  10  I',  li.  (N.  S. )  7l;>.  wiui-i'.  in  ;in 
action  for  an  assault  by  forcibly  takini;  tbe  defendant's  projx'rty 
from  the  plaintiff's  hands,  using:  no  more  force  than  was  neces- 
sary. Chief  Justice  Krle.  deliverinir  llie  unaniiiiuus  judp^ment  oC 
the  court,  approved  the  statement  of  Uaron  Parke,  above  quoted, 
and  added:  "In  our  oi)inion,  ail  that  is  so  said  of  the  right  of 
l)roperty  in  lands  ap])lies  in  i)rinciiile  to  a  riirlit  of  property  in  a 
I'hattel.  and  supports  the  present  just ilicat ion.  Tf  the  owilt 
was  compellable  by  law  to  seek  redress  by  action  for  a  violation 
of  his  rijiht  <if  lu-operty,  the  remedy  would  be  often  worse  than 
the  mischief,  and  the  law  would  ajjcrravate  the  injury,  instead  of 
redressinjr  it."  See  also  Lows  v.  Telford,  1  App.  Cas.  -414.  A'lC). 
In  Connnonwealth  v.  ITaley.  4  Allen,  318,  the  ease  was  upon  an 
indictment  fur  forcible  entry,  and  no  opinion  was  ref|uired  or  (Ex- 
pressed as  to  the  landlord's  liability  to  a  civil  action. 

The  judgment  in  Sampson  v.  TTenry,  11  Pick.  379,  turned  upon 
a  question  of  pleadintr.  The  declaration,  which  was  in  tn-.s- 
pass  for  an  assault  and  battery,  alleged  that  the  defendant  as- 
.saulted  the  plaintiff,  and  with  a  deadly  weapon  struck  him  many 
heavy  and  dangerous  blows.  The  pleas  of  justification  mere.ly 
averred  that  the  defendant  Avas  seized  and  had  the  right  of  p*>s- 
session  of  a  dwelling-house,  that  the  plaintiff"  was  unlawfully  in 
possession  thereof,  and  opposed  defendant's  entry,  and  that  the 
defendant  used  no  more  force  than  was  necessaiy  to  enable  him 
to  enter  and  to  overcome  the  plaintiff' 's  resistance;  but  did  not 
deny  the  use  of  the  dangerous  weapon  and  the  degree  of  violence 
alleged  in  the  declaration  ;  and  Avere  therefore  held  bad,  in  accord- 
ance with  Gregory  v.  Hill,  8  T.  E.  200.  there  cited.  The  remarks 
of  Mr.  Justice  Wide,  denying  the  right  of  a  party  dispossessed  to 
recover  possession  by  force  and  by  a  breach  of  the  peace,  would,  if 
construed  by  themselves,  and  extended  beyond  the  case  before 
him,  allow  the  tenant  to  maintain  an  action  of  trespass  against 
the  landlord  for  entering  the  dwelling-house,  in  direct  opposition 
to  the  judgment  delivered  by  the  same  learned  judge,  in  an- 
other ease,  between  the  same  parties,  argued  at  the  same  term 
and  decided  a  year  after.     Sampson  v.  TTenrv.  13  Pick.  36. 

In  the  latter  ca.se.  which  was  an  action  for  breaking  and  enter- 
ing the  plaintiff's  close,  and  for  an  a.ssault  and  battery  upon 
him,  the  co\irt  held  that  the  plea  of  liberum  tenementum  was  a 
good  justification  of  the  charge  of  breaking  and  entering  the 
house,  but  not  of  the  personal  assault  and  battery.  That  dr- 
cision,  so  far  as  it  held  that  the  IniKllord  ivas  nol  liahlc  to  an  ac- 
tion of  trespass  quare  clausum  fregit  by  a  tenant  at  sufferance 
for  a  forcible  entry,  has  hern  repeatedly  affirmed.  ^Meader  v. 
Stone.  7  :Met.  147;  Miner  v.  Stevens.  1  Cush.  482.  485;  ^Nlason  v. 
Holt,  1  Allen.  45;  Cuiiis  v.  Galvin.  1  Allen.  215;  Moore  v.  Ma.son. 
1  Allen.  400.  And  so  far  as  it  allowed  the  plainfiff  to  recover. 
in  such  an  action,  damages  for  the  incidental  injury  to  him  or  to 
his  personal  property,  it  has  leen  overruled.  Eames  v.  Prentice, 
8  Cush.  337 ;  Curtis  v.  Galvin.  ubi  supra. 

It  has  also  been  adjudged  that  a  landlord,  who,  having  peace- 


Sec.   ^   C]  WITHOUT    JUDICIAL   PROCEEDINGS.  65 

ably  entered  after  the  termination  of  the  tenancy,  proceeds, 
against  the  tenant's  opposition,  to  take  out  the  windows  of  the 
house,  or  to  forcibly  eject  the  tenant,  is  not  liable  to  an  action  of 
assault,  if  he  uses  no  more  force  than  is  necessaiy  for  the  pui-pose. 
Mugford  V.  Richardson,  6  Allen,  76 ;  AVinter  v.  Stevens,  9  Allen, 
526.  For  the  reason  already  stated,  we  are  all  of  the  opinion 
that  a  person  who  has  ceased  to  be  a  tenant,  or  to  have  any  law- 
ful occupancy,  has  no  greater  right  of  action  when  the  force  ex- 
erted against  his  person  is  contemporaneous  ^\^th  the  landlord's 
forcible  entry  upon  the  premises. 

Our  conclusion  is  supported  by  the  American  cases  of  the 
greatest  weight.  Jackson  v.  Farmer.  9  "Wend.  201 ;  Overdeer  v. 
Lewis,  1  W.  &  S.  90;  Kellam  v.  Janson.  17  Penn.  St.  467;  Stearns 
v.  Sampson,  59  Maine,  568 ;  Sterling  v.  Warden,  51  N.  H.  217. 
The  opposing  decisions  are  so  critically  and  satisfactorily  ex- 
amined in  an  elaborate  article  upon  this  subject  in  4  Am.  Law 
Rev.  429,  that  it  would  be  superfluous  to  refer  to  them  particu- 
larly. 

The  tenancy  of  the  plaintiff's  husband  under  an  oral  lease 
was  but  a  tenancy  at  will,  which,  by  the  written  lease  from  his 
landlord  to  the  defendant,  and  reasonable  notice  thereof,  was 
determined,  and  he  became  a  mere  tenant  at  sufferance.  Pratt 
V.  Farrar,  10  Allen,  519.  It  being  admitted  that,  if  the  defend- 
ants had  the  right  to  remove  the  plaintiffs  by  force,  no  more 
force  was  used  than  was  reasonably  necessary',  this  action  cannot 
be  maintained.     Plaintiff  nonsuit. 

See  "Assault  and  Battery,"  Century  Dig.  §  14:  Decennial  and  Am.  Dig. 
Key  No.  Series,  §  l.'j,  "Landlord  and  Tenant,"  Century  Dig.  §  1167;  De- 
cennial and  Am.  Dig.  Key  No.  Series,  §  275. 


MOSSELLER  v.  DEAVER,  106  N.  C.  494,  11  S.  E.  529,  8  L.  R.  A.  537. 

1890. 
Entry.     Eviction  of  Tenant  by  Sufferance.     Forcible  Entry. 

[Action  of  trespass.     Judgment  against  the  plaintiff,  and  he  appealed. 
Reversed.) 

Sttepiteiu),  J.  Till'  jilaintiff  had  been  in  possession  of  tlie  strip 
of  land  in  controversy  from  1884  to  March.  1888.  Whether  he 
entered  under  tbc  df^fendant  Wilson,  the  owner,  and  the  terms 
under  which  lie  entered,  are  disputcrl  f|uestions.  Tt  is  admilted. 
however.  Iliat  in  ]\Tareh.  1H87.  Wilson,  after  giving  the  plaintiff 
notice  to  f|uit.  afrreefl  that  he  should  remain  upon  the  land  until 
the  succeeding  October.  The  y)laintiff  contijiued  iji  possession 
until  ^rareli.  188ft.  when,  witliniit  any  fni-fhe?-  notice,  he  was  forci- 
bly ejected  by  the  defendant  Deaver  and  a  negro,  who  were  act- 
ing under  the  direction  and  authority  of  the  said  Wilson.  The 
entry  was  made  while  the  plaintiff  was  in  tlie  adual  pos.session 
Remedies — .">. 


()()  WirilorT    JUDU'I  \l,    rHOCKKDINGS.  \('ll.     I. 

ol"  his  liouso.  aiul  in  his  pii'sriu'c,  ami  was  (Imic  uiidri-  such  c\v- 
I'unistaiu'es  as  to  const  it  uto  a  forcible  onlry  iindci'  tiic  statute,  il' 
not,  inileed.  an  indiclaldc  forcil)h'  liH'spass.  His  honor  cliargcd 
ll\e  jury  that,  il"  tlic  plaintitl"  was  not  the  tenant  of  Wilson,  the 
hitter,  and  tliose  aetin^'  under  him,  "had  tlie  rit,dit  to  go  tliere, 
and  put  him  out  by  foree,  if  no  more  force  was  used  than  was 
necessary  for  that  pui-|)ose."  Under  the  circumstances  of  this 
case  (the  phnntilT  not  beiiii--  a.  r(>(>ent  tn^spa.sser  or  intruder)  we 
cannot  approve  of  the  instruction  given,  as  it  is  not  only  opposed 
to  the  public  i)olicy  which  re(|uires  the  owner  to  use  peaceful 
means,  or  resort  to  the  courts  in  order  to  regain  his  possession, 
but  is  directly  contrary  to  a  statutt^  wliich  cond(Mnns  the  violent 
act  as  a  criminal  oU'ense.  in  Duslin  v.  C'owdry,  23  Vt.  6;]1,  Red- 
field,  J.,  said:  "We  entertain  no  doubt  that  such  a  principle  of 
law  .  .  .  did  exist  in  England  from  the  time  of  the  Norman 
conqueivr  until  the  statute  of  5  Richard  IT.  c.  8,  of  'Forcible 
Entry  and  Detainer,'  a  period  of  nearly  three  hundred  ycai-s; 
.  .  .  and  it  is  certain,  we  think,  that  such  a  mode  of  re- 
ducing rights  of  action  to  possession  is  more  suited  to  the  turbu- 
lence and  violence  of  those  early  times,  when  no  man,  whose  head 
was  of  nuich  importance  to  the  state,  felt  secure  of  retaining  it 
upon  his  shoulders  for  an  hour,  than  to  quiet  and  order  and 
general  harmony  of  the  nineteenth  centuiy.  .  .  .  But  as 
men  advanced  towards  equality,  and  claimed  to  have  their  rights 
respected  and  guarantied  to  them,  and  more  carefully  defined 
this  state  of  the  biw  became  intolerable,  and  was  among  the  first 
to  be  abrogated  by  parliament."  This  was  done  by  the  st-atute 
of  5  Richard  IT.,  which  is  substantially  enacted  in  North  Caro- 
lina (see  Code,  §  1028)  and  in  many  other  states  of  this  Union. 
"A  contrary  rule,"  says  Lawrence,  J.,  in  Reeder  v.  Purdy,  41 
Til.  279,  "befits  only  that  condition  of  society  in  which  the  prin- 
ciple is  recognized  that — 

He  may  take  who  has  the  power, 

And  he  may  l<;eep  who  can. 

— If  the  right  to  use  force  be  once  admitted,  it  nnist  necessarily 
follow  as  a  logical  sequence  that  so  much  may  be  used  as  shall  bo 
necessary  to  overcome  resistance,  even  to  the  taking  of  human 
life." 

Nearly  all  of  the  authorities  agree  that  such  forcible  entries  on 
the  part,  of  the  owner  are  unlawful,  but  there  is  a  great  diversity 
as  to  whether  an  action  of  trespass  quare  clausum  fregit  may  be 
maintained,  and  also  whether  the  defendant  can  .justify  under 
the  plea  of  liberum  tenementum.  Erskine.  J.,  in  Newton  v. 
Tlarland,  30  E.  C.  L.  963.  said  that  "it  is  remarkable  that  a 
question  so  likely  to  arise  should  never  have  been  directly 
brought  before  any  of  the  courts  sitting  in  banc,"  until  that 
case  which  was  tried  in  1840;  and  it  is  also  worthy  of  remark 
that  RuFFix.  C.  J.,  in  State  v.  Whitfield.  8  Ired.  317.  regarded  it 
as  still  an  open  question  in  North  Carolina.  In  the  conflict  of 
authorities  we  must  adopt  that  i^ule  which  in  our  judgment 
rests  upon  the  sounder  reason.     This  is  so  well  expressed  ])y  tin? 


Sec.  2  a.]  without  judicial  proceedings.  67 

court  in  Reeder  v.  Purely,  supra,  that  we  will  reproduce  the  lan- 
guage of  the  learned  justice  who  delivered  the  opinion.     He 
says':  "The  reasoning  upon  which  we  rest  our  conclusion  lies  in 
the  briefest  compass,  and  is  hardly  more  than  a  simple  syllogism. 
The  statute  of  forcible  entry  and  detainer,  not  in  terms,  but  by 
necessary'  construction,   forbids  a  forcible  entry,   even  by  the 
o\NTier,  iipon  the  actual  possession  of  another.     Such  entry  is 
therefore  unlawful.     If  unlawful,  it  is  a  trespass,  and  an  action 
for  the  trespass  nuist  necessarily  lie.     .     .     .     Although  the  oc- 
cupant may  maintain  trespass  against  the  owner  for  a  forcible 
entr\'.  yet  he  can  only  recover  such  damages  as  have  directly  ac- 
crued "to  him   from    injuries   done  to   his   person   or   property, 
through  the  wrongful  invasion  of  his  possession,  and  such  ex- 
emplary damages  as  the  jury  may  (under  proper  instructions) 
think  proper  to  give.     But  a  person  having  no  title  to  the  prem- 
ises clearly  cannot  recover  damages  for  any  injurs'-  done  to  them 
by  him  who  ha.s  title."     He  may.  however,  says  the  court,  re- 
cover nominal  damages  in  all  cases  of  forcible  entry  and  detain- 
er; and  this,  in  our  opinion,  is  the  correct  view  of  the  law.     It  is 
strongly  sustained  in  NeA\-ton  v.  Harland.  supra,  though  the  point 
is  not  distinctly  decided.     In  that  case.  Bosanquet.  J.,  agrees 
with  TixDAL.  C*.  J.,  in  holding  that,  "if  the  act  be  expressly  pro- 
hibited bv  statute,  it  must     ...     be  illegal  and  void."     See, 
also.  Cooiey.  Torts.  323.  324.     Our  conclusion,  therefore,  is  that 
there  having  been  a  forcible  entry  upon  the  peaceable  possession 
of  the  plaintiff,  he  is  entitled  to  recover  nominal  damages  for  the 
trespa.ss.     He  is  also  entitled  to  recover  damages  for  any  injury 
inflicted  upon  his  person,  his  furniture,  his  tools,  and  even  his 
house,  if  it  is  a  fixture  only.     There  may  also  be  awarded  exemp- 
lary damage  if  tiie  uulawl'ul  act  be  done  in  a  wanton  and  reckless 
manner.     The  complaint  alleges  such  injuries,  and  it  was  error 
on  the  part  of  the  court  in  making  the  ca.se  tum  upon  the  ques- 
tion whethrr  the  force  used  was  necessary  to  the  expulsion  of 
the  ])laiiitiff.  as  we  have  seen  that  the  forcible  entiy  was  unlaw- 
ful, without  reference  to  the  amount  of  force  necessary  to  ef- 
fectuate the  i)urpose  of  the  plaintiff.     .     .     .     New  trial. 

For  re-entry  of  landlord  by  force  for  breach  of  conditions  in  the 
lea.se,  when  such  ripht  is  reserved  in  the  lease,  cutting  off  heat,  water, 
gas,  etc.,  for  breach  of  conditions,  see  Howe  v.  Frith,  95  Pac.  603,  17 
L.  R.  A.  (X.  S. )  <;T2,  and  note:  for  forcible  entry  of  landlord  and  evic- 
tion of  tenant  by  sufferance,  Whitney  v.  Hiovvn,  ilO  Pac.  277.  11  L.  li.  A. 
(N.  S.)  468.  and  note.  See  "Forcible  Entry  and  Detainer."  Century 
DlR.  5  01;  Decennial  and  Am.  Dig.  Key  No.  Series.  §  12.  See  notes  to 
the  principal  case  in  8  L.  R.  A.  ')?,~. 


vSTATK  V.   ROSS   KT  AL..   tO   \.  C.  .11.^).     ^^:^^. 
Entry.     W'hnt  Farcr  May  Tir  Usol.     Tenant,  by  tiuffcrance. 

(Indictment  foi-  ff)rcil)Ie  trespass.  Verdict  and  .jiulgment  against  tbo 
defendant,  who  appealed.  Reversed.  Tlie  fads  ai)i)ear  in  the  begin- 
ning of  the  opinion] 


68  wrnioiT  .irnuMAL  PRoCEKniNGs.  \CJi.   I. 

Tkausox.  J.  We  aic  ti»l(l  by  !lu'  AtturiU'.y-CJciK'ral  tliat  this 
was  treated  as  an  imlietmeiit  at  eoinnion  law,  for  the  purpose  of 
givin^r  the  state  tlie  henelit  of  the  testimony  of  Ilinson,  who  was 
not  a  eoiM]>etent  wiliu'ss  in  a  proceeding;  under  Ihe  statute.  Tlie 
question  is,  lias  the  stale  n\ade  out  a  ease  indietable  at  eonmion 
law?  The  indictment  is  strong;  enoup^h,  but  tlie  evidence  does 
not  sustain  th(>  allejrations.  The  ease  made  upon  the  facts  is 
this:  Ilinson  si>ld  and  conveyed  the  land  to  Ross,  but  i-eiiiained 
on  it  under  an  allep'd  ])arol  agreement,  "that  he  was  to  remain 
tliere  for  ten  veal's."  Ross,  in  company  with  four  others,  wejit 
to  the  land,  taking  with  him  a  wagon  loaded  with  provisions  and 
some  househoUl  furniture,  for  the  purpose  of  taking  ]iossession. 
Hinson  was  present  and  forbade  them  to  enter;  but  they  did 
enter  against  liis  will,  and  began  to  erect  a  house  outside  of  the 
enclosure  where  Ilinson 's  house  was  situated,  and  some  of  them 
continued  there  for  several  weeks.  ITis  Honor  was  of  the  opin- 
ion tliat  these  facts  made  out  an  offense  indictable  at  common 
law.     AVe  do  not  think  so. 

To  make  a  trespass  indict^able,  it  must  be  committed  manu 
forti,  in  a  manner  Avhich  amounts  to  a  breach  of  the  peace;  or, 
according  to  some  of  the  eases,  which  would  necessarily  lead  to  a 
breach  of  the  peace,  if  the  person  in  possession  were  not  over- 
awed by  a  display  of  force,  so  as  to  be  induced  to  surrender  and 
give  up  the  possession  because  resistance  would  be  iLseless.  Un- 
less this  degree  of  force  is  resorted  to,  the  trespass  is  a  mere  civil 
injury,  to  be  redressed  by  action. 

The  courts  should  keep  a  steady  eye  to  this  distinction,  be- 
cause individuals  are  under  great  temptation  to  convert  civil  in- 
juries into  public  wrongs,  for  the  sake  of  becoming  witnesses  in 
their  own  cases,  and  of  saving  costs. 

We  can  see  nothing  in  this  matter,  even  as  told  by  Hinson 
himself,  that  can  magnify  it  into  an  indictable  trespass.  There 
was  no  breach  of  the  peace — no  display  of  arms  or  "multitude  of 
people" — nothing  of  the  "pomp  and  circumstance  of  war"  cal- 
culated to  frighten  a  man  of  ordinary  firmness.  Hinson  was 
not  expelled  and  put  out  of  possession.  His  dwelling-house  was 
not  invaded,  and  his  enclosure  was  unmolested.  It  was.  at  most, 
a  mere  civil  trespass. 

We  do  not  feel  at  liberty  to  take  into  consideration  the  fact, 
that  according  to  the  evidence,  Ross  was  the  owner  of  the  land, 
and  had  a  righi  of  entr]j — the  alleged  parol  lease  for  ten  yeai-s 
being  void,  and  Hinson  being  in  effect  a  mere  tenant  at  sutference 
— becaiLse  we  find  it  an  unsettled  question,  whether  one  who  has 
a  right  of  entry  may  not  use  force,  if  necessary  to  assert  his 
right,  according  to  the  common  law.  It  is  not  necessary  for 
us  to  enter  upon  this  debatable  groimd  in  order  to  dispose  of  this 
case.  1  Hawk.  PI.  Cr.  ch.  28,  p.  495.  "It  seems  that  at  com- 
mon law,  a  man  disseised  of  any  land  (if  he  could  not  prevail  by 
fair  means)  might  lawfully  regain  the  possession  thereof  by 
force."  "But  this  indulgence  of  the  common  law,  in  suffer- 
ing persons  to  regain  the  lands  they  were  unlawfully  deprived 


Sec.   2   C]  WITHOUT   JUDICIAL   PROCEEDINGS.  69 

of.  having  been  found  by  experience,  to  be  very  prejudical  to  the 
public  peace,  it  was  thought  necessary,  by  many  severe  laws,  to 
restrain  all  pei-sons  from  the  use  of  such  violent  methods  of 
doing  themselves  justice." 

Blackstone,  whose  book  on  criminal  law  is  of  the  highest  au- 
thority, following  Hawkins,  says:  "An  eighth  offense  against 
the  public  peace  is  that  of  forcible  entiy  and  detainer,  which 
is  committed  by  violently  taking,  or  keeping  possession  of  lands 
with  menace,  force  and  arms,  and  without  the  authority  of  law. 
This  was  formerly  allowable  to  eveiy  person  disseised,  or  turned 
out  of  possession,  imless  his  entry  was  taken  away,  or  barred. 
.  .  .  But  this  being  found  very  prejudicial  to  the  public 
peace,  it  was  thought  necessary,  by  several  statutes,  to  restrain 
all  persons  from  the  use  of  such  violent  methods,  even  of  doing 
themselves  justice,  and  much  more  if  they  had  no  justice  in 
their  claim.''     4  Blk.  148. 

In  King  v.  Wilson.  8  Term.  Rep.  357,  the  correctness  of  this 
view  of  the  common  law  is  questioned  in  the  remarks  which  fell 
from  the  judges  in  delivering  their  opinions.  But  on  a  subse- 
quent day  of  the  term  they  felt  called  on  to  explain,  and  Lord 
Kenyon  says,  "perhaps  some  doubt  may  hereafter  arise  respect- 
ing what  Mr.  Sergeant  Hawkins  says:  'that  at  common  law  the 
party  may  enter  with  force  into  that  to  which  he  has  a  legal 
title ; '  but  without  giving  any  opinion  concerning  tliat  dictum  one 
way  or  the  other,  but  leaving  it  to  be  proved,  or  disproved, 
whenever  that  question  shall  arise,  all  we  wish  to  say  is.  that  our 
opinion,  in  this  ca.se,  leaves  that  question  untouched;  it  appear- 
ing by  this  indictment  that  the  defendants  unlawfully  entered, 
and.  therefore,  the  court  cannot  intend  that  they  had  any  title." 
That  was  upon  a  demurrer. 

So,  in  State  v.  Whitfield,  30  N.  C.  315,  the  court  throws  a 
doubt  upon  the  view  of  the  common  law,  as  laid  down  by  Haw- 
kins and  Blackstone.  and  reference  is  made  to  "Wilson's  case." 
But  the  matter  was  before  the  court  upon  a  motion  in  arrest  of 
judgment,  and  as  was  done  in  Wilson's  case,  the  point  is  left 
undecided.  Perhaps  it  will  be  found  that  the  authorities  may 
be  reconciled  on  this  distinction  :  O^ie  kavinq  a  right  of  entry, 
may,  at  common  law.  use  force,  provided  it  does  not  amount  to 
an  actual  hrrarh  of  the  peace;  whereas  one  not  having  a  right  of 
entry,  is  guilty  of  a  trespass,  indictable  at  common  law,  if  he 
enters  with  a  stroncr  hand,  under  circumstances  calculated  to 
excito  terror,  although  the  force  used  docs  not  amount  to  a  breach 
of  the  prarr.  This,  liowever.  is  m(>rely  a  suggestion.  Venire  de 
novo. 

ConaUlpr  with  fare  the  rulinpr  in  this  rase  iind  (iio  dortrines  an- 
nounf-efl  therein,  in  eomparison  with  the  rnlinps  and  doetrlnes  of  the 
two  rnaes  next  luecedinK.  te-wit,  T.nw  v.  Elweil,  121  Mass.  ?.O0.  and  Mos- 
seller  v.  Deaver,  lOr,  X.  C.  404.  11  S.  M  .^)20;  hearing  in  mind  llie  dates 
of  the  derisions  and  also  that  this  Is  a  cHminal  jirosenilinn,  while  the 
others  were  to  redress  rivll  Ininrlea.  See  State  v.  Whitfield.  ?,0  N.  C. 
315,  referred  to  in  this  case  and  In   Mosseller  v.  Deaver.  supra.     See 


70  wrnioii'  ,ii  piciai,  rivo(i:i;i)iNas.  \('li.  J. 

'•Foniblo  Kutrv  and  Di'taiiu'r,"  (Vntiiiy  Dit;.  §§  l!t2,  l!):i;  Decennial  and 
Ain.  Dig.  Key  No.  Series.  §  f)!;  "Tresitass,"  Century  Dig.  §  172;  Deeen- 
nijU  and  Au\.  D\ii.  Key  No.  Series,  §  82. 


REX  V.  THE  INHABITANTS  OF  CHESHUNT.  1  Barn.  &  Aid.  473,  476- 

477.     1818. 

Summai-y  Ejection  of  Servant. 

[Appeal  from  an  order  of  Sessions  to  the  couit  of  King's  Bench.  Af- 
firmed. 

Two  justices,  by  an  order,  removed  a  paui)er  from  their  parish.  The 
pauper  was,  at  the  time,  employed  by  the  Board  of  Ordnance  which  let 
him  live  in  a  house,  and  deducted  two  shillings  a  week  from  his  wages 
for  his  occupancy  of  the  house.  The  Board  of  Ordnance  had  several 
houses  which  it  in  like  manner  permitted  its  employees  to  occupy  upon 
the  payment  of  weekly  rents,  but  w^hich  the  employee  was  required  to 
vacate  as  soon  as  he  quit  such  employment.  In  this  instance  the  pau- 
per at  first  refused  to  surrender  the  house,  but  afterwards  yielded  to 
the  demands  of  the  Board  of  Ordnance.  There  was  an  appeal  from  the 
order  of  the  justices.  The  question  presented  was:  Did  the  occupancy 
of  the  house  by  the  pauper,  under  the  circumstances  here  stated,  confer 
a  settlement  upon  the  pauper  within  the  statute  of  13  &  14  Chas.  II, 
c.  12?1 

Lord  Ellenboroi'Gh,  C.  J.  In  this  case  it  seems  to  me  tliat  the 
party  ocupied  this  house  as  a  servant  only,  and  not  in  the  clmr- 
acter  of  a  tenant.  It  is  like  the  case  of  a  coachman,  who  fre- 
quently occupies  a  room  over  the  stables ;  but  such  occupation  is 
not  within  the  meaning  of  13  and  14  Car.  2.  The  pauper  here 
was  divested  of  the  tenement  as  soon  as  his  service  terminated. 
He  quitted  the  possession  reluctantly,  and  was  succeeded  by  the 
person  who  succeeded  him  in  his  employment  under  the  l^oard 
of  Ordnance.  All  this  clearly  shows  that  he  was  only  entitled  to 
hold  it  during  and  for  the  more  convenient  perfor-mance  of  his 
service.  If  the  court  should  hold,  in  this  and  similar  cases,  that 
the  legal  relation  of  landlord  and  tenant  subsisted,  it  would  be-, 
come  necessary  to  turn  such  persons  out  of  pos.session  by  the  reg- 
ular proceedings  in  ejectment ;  and  every  gentleman  having 
twenty  or  thirty  cottages  in  which  his  laborers  resided,  would 
be  compelled  on  any  change  of  their  service  to  have  recourse  to 
such  means.  This  Avould  bo  productive  of  the  most  serious  in- 
convenience. Upon  the  whole  view  of  this  ca.se.  I  thitik  it 
plainly  appears  that  the  relation  of  landlord  and  tenant  never 
did  subsist  here,  and  unless  that  were  so.  this  was  not  an  occupa- 
tion within  ^'^  &  14  Car.  2.  and  no  sfttlemont  ponid  bo  gained 
by  it. 

Abbott.  J.  If  the  case  had  stated,  instead  of  using  the  words 
weekly  rent,  that  the  pauper  lived  in  the  house,  nnd  received  18s. 
and  not  20s.  per  week  wages,  there  would  have  been  no  doubt. 
And   I   consider  that   in   substance   it   is   so  .stated.     Here  the 


Sec.    2    C]  WITHOUT    JUDICIAL    PROCEEDINGS.  71 

relation  w  IiIl-Ii  existed  was  only  that  of  master  and  servant,  and 
not  that  of  landlord  and  tenant. 

See  State  v.  Steele,  106  N.  C.  766,  inserted  ante  in  this  section.  See 
State  V.  Curtis,  20  N.  C.  363;  State  v.  Hoover,  107  N.  C.  795,  12  S.  E.  451; 
Hutchins  v.  Durham,  118  N.  C.  at  p.  469,  24  S.  E.  723;  State  v.  Smith, 
100  N.  C.  466,  6  S.  E.  84,  and  observe  the  difference  between  this  last 
case  and  the  others.  See  Bourland  v.  McKnight,  96  S.  W.  179,  4  L.  R.  A. 
(N.  S.)  698-729,  for  an  elaborate  note  covering  all  the  cases  in  which 
the  owner  has,  and  has  not,  the  right  to  summarily  evict  occupants,  such 
as  servants,  curators  of  museums,  light-house  keepers,  college  profes- 
sors, nuns,  clerks,  stewards,  etc.  See  "Landlord  and  Tenant,"  Cent. 
Dig.  §§  1167-1176;    DecenniaJ  and  Am.  Dig.  Key  No.  Series,  §§  275-277. 


JONES  V.  TOWNE,  58  N.  H.  462,  42  Am.  Rep.  602.     1878. 
Forcible  Ejection  from  Church  Pew. 

[The  plaintiff  sued  the  defendant  in  trespass  for  forcibly  removing 
plaintiff  from  a  church  pew.  .Judgment  against  plaintiff,  and  he  ap- 
pealed.    Affirmed. 

The  facts,  so  far  as  they  relate  to  the  question  under  consideration, 
are,  that  Jones  persisted  in  occupying  a  church  pew  and  in  excluding 
therefrom  the  rightful  occupant.  At  the  request  of  Fletcher,  the  right- 
ful occupant.  Towne  forcibly  ejected  Jones  from  the  pew.  For  this 
act  Jones  brought  this  action  against  Towne.] 

Cl.vrk.  J.  Tn  Fisher  v.  Glover.  4  N.  IT.  ISO.  the  court,  in  dis- 
cu.ssing  the  f|iiestioii  of  the  rights  of  pew-holders,  says:  "It  is 
usual  to  prant  to  individuals  the  exclusive  use  of  pews  and  these 
trrants  give  to  those  individuals  certain  rights  which  are  to  be 
protected.  The  rights  thus  acquired  are.  however,  limited,  and 
are,  in  our  opinion,  subject  to  the  right  of  the  society  to  have  the 
meeting-hou.se  in  such  place  as  will  best  accommodate  the  whole. 
A  reservation  of  this  right  is  implied  in  the  grant  of  a  pew  in  a 
house  of  public  wor-ship.  The  convenience  of  individuals  must 
in  such  cases  be  subject  to  the  general  convenience  of  the  whole; 
and  whoever  purchases  a  pew  ])urchases  it  subject  to  this  right 
of  the  society."  The  language  of  the  court  in  this  case,  and  the 
statement  of  the  relative  rights  of  the  society  and  the  pew- 
holders.  ay)ply  ef|ually  to  the  right  of  the  society  to  alter,  or  re- 
model, oi"  to  renK)ve  the  chuivh  edifice,  which  was  the  f|uestion 
then  under  consideration  'I'his  declaration,  that  Ihe  rights  of 
p(?w-hoUlers,  from  1lic  nature  of  the  property,  are  subject  to  the 
superior  rights  of  thr  society  for  certain  purposes,  was  made 
many  yejii's  before  ttie  adoption  of  iiny  s1;itnle  in  this  state 
relating  to  the  sale,  alteration  or  repair  <if  houses  of  piiMic 
worship. 

Tn  TIf>we  v.  Stevens.  47  Vt.  'J(i2.  it  is  s;iid:  "  .\  pew-holder'.s 
right  is  only  a  right  to  occupy  his  pew  during  ])nblie  worsliip; 
and  when  the  meeting-house  is  in  sui  li  a  ruinous  condition  that 
it    edtuiot    be   ;ind    is   not    oeeu|iie(|    for    pnl)!!!-    woi-sliip.    he    can 


72  WlTllOIT    .HDICIAT,    PROCEEDINGS.  \Ch.    1. 

reeoviT  only  luuninal  damages  lor  injury  to  his  pew."  "Pew- 
lioldei-s.  in  tiio  oi-clinary  eases  of  meeting-houses  or  churches, 
built,  by  incorporations  under  tlie  statute,  luive  only  a  right  of 
occupancy  to  thcii-  seats,  subject  to  the  su]^erior  right  of  the 
society  t)\vuiug  the  i)e\v."  IV-rrin  v.Grangci-,  ',VS  Vt.  101.  "Pew 
holdei-s  have  merely  a  qualified  and  usufructuary  right  in  their 
pews,  subject  to  the  right  of  the  religious  society  to  remodel  thera, 
and  to  alter  the  internal  stnicture  of  the  building,  or  enlarge  or 
remove  it,  or  .sell  the  edilice  and  i-ebuild  elsewhere."  Sohier  v. 
Trinity  Church,  109  ]\Iass.  1.  See  also  Gay  v.  Baker,  17  Id.  438, 
9  Am.*  Dec.  159;  Daniel  v.  Wood.  1  Pick.  102,  11  Am.  Dec.  151; 
Passett  V.  Fii-st  Parish  in  BoyLston,  l9  Pick,  361  ;  3  Kent  Com. 
533 ;  Kimball  v.  Second  Parish  in  Rowley,  24  Pick.  347.  Such  is 
the  conunon  law  of  New  Hampshire  in  relation  to  the  pew- 
holder's  right.  It  is  a  qualified  ownership,  subject  to  the 
superior  title  included  in  the  ownership  of  the  house.  The 
pew-holder  cannot  remove  the  pew,  nor  use  it  for  any  purpose 
except  occupancy  when  the  house  is  opened  for  use,  and  pew- 
tenancy  is  as  accurate  a  designation  of  his  interest  as  pew-owner- 
ship. 

.  .  .  The  society  had  the  right  to  remove  the  pew,  and 
there  remained  to  the  plaintiff  only  the  right  of  compensation 
for  its  loss.  No  question  is  made  but  that  the  amount  tendered 
by  the  society  to  the  plaintiff  was  a  sufficient  compensation  for 
the  pew,  and  the  rulings  of  the  court  upon  this  branch  of  the 
case  were  correct. 

By  persisting  in  the  occupation  of  pew  No.  25,  and  excluding 
Fletcher,  the  rightful  occupant,  the  plaintiff  became  a  tres- 
passer, and  upon  his  refusal  to  remove  upon  request,  Fletcher,  or 
any  one  acting  at  his  request,  had  the  right  to  remove  him,  using 
no  more  force  than  was  necessary;  and  we  think  the  ruling  of  the 
court  upon  this  point  was  correct,  that  the  exclusion  of  Fletcher 
from  the  occupation  of  his  pew  by  the  plaintiff,  and  his  refusal 
to  surrender  it  when  requested,  was  such  a  disturbance  and 
breach  of  the  peace  of  the  sanctuary  as  would  justify  the  inter- 
ference of  the  police.     Exceptions  overruled. 

See  "Religious  Societies,"  Century  Dig.  §§  168-179;  Decennial  and 
Am.  Dig.  Key  No.  Series,  §  26. 


(d)  Abatement  of  Nuisance. 

JAMES  V.  HAYWARD,  Cro.  Charles  I,  184.     1631. 
Abatement  by  Individual.     Gate  Across  Highway. 

[Trespass  for  hreakina:  his  rlo'^e,  and  pulliTig  up,  cutting,  and  casting 
down  a  gate.  The  defendant  .iustifics,  because  the  gate  was  placed 
across  the  highway,  and  so  fixed  that  the  king's  subjects  could  not 
pass  without  interruption  by  reason  of  the  said  gate,  to  the  nuisance 


Sec.  2  d.]  WITHOUT  judicial  proceedings.  73 

of  the  king's  subjects;  and  therefore  he  pr.lled  up,  cut,  and  cast  down 
the  said  gate  to  use  the  said  waj'.     .     .     . 

The  first  question  was,  whether  tlie  erecting  of  a  gate  across  an  high- 
way, which  may  be  opened  and  shut  at  the  pleasure  of  the  passengers, 
be  a  common  nuisance  in  itself  in  the  eye  of  the  law,  it  being  an  open 
gate  fixed  upon  hinges  that  subjects  may  pass  the  said  way  at  their 
pleasure. 

Secondly,  admitting  it  to  be  a  nuisance,  whether  every  one  may  pull 
up  and  cast  down  the  said  gate  at  their  pleasure?] 

Hyde,  Chief  Justice,  Jones  and  Whitlock  (after  holding  the 
gate  to  be  a  nuisance)  held;  that  admitting  it  to  be  a  nuisance, 
although  the  usual  course  is  to  redress  it  by  indictment,  yet 
every  person  may  remove  the  nuisance,  and  that  the  cutting  of 
the  gate  was  lawful;  whereupon  judgment  was  for  the  de- 
fendant. And  Jones  said,  that,  for  ancient  gates  upon  the 
highway,  it  shall  be  intended  they  are  hy  license  from  the  king. 

See  "Highways,"  Century  Dig.  §§  432-435;  Decennial  and  Am.  Dig. 
Key  No.  Series,  §  157. 


ARUNDEL  V.  M'CULLOCH,  10  Mass.  70.     1813. 
Abatement  by  Individual.    Bridge  Across  Navigable  Stream. 

[Trespass  brought  against  the  defendant  by  the  inhabitants  of  the 
town  of  Arundel  for  cutting  down  a  bridge.  The  case  was  submitted 
upon  agreed  facts.     The  court  nonsuits  the  plaintiff. 

The  town  of  Arundel  built  a  bridge  across  a  navigable  stream,  or, 
rather,  arm  of  the  sea.  The  stream  was  navigable  from  a  point  some 
distance  above  the  bridge  to  the  sea.  M'Culloch  removed  the  bridge 
to  facilitate  the  passage  of  a  vessel  he  had  built  above  the  bridge.  In 
such  removal  he  did  no  more  damage  than  was  necessary  to  effect  the 
free  passage  of  his  vessel.  A  bridge  had  existed  at  this  point  for  more 
than  fifty  years,  and  in  1771  the  Court  of  Sessions  located  a  road  over 
the  stream  in  question,  in  the  direction  of  the  bridge.] 

Per  Curiam.  It  is  an  unquestionable  principle  of  the  common 
law,  that  all  navigable  waters  belong  to  the  sovereign,  or,  in 
other  words,  to  the  public ;  and  that  no  individual  or  corporation 
can  aj)propriat('  them  to  his  own  use,  or  confine  or  obstruct  them, 
so  as  1o  impair  tlie  pas.sage  over  them  without  authority  from  the 
lorrislative  power.  Tt  is  upon  this  principle  tliat  so  many  acts 
of  our  legislature  have  been  passed,  authorizing  the  building 
of  bridges  over  various  rivers  and  .streams  within  the  common- 
wealth. 

Tn  tliis  ease,  no  sueh  aulhority  has  been  given;  and  tlie  only 
ebiiin  f)f  a  ritrht  to  eonliime  the  bridge  rests  upon  the  antiipiity 
of  the  biidtre.  ;md  the  hiyincf  out  of  a  road  over  the  river  in  the 
year  1771.  I'.nt  we  think  that  neithei-  of  these  facts  sanctioned 
the  obstrnetion  of  ttw  river,  so  as  to  i>revent  those  wlio  had 
oeension  to  traiisiio?-!  vessels  up  and  down  from  removing  it.  if 
neeessan-  to  a  saH-atid  eonvenient  p;iss;iire.  riihlie  I'ights  cannot 
be  destroyed   by    long   eontinned    eneroaeliments;    at   least,    tht> 


<4  wrniiti  r  .nnui.\i,   i'i»(ui;i;i)i\(;s.  \('li.   J. 

party  who  claiins  the  cxiMvisi'  of  any  ri^lit  iiicoiisisti'iit  with  the 
fret'  nijoyiiH'iit  ot'  :i  pul)li(*  casciiitMit  or  privilofjc.  must  put  him- 
si'ir  upon  tlu'  irromul  of  iJicscriptioii ;  unless  he  lias  a  f^rant  or 
soiiu'  valiil  authority  i'roiii  the  <:'ovcrmiH'iit .  and  a  rijilit  l)y 
pr('scri|)tion  chu's  not  exist  in  the  present  ease. 

With  respeet  to  th(>  act  of  the  Sessions  in  1771.  laying  out  a 
road  across  the  river,  nothing:  can  be  ini'ei'red  f'ntm  it  in  i'avor 
of  the  plaint itfs,  beeause  it  was  an  act  without  authority,  and 
void  in  law;  as  was  deteriiiiiicd  in  the  ease  of  Comnionwealth  v. 
Coonihs.  2  .Mass.  4S!). 

The  only  question  remaining,  then  is,  whether  the  doings  of  the 
defendant,  in  euttintj  down  and  removing  the  bridge,  were 
justifiable  on  his  part.  And  it  is  elear  that,  when  any  public 
way  is  unlawful!}'  obstructed,  any  individual,  who  wants  to  u.se 
it  in  a  lawful  way.  may  remove  the  obstruction;  and  it  is  settled 
tluit  he  may  even  enter  upon  the  land  of  the  party  erecting 
or  continuing  the  obstruction,  for  the  purpose  of  removing  it, 
doing  as  little  damage  as  possible  to  the  soil  or  buildings.  Here 
nothing  more  was  done  than  was  necessary  to  procure  a  safe 
passage  for  the  defendant's  vftssel ;  and  we  are  satisfied  that  no 
trespa.ss  was  thereby  committed  by  him.     Plaintiffs  non.suit. 

See  notes  to  the  principal  case  at  p.  72  of  10  Mass.  To  same  effect 
as  the  princi])al  case  see  State  v.  Diht)le,  49  N.  C.  107.  See  Willson  v. 
Blackbird  C.  M.  Co.,  2  Pet.  245,  and  Card  well  v.  Am.  Bridge  Co.,  113 
U.  S.  205,  5  Sup.  Ct.  423,  which  hold  that  a  state  may  authorize  a  bridge 
across  a  navigable  stream  unless  *and  until  congress  interferes.  See 
"Navigable  Waters,"  Century  Dig.  §  145;  Decennial  and  Am.  Dig.  Key 
No.  Series,  §  26. 


STATE  V.  PARROTT,  71  X.  C.  311,  17  Am.  Rep.  5.     1874. 
Abatement  by  Individual.     Bridge  Across  Navigable  Stream. 

IParrott  was  indicted  for  trespass  in  tearing  down  a  portion  of  a 
railroad  bridge.  Special  verdict.  .Judgment  of  acquittal.  State  ap- 
pealed. 

Tht  substance  of  the  si)ecial  verdict  was,  that  a  railroad  corjiora- 
tion,  (bartered  in  North  Carolina,  had  built  a  bridge  over  the  Neuse,  a 
navigable  river,  and  thereby  obstructed  Parrott's  boat  in  going  up  the 
river.  On  several  i)revious  occasions  the  railroad  company  had  re- 
moved a  portion  of  the  bridge  in  order  to  let  Parrott's  boat  pass;  but 
no  such  provision  being  made  for  him  oji  this  occasion,  he  removed, 
with  as  little  injury  as  possible,  such  part  of  the  bridge  as  it  was  nec- 
essary to  m.ove  in  order  to  let  the  boat  pass.  This,  was  done  in  the 
presence  of,  and  against  the  protests  of,  the  servants  of  the  railroad 
comijany  in  charge  of  the  bridge.  At  the  time  this  occurred  the  rail- 
road company  was  preiiaring  a,  draw  for  the  bridge  which  would  have 
been  completed,  so  as  to  let  boats  pass,  within  seven  days.] 

Reade.  J.  The  Neuse  at  the  place  under  consideration  is  a 
navigable  river.  Any  obstruction  of  a  navigable  river  is  a 
common  or  public  nuisance.  A  connnon  or  pviblic  iniisance  may 
be  abated  by  any  person  who  is  annoyed  thereby.     The  railroad 


Sec.  2  d.]  WITHOUT  judiclvl  proceedings.  75 

bridge  across  the  Xeuse  obstnu-ted  the  navigation  thereof  by  tlie 
defendants'  steamboat,  and  for  that  reason  the  defendants  tore 
it  down.  It  follows  that  the  defendants  are  not  guilty.  It  is 
not  necessary  to  display  the  learning  and  decisions  in  support 
of  these  positions,  although  we  have  fully  considered  them, 
because  they  may  be  found  collected  in  a  well  considered  case  in 
our  own  court,  and  we  thinl\  it  respectful  and  sufficient  to  sup- 
port our  decision  in  this  case  bv  that.  State  v.  Dibble.  49  N.  C. 
107. 

It  is  insisted,  however,  that  while  an  individual  cannot  obstruct 
a  na\agable  stream  yet  the  state  may  do  it  on  the  inland  streams 
unless  congress  opj^ose;  and  here  the  state  did  authorize  the 
railroad  to  build  a  bridge.  It  is  true  the  state  did  authorize  the 
railroad  to  build  a  bridge  across  the  Neuse.  but  it  did  not 
authorize  the  bridge  to  be  so  built  as  to  obstruct  navigation,  but 
required  a  draw  to  be  in  the  bridge  so  as  to  permit  navigation. 
This  was  not  done. 

It  is  furtlier  insisted  that  tlie  defendants  acted  tvantonly,  for 
that  the  railroad  was  preparing  a  draw  and  would  have  com- 
pleted it  in  a  few  days — about  seven  days.  The  facts  are  that 
defendants  had  given  the  railroad  several  months'  notice  to  pre- 
pare a  di-aw.  Prior  to  the  day  in  controversy,  as  often  as  the 
defendants'  boat  passed,  the  railroad  removed  a  span  of  the 
bridge  to  permit  the  pa.ssage,  detaining  the  boat  but  a  few  hours; 
but  on  the  day  in  question  the  span  was  not  removed  and  the 
boat  was  detained  for  thii'ty  4i()urs.  when  the  defendants  re- 
moved a  portion  of  the  bridge.  From  these  facts  it  appears  that 
the  ohsfructioH  was  wanton  and  its  removal  necessary. 

Let  this  !)('  certified,  to  the  end  that  the  judgment  may  be 
entered  discharging  the  defendants  as  upon  a  verdict  of  not 
guilty. 

For  H  discussion  of  the  right  of  a  ])rivate  individual  to  abate  a 
j)ublic  nuis-ince  because  of  sjjecial  injiiry — actual  or  threatened — to 
himself,  see  43  Am.  Rep.  21,  and  note.  See  "Navigable  Waters."  Cen- 
tury Dig.  §  14.j:    Decennial  and  Am.  Dig.  Key  No.  Series,  §  26. 


BROWN  V.  PERKINS  AND  WIFE,  12  Gray,  89,  100.     18.^)8. 
Abatement   hy   Tndividvnl.     Destroyinfi   Intnxicanis.   <(r. 

fPlalnfiff  sncB  in  tort  for  breaking  and  entering  his  shop  and  de 
stroyiiig  a  barrel  of  vinegar  and  other  goods.  Verdict  against  i)laintiff. 
F'lainliff  mov^d  for  new  trial,  whifh  motion  was  reserved  for  the  con- 
sideration of  fhe  wholo  court.     Verdift  s^t  aside  and  new  trial  ordered. 

The  dfff'iisc  was,  that  defendants  were  justified  in  l)real\ing  into  the 
shop  and  destroying  the  liquors  therein,  because  the  plaintiff  unlaw- 
fully kept  surh  lif|uors  for  sale.  There  was  evidence  to  the  effect  that 
about  three  hundred  women,  some  of  them  armed  with  hatchets,  met 
by  appoiiitiiient  and  niarclied  to  the  plaintiff's  store  in  a  procession, 
broke  into  it,  and  destroyed  the  spirituous  li(pu)rs  found  there.  No 
further  damage  was  done.     There  was  a  statute  providing  that  all  in- 


76  WITHOUT   JUDICIAL    PROCEEDINGS.  [CJl.    I. 

toxloating  liquors  kept  for  sale,  and  the  vessels  eontaiiiing  them,  should 
he  regarded  and  treated  as  connnoii  )nnsn,i(-cs.  Andthor  statute  made 
the  same  provisi(>n  as  to  houses.  huildinp;s  and  places  used  tor  the  ille- 
gal sale  of  siK'h  liipiors.  Tin.'  judge  charged  the  jury,  in  substance,  that 
deftudants  were  justified  in  what  they  did,  if  they  participated  in  the 
acts  complained  of,  i>rovid(^d  no  greater  force  was  used  than  was  nec- 
essary.) 

Su.wv.  C  J.  .  .  .  Passins:  over  all  (iiioslioiis  as  to  the 
plaintill's  ease,  and  eoniing:  to  the  justilication  set  forth  in  the 
answer,  the  court  are  of  opinion,  aiter  argument,  that  the 
ruling  and  instructions  to  the  jury  were  not  correct  in  matter  of 
law. 

1.  The  court  are  of  opinion  that  spirituous  liquors  are 
not,  of  themselves,  a  common  nuisance,  but  the  act  of  keeping 
them  for  sale,  by  statute,  creates  a  nuisance ;  and  the  only  mode 
in  which  they  can  be  lawfully  destroyed  is  the  one  directed  by 
st<atute,  for  the  seizure  by  warrant,  bringing  them  before  a 
magistrate,  and  giving  the  owner  of  the  property  an  opi)or- 
tunity  to  defend  his  right  to  it.  Therefore  it  is  not  lawful  for 
any  person  to  destroy  them  by  way  of  abatement  of  a  common 
nuisance,  and  a  fortiori  not  lawful  to  use  force  for  that  purpose. 

2.  It  is  not  lawful  by  the  common  law  for  any  and  all  persons 
to  abate  a  common  nuisance,  merely  because  it  is  a  common 
nuisance,  though  the  doctrine  may  have  been  sometimes  stated 
in  terms  so  general  as  to  give  countenance  to  this  supposition. 
This  right  and  power  is  never  entrusted  to  indivicluals  in  general, 
without  process  of  law,  hy  way  of  vindicating  the  public  right: 
hut  solely  for  the  relief  of  a  party  whose  right  is  obstructed  by 
such  nuisance. 

3.  If  such  were  intended  to  be  made  the  law  by  force  of  the 
statute,  it  would  be  contrary  to  the  provisions  of  the  Consti- 
tution, which  directs  that  no  man's  property  can  be  taken  from 
him  without  compensation,  except  by  the  judgement  of  his  peers 
or  the  law  of  the  land;  and  no  person  can  be  twice  punished  for 
the  same  offense.  And  it  is  clear  that  under  the  statutes  spirit- 
uous liquors  are  property,  and  entitled  to  protection  as  such. 
The  power  of  abatement  of  a  public  or  common  nuisance  does  not 
place  the  penal  law  of  the  Commonwealth  in  private  hands. 

4.  The  true  theory  of  abatement  of  nuisance,  is  that  an  indi- 
vidual citizen  may  abate  a  private  nuisance  injurious  to  him, 
when  he  could  also  bring  an  action  ;  and  also,  wlien  a  common 
nuisance  obstructs  his  individual  right,  he  may  remove  it  to 
enable  him  to  enjoy  that  right,  and  he  cannot  be  called  in 
question  for  .so  doing.  As  in  the  ease  of  the  obstruction  across 
a  highway .  and  an  unauthorized  bridge  over  a  navigable 
watercourse,  if  he  has  occasion  to  use  it,  he  may  remove  it  by 
way  of  abatement.  But  this  would  not  justify  strangers,  being 
inhabitants  of  the  other  parts  of  the  commonwealth,  having  no 
such  of'ca.sion  to  use  it.  to  do  the  same.  Some  of  the  earlier  cases 
perhaps,  in  laying  down  the  general  proposition  that  private 
subjects  may  abate  a  common  nuisance,  did  not  expressly  mark 


Sec.  2  d.]  WITHOUT  judicial  proceedings.  77 

this  distinction;  but  we  think,  upon  the  authority  of  modem 
cases,  where  the  distinctions  are  more  accurately  made,  and  upon 
principle,  tliis  is  the  true  rule  of  law.  Lonsdale  v.  Nelson,  2  B.  & 
C.  311,  312.  and  3  D.  &  R.  566.  567:  Mayor,  etc.  of  Colchester  v. 
Brooke.  7  Ad.  &  El.  N.  R.  376.  377;  Gray  v.  Ayres,  7  Dana.  375; 
State  V.  Paul.  5  R.  1.  185. 

5.  As  it  is  the  use  of  a  building,  or  the  keeping  of  spirituous 
liquors  in  it.  which  in  general  constitutes  the  nuisance,  the 
abatement  consists  in  putting  a  stop  to  such  use. 

6.  The  keeping  of  a  building  for  the  sale  of  intoxicating 
liquors,  if  a  nuisance  at  all,  i.s  exclusively  a  common  nuisance; 
and  the  fact  that  husbands,  wives,  children  or  servants  of  any 
person  do  frequent  such  a  place  and  get  intoxicating  liquor  there, 
does  not  make  it  a  special  nuisance  or  injury  to  their  private 
rights,  so  as  to  authorize  and  justify  such  persons  in  breaking 
into  the  shop  or  building  where  it  is  thus  sold  and  destroying  tho 
liquor  there  found,  and  the  vessels  in  which  it  may  be  kept;  but 
it  can  only  be  prosecuted  as  a  public  or  common  nuisance  in  the 
mode  prescribed  by  law. 

Upon  these  grounds,  without  reference  to  others.  Avhich  may 
be  reported  in  detail  hereafter,  the  court  are  of  opinion  that 
the  verdict  for  the  defendants  must  be  set  aside  and  a  new  trial 
had. 

As  to  the  constitutional  question  touched  upon  in  proposition  3  of 
the  principal  case,  see  Daniels  v.  Homer,  139  N.  C.  219,  51  S.  E.  992. 
See  "Intoxicating  Liquors,"  Century  Dig.  §  465;  Decennial  and  Am.  Dig. 
Key  No.  Series,  §  325;  "Nuisance,"  Century  Dig.  §  173;  Decennial  and 
Am.  Dig.  Key  No.  Series,  §  74. 


CAMPBELL  V.  RACE,  7  Gushing,  408.     1851. 
Turning  Out  of  Public  Road  When  Impassable. 

[Campbell  sued  Race  for  a  trespass  in  breaking  and  entering  his  close. 
Race  pleaded,  inter  alia,  a  right  of  way  of  necessity  resulting  from  the 
impassable  state  of  the  adjoining  highway.  Verdict  against  the  defend- 
ant.    Defendant  excepted,  and  his  exceptions  were  sustained. 

The  evidence  tended  to  jjrove  that  Race  left  the  public  road  and  drove 
his  team  ataoss  the  adjoining  field  of  Campbell,  doing  no  unnecessary 
damage  and  returning  to  the  public  road  as  soon  as  he  had  passed  some 
natural  obstructions  in  the  public  road  which  rendered  it  impassable. 
The  judge  ruled  that  these  facts  were  no  defense.] 

BroEi.ow.  J.  It  is  not  conti-ovcrlcd  ])y  Ihc  counsrl  for  the  plain- 
tiff, that  the  rule  of  law  is  well  settled  in  England,  that  where  a 
highway  becomes  oKstructed  iiiid  impassable  from  temporary 
causes. "a  travt-ler  bas  a  right  In  go  extra  viaiii  upon  adjoining 
lands,  withnnt  being  gnilly  of  trespass.  Tbc  rule  is  so  laid  down 
in  the  elementary  books.  2  Bl.  Com.  36;  Woolrych  on  Ways,  50, 
51  ;  3  Cruise  Dig.  80;  W('11bf'lov<"d  on  Ways.  38;  and  it  is  fully 
snpportod  })v  llie  adjudged  cjisrs.  TTcnn's  case  W.  Jones.  206;  3 
Snlk.  182;  i  Saund.  323.  note  3;  Absor  v.  French.  2  Sliow.  28; 
Younr' V  ,  1  Ld.  Rav.  725;  Tavlor  v.  Wliitehead,  2  Dong. 


7s  wrnioiT  .MDici  \i.   i'i{()ci:i;i)i\(;s.  \('li.    I. 

743;  Billiard  v.  I  lanison.  \  .M.  \;  S.  ;kS7.  :V.y.\.  Sutli  ltciii«;  tliead- 
mittoil  nilo  (tf  law.  as  settled  i)y  the  Knjjlisli  authorities,  it  was 
urgotl  in  behalf  of  the  plaintilV  in  the  present  ease,  llial  it  had 
never  het'n  reeo<;nized  or  sustained  hy  Anieriean  authors  or  eases. 
Hut  we  do  not  tind  such  to  he  the  faet.  On  the  contrai-y.  Air.  Dane, 
whoso  !»reat  learninir  and  t'aniiliai-  aeciuaintance  witli  the  prineiples 
of  the  coiniiion  law.  and  theii"  praetieal  applieatioii  at  an  early  |)er- 
iod  in  this  eonunonwealtli,  entitle  his  (tpinion  to  very  ^ivat  weight, 
adopts  the  rule,  as  declared  in  the  leading?  ease  of  Taylor  v.  Wliite- 
head.  ubi  supra,  which  he  says  "is  tlie  latest  on  the  point  and  set- 
tles the  law."  H  Dane.  Ah.  258.  And  so  Chancellor  Kent  states 
the  rule.  'A  Kent.  Com.  424.  We  are  not  aware  of  any  case  in 
wliich  the  question  has  been  distinctly  raised  and  adjudicated  in 
this  country ;  but  there  are  several  decisions  in  New  York,  in  which 
the  rule  has  been  incidentally  recognized  and  treated  as  well  set- 
tled law.  Hobnes  v.  Seely.  10  AVend.  507;  Williams  v.  Safford, 
7  Barb.  309 ;  Newkirk  v.  Sabler,  9  Barb.  652.  These  authorities 
would  seem  to  be  quite  sufficient  to  justify  ns  in  the  recognition 
of  the  rule.  But  the  rule  itself  is  founded  on  the  established  prin- 
ciples of  the  common  law.  and  is  in  accordance  with  the  fixed  and 
iniiform  usage  of  the  community.  Indeed,  one  of  the  strongest  ar- 
guments in  support  of  it  is,  that  it  has  always  been  practised  u{)on 
and  acquiesced  in,  without  objection,  throughout  the  New  England 
States.  This  accounts  satisfactorily  for  the  absence  of  any  ad- 
judication upon  the  question,  in  our  courts,  and  is  a  sufficient  an- 
swer to  the  objection  upon  this  ground,  which  was  urged  upon  us 
by  the  learned  counsel  for  the  plaintiff.  When  a  right  has  been 
long  claimed  and  exercised,  without  denial  or  objection,  a  strong 
presumption  is  raised,  that  the  right  is  well  founded. 

The  plaintiff's  counsel  is  under  a  misapprehension  in  suppos- 
ing that  the  authorities  in  support  of  the  rule  rest  upon  any  pecul- 
iar or  exceptional  principle  of  law.  They  are  based  upon  the  fa- 
miliar  ayid  well  seltled  doctrine,  that  to  justify  or  excuse  an  al- 
leged trespass,  inevitahle  necessity  or  accident  must  he  shoivn.  If  a 
traveler  in  a  highway,  by  unexpected  and  unforeseen  occurrences, 
such  as  a  sudden  flood,  heavy  drifts  of  snow\  or  the  falling  of  a 
tree,  is  shut  out  from  the  traveled  paths,  so  that  he  cannot  reach 
his  destination  without  passing  upon  adjacent  lands,  he  is  cer- 
tainly under  a  necessity  so  to  do.  It  is  essential  to  the  act  to  be  done 
without  which  it  cannot  be  accomplished.  Serious  inconveniences, 
to  say  the  least,  would  follow,  especially  in  a  climate  like  our  own, 
if  this  right  were  denied  to  tho.se  who  have  occasion  to  pa.ss  over 
the  public  ways.  Not  only  would  intercourse  and  business  be 
sometimes  suspended,  but  life  itself  would  be  endangered.  In 
hilly  and  mountainous  regions,  as  well  as  in  exposed  places  near 
the  sea  coa.st.  severe  and  unforeseen  storms  not  unfrequently  over- 
take the  traveler,  and  render  highways  suddenly  impassable,  so 
that  to  advance  or  retreat  by  the  ordinary  path,  is  alike  impossible. 
In  such  cases,  the  only  escape  is.  by  turning  out  of  the  usually 
traveled  way.  and  seeking  an  outlet  over  the  fields  adjoining  the 
highway.     If  a  necessity  is  not  created,  under  such  circumstances, 


Sec.     .?    '/.J  WITHOl'T    JUDICIAL    PROCEEDINGS.  79 

sufficient  to  justify  or  excuse  a  traveler,  it  is  difficult  to  imagine 
a  case  which  would  come  within  the  admitted  inile  of  law.  To 
hold  a  party  guilty  of  a  wrongful  invasion  of  another's  rights,  for 
passing  over  land  "adjacent  to  the  highway,  under  the  pressure  of 
such  a  necessity,  would  be  pushing  individual  rights  of  property 
to  an  unreasonable  extent,  and  giving  them  a  protection  beyond 
that  which  finds  sanction  in  the  rules  of  law.  Such  a  temporary 
and  unavoidable  use  of  private  property,  must  be  regarded  as  one 
of  tho.se  incidental  burdens  to  which  all  property  in  a  ci\nlized 
community  is  subject.  In  fact,  the  rule  is  sometimes  justified 
upon  the  ground  of  public  convenience  and  necessity.  Highways 
being  established  for  public  sei-vice,  and  for  the  use  and  benefit  of 
the  whole  community,  a  due  regard  for  the  welfare  of  all  requires, 
that  when  temporarily  obstructed,  the  right  of  travel  should  not 
be  inten-upted.  In  the  words  of  Lord  :\ransfield.  "  it  is  for  the  gen- 
eral good  that  people  should  be  entitled  to  pass  in  another  line."  It 
is  a  maxim  of  the  common  law.  that  where  public  convenience  and 
necessity  come  in  conflict  with  private  right,  the  latter  must  yield 
to  the  former.  A  person  traveling  on  a  hiftlnraji,  is  in-  the  ex- 
ercise of  a  public,  and  not  a  private  right.  If  he  is  compelled,  by 
impassable  obstructions,  to  leave  the  way.  and  to  go  upon  adjoining 
lands,  he  is  still  in  the  exercise  of  the  same  right.  The  rule  does 
not.  therefore,  violate  the  principle  that  individual  convenience 
nuist  always  be  held  subordinate  to  private  rights,  but  clearly  falls 
h-ithin  the  maxim,  which  makes  puMic  convenien-ce  aM  necessity 
paramount. 

It  was  urged  in  argument  that  the  effect  of  establishing  this  rule 
of  law  would  be  to  appropriate  private  property  to  public  use 
without  providing  any  means  of  compensation  to  the  owner.  If 
such  an  accidental,  occasional  and  temporary  use  of  land  can  be 
regarded  as  an  appropriation  of  private  iiropei-ty  to  a  public  use, 
entitling  the  owner  to  compensation,  which  may  well  be  doubted, 
still  the  decisive  answer  to  this  objection  is  quite  obvious.  The 
right  to  go  extra  viaiii.  in  ease  of  temporary  and  impassable  ob- 
structions, being  one  of  the  legal  incidents  or  consequences  which 
attaches  to  a  highway  through  private  property,  it  must  be  as- 
surnrcl,  that  the  riglil  to  the  ?^se  of  the  land  adjoining  the  road 
va.s  taken  inin  consideration  and  proper  allowance  made  therefor, 
when  the  land  was  originally  approi)riated  for  the  highway,  and 
that  the  damaL'-es  were  then  estimated  and  fixed,  for  the  private 
injury  which  might  thereby  be  occasioned.     ... 

From  what  has  already  been  said,  the  limitations  and  restrictions 
of  the  right  to  go  upon  adjacent  lands  in  ca.se  of  obstructions  in 
the  highway  can  be  readily  inferred.  TTaviug  its  origin  in  neces- 
sity, it  must  l>e  limited  bv  that  neeessily,  eessante  ratione.  eessat 
ipsa  lex.  Sneh  a  right  is  not  1(»  be  exercised  from  eonvenienco 
jnerely,  nor  when,  by  the  exerei.se  of  due  care,  aftei-  jiolice  of  ()b- 
stnietinns.  other  ways  may  be  seleeted  and  Ihe  obstructions 
avoided.  liut  it  is  to  be  ertrifined  to  those  eases  »»f  inevi1al)1e  neees- 
sitv    or    nnavoidablc    aeridmt,    arising    froin    sinldeii    and    recent 


so  AVITIIOIT    .iri>KI.\l,    I'KOCKKniNCIS.  \('}l.    1. 

oaiises  which  have  occasioned  temporary  and  iin]iassablc  obstnic- 
tions  in  the  liiijhway.  AVhat  shall  constitute  such  inevitiible  neces- 
sity or  nnavoidablo  accident,  must  depend  upon  the  various  cir- 
ciunstances  altendinsj:  each  i)articular  case.  The  nature  of  the  ob- 
struction in  the  road,  the  len«?th  of  time  durinj^  M'hich  it  has  ex- 
isted, the  vicinity  or  distance  of  other  public  ways,  the  exigencies 
of  the  traveler,  aiv  some  of  the  many  considerations  which  would 
enter  into  the  inquiiy,  and  upon  which  it  is  the  exclusive  province 
of  the  jury  to  pass,  in  order  to  determine  whether  any  necessity 
reall.v  existed,  which  would  justify  or  excuse  the  traveler.  In 
the  case  at  bar.  this  question  was  wholly  withdrawn  from  the  con- 
sideration of  the  jury  by  the  iiding  of  the  court.  It  will  therefore 
be  necessar^^  to  send  the  case  to  a  new  trial  in  the  court  of  the  com- 
mon pleas. 

In  Holmes  v.  Seely,  19  Wend,  at  pj).  510,  511,  it  is  said:  "In  respect  to 
a  public  uay.  if  there  be  an  obstruction  so  as  to  nialve  the  ordinary  track 
dangerous,  the  traveler  may  go  extra  viam — passing  as  near  to  the  origi- 
nal way  as  possible.  .  .  .  This  rule,  generally,  is  not  applicable  to  a 
private  rvay  which  becomes  founderous  or  impassable.  .  .  .  The  bet- 
ter opinion,  however,  seems  to  be,  that  in  the  case  of  a  private  way  of 
necessity,  a  passage  extra  viam  may  be  justified  where  the  usual  track 
is  obstructed.  There  is  a  distinction  between  a  private  way  by  grant 
and  one  of  7)ecessity."  in  this  respect.  Does  the  law  of  the  principal  case 
obtain  in  North  Carolina  under  existing  circumstances?  See  State  v. 
Brown,  109  N.  C.  802,  13  S.  E.  940.  For  when  self-preservation  will  justify 
an  act  which  under  ordinary  circumstances  would  be  a  tortious  invasion 
of  another's  premises,  see  Ploof  v.  Putnam,  71  Atl.  188,  inserted  at  sec. 
2  (a),  supra.  See  "Highways,"  Century  Dig.  §  291;  Decennial  and  Am. 
Dig.  Key  No.  Series,  §  82. 


HUBBARD  V.   PRESTON,  90   Mich.  221,  51  N.  W.   209,  15  L.  R.  A.  249. 

1892. 

Abatement  by  Individual.    Killing  a  Dog. 

[Carrie  G.  Hubbard  brought  case  against  Preston  for  killing  her  dog. 
Judgment  against  the  defendant,  and  he  carried  the  case  to  the  supreme 
court  by  writ  of  error.  Reversed.  The  facts  appear  in  the  middle  of 
the  opinion.] 

Long.  J.  On  November  0.  ]8!)0.  defendant  shot  and  killed 
]>laintiff's  dog.  An  action  was  commenced  in  justice  court,  where 
defendant  had  judgment.  On  appeal  to  the  circuit  court  for 
Wayne  county,  the  cause  was  triecl  before  a  jury.  The  only  ques- 
tion submitted  to  the  jury  on  the  trial  in  the  circuit  court  was  the 
value  of  the  dog,  which  the  jury  found  to  be  $25,  and  verdict  and 
judgment  were  entered  for  that  amount.     Defendant  brings  error. 

On  the  trial  the  defendant  introduced  testimony  tending  to  show 
justification  for  the  hilling.  The  court  permitted  the  testimony  to 
be  introduced,  but  held  that  it  did  not  amount  to  a  justification. 
The  only  question  rai.sed  in  this  court  is  whether  the  court  should 


Sec.  2  rZ.j  without  judicial  procbedings.  81 

have  submitted  that  branch  of  the  case  for  the  deteriniuation  of  the 
jury.  "We  think  the  court  was  iu  error  in  not  so  doing.  [Facts.] 
It  appeared  that  the  defendant  did  not  keep  a  dog.  That  he  lived 
on  Bagg  street,  city  of  Detroit,  and  for  eight  days  prior  to  the 
shooting  he  and  his  family  had  been  greatly  annoyed  by  the  con- 
gregation of  a  large  number  of  dogs  about  his  premises,  barking, 
quarreling,  and  fighting  there.  That  they  came  every  night  upon 
his  lawn,  about  his  house,  when  it  became  dark  (on  two  occasions 
he  counted  twelve  dogs),  and  that  they  kept  up  their  cries  all  night 
at  intervals.  He  complained  to  the  police  on  tliree  different  days 
prior  to  the  killing,  but  without  any  relief  and  he  had  driven  them 
away  on  several  nights.  That  the  noise  made  by  them  kept  the 
membei's  of  his  family  awake,  and  seriously  annoyed  them.  He 
did  not  know  the  owners.  On  the  night  he  killed  plaintiff's  dog, 
he  drove  them  away  twice,  but  they  returned.  He  could  not  get 
near  them,  but  they  would  return.  That  they  became  an  intoler- 
able nuisance,  and  finally,  about  eight  o'clock  in  the  evening,  he 
went  out  with  his  revolver  and  shot  among  them,  while  on  his  lawn. 
He  did  not  Imow  who  owned  any  of  them,  and  did  not  shoot  at  any 
particular  dog.  The  defendant  had  a  right  to  protect  his  family 
from  such  nuisance ;  and  it  was  a  question  for  the  jury  whether  he 
used  such  means  a.s  were  reasonable  and  necessary,  under  the  cir- 
cumstances, to  rid  himself  of  it.  The  judgment  must  be  reversed, 
with  costs,  and  a  new  trial  ordered. 

For  a  valuable  note  on  the  subject  of  killing  dogs — unlicensed,  oarking, 
howling,  dangerous,  trespassing,  and  predatory  dogs;  dogs  that  worry, 
attack,  and  injure  sheep  or  other  animals — as  well  as  the  criminal  or 
negligent  killing  of  dogs,  and  the  killing  of  dogs  by  mistake,  see  note  to 
the  principal  case  in  to  L.  R.  A.  249.  See  also  Simmonds  v.  Holmes,  31 
Conn.  121,  23  Atl.  702,  81  Am.  Dec.  221,  15  L.  R.  A.  iT,:)  and  briefs  there 
printed;  for  the  law  as  to  killing  domestic  animals  other  than  dogs, 
see  Ross  v.  D.  Levee  Board,  103  S.  W.  380,  21  L.  R.  A.  (N.  S.)  699,  and 
note.  See  "Animals,"  Century  Dig.  §§  115-122;  Decennial  and  Am.  Dig. 
Key  Xo.  Series,  §  44. 


REX  V.   ROSEWELL,  2  Salkeld,  459.     1699. 
Ahatinfi  a  Private  Nuisance. 

Tf  IF  l)uilds  a  house  so  near  iiinic  1li;i1  it  stops  uiy  lights  or  shoots 
the  water  upon  my  hrMisc  oi-  is  in  any  oilier  way  a  nuisance  to  me, 
r  may  cnfcr  upon  Ihc  owner's  soil  and  ])ull  it  down:  and  for  this 
reason  only  a  small  fiin-  was  .set  upon  llic  defendant  in  an  indict- 
ment for  a  riol  in  pulling  down  some  part  of  th(^  house,  it  being  a 
iniisanoe  to  his  lights,  and  the  i-ight  found  for  him  in  an  aelion  for 
stopping  his  liirhts. 

See  "Adjoining  Landowners."  Cfutiny  Dig.  §§  74  S4:  Decennial  and 
Am    Dig.  Key  Xo.  Series.  §  10. 

Remedies — 6. 


82  WlTllOIT    JUniCIAI,    PROCEKniNGS.  [Ch.     I. 


HEATH  \.   WILLIAMS,  2r>  Me.  209,  Finch's  Cases  120.     1845. 
Entry  Upon  Another's  Land  to  Abate  a  Private  Nuisance. 

[The  defendant  entered  upon  plaintiff's  land  and  tore  out  an  artificial 
obstruction  placed  in  a  running  stream,  which  obstruction  caused  the 
water  to  be  ponded  back  ujion  defendant's  mill  wheel  to  his  injury.  The 
question  presented  is:  Ditl  tJic  defendant  liave  a  right  to  enter  upon 
plaintifT's  land  and  remove  the  obstruction?  Only  that  portion  of  the 
opinion  which  bears  upon  this  question  is  here  inserted.] 

SnEPLEY,  J.  ...  A  riparian  proprietor  wlio  owns  botli 
banks  of  a  stream  below  his  mill  has  a  right  to  have  the  water  flow 
in  its  natural  current  without  any  obstruction  injurious  to  him, 
over  the  whole  extent  of  his  land,  unless  his  rights  have  been  im- 
paii'ed  by  grant,  license,  or  an  adverse  appropriation  for  more 
than  twenty  years.  .  .  .  The  common  law  would  afford  him 
sulTHcient  protection  against  the  flow  of  water  back  upon  his  own 
land  to  the  injury  of  his  mill  by  the  acts  of  another.  Failing  to 
obtain  relief  from  the  continuance  of  such  an  injuiy  without  it,  he 
might  la\^rfully  enter  upon  the  land  of  the  plaintiff  and  remove,  so 
fa  J-  as  necessary,  the  obstruction  which  occasioned  it. 

For  further  discussion  of  private  abatement  of  private  nuisances  and 
entry  upon  another's  land  for  that  purpose,  see  Bishop  Non-Cont.  Law, 
ss.  430,  431;  29  Cyc.  1214-1218.  See  "Waters  and  Water  Courses,"  Cen- 
tury Dig.  §§  42-49,  206;  Decennial  and  Am.  Dig.  Key  No.  Series,  §§  .58,  174. 


GRAXDONA  v.  LOVDAL,  70  Cal.  161,  11  Pac.  623,  Finch's  Cases,  99.    1886. 
Abatement  by  Individual.    Projecting  Limbs  and  Roots  of  Trees. 

I  The  action  was  brought  by  Grandona  against  Lovdal  for  damages 
caused  to  plaintiff  by  trees  planted  in,  or  close  to,  his  line  by  defendant. 
The  case  went  off  in  the  supreme  court  upon  a  question  of  pleading  not 
material  to  the  subject  under  consideration.! 

McKiNSTRY,  J.  .  .  .  "Trees  whose  branches  extend  over 
the  land  of  another  are  not  nuisances,  except  to  the  extent  to  which 
the  branches  overhang  the  adjoining  land.  To  that  extent  they  are 
nuisances,  and  the  person  over  whose  land  they  extend  may  cut 
them  off  or  have  his  action  for  damages,  and  an  abatement  of  the 
nuisance  against  the  owner  or  occupant  of  the  land  on  which  they 
grow :  but  he  may  not  cut  down  the  tree,  neither  can  he  cut  the 
branches  thereof  beyond  the  extent  to  which  they  overhang  his 
soil."  Wood  on  Nuisance,  s.  112,  citing  Commonwealth  v.  Blais- 
dell.  107  Mass.  234:  Commonwealth  v.  McDonald.  16  Serg.  &  R. 
390. 

So.  it  would  seem,  he  may  abate  the  roots  projecting  into  his 
soil ;  at  least,  if  he  has  suffered  actual  damasre  therebv.     .     . 

See  5.S  N.  W.  989.  21  L.  R.  A.  729;  32  Atl.  939,  29  L.  R.  A.'  582;  29  S.  E. 
685,  40  L.  R.  A.  626;  Bish.  Non-Cont.  Law,  §  830;  8  Vermont.  115,  Finch's 
Cases,  154;  48  N.  Y.  201,  Finch's  Cases,  97.  See  "Adjoining  Landowners," 
Century  Dig.  §  47:  Decennial  and  Am.  Dig.  Key  No.  Series,  §  5. 


Sec.    2    d.]  WITIIOl  T    JUDICIAL    PROCEEDINGS.  S3 


BARKLEY  v.  WILCOX,  86  N.  Y.  140,  144-148,  40  Am.  Rep.  519.     1881. 
Defense  of  Land  by  Obstructing  and  Diverting  Water. 

(Wilcox  sued  Barklej^  for  damages  resulting  from  Barkley's  obstruct- 
ing the  passage  of  surface  water  across  Barkley's  land  and  thereby  causr 
ing  Wilcox's  cellar  to  be  flooded.  Judgment  against  Wilcox,  who  ap- 
pealed.    Affirmed. 

Wilcox  and  Barkley  owned  adjoining  lots  fronting  on  a  street,  but  be- 
yond the  corporate  limits  of  a  village.  By  the  natural  elevations  and 
depressions  of  the  earth's  surface  the  surface  water — from  rains  and 
melting  snows — would  descend  from  different  directions  and  accumulate 
in  the  street  in  front  of  Wilcox's  lot  and  sometimes  back  up  upon  it. 
When  there  was  an  unusual  rainfall  the  water  accumulating  therefrom 
would  naturally  flow  across  Barkley's  lot  and  the  lands  of  other  pro- 
prietors until  it  reached  the  Neversink  river.  Barkley  built  a  house 
upon  his  lot  and  filled  up  and  graded  his  lot — raising  it  more  than  a 
foot.  As  a  consequence  of  such  filling  up  and  grading,  the  surface 
water,  accumulated  from  rains  and  snows,  was  backed  upon  Wilcox's 
lot  to  his  serious  damage.  There  was  no  natural  watercourse — i.  e. 
natural  stream  flowing  in  a  defined  bed  or  channel,  with  banks  and  sides, 
and  having  permanent  sources  of  supply — across  Barkley's  lot.l 

Andrews.  J.  .  .  .  "Whether,  when  the  premises  of  adjoin- 
ing owners  are  so  situated  that  surface  water  falling  upon  one 
tenement  naturally  descends  to  and  passes  over  the  other,  the  inci- 
dents of  a  watercourse  apply  to  and  govern  the  rights  of  the  re- 
spective parties,  so  that  the  owner  of  the  lower  tenement  may  not, 
even  in  good  faith  and  for  the  purpose  of  improving  or  building 
upon  his  own  land,  obstruct  the  flow  of  such  water  to  the  injuiy  of 
the  owner  above,  is  the  question  to  be  determined  in  this  case.  This 
(luestion  does  not  seem  to  have  been  authoritatively  decided  in  this 
state.  It  wa.s  referred  to  by  Denio,  C.  J.,  in  Goodale  v.  Tuttle.  29 
N.  Y.  467,  where  he  said:  "And  in  respect  to  the  running  off  of 
surface  water  caused  by  rain  or  snow.  I  know  of  no  principle  which 
will  prevent  the  o\Mier  of  land  from  filling  up  wet  and  marshy 
places  on  his  own  soil,  for  its  amelioration  and  his  own  advaiita.ge, 
because  his  neighbor's  land  is  so  situated  as  to  be  incommoded  by 
it.  Such  a  doctrine  would  militate  against  the  well-settled  inile, 
that  the  owner  of  land  has  full  dominion  over  the  whole  space  above 
and  below  the  surface."  .  .  .  The  question  has  been  consid- 
ered by  courts  in  other  .states,  and  has  been  decided  in  different 
ways.  In  .some,  the  doctrine  of  the  civil  Iniv  has  been  adopted  a.s  the 
rule  of  decision.  Bn  ihnl  lav  tbe  riglit  of  drainage  of  surface  wa- 
ters as  between  owners  of  adjacent  lands  of  different  elevations,  is 
governed  by  the  law  of  nature — the  lower  proprietor  is  bound  to  re- 
ceive tbe  waters  whieb  naturally  flow  from  IIk^  estate  above,  pro- 
vided tbe  induslrv  r)f  jtiaii  has  not  created  or  inerensed  tbe  servi- 
tude. (Corp.  Jur.  fiv.  'V.).  tit.  3.  §§  2,  3.  4,  5;  Domat.  Cnsb.  Ed.  016; 
Code  Napoleon,  art.  640;  C!ode  Lonisian.-i.  art.  656.)  The  courts 
of  PennsylvjiTii.-i.  Tllinois.  California  and  Tionisianna  hnve  aclojitiVl 
this  rule,  and  it  luis  been  referred  to  with  approvnl  by  tbe  courts 
of  Ohio  and  Missouri,  ...  On  Die  other  hand.  Ih(>  courts 
of   ^^assachuset,ts.   New   Jersey,   New   TTampshire   and    Wisconsin 


84  wrnioiT  .iipiciai.   i'ii()ci:i:niN(is.  |(7/.    /. 

liavo  iv.ii'ctod  till'  (Idctriiic  of  tlic  <'i\il  law.  jiiid  hold  tlmt  tlif  ro- 
Intion  of  doiiiiii.iiit  .-iiid  sriviml  ti'in'iiiciils  do(\s  not  hji  the  common 
hue  apply  hctwccii  adjoiiiiiitr  lauds  of  difVcrcnt  owners,  so  as  to 
give  the  upj^er  proprielor  tlu'  lei^al  riirhl.  as  an  iiieideMt  oi"  his 
estate,  to  have  the  surface  water  faliiutr  on  his  hind  diseharjjed 
ovei-  the  land  of  Ihe  lowei-  i^roprietor,  a.lthouj?h  it  naturally  finds 
its  way  there;  and  that  the  Iow(>r  proprielor  may  lawfully,  for  the 
iniprovenient  of  his  estate  and  in  the  eoui-se  of  jxood  husl)andi-y,  or 
to  make  ereelions  lluM-eon.  fill  up  the  low  places  in  his  land,  a.l- 
thoutrh  hy  so  doinf?  he  o]>stn'ic1s  or  prevents  the  surface  water 
from  passinir  Iheroon  from  the  |)reniises  ahove.  to  the  injury  of  the 
upp(M'  pro]U'ietor.  ...  It  may  ho  ohserved  that  in  Pennsyl- 
vania, house  lots  in  towns  and  cities  seem  to  he  regarded  as  not  suh- 
ject  to  the  rule  declared  in  the  other  cases  in  that  state,  in  respect 
to  surface  drainajre.  .     .     Professor  AVashhurn  states,  that  the 

prevailin<r  doctrine  seems  to  he  that,  if  for  the  puT'poses  of  improv- 
ing and  cultivatin<r  his  land,  a  land  owTier  raises  or  fills  it,  so  that 
the  water  which  falls  in  rain  or  snow  upon  an  adjacent  owner's 
land,  and  which  formerly  flowed  on  to  tlie  first-mentioned  parcel, 
is  prevented  from  so  doing,  to  the  injurs'  of  the  adjacent  parcel, 
the  owner  of  the  latter  is  without  remedy,  siiice  the  other  party  has 
done  no  more  than  he  had  a  legal  right  to  do.  Wash,  on  Ease- 
ments (2  ed.)  431. 

I^pon  this  state  of  the  authorities,  we  are  at  liherty  to  adopt  such 
rule  on  the  suhject  as  we  may  deem  most  consonant  with  the  de- 
mands of  justice,  having  in  view  on  the  one  hand  individual  rights, 
and  on  the  other  interests  of  society  at  large.  Upon  consideration 
of  the  question,  we  are  of  the  opinion  that  the  rule  stated  hy  Denio, 
C.  J.,  in  Goodale  v.  Tuttle.  is  the  one  hest  adapted  to  our  condition 
and  accords  with  puhlie  policy,  while  at  the  same  time  it  does  not 
deprive  the  owTier  of  the  upper  tenement  of  any  legal  right  of 
property.  The  maxim,  arpia  currit  et  dehet  currere  ut  currere 
solehat,  expresses  the  general  law*  which  governs  the  i-ights  of 
o%vners  of  property  on  watercourses.  The  owners  of  land  on  a 
watercourse  are  not  owners  of  the  water  w^hich  flows  in  it  hut  each 
owner  is  entitled,  hy  virtue  of  his  ownership  of  the  soil,  to  the  rea- 
sonahle  use  of  the  water  as  it  passes  his  premises,  for  domestic  and 
other  uses,  not  inconsistent  with  a  like  reasonahle  use  of  the  stream 
by  the  owners  ahove  and  helow  him.  Such  use  is  incident  to  his 
right  of  property  in  the  soil.  Put  he  cannot  divert  or  unreasonably 
obstruct  the  passage  of  the  water,  to  the  injury  of  other  proprietors. 
These  familiar  principles  are  founded  upon  the  most  obvious  dic- 
tates of  natural  justice  and  public  policy.  The  existence  of  streams 
is  a  permanent  provision  of  nature  open  to  observation  bv  every 
purchaser  of  land  through  which  they  ])ass.  The  multiplied  uses  to 
which,  in  civilized  society,  the  water  of  rivers  and  streams  is  ap- 
plied, and  the  wide  injury  which  iriay  rc^sult  from  an  unreasonable 
interference  with  the  order  of  nature,  forbid  an  exclusive  appro- 
priation by  any  individual,  of  the  water  in  a  natural  iratprcourfte. 
or  any  unreasonable  interruption  in  the  flow^     Tt  is  said,  that  the 


Sec. 


d.\  WITHOUT    JUDICIAL    PROCEEDINGS.  85 


same  principle  of  following  the  order  of  nature  should  be  applied 
between  coterminous  proprietors,  in  determining  the  right  of  mere 
surface  drainage.     But  it  is  to  be  observed,  that  the  law  has  always 
recognized  a  wide  distinction  between  the  right  of  an  owner  to  deal 
with" surface  water  falling  or  collecting  on  his  land,  and  his  right 
m  the  water  of  a  natural  watercourse.     In  such  [surface]  water, 
before  it  leaves  his  land  and  becomes  part  of  a  definite  watercourse, 
the  owner  of  the  land  is  deemed  to  have  an  absolute  property,  and 
he  may  appropriate  it  to  his  exclusive  use  or  get  rid  of  it  in  any 
way  he  can,  provided  only  that  he  does  not  cast  it  by  drains  or 
ditches  upon  the  land  of  his  neighbor;  and  he  may  do  this,  although 
by  so  doing  he  prevents  the  water  reaching  a  natural  watercourse, 
as  it  formerly  did,  thereby  occasioning  injury  to  mill-owners  or 
other  proprietois  on  the  stream.     So  also  he  may,  by  digging  on 
his  own  land,  intercept  the  percolating  waters  which  supply  his 
neighbor's  spring.     Such  consequential  injury  gives  no  right  of 
action.    Acton  v.  Blundell,  12  M.  &  W.  324;  Kawstron  v.  Taylor, 
1 1  Exch.  369 ;  Phelps  v.  Nolen,  72  N.  Y.  39.     Now  in  these  cases 
there  is  an  interference  with  natural  laws;  but  those  laws  are  to  be 
construed  in  connection  with  social  laws  and  the  Mvs  of  property. 
The  interference  in  these  cases  with  natural  laws,  is  justified,  be- 
<'ause  the  general  law  of  society  is,  that  the  owner  of  land  has  full 
dominion  over  what  is  above,  upon,  or  below  the  surface,  and  the 
owner,  in  doing  the  acts  supposed,  is  exercising  merely  a  legal 
right.     The  owner  of  wet  and  spongy  land  cannot,  it  is  true,  by 
drains  or  other  artificial  means,   collect  the  surface   water  into 
channels,  and  discharge  it  upon  the  land  of  his  neighbor  to  his  in- 
iury.     This  is  alike  the  rule  of  the  civil  and  common  law.     Corp. 
Jur.  Civ.  39,  tit.  3,  §§  2,  3,  4,  5;  Noonan  v.  City  of  Albany,  79  N. 
Y.  475;  :Miller  v.  Laubach,  47  Pcnn.  St.  154.     But  it  does  not  fol- 
low, we  think,  that  the  owner  of  land,  which  is  so  situated  that  the 
surface  waters  from  the  lands  above  naturally  descend  upon  and 
pass  over  it,  may  not,  in  good  faith  and  for  the  purpose  of  building 
upon  or  inii)roving  his  land,  fill  or  grade  it,  although  thereby  the 
water  is  prevented  from  reaching  it,  and  is  retained  upon  the  lands 
above.   There  is  a  manifest  distinction  between  casting  water  upon 
another's  land,  and  preventing  the  flow  of  surface  water  upon 
your  own.     Society  ha,s  an  interest  in  the  cultivation  and  improv- 
riient  of  lands,  and  in  the  reclamation  of  waste  lands.     Tt  is  also 
for  the  public  interest  that  improvements  shall  be  made,  and  Ihat 
towns  and  cities  shall  be  built.  To  adopt  the  pi-inciple  that  the  law 
of  nafun'  iiuist  be  observed  in  respect  to  .<iurfacc  drainage  would, 
we  think,  place  undue  restriction   upon  industr>^  and  enterprise, 
and  the  control  by  an  owner  of  his  property.      Of  course,  in  some 
cases  the  opposite  principle  may  cause  injury  to  the  upikm-  pro- 
[)ri<'t(>r.     T.ul  the  question  should    we  think,  be  determined  largely 
upon  consideration  of  j)ul)li<'  |)oli('y  and  general  utility.     AVhieh 
rule   will,   on   the   whole,   best  subserve  the  public    iiilerests,   and 
is    most     reasonable    in    j)ractice?     For    the    reasons    stated,    we 
tliink    the    rule   of   the   cirll   lair   should    not    hr   advplfd   in    this 


81)  WllllDI    T    .MltlCIAl.     l'IJOCi;i;|)|N(!S.  |(7(.     /. 

statt.  The  onse  bi'foro  us  is  sui  illnstrntion  of  the  impolicy  of  fol- 
lowing; it.  SovtM'al  lioiisi'  lols  ( sul)s|;ni1i;illy  villnj^c  lots),  are 
I'l'ossod  by  tlio  dopivssion.  'JMicy  must  I'lMuain  unimproved,  if  the 
riirlit  claimed  by  the  plaintitT  exists.  It  is  better,  we  think,  to 
establish  a  rule  which  will  pennit  the  reclamation  and  improve- 
ment of  low  and  waste  lands,  than  one  which  will  impose  upon 
them  a  perpetual  servitude,  for  the  ])ur])ose  of  drainage,  for  the 
benelit  of  upper  proprietors.  We  do  not  intend  to  say  that  there 
may  not  be  cases  which,  owing  to  special  conditions  and  circum- 
stances, should  be  exceptions  to  the  freneral  rule  declared.  But 
this  case  is  within  it,  and  we  think  the  jud?:ment  below^  should  be 
affirmed. 

In  Porter  v.  Durham,  74  N.  C.  at  p.  779,  it  is  said:  "It  has  been  held 
that  an  owner  of  lower  land  is  obliged  to  receive  upon  it  the  surface 
water  which  falls  on  adjoining  higher  land,  and  which  naturally  flows 
on  the  lower  land.  Of  course  when  the  water  reaches  his  land,  the  lower 
owner  can  collect  it  in  a  ditch  and  carry  it  off  to  a  proper  outlet  so  that 
it  will  not  damage  him.  He  cannot,  however,  raise  any  dyke  or  barrier 
by  which  it  will  be  intercepted  and  throion  back  on  the  land  of  the 
higher  oicner.  "While  the  higher  owner  is  entitled  to  this  service,  he 
cannot  artificially  increase  the  natural  quantity  of  water,  or  change  its 
natural  manner  of  flow,  by  collecting  it  in  a  ditch  and  discharging  it 
upon  the  servient  land  at  a  different  place,  or  in  a  different  manner,  from 
its  natural  discharge.  These  elementary  principles  being  founded  on 
reason  and  equity  are  common  to  both  the  civil  and  the  common  law, 
and  are  impliedly  recognized  by  our  acts  of  assembly  respecting  drain- 
ing." See  further  for  the  position  of  the  North  Carolina  courts  upon  the 
questions  discussed  in  the  principal  case,  Davis  v.  Smith,  141  N.  C.  108, 
53  S.  E.  7i^;  Greenwood  v.  R.  R.,  144  N.  C.  446,  57  S.  E.  157;  Clark  v. 
Guano  Co.,  144  N.  C.  64,  56  S.  E.  858,  and  numerous  cases  there  cited, 
also  Briscoe  v.  Parker,  145  N.  C.  14,  58  S.  E.  443.  These  cases  fully  sus- 
tain the  above  quotation  from  Porter  v.  Durham.  However,  in  R.  R.  v. 
Wicker,  74  N.  C.  at  p.  228,  it  is  said:  "Every  one  has  a  right  to  build  on 
or  otherwise  improve  his  land,  subject  to  certain  equitable  limitations 
which  it  is  not  necessary  now  to  state.  If,  as  an  incidental  consequence 
of  this  lawful  use,  the  flow  of  the  surface  water  from  adjoining  land  is 
obstructed,  the  owner  of  such  land  cannot  recover  damages  as  for  a  tort." 
See  Wills  V.  Babb,  222  111.  95,  78  N.  E.  42,  6  L.  R.  A.  (N.  S.)  136.  and  note 
(right  to  embank  against  water  turned  out  of  a  running  stream);  25 
L.  R.  A.  527,  and  note  (surface  water  defined);  65  lb.  250,  and  note 
(rights  and  duties  of  municipalities  with  respect  to  surface  water);  21 
lb.  593,  and  note  (rights  as  to  the  flow  of  surface  water.  This  note  cites 
the  principal  case  and  many  others).  From  a  letter  to  the  editors  from 
Mr.  H.  P.  Famham,  managing  editor  of  L.  R.  A.,  we  quote,  by  permis- 
sion: "By  an  examination  of  the  note  in  21  L.  R.  A.  593,  we  think  you 
will  discover  that  the  case  to  which  you  refer  in  86  N.  Y.  140,  represents 
the  minority  rule,  and  is  opposed  to  Iroth  the  common  and  civil  law." 
For  a  discussion  of  the  civil  and  the  common-law  rights  with  respect  to 
surface  water,  see  Farnham  on  Waters,  §  889. 

See  30  Am.  &  Eng.  Enc.  L.  326-347,  for  a  full  discussion  of  the  law  of 
surface  water.  It  is  there  stated  that  what  is  known  as  the  "common 
law  rule"  on  the  subject  discussed  in  the  principal  case,  originated  in 
Ma.ssachusetts,  and  that  the  English  courts  do  not  appear  to  have  had 
the  subject  before  them  for  consideration  (p.  331,  end  of  note  3).  The 
majority  of  the  states  seem  to  have  adopted  the  "common  law  rule"  (see 
pp.  326,  note  7,  330,  note  3;  and  see  Gould  on  Waters,  §§  265,  266).  The 
two  rules  are  fully  treated  in  30  Am.  &  Eng.  Enc.  L.  at  pp.  326  et  seq. 
and  330  et  seq. 


Sec.    2    e.]  WITHOUT    JUDJCJAL   PHOCEEDINGS.  87 

As  to  the  respective  rights  and  remedies  of  adjacent  proprietors  with 
regard  to  percolating  waters,  see  19  L.  R.  A.  92,  64  lb.  236,  17  lb.  (N.  S.) 
650,  and  notes  (giving  the  older  rule)  and  23  lb.  (X.  S.)  331,  and  note 
(giving  the  modern  rule). 

See  "Waters  and  Water  Courses,"  Century  Dig.  §§  128-136;   Decennial 
and  Am.  Dig.  Key  No.  Series,  §§  118-121,  170. 


(e)  Distress  for  Rent. 

GIVEN  v.  BLANN,  3  Blackford,  64.     1832. 
Xature  and  Extent  of  the  Remedy.     What  May  Be  Taken. 

[Given  brought  replevin  against  Blann  for  some  shocks  of  wheat. 
Judgment  against  plaintiff.  Plaintiff  took  the  case  to  the  supreme  court 
by  writ  of  error.     Reversed. 

Given  owed  Blann  the  rent  of  a  parcel  of  land,  which  rent  being  past 
due  and  unpaid,  Blann  seized  the  wheat  in  controversy — the  tcheat  being 
at  the  time  in  shocks  on  the  demised  land.  These  facts  were  set  up  by 
way  of  avowry  and  plaintiff  demurred  thereto.  The  court  overruled  thia 
demurrer.     In  short,  Blann  distrained  the  wheat  for  rent  due.] 

Stevens,  J.  .  .  .  The  first  point  is.  did  the  court  err  in 
overruling  the  demurrer  to  the  avowry? 

The  power  of  distraining  for  rent  is,  to  say  the  least  of  it,  tyran- 
)jical,  and  may  be  made  an  engine  of  oppression,  and  is  ahnost  ir- 
reconcilable with  the  spirit  of  our  laws  and  institutions.  It  is 
an  extraordinary  remedy,  and  is  limited  to  the  strict  letter  of  the 
law,  confined  stricly  to  the  authority  given,  and  nothing  can  be 
taken  by  implication.  It  is  a  proceeding  by  which  a  landlord  is 
permitted  to  seize  and  dispose  of  the  property  of  his  tenant,  with- 
out his  consent,  and  without  the  assent  of  his  judges  or  peers,  and, 
as  Sir  Edward  Coke  expresses  it.  a  proceeding  in  which  he  is  a 
judge  in  his  own  cause,  contrary  to  the  solid  maxim  of  common 
law;  and  therefore  an  avowry  must  be  as  certain,  direct  and  spe- 
cial, in  lioth  form  and  siibstance,  as  a  plea  of  justification  in  an 
action  of  trespa.ss. 

The  fii-st  objection  raised  is.  that  the  property  taken  as  a  distress 
is  not  distrainable.  The  common  law  imposes  several  benign  restric- 
tions on  this  summary  authority  of  distress.  It,  forbids  the  dis- 
training of  man.y  articles,  such  as:  First,  things  fixed  to  the  free- 
hold or  which  savor  of  the  realty,  as  fixtures,  growing  crops,  etc. ; 
2d.  things  of  a  perishable  nature,  as  milk,  etc. ;  3d.  things  tliat  can- 
not be  removf'd  without  sustaining  some  injury,  and  which  can- 
not lie  returned  in  the  same  i)liglit  in  which  they  were  when  taken, 
«w  sheaves  and  sJwclcs  of  corn:  4th.  things  delivered  to  a  person 
exercising  a  trade,  to  be  worked  up  or  used  in  the  way  of  his  trade; 
r>th,  beasts  of  the  plow  and  implements  of  husbandry;  and  Hth, 
instrnments  of  a  man's  trade,  3  I')l.  Com.  0,  10;  .^  7\ent.  Com. 
3R2;  Simpson  v.  TTartopp.  Willes.  512.  The  two  last-mentioned 
exemptions  are  only  exempt  sub  modo.  that  is.  u]ion  the  supposi- 
tion that  there  is  a  snfTieiencx-  of  oflwr  property  to  he  distrained. 


88  WITIIOIT    JUDICIAL    lMU)CEKDlNCiS.  [  C7( .    1. 

The  property  distraiiu'd  in  this  cjise,  is  sheaves  and  shocks  of  corn 
in  the  field,  which  are  exempt  from  distress  by  tlie  common  law, 
and,  if  our  statute  does  not  autliori/c  sueli  a  distress,  the  proceed- 
ings are  illegal  and  void. 

It  has  not  heeu  contended  that  the  stjitute  expre&sly  authorizes 
such  a  distress,  but  that  it  lias  taken  away  the  reason  of  the  com- 
luon  law,  and.  therefore,  the  law  is  vii-tually,  as  to  that,  repealed; 
that,  at  eommon  law,  the  distress  was  taken  as  a  pledge,  and  was 
held  until  the  tenant  paid  the  rent  or  replevied  the  property;  and, 
therefore,  sheaves  and  shocks  of  com  could  not  be  taken,  becausi') 
the  removal  and  the  return  would  injure  them;  but,  by  our  stat- 
ute, the  distress  is  to  be  absolutely  sold,  unless  the  rent  is  paid  or 
the  property  replevied;  and  therefore  the  reason  of  the  common 
law  cannot  apply.  To  this  argument  it  may  be  correctly  answered, 
that  the  reason  of  the  eonmion  law  remains  unimpaired ;  the  right 
of  the  tenant  to  pay  the  rent  or  to  replevy  the  distress,  remains 
in  full  force;  no  alteration  as  to  that  is  made,  only  the  time  is 
limited  to  a  few  days;  but  if  he  does  pay  the  rent  or  replevy  the 
the  property  within  the  time  limited,  it  must  be  returned  to  him 
without  damage,  and  in  the  same  plight  it  was  in  when  seized; 
and,  in  the  case  of  sheaves  and  shocks  of  com,  that  is  impossible, 
and  therefore  they  certainly  remain  as  things  forbidden  to  be 
taken  as  a  distress.  It  may  be  further  answered  that  nothing  can 
be  taken  by  implication,  and  that,  unless  the  statute  expressly 
authorizes  the  distress,  it  is  illegal.     .     .     . 

If  this  view  of  the  case,  and  the  law  governing  it,  is  correct,  no 
doubt  can  exist  as  to  the  illegality  of  the  distress.  The  property 
seized  was  not  distrainable.  and  the  demurrer  to  the  avowry  ought 
to  have  been  sustained. 

Distress  for  rent  is  a  remedy  which  landlords  have  never  enjoyed  in 
North  Carolina.  Rowland  v.  Forlaw,  108  N.  C.  top  p.  .570,  13  S.  E.  173; 
Deaver  v.  Rice,  20  N.  C.  at  p.  568.  For  distress  warrant  to  force  payment 
for  use  of  property  other  than  land,  see  Wickham  v.  Richmond  S.  &  T.  Co., 
57  S.  E.  647,  11  L.  R.  A.  (N.  S.)  836,  and  note.  See  "Landlord  and  Ten- 
ant," Century  Dig.  §  1083;  Decennial  and  Am.  Dig.  Key  No.  Series,  §  269. 


Sec.  3.     By  Agreement  of  Parties. 
(a)  Accord  and  Satisfaction. 

SIEBER  V.  AMUNSON,  78  Wis.  679,  682.  47  N.  W.  1126.     1891. 
Definition  and  Essentials  of  Accord  and  Satisfaction. 

fSieher  sued  Amunson  for  damages  resulting  from  the  alleged  negli- 
gence, etc.,  of  Amunson  in  colliding  with  a  sleigh  in  which  the  plaintiff 
was  riding.  Verdict  and  judgment  against  the  defendant,  and  he  ap- 
peal'^d.     Affirmed. 

Amunson,  Sieveison,  and  Narracong  were  riding  in  a  sled.  Amunson 
was  partially  drunk,  and,  by  his  yelling,  etc.,  caused  the  team  to  run 
away  and  injure  the  plaintiff.     Amunson  pleaded  as  a  defense  that  the 


tSec.  3  a.]  without  judicial  proceedings.  89 

plaintiff  had  received  compensation,  for  all  of  her  injuries,  from  Siever- 
son  and  in  full  settlement  thereof. 

There  was  no  proof  that  Sieverson  was  a  joint  tort  feasor  with  Amun- 
son  in  causing  plaintiff's  injury;  but  it  was  shown  that  plaintiff's  attor- 
ney, Mr.  Perry,  in  a  conversation  with  Sieverson,  stated  that  the  plaintiff 
was  very  poor  and  asked  Sieverson  if  he  could  help  her — stating  at  the 
time  that  he  was  satisfied  that  Sieverson  was  not  in  fault  in  the  matter 
of  plaintiff's  injury.  Xarracong,  who  was  present  at  this  interview, 
handed  the  plaintiffs  attorney  five  dollars  for  her,  and  Sieverson  said  he 
would  help  her  if  he  were  able.  Narracoug  then  proposed  that  he  pay 
plaintiff  fifty  dollars  which  he  owed  Sieverson.  When  this  proposition 
was  made  to  Sieverson,  he  seemed  to  assent  thereto.  Plaintiff  knew 
nothing  about  this  proposition  or  of  what  took  place  at  this  interview.] 

Orton,  J.  .  .  .  Narracong,  as  a  witness,  speaks  of  this 
transaction  as  a  settlement,  but  it  could  not  have  been  a  settlement 
or  an  accord  and  satisfaction,  for  Mr.  Periy  not  only  had  not 
charged  and  did  not  charge  Sieverson  with  being  guilty  of  any 
wrong  or  with  any  liability  on  account  of  the  plaintiff's  injury, 
but  expressly  told  him  that  he  did  not  believe  him  to  be  liable 
or  to  have  been  in  any  fault.  There  was  no  consideration  what- 
ever for  the  promise  to  pay  anything  to  the  plaintiff  or  for  her 
benefit,  and  it  was  void  for  that  reason,  if  not  for  having  been 
made  on  the  Sabbath.  The  court  insti-ucted  the  jury  that  there 
was  no  accord  and  satisfaction,  because  there  was  no  satisfaction. 
As  an  abstract  proposition  this  was  correct.  The  legal  meaning 
of  an  accord  is  that  "it  is  a  satisfaction  agreed  upon  between  the 
party  injuring  and  the  party  injured,  whieli.  when  performed, 
is  a  bar  to  all  actions  upon  this  accoiuit."  "It  must  be  advanta- 
geoiLS  to  the  creditor,  and  he  must  receive  an  actual  benefit  there- 
from."  "Everything  must  be  done  which  the  party  undertakes 
to  do."  2  Greenl.  Ev.  28;  3  Bl.  Comm.  15;  Bouv.  Law  Diet.  tit. 
"Accord,"  and  ca.ses  cited;  Ogilvie  v.  ITallam,  58  Iowa,  714,  12 
N.  W.  Rep.  730;  Evans  v.  Wells,  22  Wend.  325.  "An  accord  not 
followed  by  a  satisfaction  is  no  bar."  Palmer  v.  Yager.  20  Wis. 
91;  Barnes  v.  Lloyd.  1  How.  (Miss.)  585.  "To  constitute  a  good 
accord  and  satisfaction,  it  must  be  accepted  as  such:"  This  was 
neither  an  accord  and  satisfaction,  nor  a  settlement  of  the  matter, 
either  in  fact  or  in  law.  But,  if  the  $50  had  been  actually  received 
by  tbe  plaintiff,  it  would  liave  boon  a  more  gratuity.  Mr.  Perry 
no  doubt  understood  tlie  effect  of  the  transaction  to  be  a  mere  act 
of  charity  or  benevolence,  or  a  loan.  The  idea  of  an  accord  and 
satisfaetion  of  the  cause  of  action  in  this  suit  probably  never  en- 
terofl  his  iiiinfl.  As  an  attorney  of  tlic  plaintiff  in  tin's  action,  he 
bad  no  [)f>w<'r.  unle.ss  sficfially  autborizcd.  to  make  any  eontract  or 
t\o  anything  by  which  the  action  would  be  barred.  We  find  no 
orror  in  tlie  record.     The  judgment  of  tlie  cifcuit  court  is  affirmed. 

^(•o  nrnnni's  fyCCTl  .M:ixiiiis.  GfiC.  fi(i7;  1  Am.  &  Erie:.  Rnc.  T.nw.  411; 
Mcintosh  f'nuf.  .^.11,  .',84,  ami  note  at  TA'-V.  Ilarsliaw  v.  McKesson,  fi!")  N.  C 
688.  Formerly  the  rule  was.  thqt  no  sealed  pyecntnry  contract  for  a  debt 
rmild  be  di^rhnrpcd  by  an  unscalrd  contract,  befnuso  of  the  ninvim  r>"Hrm 
llRaminc  quo  lipatur,  etc.;  but  that  rule  never  did  extend  to  unliquidated 


}'(•  \\  ii'iioi  1'  .iiPMiM.   i'iio('Ki:i»i.\(;s.  |r/(.    /. 

daniaK*'!>  lor  broat  1>  ol'  a  soaU'd  coiiliacl.  Hiooiu's  L.  Maxims,  llGlJ.  The 
maxim  vo  liKamlne.  etc..  Is  of  little,  if  any,  lone  in  Nortli  Carolina  at 
this  time.  Adams  v.  Battle,  12'>  N.  C.  IHl',  M  S.  E.  24.",;  May  v.  Getty, 
140  N.  C.  310.  r.3  S.  E.  To.  See  also  Fuller  v.  Kemp,  20  L.  R.  A.  785;  Mel- 
loy  \.  Kemnurer,  liT  Atl.  (UtH,  11  L.  11.  A.  (N.  S. )  10 IS;  Can  Fish  Co.  v. 
MvShane.  114  X.  W.  594,  14  L.  R.  A.  (N.  S.)  443;  Farnswoith  v.  Wilbur, 
95  Pat'.  642.  19  L.  R.  A.  (N.  S.)  320;  Ex  parte  Zeigler,  64  S.  E.  513,  21 
L.  R.  A.  (N.  S.)  1005;  which  cases  and  the  valuable  notes  thereto  in  the 
L.  R.  A.  give  practically  all  the  law  on  the  subject  of  accord  and  satis- 
faction and  compromise  liy  the  payment  and  acceptance,  or  agreement 
to  accept,  a  smaller  sum  in  discharge  of  a  contract  to  pay  a  greater.  For 
the  distinction  between  a  novatiou  and  a  compromise  or  executory  accord, 
see  Baiidman  v.  Finn,  7S  N.  E.  175,  12  L.  R.  A.  (N.  S.)  1134,  and  note. 
See  "Accord  and  Satisfaction,"  Century  Dig.  §§  1-45;  Decennial  and  Am. 
Dig.  Key  No.  Series,  §§  1-5. 


(6)   Arbitration  and  Award. 

TITUS  V.  SCANTLING,  4  Blackford,  89.     1835. 
Stihmission  to  Arbitration.     Arbitration  Bonds.     Enforcing  Awards. 

[Siantling  and  wife  sued  Titus,  in  debt,  on  an  arbitration  bond  made 
to  Mrs.  Scantling  while  sole.  .Judgment  against  Titus,  and  he  appealed. 
Affirmed. 

The  declaration  set  out  a  bond,  made  by  Titus,  conditioned  to  perform 
the  award  of  certain  arbitrators  to  whom  was  submitted  a  matter  of  dif- 
ference between  Titus  and  Sarah  McAfee,  afterwards  Mrs.  Scantling. 
The  bond  contained  no  provision  that  the  submission  and  aicard  should 
be  a  rule  of  court.  The  bond  was  made  in  Ohio.  Titus  pleaded,  inter 
alia,  that  the  bond  was  void  under  the  laws  of  Ohio,  because  it  failed  to 
provide  that  the  submission  might  be  made  a  rule  of  court.  There  was 
a  demurrer  to  this  plea,  and  the  demurrer  was  sustained. 

The  only  error  assigned  is  the  'sustaining  of  the  demurrer,  and  the 
question  i)resented  is:  Is  an  arbitration  bond  void  under  the  Ohio  statute 
because  there  is  no  clause  in  the  bond  making  the  submission  a  rule  of 
court?] 

Blackford,  J.  ...  To  determine  this  question,  it  is  neees- 
sarj'  to  advert,  for  a  moment,  to  the  history  of  arbitrations.  They 
are.  as  every  one  knows,  of  comraon  law  origin.  In  the  earliest 
periods  of  the  histoiy  of  tliat  law,  we  find  that  any  persons,  though 
no  suit  was  pending  between  them,  might  agree  to  submit  their 
matters  of  difference  to  arbitrators;  and  that  their  agreement  for 
this  pui*pose  might  be  without  any  writing,  or  by  a  writing  without 
seal,  or  might  be  by  mutual  bonds.  If  the  agreement  was  by  bond, 
and  either  party  refused  to  comply  with  the  award,  his  opponent 
might  sue  him  on  the  award  or  on  the  bond.  2  Saund.  61,  notes. 
We  find  in  the  old  English  books  of  Reports,  previously  to  any 
statute  on  the  subject,  frequent  suits  on  arbitration  bonds.  These 
bonds  contained  no  agreement  that  the  submission  should  be  made 
a  rule  of  court.  The  insertion  of  such  an  agreement  in  the  bond, 
originated  with  the  English  .statute  of  9th  and  10th  of  Will.  3. 
The  object  of  that  statute  was  to  give  to  persons.  pMbmitting  their 
disputes  to  arbitration  where  nv  suit  wufi  pending,  the  same  remedy 


Sec.  3  b.]  WITHOUT  judici.vl  proceedings.  91 

that  the  common  law  gives  in  eases  referred  affrr  the  commence- 
ment of  a  suit.  Lucas  v.  Wilson.  2  Burr.  701.  The  defaulting 
party,  where  the  submission  is  made  a  rule  of  court,  becomes 
liable  to  an  attachment.  The  statute  thus  gives  a  new  remedy, 
when  the  bond  contains  an  agreement  for  the  rule;  but,  at  the 
same  time,  it  leaves  the  validity  of  the  common  law  bonds,  not  con- 
taining such  an  agreement,  entirely  unimpaired.  All  the  differ- 
ence is,  that  on  the  statutory  bond  the  rule  of  court  may  be  ob- 
tained, but  on  the  common  law  bond  it  cannot.  The  party,  in  the 
latter  case,  is  limited  to  the  old  remedy  by  an  action  on  the  award 
or  on  the  bond. 

These  observ^ation's  respecting  the  English  law  of  arbitration, 
apply  to  the  laws  of  Ohio  on  the  subject.  "We  are  bound  to  pre- 
sume that  the  common  law.  so  far  as  it  does  not  interfere  with  her 
statutes,  is  in  force  in  Ohio.  That  point  was  so  decided  by  this 
court,  in  the  case  of  Stout  v.  Wood,  1  Blkfd.  70.  Arbitration  bonds, 
therefore,  in  the  common  law  form,  without  any  agreement  respect- 
ing a  rule  of  court,  are  valid  in  the  state  of  Ohio  by  the  common 
law,  unless  their  validity  is  impaired  by  the  statute  law  of  that 
state.  The  defendant  below  has  not  infoimied  us  in  his  plea  of  any 
other  statute  of  Ohio  on  the  subject,  than  the  one  to  which  we  have 
referred.  That  statute  is,  substantially,  as  to  the  matter  in  ques- 
tion, the  same  with  the  English  statute  of  Will.  3-,  and  it  conse- 
quently does  not,  as  is  shown  b.v  our  previous  remarks,  affect  the 
legality  of  arbitration  bonds  made,  like  the  one  now  before  us,  in 
the  common  law  form.  The  obligees  are  excluded,  by  the  form  of 
the  bond,  from  the  summary^  remedy  by  attachment  under  a  rule 
of  court.,  but  that  does  not  prove  the  bond  to  be  void,  or  that  an 
action  of  debt  may  not  be  maintained  on  it. 

The  statute  on  arbitrations  in  Indiana,  is,  as  to  the  matter  under 
consideration,  the  same  with  the  Ohio  statute;  and  we  think  it  is 
chiar  that  this  arbitration  bond,  had  it  been  executed  here  with  a 
view  to  our  laws,  might  have  been  enforced  in  our  courts  as  a  com- 
mon law  bond,  by  an  action  of  debt. 

Our  opinion  for  these  rea.sons  is.  that  the  obligor's  plea,  that  the 
bond  in  qufstion  is  void  by  the  laws  of  Ohio  where  it  was  executed, 
cannot  l)e  supported.  The  bond  is  valid,  and  the  dennirrer  to 
tliis  7)l('a  was  correctly  sustained. 

Per  Curiam.    This  judgment  is  affirmed. 

See  Dirkfiison  v.  Hayes.  4  niafkforfl.  at  mirl.  pp.  40  to  40.  for  the  en 
forfement  of  awards  made  in  actions  jiendinR  in  foiirt  and  of  awards  in 
( ontroversies  not  pending  in  court,  under  the  roninion  law  practice  and 
under  statutes  of   England   and   of   this   country.     See   "Arhitration   and 
Award,"  Century  Dig.  §  '>'.);    Decennial  and  Am.  Dig.  Key  No.  Series,  §  14. 


KHJ.  V.   HOf.MSTER,  1    Wilson.   129.     1746. 
What  May  lie  SubmitUd  to  Arbitration. 

This  is  .'in  action  upon  a  jtoliey  of  insurnneo,  wherein  a  clause 
was  inserted.  Dial  in  case  of  any  /".««^^■  or  (llspiilr  ahoitl  the  policy  it 


02  WITIIOIT    .liniCl.M,    I'KDCKKDlNtiS.  [('//.    1. 

should  be  nj'crnd  (o  arhilntlioii,  iiiul  tlic  plaint  ill'  avci-s  in  his 
doi'laralion  that  thiTo  has  hocn  no  rt'l'orcuce ;  upon  tlio  trial  at 
Guildhall  the  point  was  rosorvcnl  for  the  considei'ation  of  the  court, 
whothor  this  action  well  laid  before  a  reference  had  been,  and  by 
the  whole  court  it"  there  had  been  a  rererence  dependinji:,  or  made 
and  determined,  it  might  have  been  a  bar.  but  Hit  ayrcctucnl  oj 
the  parlies  caiinol  oust  this  court,  and  as  iio  reference  has  been 
nor  any  is  dependinjj:.  the  action  is  well  brought,  and  the  plaintiff 
nuist  have  judgment. 

Rules  of  a  board  of  trade  requiring  arbitration,  see  I'acaud  v.  Wait, 
7r>  N.  E.  779,  2  L.  R.  A.  (N.  S.)  672,  and  note.  See  "insurance,"  Century 
Dig.  §§  1522-1528;   Decennial  and  Am.  Dig.  Key  No.  Series,  §  612. 


MANUFACTURING  CO.  v.  ASSURANCE  CO.,  106  N.  C.  28,  46-48.  10  S.  E. 

1057.     1890. 
Validity  of  Agreement   to  Arbitrate.     Insurance   Clause. 

[Action  upon  an  insurance  policy  to  recover  for  loss  by  fire.  Verdict 
and  judgment  against  defendant,  who  appealed.  Reversed.  The  facts 
appear  in  the  beginning  of  the  opinion.) 

Shepherd,  J.  The  defendant  relies  upon  several  defenses,  but 
the  only  one  necessary  to  be  considered  in  order  to  dispose  of  this 
appeal  is  founded  upon  the  following  clause  in  the  policy  of  in- 
surance, which  is  the  basis  of  this  action:  [The  clause  in  the  pol- 
icy was  to  the  effect  that  any  differences  arising  as  to  the  amount 
of  loss  or  damage  should  be  submitted  to  arbitration,  if  either 
party  should  make  a  written  request  to  that  effect.  Upon  such 
request  being  made,  no  action  could  be  maintained  on  the  policy 
until  after  an  award  fixing  the  amount  of  the  damage,  hut  not  the 
liahility  of  the  insurance  companji  under  its  policy.] 

It  is.  we  think,  well  settled  that  such  a  provision  in  a  contract  of 
insurance  is  not  against  public  policy,  and  that  it  will  be  upheld 
by  the  courts,  in  so  far  as  it  provides  for  the  submission  to  arbi- 
tration of  the  amount  of  loss  or  damage  sustained  by  the  assured. 

A  policy  of  in.surance.  prcci.soly  similar  to  the  one  under  consid- 
eration, was  declared  to  be  valid  by  the  Sui)reme  Court  of  New 
Jersey,  in  the  ease  of  L.  L.  &  G.  Ins.  Co.  v.  Wolff.  17  Ins.  Law- 
Journal.  714:  14  Atl.  Rep.  561.  and  this  decision  is  abimdantly 
sustained  by  the  highest  authority. 

"Agreements  for  determining  only  the  amount  to  be  recovered 
by  arbitration  are  valid,  and  the  determination  by  arbitration  of 
the  amount  of  damages  to  be  recovered,  or  the  time  of  payment, 
may  lawfidly  be  made  a  condition  precedent."  Rcott  v.  Avery. 
5  H.  L.  Cas.  811;  2  Addison.  Cont.  294:  Morse  on  Arbitration  and 
Award.  03 ;  INTay  on  Insurance.  403 ;  Perkins  v.  U.  S.  Electric  Light 
Co..  16  Fed.  Rep.  513;  Gauche  v.  London  &  Lancashire  Ins.  Co., 
10  Fed.  Rep.  347:  Carroll  v.  G.  F.  Ins.  Co..  13  Pac.  Rep.  (Cal.). 
863. 

In  Russell  v.  Pellegrini,  38  E.  L.  &  E.  101,  Lord  Campbell  said: 


Sec.    3    h.]  WITHOUT    JUDICIAL    PROCEEDINGS.  93 

""When  a  cause  of  action  has  arisen,  the  courts  cannot  be  ousted 
of  their  jurisdiction,"  but  added  that  "parties  may  come  to  agree- 
ment that  there  shall  be  no  cause  of  action  luitil  their  differences 
have  been  referred  to  arbitration." 

"Both  sides  admit  that  it  is  not  unlawful  for  parties  to  agree 
to  impose  a  condition  precedent,  with  respect  to  the  mode  of  set- 
tling the  amount  of  damage,  or  the  time  of  paying  it,  or  any  mat- 
ters of  that  kind,  which  do  not  go  to  the  root  of  the  action.  On  the 
other  hand,  it  is  conceded  that  any  agreement  which  is  to  prevent 
the  suffering  party  from  coming  into  a  court  of  law — or,  in  other 
words,  which  ousts  the  courts  of  their  jurisdiction — cannot  be  sup- 
ported." Edwards  v.  The  Aberavron  Mutual  Ship  Tns.  Co.  (lim- 
ited). 1  Q.  B.  Div.  593  (1875). 

"I  take  the  law  as  settled  by  the  highest  authority — the  House 
of  Lords — to  be  tliis :  There  are  two  cases  where  such  a  plea  as 
the  present  is  successful — fii-st.  Avliere  the  action  can  only  be 
brought  for  the  sum  named  by  the  arbitrator;  secondly,  where  it 
is  agreed  that  no  action  shall  be  brought  till  there  has  been  an  ar- 
bitration, or  that  arbitration  shall  be  a  condition  precedent  to  the 
right  of  action."  Dawson  v.  Fitzgerald.  1  Exchequer  Div.  260 
(1876). 

"Since  the  case  of  Scott  v.  Avery,  in  the  House  of  Lords,  the 
contention  that  such  a  clause  is  bad,  as  an  attempt  to  oust  the 
courts  of  jurisdiction,  may  be  passed  by."  See  also  Porter's  Laws 
of  Insurance.  210,  and  Gasser  v.  Sun  Fire  Office  (Supreme  Court 
Minn.  1890).  Insurance  L.  J.  44  N.  W.  252. 

The  contention  of  the  defendant  company  is.  that  a  difference 
arose  as  to  the  amount  of  damage  to  the  engine,  boilers,  etc..  and 
that  dofcndant  made  a  written  request  of  the  plaintiff  that  the 
said  diffcrt  ncc  should  be  submitted  to.  and  determined  by,  arbi- 
trators, and  in  accordance  with  the  terms  of  the  policy,  and  that 
the  plaintiff,  without  legal  excuse,  refu.sed  to  comply  with  said 
request. 

Tlic  submission  to  ;ii'l)i1i';it  ion  upon  the  written  request  of  the 
defendant  is  clearly  ;i  condilicm  precedent  to  the  right  of  ac- 
tion. T?('versed.  [The  remainder  of  the  opinion  is  omitted 
hcausc  not  neces.sary  to  the  presentation  of  the  point  under  con- 
sideration here — i.  e..  the  validity  of  Die  ";n-])itr;ition  ebiuse"  in  a 
f»olicy.  I 

Ser.  Orady  v.  Home  F.  &  M.  Ins.  Co..  fi?,  Atl.  1?:^  4  L.  R.  A.  ( N.  S.)  288. 
and  nofp;  Prfs.  D.  &  fl.  Canal  Co.  v.  Pa.  Coal  Co.,  .'.0  N.  Y.  2.^)0;  Mcintosh 
Cent.  ?,m,  and  note.  See  2?,  L.  R.  A.  (N.  S.)  ?.17.  and  note  (effert  of  rul- 
InK  of  arbitrator  as  to  the  perforniance  of  a  Imildliif;  conlract).  For 
practice  in  causes  snhniitted  to  arbitrators,  selection  of  nnii)ire.  notice  to 
parties,  seltinK  aside  the  award,  etc..  see  Rray  v.  Stajdes.  T.?,  S.  E.  780, 
19  L.  R.  A.  (N.  S. )  COd.  and  note.  See  "Insurance."  Century  Dip;.  §  1420; 
Decennial  and  Am.  DIk.  Key  No.  Series,  5  507. 


94  wiTiioir  .niMciAi.  i'U(»('Ki';i)iN(is.  [i'li.   I. 


KEKNEK  V.  GOODSON.  89  N.  C.  273.     1883. 

Atbitration  and  Uvference  Dislin(juis}n'd.     Duty  of  Arhitrators.     Enforc- 

iiKj  Aicard. 

[Keener  sued  (Joodson  in  ejectment.  Verdict  and  judgment  against 
defendant,  and  he  appealed.     AfTirmed. 

IMainliff  claimed  title  under  an  execution  sale.  The  validity  of  such 
execution  sale  deiiended  upon  whether  or  not  a  judgment,  entered  u|)on 
the  award  of  certain  arbitrators,  was  valid.  In  an  action  duly  pending 
in  the  Superior  Court  an  order  was  made,  by  compromise,  referring  the 
controversy  to  arbitrators,  "their  award  or  a  majority  of  them  to  be  a 
rule  of  court."  The  arbitrators  filed  their  award  stating  that  they  had 
heard  all  the  testimony  produced;  examined  "all  the  books  and  papers;" 
investigated  the  case;  and  that  in  their  opinion  the  defendant  owed  the 
plaintiffs  a  specified  sum.  Upon  the  docket  was  a  memorandum  of  judg- 
ment. The  mrard  did  not  coniain  any  findings  of  fact.  Only  so  much  of 
tJie  case  and  opinion  is  here  produced  as  bears  upon  the  question  under 
consideration.] 

Ashe,  J.  The  firet  contenton  of  defendant  was,  that  the  record 
of  the  judgment  produced  in  evidence  did  not  show  a  valid  judf?- 
ment.  and  that  the  sale  thereunder  was  void,  and  the  plaintiff 
acquired  no  title  to  the  land  by  the  sheriff's  deed.  The  counsel  in- 
sisted that  the  judgment  upon  the  award  was  interlocutory,  and 
that  fhe  award  itself  ivas  defective,  hecanse  the  arhitrators  did  not 
find  the  facts.  The  counsel  argued  these  points  as  if  the  order  of 
reference  was  under  the  Code  of  Civil  Procedure;  if  it  had  been 
so,  there  would  have  been  a  good  deal  of  force  in  his  position ;  but 
he  seems  to  have  entirely  overlooked  the  distinction  between  a 
reference  under  the  Code  and  a  reference  to  arhilralors,  and  their 
award  to  be  a  rule  of  court.  The  provisions  of  the  Code  of  (/ivil 
Procedure  have  not  repealed  the  common  law  practice  of  reference 
to  arbitrators.  The  practice  is  still  extant,  notwithstanding  the 
Code.  Crisp  v.  Love,  65  N.  C.  126 :  Gudger  v.  Baird.  66  N.  C.  438 ; 
Hilliard  v.  Rowland,  68  N.  C.  506. 

Arbitrators  are  not  bound  to  find  the  facts.  The  eifect  of  a  ref- 
erence to  arbitrators  is  very  different  from  that  of  a  reference 
under  the  Code.  The  arbitrators  may  choose  an  umpire;  they  are 
not  bound  to  find  the  facts  separately  from  their  conclusions  of 
law;  they  are  not  bound  to  decide  according  to  law;  and  their 

award  may  be  general;  thus,  "that  plaintiff  recover  $ and 

costs."  Lusk  V.  Clayton.  70  N.  C.  184 ;  Pickens  v.  Miller,  83  N.  C. 
543.  And  where  the  award  is  made  and  no  exceptions  taken,  or,  if 
taken,  not  sustained,  the  practice  has  uniformly  been  for  the  court 
to  render  judgment  according  to  the  award. 

Tn  England,  where  tlie  submission  of  a  cause  to  arbitrators  was 
made  a  rule  of  court,  the  practice  was  to  grant  an  attachment  for 
all  disobedience  of  a  rule  of  court  to  stand  to  the  submi.ssion  and 
award.  But  it  has  been  said  by  Chifp  .Titstice  Kttffin  that,  in- 
stead of  the  attachment  in  this  state,  the  practice,  from  a  period 
so  early  that  no  one  of  the  profession  knows  when  it  did  not  exist, 
has  been  to  enter  judgment  for  the  debt  or  dainages  according  to 
the  award.    T'lMininLdiam  v.  TTowell.  23  N.  C.  9;  same  principle  in 


Sec.    3    h.]  WITHOUT    JUDICIAL    PROCEEDINGS.  95 

Simpson  v.  iNIeBee.  14  X.  C.  531.  Tn  the  former  of  these  eases, 
where  the  judgment  was  sustained  by  this  court,  the  entries  were 
very  similar  to  those  in  this  case.  There,  there  was  an  order  of 
reference  submitting  the  cause  to  arbitrators,  whose  award  was  to 
be  a  rule  of  court.  An  award  was  made  and  returned  that  Hyatt 
should  pay  to  the  plaintiff  the  sum  of  $155,  and  there  Avas  .iudg- 
ment  for  the  sum  of  $155.  according  to  the  award.  .  .  .  There 
is  no  error.    Affirmed. 

In  Henry  v.  Hilliard.  120  N.  C.  mid.  p.  486.  27  S.  E.  132,  it  is  said: 
"But  it  is  not  necessary  tliat  the  arbitrators  shall  decide  or  undertake 
to  decide  any  matter  before  them  according  to  lata.  It  is  said  'they  are 
a  Ian-  unto  themselves:  Osborne  v.  Calvert,  83  N.  C.  365;  Keener  v. 
Gocdson,  89  N.  C.  273.  Neither  is  it  necessary  that  they  set  out  the  facts 
upon  which  they  base  their  findings,  or  assign  any  reason  for  their  find- 
ings. It  is  said  it  is  best  they  should  not  do  so.  Osborn  v.  Calvert, 
supra.  Neither  can  an  award  be  set  aside  where  exceptions  are  made 
to  the  award  upon  the  ground  of  error  alone,  in  the  findings,  unless  they 
appear  upon  the  face  of  the  award  and  the  terms  of  the  submission.  To 
set  aside  an  award,  it  must  appear  there  has  been  fraud,  undue  influence 
or  some  improper  conduct  on  the  part  of  the  arbitrators.  No  such  alle- 
gations are  made  here,  or.  if  they  are,  nothing  of  the  kind  is  found  by 
the  judge  who  set  aside  the  judgment.  King  v.  Mfg.  Co.,  79  N.  C  360, 
and  cases  there  cited."  See  "Arbitration  and  Award,"  Century  Dig 
§  266;  Decennial  and  Am.  Dig.  Key  No.  Series,  §  52. 


;m;  nv  .TrniciAi.  PKorKRinNGS.  [Cli.  2. 


CHAPTER  II. 

REMEDIES  BY  JUDICIAL  PROCEEDINGS. 


Sec.  1.     Criminal  and  Civdi.  Proceedings  Distinguished, 
state  (and  susanna  adams)  v.  pate,  44  n.  c.  244.    1853. 

Criminal  and  Civil  Actions  Explained.     Bastardy. 

[Proceedings  in  bastardy  against  Pate.  Verdict  and  judgment  against 
plaintiff,  and  the  State  appealed.     Reversed. 

On  the  trial  below,  the  solicitor  for  the  state  claimed  the  right  of  mak- 
ing four  peremptory  challenges  to  jurors.  The  judge  ruled  against  this 
claim.] 

Pearson.  J.  By  the  Revised  Statutes,  ch.  31,  see.  37,  "each 
party  in  all  civil  suits"  may  challenge  peremptorily  four  jurors. 
So  the  question  is,  are  proceedings  in  bastardy  "civil  suits?" 

Suits  are  either  civil  or  criminal.  All  criminal  suits  are  prose- 
cuted in  the  name  of  the  state ;  but  all  suits  prosecuted  in  the  name 
of  the  state  are  not  criminal  suits: — an  action  of  debt  may  be 
l)rosecuted  in  the  name  of  the  state.  The  true  test  is,  when  the 
proceeding  is  by  indictment,  it  is  a  criminal  suit ;  when  by  action 
or  other  mode,  although  in  the  name  of  the  state,  it  is  a  civil  suit, 
and  should  be  by  the  clerks  put  on  the  civil,  as  distinguished  from 
the  state  docket.  By  the  "Declaration  of  Rights,"  no  free  man 
shall  be  put  to  answer  any  criminal  charge,  but  by  indictment, 
[•resentment,  or  impeachment.  By  Rev.  Stat.  ch.  35,  sec.  6,  no  per- 
son can  be  charged  in  a  criminal  proceeding  except  upon  a  bill  of 
indictment.  Tested  in  this  way.  the  present  is  a  "civil  suit."  al- 
though prosecuted  in  the  name  of  the  .state,  and  the  plaintiff  wfis 
entitled  to  four  peremptory  challenges.  The  object  of  the  suit  is 
not  to  punish  the  defendant  for  an  act  done  to  the  injury  of  the 
public,  but  to  indemnify  the  county  of  Wayne  against  a  liability 
for  the  support  of  a  bastard  child,  of  which  the  defendant  is.  by 
hiw,  the  reputed  father.  .  .  .  Judgment  reversed,  and  venire 
de  novo  awarded. 

At  one  while,  since  this  decision,  bastardy  proceedings  were  held  to  be 
criminal;  but  now  they  are  again  declared  to  be  civil.  State  v.  Liles, 
134  N.  C.  73.5,  47  S.  E.  7r)0.  See  in  support  of  the  principal  case,  Marston 
V.  Jenness,  11  N.  H.  156,  Smith's  Cases  L.  P.  117.  See  "Bastards,"  Cen- 
tury Dig.  §  351/^;   Decennial  and  Am.  Dig.  Key  No.  Series,  §  19. 


Bee.    1.]  BY    JUDICIAL    PROCEEDINGS.  97 


STATE  V.  GATES,  88  N.  C.  66S.     1883. 
Peace  Warrant — Civil  or  Criminal? 

[Gates  was  arrested  under  a  peace  warrant,  issued  by  a  justice  of  the 
peace,  and  required  to  give  bond  to  keep  the  peace.  Pugh  became  his 
suretj-.  Gates  being  accused  of  a  breach  of  this  bond,  the  justice  issued 
a  sci.  fa.  to  Gates  and  Pugh,  and,  they  not  appearing,  adjudged  the  bond 
forfeited,  and  that  it  be  prosecuted  according  to  law.  From  this  judg- 
ment Gates  appealed  to  the  Superior  Court.  In  that  court  the  justice's 
judgment  was  affirmed.  Gates  and  his  surety  then  appealed  to  the  Su- 
preme Court,  assigning  as  error  that  the  justice  of  the  peace  had  no  ju- 
risdiction in  the  matter  of  enforcing  the  bond,  because  the  penalty  thereof 
exceeded  two  hundred  dollars.     Affirmed.] 

Ashe,  J.  The  defendants '  appeal  seems  to  be  founded  upon  the 
idea  that  this  was  a  civil  action,  and  the  jurisdiction  of  the  justice 
was  restricted  by  the  constitution  to  two  hundred  doUars.  That 
is  so,  if  it  is  a  civil  action.  The  constitution  gives  to  justices  of  the 
peace,  under  such  regulations  as  the  general  assembly  shall  pre- 
scribe, jurisdiction  of  civil  actions  founded  on  contract,  wherein 
the  sum  demanded  shall  not  exceed  two  hundred  dollars.  Art.  IV, 
s.  27.  But  this  is  not  a  civil  action.  It  is  an  action  prosecuted  by 
the  state,  at  the  instance  of  an  individual,  to  prevent  an  appre- 
hended crime  against  his  person  or  property  (Bat.  Rev.  eh.  17, 
s.  5,  sub.  s.  2)  and  this  provision  of  the  Code  has  had  a  construction 
given  it  by  this  court  in  the  case  of  State  v.  Locust,  63  N.  C.  574, 
where  it  was  held  that  a  proceeding  upon  a  peace  icarrant  teas  a 
criminal  action. 

Actions  by  the  Code  are  divided  into  two  kinds — civil  and  crim- 
inal. A  criminal  action  is.  1.  An  action  prosecuted  by  the  state, 
as  a  party,  against  a  person  charged  with  a  public  offense  for  the 
punishment  thereof;  and  2.  An  action  pro.sccuted  by  the  state, 
at  the  instance  of  an  individual,  to  prevent  an  apprehended  crime 
against  liis  pei-son  or  property.  Every  other  is  a  ciAnl  action.  Bat. 
Rev.  eh.  17^  s.  6.  The  distinction  between  criminal  actions  is 
founded  upon  the  difference,  whether  it  is  a  proceeding  for  a  pub- 
lie  offense,  in  the  nature  of  an  indictment  for  a  misdemeanor,  or  to 
prevent  (as  in  this  ease,  for  example)  a  threatened  crime  against 
a  private  person.  In  the  former  ease,  the  constitution  has  re- 
stricted the  jurisdiction  of  justices,  by  declaring  that  a  justice 
should  have  jurisdiefion  of  all  criminal  matti'vs  arising  within 
their  counties,  where  th<!  punislimont  cannot  exceed  a  fine  of  fifty 
dollars  or  imprisonment  for  thirty  days.  Art.  IV.  s.  27.  This  pro- 
vision was  eviflently  intended  to  limit  the  jurisdiction  of  justices 
in  criminal  aetion.s  in  the  nature  of  indietmenls.  wliei-e  fitinl  juris- 
diction was  given  them.  But  we  do  not  think  it  has  any  applica- 
tion to  criminal  actions  of  the  second  kind,  which  affect  only  pri- 
vate rifrhl';.  This  action  is  left  by  the  constitution  to  be  recrulated 
by  the  Ir'trishittin' :  jinrl  it  has  lieen  regiilater]  by  the  acts  of  ISHf^  GO, 
eh.  17S.  an<l  of  IKTf).  eli.  92.  The  latter  act  giv<>s  to  justices  of  the 
peace  exclusive  original  juri.sdietion  of  peace  warrants  and  pro- 
ceerlings  thereunder,  and  eontains  no  repealing  ehiuse.  The  former 
Rempdies — 7. 


1)8  UV    JLDlClAi.    I'KOCKiCniNOS.  [<'ll.    ~. 

;ut  piovidi's  ihat  justici's  ol"  tlio  peace  may  take  ivcoynizaiices  to 
keep  the  peace,  in  ;my  sum  not  exeocdinjj  one  thousand  doUars, 
and  proscribes  the  proceedings  to  be  had  to  enforce  the  same. 
Those  provisions  of  the  act  that  are  not  inconsistent  with  the  ex- 
chisive  jurisdiction  given  by  the  act  of  1879,  are  not  repealed; 
therefore,  sub-chapter  2.  section  10  of  the  act  (Bat.  Rev.  ch.  3'i, 
s.  lOo)  is  still  in  force,  which  provides  that  "every  person,  who  shall 
have  entered  into  a  rccogjiizance  to  ke(>p  the  peace,  shall  appear 
according  to  the  obligation  thereof;  and  if  he  fail  to  appeal-.  Ihc 
court  shall  forfeit  his  recognizance  and  order  it  to  be  prosecuted, 
unless  reasonable  excuse  for  his  default  be  given." 

The  justice  of  the  peace,  in  the  case  before  us,  has  strictly  fol- 
lowed this  provision  of  the  statute.  The  recognizance  imposed 
ujion  the  defendants  the  duty  to  appear  before  the  justice  and 
show  cause  whenever  he  should  notify  them  to  appear  before  him 
to  answer  the  alleged  breach  of  the  conditions  of  the  recognizance, 
and  in  default  thereof,  the  law  required  the  justice  to  declare  l^he 
forfeiture.  There  is  no  error.  Let  this  be  certified  to  the  superior 
coui-t  of  Sampson  county,  that  the  court  may  certify  to  the  jus- 
tice's court  to  the  end  that  the  case  may  be  proceeded  with  accord- 
ing to  law.    Affimied. 

See  "Breach  of  the  Peace,"  Century  Dig.  §  7;  Decennial  and  Am.  Dig. 
Key  No.  Series,  §  16. 


WHITTEM  V.  THE  STATE,  36  Ind.  196,  202-204.     1871. 
Contempt  Proceedings — Civil  or  Criminal? 

fWhittem  was  sued  for  seduction.  Counsel  for  the  female  plaintiff 
announced  in  open  court  that  they  were  credibly  informed  that  Whittem 
had  abducted  their  client  who  was  a  necessary  witness  in  her  own  be- 
half. After  an  ineffectual  attempt  to  have  their  client  served  with 
process  commanding  her  presence  in  court,  an  attachment  for  contempt 
was  issued  against  Whittem,  by  which  he  was  brought  into  court  to  an- 
swer the  charge  of  contempt  in  abducting  the  plaintiff.  At  the  investi- 
gation of  this  charge  the  ludge,  ex  mcro  motu,  examined  Whittem  as  to 
the  alleged  contempt.  Whittem  declined  to  answer  questions  as  to  tlie 
charge,  on  the  ground  that  his  answers  toould  tend  to  convict  him  of  a 
crime.  The  judge  sustained  Whittem  in  his  refusal  to  answer,  but  gave 
judgment  that  Whittem  was  guilty  of  contempt  in  abducting  the  plain- 
tiff; and  that  he  be  imprisoned  until  he  produced  her  in  court,  unless 
sooner  discharged.  There  were  sundry-  motions  by  Whittem  after  this 
judgment  and  his  imprisonment  thereunder.  Eventually  Whittem  ap- 
pealed. At  the  threshold  the  Supreme  Court  was  confronted  with  the 
question  whether  an  api)eal  would  lie  in  this  case,  and  whether  the  court 
had  jurisdiction  to  review  the  judgment  of  the  lower  court.  To  deter- 
mine these  questions,  in  view  of  the  statutes  of  the  state  regulating  ap- 
peals and  a))pellate  jurisdiction,  it  became  necessary  to  determine 
whether  the  proceedings  in  contempt  against  Whittem  were  civil  or  crim- 
inal in  their  natitre.  Only  so  much  of  the  opinion  as  bears  upon  this 
question  is  inserted  here.l 

BusKiRK.  J.     .     .     .     Was  the  proceeding  under  consideration 
a  civil  or  criminal  nction  :  or  did  it  so  far  partake  of  the  nature  of 


Sec.    :?.]  BY    JUDICIAL   PROCEEDINGS.  99 

either  that  it  is  to  be  governed  by  the  principles  of  law  and  rales 
of  practice  applicable  to  either  of  those  actions  ?  That  it  was  not 
a  civil  action  is  too  plain  to  admit  of  a  doubt,  or  to  justify  a  ref- 
erence to  authorities. 

The  criminal  law  of  this  state  is  entirely  statutory,  and  not  of 
common  law  origin.  Beal  v.  The  State,  15  Ind.  878.  This  is  not, 
strictly  speaking,  a  criminal  action ;  for  such  a  charge  must  either 
be  presented  by  indictment  or  information.  The  record  discloses 
the  fact  that  this  proceeding  is  in  the  name  of  the  State  of  Indiana 
against  William  Whittem,  charging  him  with  a  contempt  of  court; 
and  a  tinal  judgment  was  rendered  by  which  he  was  imprisoned  in 
the  jail  of  the  comity  for  an  uncertain  and  indefinite  period  of 
time. 

The  case  of  Crook  v.  The  People,  16  111.  53-1,  was  a  proceeding 
against  Crook  and  others  for  contempt,  in  disobeying  an  injunc- 
tion, and  the  court  held  that  it  was  not,  strictly  speaking,  a  crim- 
inal action,  because  no  indictment  had  been  found  by  the  grand 
jury ;  but  it  was  called  a  criminal  prosecution  for  contempt ;  and 
while  the  court  declined  to  decide  whether  an  appeal  could  be 
taken  in  an  information  for  contempt,  it  was  held  that  the  answer 
of  the  party  charged  with  contempt  could  be  controverted,  and  the 
fact  alleged  in  excuse  be  disproved. 

In  Pitt  V.  Davison,  37  N.  Y.  235,  the  court  held  that  there  was 
a  distinction  between  proceedings  to  punish  for  criminal  con- 
tcmpls,  and  procccdimjs  as  for  contempts  to  enforce  civil  reitudivs, 
and  that  in  the  former  cases  personal  notification  of  the  accusa- 
tion was  necessary. 

The  Supremo  Court  of  the  Ignited  States,  in  Ex  parte  Kearney. 
7  Wheat.  38.  which  was  an  application  for  a  habeas  corpus  to  l)riiig 
up  the  body  of  John  T.  Kearney,  then  in  jail,  upon  tlie  order  and 
judgment  of  the  Circuit  Court  of  the  District  of  Columbia,  for 
contempt  of  court  in  refusing  to  testify  as  a  witness,  held,  that 
that  court  had  no  jnrisfliction  of  the  case,  for  the  reason  that  it 
had  no  appelhiic  jurisdiction  of  criminal  cases,  and,  that  being  a 
criminal  charge,  no  right  of  appeal  existed.  The  court  say:  "If 
this  were  an  application  for  a  ha])oas  corpus,  after  judgment  on  an 
iiiflictmcnt  for  an  offense  williin  the  jurisdiction  of  the  circuit 
eouft.  it  eouhl  hardly  be  mainlained  Hint  this  eourl  could  revise 
sncli  a  judgment,  or  the  proceedings  which  led  to  if,  or  set  it  aside 
and  discharge  the  prisoner.  There  is,  in  principle,  no  distinction 
lietwei-n  Ihai  case  and  the  pi-csent :  for  wh(?n  a  court  coniniits  a 
paHy  for  e()iiteiii])t.  Ilieir  adjudicalion  is  a  conviction,  and  Iheir 
eonunitment,  in  consequence,  is  execution." 

T>ord  Chief  Ju.stice  Dk  Grey,  in  Rra.ss  Crosby.  Lord  Mayor  of 
I.on.hpti.  3  Wils.  188.  said:  "When  the  House  of  (\Miunons  nd- 
judired  anything  to  ho.  a  contempt,  or  a  ])reach  of  a  privilege,  their 
adjudication  is  a  conviction,  and  their  commitment,  in  conse- 
f|uonce,  is  execution  :  and  no  court  can  discharge,  on  bail,  a  ])erson 
that  is  in  execution  by  the  jiidL'tnent  of  any  other  court." 

In  our  opinion,  ihrse  aulhnrilirs  drmonslrale  that  a  proceeding 
for  contempt  is  in  the  nainrc  nf  a  rriminnl  prosecntion.     The  re- 


1(10  uv   .iiniciAi.   I'UOCKbiniNGS.  \('li.  2. 

suits  uiul  eoiiseciuoiu'os  ;iiv  the  same  in  the  Diie  [)i'()i'i'('tliiijj;  as  in  the 
other.  In  botli  llie  party  ooiivictcd  may  be  deprived  of  his  liberty 
and  con  lined  in  jail,  ami  subjected  to  the  payment  of  a  fine.  As 
has  btHMi  shown,  our  statute  gives  an  appeal  to  this  court  from  all 
final  judgments. 

[The  court  ruled  that  the  appeal  would  lie,  and  for  divera  erroi-s 
eonuuitted  in  the  lower  court,  none  of  which  are  germane  to  the 
subject  of  this  chapter,  the  judgment  appealed  from  was  reversed 

aiul  ^Vhittem  ordered  to  be  discharged.] 

See  "Contempt,"  Century  Dig.  §  124;   Decennial  and  Am.  Dig.  Key  No. 
Series,  §  40. 


EX  PARTE  GOULD,  99  Cal.  360,  21  L.  R.  A.  751,  33  Pac.  1112.     1893. 
Contempt  Proceedings — Civil  or  Criviinnl? 

[Gould  being  committed  to  prison  tor  alleged  contempt  of  court,  peti- 
tioned for  a  writ  of  habeas  corpus.  lie  was  discharged  from  custody 
upon  the  hearing.     The  facts  appear  in  the  beginning  of  the  opinion.  | 

Harrison,  J.  In  an  action  pending  in  the  supciror  court  in  and 
for  the  comity  of  Yuba,  wherein  the  county  of  Sacramento  is 
plaintiff,  and  the  petitioner  one  of  the  defendants,  a  writ  of  injunc- 
tion was  served  upon  the  defendant,  requiring  him  to  refrain  from 
doing  certain  acts  therein  specified.  While  this  Avrit  was  in  full 
force,  the  petitioner  was  charged  before  said  court  with  having 
violated  its  terms,  and  was  ordered  to  show  cause  why  he  should 
not  be  adjudged  guilty  of  contempt  therefor.  Upon  the  hearing 
of  this  charge  the  court  required  the  petitioner  to  be  sworn  as  a 
witness,  to  which  he  objected  upon  the  ground  that  he  could  not 
he  compelled  to  he  a  witnesa  against  himself  in  the  proceedings, 
for  the  reason  that  they  were  of  a  criminal  nature.  The  coni-t, 
however,  overruled  his  objection,  and  required  him  to  be  swoiai  as 
a  witness;  and  he,  acting  under  the  advice  of  his  counsel,  still 
declining  and  refusing  to  be  sworn,  for  the  aforesaid  reason,  the 
court  adjudged  him  guilty  of  contempt,  and  committed  him  to  the 
county  jail,  there  to  remain  until  he  should  purge  himself  of  said 
contempt  by  consenting  to  be  sworn  as  a  witness  in  said  case,  and 
to  testify  therein. 

Article  I,  s.  L3.  of  the  Constitution  of  this  state,  declares  that 
"no  person  shall  be  compelled,  in  any  criminal  case,  to  be  a  wit- 
ness against  himself."  Section  1323  of  the  Penal  Code  provides 
that  "a  defendant  in  a  criminal  action  or  proceeding  cannot  be 
compelled  to  be  a  witness  against  himself."  Contempt  of  court 
is  a  public  offense,  and  by  section  IfiG  of  the  Penal  Code  is  ex- 
pres.sly  declared  to  constitute  a  misdemeanor,  and  the  refusal  of  a 
witness  to  be  sworn  is  an  offense  committed  in  the  presence  of  the 
court.  It  is  none  the  less  a  criminal  offense  that  the  statute  author- 
izes it  to  be  punished  by  indictment  or  information,  as  well  as  by 
summary  proceedings  provided  in  sections  1200-1222  of  the  Code 
of  Civil  Procedure.     By  these  provisions,  the  procedure  for  the 


Sec.    1.]  BY    JUDICIAL    PROCEEDINGS.  lUl 

investigation  of  the  charge  is  analogous  to  the  criminal  procedure, 
and  the  judgment  against  the  person  guilty  of  the  offense  is  visited 
with  fine  or  imprisonment,  or  both — the  essential  elements  of  a 
judgment  for  a  criminal  oU'ense.  "Coniempt  of  court  is  a  specific 
criminal  offense.  It  is  punished  sometimes  by  indictment  and 
sometimes  in  a  simmiary  proceeding,  as  it  was  in  this  case.  In 
either  mode  of  trial  the  adjudication  against  an  offender  is  a 
conviction,  and  the  commitment  in  consequence  is  execution."  AVil- 
liamson  's  case,  26  Pa.  19,  67  Am.  Dec.  374. 

"Although  the  alleged  misconduct  of  the  defendants  occurred 
in  the  progress  of  a  civil  action,  the  proceeding  to  punish  them 
for  such  misconduct  is  no  part  of  the  process  in  the  civil  action, 
but  is  in  the  nature  of  a  criminal  prosecution.  Its  purpose  is  not 
to  indemnify  the  plaintiff  for  any  damages  he  may  have  sustained 
by  reason  of  such  misconduct,  but  to  vindicate  the  dignity  and 
authority  of  the  court.  It  is  a  special  proceeding,  criminal  in 
character,  in  which  the  state  is  the  real  plaintiff  or  prosecutor." 
Haight  V.  Lucia,  36  Wis.  360. 

In  Ex  parte  Ilollis,  59  Cal.  408,  it  was  said:  "To  adjudge  a 
party  guilty  of  contempt  of  court,  for  which  he  is  lined  and  im- 
prisoned, is  to  adjudge  him  guilty  of  a  specific  criminal  offense. 
The  imposition  of  the  fine  is  a  judgment  in  a  criminal  case."  See 
aLso  Ex  parte  Kearney.  20  IT.  S.  (7  Wheat.)  38,  5  L.  Ed.  391  ;  Ex 
parte  Crittenden,  62  Cal.  534 ;  New  Orleans  v.  New  York  IMail  S. 
S.  Co.,  87  U.  S.  (20  Wall.)  387,  22  L.  Ed.  354;  Re  MuUee,  7 
Blatch.  23;  Fed.  Cas.  No.  9.911 ;  Rapalje.  Contempt,  s.  21. 

In  Boyd  V.  United  States.  116  U.  S.  616.  6  Sup.  Ct.  524.  20  L. 
Ed.  746,  Justice  Bradley  has  given  an  exhaustive  and  interesting 
historical  discussion  of  the  power  of  a  court  to  compel  a  defendnnt 
in  a  criminal  proceeding  to  give  testimony  against  himself.  In 
that  ca.se  an  information  was  filed  against  certain  property  for  its 
confiscation  under  the  Revenue  Laws  of  the  United  States,  and 
the  claimants,  having  been  directed  by  the  court  to  produce  in  evi- 
dence certain  invoices,  for  the  purpose  of  establishing  the  claim 
of  the  government,  objected  thereto  on  the  ground  thnt  the  statute 
under  which  the  order  was  made  was  in  violation  of  the  4th  and 
5th  amendments  to  the  Constitution.  It  was  held  that,  although 
the  proceeding  was  in  rem,  and  in  the  nature  of  a  civil  proceed- 
ing, yet  an  action  for  the  forfeiture  of  property  for  the  violation 
of  law  i.s,  in  effect,  a  criminal  proceeding,  and  that  the  owner  of 
the  goods,  after  making  his  claim,  is  entitled  to  all  the  privileges 
which  appertain  to  a  person  who  is  prosecuted  for  a  forfeiture  of 
liis  property  by  reason  of  fommitting  a  crimiiiiil  ofTcnse.  nnd  can- 
not b(;  compelled  to  furnish  evidc^nce  against  himself.  Pcisonal 
liberty  is,  however,  more  sacred  than  mere  rights  of  property,  and 
the  re;isoi)s  for  protecting  the  owner  of  property  agninst  being 
com[n'l|('d  to  giv(!  cvidfuno  .'ifjiiinst  himself  in  a  proecctling  for  its 
forfeiture  are  in  the  same  degree  more  cogent  when  his  personal 
lib(?rty  is  at  stake.  It  was  said  by  Justice  Buadi.kv  in  the  case  last 
cited:  "Constitutional  y)rovisions  for  the  security  of  person  and 
property  should  be  liberally  construed      A  close  and  literal  con- 


](»•_'  n\   .11  niciAi.   I'ljoCKF.niNOS.  \('/i.  2. 

structioti  deprivt's  them  of  linlf  their  efficacy,  and  leads  to  firradual 
depreciation  of  tlie  rijzht.  as  if  it  consisted  more  in  soimd  than  in 
suhstaiice.  It  is  llic  duty  of  cttiirls  to  he  watchrul  t'oi'  the  constitu- 
tional rights  of  the  citizen,  and  asxainst  any  stealthy  encroach- 
ments thereon.  Tlieii-  motto  slionld  be  'ohsta  jirinciinis. '  "  We 
hold,  therefore,  that  the  conrt  "was  not  authorized  to  direct  the 
petitioner  to  be  sworn  as  a  witness  in  the  proceeding,  and  that  its 
order  adjudging  him  guilty  of  contempt  for  his  refu5?al,  and  pun- 
ishing liim  therefor,  was  Avithout  authority,  and  that  the  petitioner 
should  be  discharged,  and  it  is  so  ordered. 

In  4  Blackstone.  *287,  288,  it  is  said  tliat  one  charged  with  contempt 
may  he  required  "to  answer  upon  oath  such  interrogatories  as  shall  he 
administered  to  him  for  the  hetter  information  of  the  court  with  respect 
to  the  circumstances  of  the  contempt.  This  method  of  mal\ing  the  de- 
fendant answer  upon  oath  to  a  criminal  charge,  is  not  agreeahle  to  the 
genius  of  the  common  law  in  any  other  instance;  and  seems  to  have  been 
derived  to  the  courts  of  King's  Bench  and  Common  Pleas  through  the 
medium  of  the  courts  of  equity.  The  method  of  examining  the  delin- 
quent himself  upon  oath  with  regard  to  the  contempt  alleged,  is  of  high 
antiquity  and  by  long  and  immemorial  usage  is  now  become  the  law  of 
the  land."  See  Kane  v.  Haywood,  66  N.  C.  hot.  p.  30,  which  seems  to 
hold  with  this  quotation  from  Blackstone.  In  re  Haines,  G7  N.  J.  L.  442, 
51  Atl.  929,  sustains  the  principal  case.  As  to  whether  the  proceedings 
are  civil  or  criminal,  see  13  L.  R.  A.  (N.  S.)  r>91,  .'')98,  and  notes.  See 
"Contempt,"  Century  Dig.  §  124;  Decennial  and  Am.  Dig.  Key  No.  Series, 
§  40. 


BAKER  V.  CORDON,  86  N.  C.  116.     1882. 
Contempt  Proceedings.     Trial  hy  Jury. 

[Rule  on  Cordon  to  show  cause  why  he  should  not  be  attached  for  con- 
tempt.    Judgment  against  Cordon,  and  he  appealed.     Affirmed. 

Cordon  was  charged  with  violating  an  injunction  theretofore  issued  in 
a  civil  action  entitled  Baker  v.  Cordon.  Upon  the  hearing  of  the  con- 
tempt proceedings  the  judge  sentenced  Cordon  to  jail  for  ten  days. 
Only  so  much  of  the  opinion  as  relates  to  trial  by  jury  is  here  inserted! 

Smith,  C.  J.  .  .  .  The  brief  filed  by  defendant's  counsel 
points  us  to  two  alleged  errors  in  the  action  of  the  court. 

1.  The  defendant  w^as  entitled  to  a  jury  trial  of  the  controverted 
facts : 

The  exception  is  untenable.  The  proceeding  by  attachment  for 
violating  an  order  of  court  made  in  furtherance  of  a  pending  ac- 
tion, is  necessarily  summary  and  prompt,  and,  to  be  effectual,  it 
must  be  so.  The  judge  determines  the  facts  and  adjudges  the  con- 
tempt, and  while  he  may  avail  himself  of  a  jury  and  have  their 
verdict  upon  a  disputed  and  doubtful  matter  of  fact,  it  is  in  his 
discretion  to  do  so  or  not.  State  v.  Yancey,  4  N.  C.  133 ;  State  v. 
Woodfin.  27  N.  C.  199;  Moye  v.  Cogdell,  66  N.  C.  403;  Crow  v. 
State,  24  Tex.  12. 

But  if  it  were  not  so,  it  is  sufficient  in  meeting  the  exception,  to 
say,  that  a  jury  trial  Avas  not  demanded  and  the  judge  proceeded 
to  pass  upon  the  case,  if  not  with  the  consent,  at  least  without 


Sec.    1.]  BY    JUDICIAL    PROCEEDINGS.  103 

objection  from  either  party.     Islei-  v.   Murphy.   71   N.   C.   436. 
.     .     .     Affirmed. 

For  a  full  review  of  the  law  as  to  contempts  committed  in  the  actual 
or  constructive  presence  of  the  court — such  as  assaulting  a  judge,  in  or 
out  of  court,  for  his  acts  while  on  the  bench;  the  inherent  powers  of 
courts  in  such  cases;  the  invalidity  ot  legislation  attempting  to  curtail 
this  power  of  the  courts;  and  when  an  appeal  or  habeas  corpus  does  or 
does  not  lie  to  review  the  judgments  of  lower  courts  in  proceedings  for 
contempt,  see  Ex  parte  McCown,  139  N.  C.  95,  51  S.  E.  957.  For  a  further 
discussion  of  the  right  of  apneal  in  such  cases,  see  Whittem  v.  The  State, 
36  Ind.,  at  pp.  210  et  seq. 

If  a  criminal  prosecution  be  pending  in  the  sui)reme  court  of  the 
United  States,  on  writ  of  error  to  the  state  court,  the  sheriff  and  jailor 
will  be  committed  for  contempt  of  the  supreme  court  of  the  United  States 
if  the  prisoner  be  lynched  by  reason  of  a  want  of  proper  precautions  and 
I)reventive  measures  on  the  part  of  those  officials;  also  if  such  officers  be 
derelict  in  their  duty  to  apprehend  or  identify  the  lynchers.  The  Ivnch- 
ers  are  also  in  contempt.     U.  S.  v.  Shipp,  214  U.  S.  3S6,  29  Sup.  Ct.  637. 

For  the  powers  of  committing  magistrates,  mayors,  and  other  inferior 
courts,  to  punish  for  contempt,  see  Scott  v.  Fishblate.  117  N.  C.  265; 
Farnham  v.  Colman,  1  L.  R.  A.  (N.  S. )  1135,  and  note.  For  what  con- 
stitutes contempt,  see  notes  to  Ex  parte  McCown,  in  2  L.  R.  A.  (N.  S.) 
603;  see  also  5  lb.  916;  15  lb.  389,  621;  16  lb.  1063:  17  lb.  572,  582,  585, 
1049,  and  notes;  23  lb.  255,  1295,  and  notes. 

See  "Jury,"  Century  Dig.  §  139;  Decennial  and  Am.  Dig.  Kev  No.  Series, 
§  21. 


STATE  V.  CANNADY,  78  N.  C.  539.     1878. 

Marking  One  as  Prosecutor  and  Taxing  Him  With  Costs.     Imprisonment 
Till  Costs  Be  Paid.     Civil  or  Griminalf 

[Cannady  obtained  a  peace  warrant  against  McCuUers.  U])on  the  hear- 
ing of  the  matter  the  judge  ruled  that  the  prosecution  was  frivolous  and 
malicious  on  the  part  of  Cannady,  and  ordered  him  to  pay  the  costs,  and 
to  be  held  in  custody  by  the  sherilT  until  the  costs  were  paid.  Cannady 
appealed.     Affirmed.] 

Re.vde.  J.  Tlie  questions  are:  (1)  Can  a  prosecutor  be  ordered 
to  pay  the  costs  where  the  prosecution  is  frivolous  or  malicious; 
and  (2)  be  imprisoned  therefor  if  he  fail  to  pay? 

The  statutes  answer  both  questions  in  the  affirmative:  "The 
party  convicted  shall  be  always  adjudged  to  pay  the  costs,  and  if 
the  party  charjred  be  acquitted,  the  eomplninnnt  shall  be  adjudfred 
to  pay  the  costs,  and  may  be  imprisnnfd  foi-  iioii-pjiyinoiit  tlici'cof. " 
Bat.  Rev.  ch.  35,  s.  132. 

"Tf  a  defondant  be  acquitted,  the  costs  shall  be  pnid  by  the 
prosecutor,  if  anv  be  markod  on  the  bill,  unless  the  judge  shall 
certify,"  etc.  C.  C.  P.  a.  560;  State  v.  Luptou.  63  X.  C.  483;  State 
V.  Darr.  Ibid.  516.  But  then  it  is  said  tliaf  tlic  statute  is  uncon- 
stitutional. 

Tho  Constitution  provides  that  in  a  criminal  prosecution  no  one 
.shall  be  compelled  "to  pay  costs  unless  found  guilty."  And  that 
"no  person  shall  be  put  to  an!?\ver  a  criminal  charge  except  by  in- 
dictment, presentment  or  iinpeaebment. "     .And  that  "no  one  shall 


im  UV    JUDICIAL    I'KOCEEDINGS.  [Ck.    2. 

be  eoDvieted,  but  by  the  imaniinous  verdict  of  a  jury."  And  that 
"there  shall  be  no  imprisonment  for  debt,  except  in  cases  of 
fraud."  Const,  art.  1,  ss.  11,  12,  13.  IG.  And  tluMiec  it  is  insisted 
that,  as  the  prosecutor  has  not  been  indieled,  and  has  not  been 
convicted,  he  cannot  be  compelled  to  pay  costs,  if  costs  be  regarded 
as  a  tine  or  punishment;  and  even  if  indicted  and  convicted,  and 
the  costs  be  regarchHl,  not  as  a  fine  or  inuiishment,  but  as  a  debt, 
he  cannot  be  impiisoned  for  debt  in  the  absence  of  fraud. 

The  questions  were  well  argued,  and  we  have  h^vd  some  difficulty 
iji  arriving  at  a  satisfactory  conclusion. 

It  is  manifestly  tlie  sense  of  the  Constitution  and  of  the  stat- 
utes, that  a  dcjindant  should  not  pay  costs  unless  convicted.  "Why 
be  more  careful  of  the  defendant  than  of  the  prosecutor?  The 
answer  is,  that  the  acquittal  of  the  defendant  is  substantially  the 
conviction  of  the  prosecutor,  where  the  prosecution  is  frivolous  or 
malicious.  And  the  same  section  of  the  Constitution  which  pro- 
vides that  no  one  shall  be  convicted  but  by  the  verdict  of  a  jury, 
provides  further,  "that  the  legislature  may  provide  other  means  of 
trial  for  petty  misdemeanors,  with  the  right  of  appeal."  And  so 
it  is  not  a  strained  construction  to  say  that  the  legislature  has  pre- 
scribed another  mode  of  trial  for  a  petty  misdemeanor,  when  it 
enables  the  court  to  compel  the  prosecutor  to  pay  costs,  when  he 
has  frivolously  or  maliciously  charged  a  man  with  crime,  whom  the 
jury  acquits. 

It  is  not  with  a  prosecutor  as  it  is  with  a  defendant.  A  defend- 
ant is  brought  in  whether  he  will  or  not  and  ought  not  to  pay  costs 
unless  convicted :  but  the  prosecutor  comes  voluntarily.  He  is  the 
actor  with  knowledge  of  the  consequences  of  failure.  He  stipulates 
beforehand  that  if  his  clamor  be  false,  he  will  pay  the  co.sts.  And 
if  the  defendant  is  acquitted,  and  the  prosecution  is  adjudged  to 
be  frivolous  or  malicious,  he  .stands  guilty  confessed,  as  if  he  had  , 
.submitted  or  pleaded  guilty,  and  there  is  no  need  of  a  jury  to  con- 
vict him. 

It  has  too  long  been  the  practice  both  in  England  and  America 
to  make  the  prosecutoi's  pay  costs  in  such  cases,  to  doubt  its  pro- 
priety ;  and  we  do  not  think  it  was  the  purpose  of  our  Constitution 
to  prohibit  it. 

It  is  insisted  that  the  costs  in  a  criminal  prosecution  are  not  a 
fine  or  punishment,  but  that  they  are  a  debt;  and  that  there  can 
be  no  imprisonment  for  debt. 

In  State  v.  Manuel,  20  N.  C.  20  (144),  it  is  said  that  fine  and 
C(!sts  are  both  punishment,  and  that  neither  is  a  debt  in  the  sense 
contemplated  by  the  constitution  where  the  relation  of  debtor  and 
creditor  is  meant.  And  manifestly  where  the  judgment  is  that  he 
y-ay  a  fine  of  so  much  and  the  costs,  one  is  as  much  a  punishment 
PS  the  other.  And  where  the  judgment  is,  that  he  be  imprisoned, 
for  say  so  long,  and  pay  the  costs,  our  statute  prescribes  that  when 
the  term  of  imprisonment  is  out,  he  shall  still  remain  in  prison 
rntil  be  pav  the  costs,  or  be  otherwise  discharged  according  to  law. 
Pat.  Kev.  ch.  33.  s.  129. 

In  State  v.  Manuel,  supra,  there  is  an  exhaustive  discussion  of 


^'gC.    1.]  BY    JUDICI-U:.   PROCEEDINGS.  105 

the  questions  involved  by  Judge  Gaston  in  delivering  the  opinion 
of  the  court.  In  that  ease  the  defendant  was  a  free-negro,  and  was 
lined  $20  for  an  assault  and  battery,  and  ordered  to  be  hired  out  to 
pay  the  line,  under  the  statute  then  existing.  His  defense  was 
threefold.  1st.  That  the  line  was  a  debt,  and  that  the  constitution 
forbids  imprisonment  for  debt ;  2nd.  That  the  fine  was  excessive, 
in  that,  it  was  laid,  and  directed  by  the  statute  to  be  laid,  high 
enough  to  cover  the  costs,  although  the  crime  itself  did  not  deserve 
so  high  a  fine;  3rd.  That  the  punishment  was  cruel  and  unusual, 
in  that,  it  directed  the  defendant  to  be  hired  out. 

1.  The  conclusion  arrived  at  on  the  first  defense  was,  that  a  fine 
was  not  a  debt  within  the  meaning  of  the  constitution.  That  "the 
constitution  itself  discriminates  between  debts  and  fines;  it  pro- 
vides against  unnecessary  and  wanton  imprisonment  for  the  col- 
lection of  debts,  but  in  regard  to  fines,  its  language  is,  'excessive 
bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel 
or  unusual  punishments  inflicted.'  Here  we  find  a  fine  classed 
where  it  ought  to  be,  among  the  means  used  in  the  administration 
of  criminal  justice  and  in  immediate  connection  with  other  punish- 
ment imposed  or  inflicted  in  the  course  of  that  administration.  The 
costs  of  a  convicted  offender  are  not  a  debt.  .  .  .  They  are  a 
part  of  the  sentence  of  the  court.  From  this  review  of  our  usages, 
legislative  acts  and  judicial  interpretations  of  them,  it  follows,  that 
the  sentence  pronounced  against  a  convicted  criminal,  that  he 
should  pay  the  costs  of  prosecution,  is  as  much  a  part  of  his  pun- 
ishment as  the  fine  imposed  eo  nomine." 

2.  In  regard  to  the  second  defense,  tliat  the  fine  was  excessive, 
in  that,  it  required  the  fine  to  be  high  enough  to  cover  the_ costs, 
although  the  crime  itself  might  not  deserve  so  high  a  fine,  it  was 
said,  that  the  legislature  had  the  power  to  prescribe  that  a  con- 
victed criminal  should  be  fined  to  the  amount  of  the  costs;  that  it 
was  the  peciiliai-  province  of  the  legislature  to  declare  what  should 
be  crimes  and  their  jjunishments.  and  that  the  judiciary  could  not 
control  the  legislature  except  perhaps,  "which  it  would  be  almost 
indecent  to  suppose,"  the  legislature  should  grossly  exceed  its  con- 
stitutional restraints;  that  although  "the  language  of  the  Bill  of 
Rights  is  addressed  directly  to  the  judiciary  for  the  regulation  of 
their  conduet  in  the  administration  of  justice,  it  is  the  courts  that 
recpiire  bail,  impose  fines,  and  inflict  punishment;  and  they  are 
rt.cpiirofl  not  to  require  exe-essive  bail,  not  to  impose  excessive  fnies, 
rot  to  inflict  cruel  or  unnsual  i>unishments,  and  it  would  seem  to 
follow  that  the  command  is  addressed  to  them  only  in  those  cases 
where  they  have  a  discretion  over  the  amount  of  bail,  the  quantum 
of  fine,  and  the  natni-e  of  the  punishment.    No  doubt  the  i^rineiples 
of  humanity  sanctioned  and  enjoined  in  this  section  ought  to  com- 
mand the  reverence  and  regulate  the  conduct  of  all  who  owe  obedi- 
eneo  to  the  '^onslit ut if.n."     But  when   the  legislature,  whose  pe- 
culiar duty  it  is  to  iiial<(!  laws,  prescribed  a  punishment,  the  courts 
wore  bound  thereby,  except,   perhaps,  in   extraordinary  cases,  as 
that  was  not.  .  . 

n.   Tn  rcLMfd  fo  Ihe  tliii-<l  defense.  Ili:il   llie  putiishnient  oriiiruig 


1(K;  hv   .11  iticiAi.    nv(i(i;i;i'i.N(is.  \('li.  2. 

out  was  iTiU'l  ;iii(l  uiuisu;il.  it  \\;is  held  that  it  \v;is  not;  because  a 
biiml  wjjs  taUon  from  tlu'  hirer  coiulitioned  as  an  apprentice  bond 
•for  liis  humane  treatment,  and  the  well  known  relation  of  master 
and  apprentice  was  estnblislied.  Antl  as  we  liail  no  penitentiary 
or  workhouse,  it  was  api)roi)riale  and  just  to  make  a  convict  work 
out  Ins  tine  instead  of  aUowinp:  him  to  go  without  punishment  for 
his  crimes. 

So  our  oi)inion  is:  1st.  That  neitlier  a  line  nor  costs  inflicted 
as  a  puni.shnient  is  a  debt  within  the  meaning  of  the  constitution  in 
relation  to  this  matter;  2nd.  That  the  legislature  had  the  power 
l(»  ])reseribe  a.s  it  has  done,  that  the  pi'oscMuitor  may  be  made  to 
pay  costs,  where  the  defendant  is  acquitted  and  the  prosecution 
is  frivolous  or  malicious;  3rd.  That  there  is  nothing  cruel  or 
unusual  in  recpiiring  a  prosecutor,  who  has  not  been  indicted  find 
convicted  by  a  juiy,  to  pay  costs,  nor  is  it  contrary  to  the  con- 
stitution, because  it  has  long  been  the  practice  to  do  so,  and  be- 
cau.se  substantially  he  stands  convicted  by  his  false  clamor  and  the 
acquittal  of  the  defendant.     .     .     .     Judgment  affirmed. 

See  "Costs,  "  Century  Dig.  §§  1129,  1202;  Decennial  and  Am.  Dig.  Key 
No.  Series,  §§  298,  322. 


ATCHESON  V.  EVERITT,  Cowper,  382,  391.     1776. 
Action  for  a  Penalty — Civil  or  Criminal? 

(Action  of  debt  for  a  penalty,  upon  the  statute  of  2  Geo.  2,  against 
bribery.     Judgment  against  defendant.     Motion  for  new  trial.     New  trial 

refused. 

On  the  trial  of  the  action  for  the  penalty  before  Nares,  J.,  a  Quaker 
was  permitted  to  give  evidence  against  the  defendant.  The  Quaker  was 
not  sworn,  but  was  only  re(iuired  to  affirm.  Under  the  acts  of  parliament 
then  in  force  a  Quaker  was  allowed  to  give  evidence  in  a  cAvil  case  upon 
his  afhrmj'tion:  but  he  was  not  allowed  to  do  so  in  a  criminal  case.} 

Lcid  ]Mansfield.  .  .  .  We  come  then  to  this  question:  Is 
the  present  a  criminal  cau.se?  A  Quaker  appears  and  offers  him- 
self as  a  witness;  can  he  give  evidence  without  being  sworn?  If  it 
is  a  criminal  case,  ho  must  be  .sworn,  or  he  cannot  give  evidence. 

Now  there  is  no  distinction  better  known  than  the  distinction 
between  civil  and  criminal  law;  or  between  criminal  prosecutions 
and  civil  actions. 

]Mr.  Justice  Bi-ackstone  and  all  modem  and  ancient  writers 
upon  the  subject  distinguish  between  them.  Penal  actions  were 
ncvf-r  yd  pvf  nnder  the  head  of  criminal  law,  or  crimes.  The  con- 
struction of  the  statute  must  be  extended  by  equity  to  make  this 
a  criminal  cause.  It  is  as  much  a  civil  action,  as  an  action  for 
money  had  and  received.  The  legislature,  w^hen  they  excepted  to 
the  evidence  of  Quakers  in  criminal  causes,  must  be  understood 
to  mean  causes  technically  criminal;  and  a  different  construction 
would  not  only.be  injurious  to  Quakers,  but  prejudicial  to  the  rest 
of  the  King's  subjects  who  may  want   tlieir  testimony.     The  ca,se 


lJ^..     ^1  BY    JUDICIAL    PROCEEDINGS.  107 


Sec. 


mentioned  by  :Mr.  Rooke  of  Sir  Watkyn  Williams  Wynne  versus 
Middleton,  is  a  very  full  authority,  and  alone  sufficient  to  warrant 
the  distinction  between  civil  and  criminal  proceedings.  In  that 
case  the  question  was,  whether  the  Stat.  7  »ic  8  Wm.  3,  c.  7,  was 
penal  or  remedial.  The  court  held  "it  was  not  a  penal  statute. 
But  supposing  it  was  to  be  considered  as  a  penal  statute,  yet  it 
was  also  a  remedial  law:  and  therefore  the  objection  taken  was 
cured  by  Stat.  16  &  17  Car.  2,  c.  8."  Now  the  words  of  excep- 
tion in  that  statute,  and  also  in  Stat.  32  Hen.  8,  c.  30,  and  in  Stat. 
18  Eliz.  e.  14.  are  "penal  actions,  and  criminal  proceedings."  But 
Lord  Chief  Justice  Willes.  in  delivering  the  solemn  judgment  of 
the  court,  siiys,  there  is  another  act  which  would  decide  of  itself, 
if  considered  in  the  light  of  a  new  law,  or  as  an  interpretation  of 
what  was  meant  by  penal  actions  in  the  Stat.  16  &  17  Car.  2,  c.  8. 
This  is  th*'  statute  of  jeofails  4  Geo.  2.  c.  26,  for  turning  all  law 
proceedings  into  English,  and  it  has  this  remarkable  conclusion, 
"that  every  statute  of  jeofails  shall  extend  to  all  forms  and  pro- 
ceedings in  English  (except  in  criminal  cases)  ;  and  that  this 
clause  shall  be  construed  in  the  most  beneficial  manner."  This  is 
very  decisive. 

No  authority  whatever  has  been  mentioned  on  the  other  side, 
nor  case  cited  where  it  has  been  held  that  a  penal  action  is  a  crim- 
inal case;  and  perhaps  the  point  was  never  before  doubted.  The 
single  authority  mentioned  against  receiving  the  evidence  of  the 
Quaker  in  this  case  is  an  appeal  of  murder.  But  that  is  only  a 
different  mode  of  prosecuting  an  offender  to  death.  Instead  of 
proceeding  by  indictment  in  the  usual  way,  it  allows  the  relation 
to  carry  on  the  prosecution  for  the  purpose  of  attaining  the  same 
end  wliich  the  king's  prosecution  would  have  had,  if  the  offender 
had  been  convicted,  namely,  execution;  and  therefore,  the  ivriters 
on  the  lair  of  England  class  an  appeal  of  murder  in  the  books 
under  the  head  of  criminal  cases.     .     .     . 

We  are  not  under  the  least  embarrassment  in  the  present  ease ; 
for  there  is  not  a  single  authority  to  prove  that  upon  a  penal 
action  a  Quaker's  evidence  may  not  be  received  upon  his  nffirma- 
lion.  Therefore.  I  am  of  opinion  that  Mr.  Justice  Nares  did  per- 
fectly right  in  admitting  this  Quaker  to  be  a  witness  upon  his 
affirmation,  and  consequently  that  the  rule  for  a  new  trial  should 
be  discharged. 

UnfU-r  the  Code  prarticft  such  actions  arc  still  classed  as  civil.  Wil- 
mlnRton  v.  Davis,  C^?,  N.  C.  at.  p.  5S4.  See  "Action."  Century  Dig.  §  96; 
Decennial  and  Am.  Dip.  Key  No.  Series,  §  18. 


MrRAK  V.  KVAA.VM,  82  N.  C.  398.     1849. 
Action   for  a  Piiially  Iw posed  for  an   Ofjc^nse  to  the  Puhlic.     When    the 

Informer  May  Rue. 

fMcRae  stied.  on  t)ehnir  of  himself  and  the  Wardens  of  the  Poor,  to 
recover  a  penalty  Riven  by  statute,  flea,  not  piiilty.  Case  submitted  on 
a  case  agreed.     .Tudpment  against  defendanl.  .ind  lie  appealed. 


108  1?Y    JIDICIAL    PKOCEEDINQS.  [Cll.    2. 

The  action  was  coinmenced  before  a  justii-e  of  I  lie  i)t'aro,  and  carried 
(o  the  Superior  court  by  appeal,  and  tiicnce  to  the  Sui)reme  court.  The 
faits  ai)pear  in  tiie  oiicnint;  of  (lie  opinion.] 

KuFFiN,  C.  J.  The  writ  was  coniiueiiced  by  warrant  to  recover 
the  penalty  of  $100,  iriven  by  the  Revised  Statutes,  ch.  34,  s.  75, 
lor  selling  spiritiions  liquors  to  a  slave.  It  was  submitted  to  the 
court  upon  a  case  agreed,  in  which  the  facts  charged  were  ad- 
mitted, and  the  only  objection  to  the  recovery  was,  that  the  act 
does  not  give  the  informer  an  action,  llis  Honor  held  that  it  did; 
and  from  a  judgment  against  him  the  defendant  appealed. 

The  opinion  of  tlie  court  is,  that  the  judgment  was  right.  The 
act  gives  the  penalty,  "to  be  recovered  by  warrant  before  any 
justice  of  the  peace,  and  applied  one-half  to  the  use  of  the  wardens 
of  the  poor  of  the  county."  The  single  question  is,  in  whose  name 
the  suit  is  to  be  brought;  and  it  seems  difficult  to  imagine  a 
clearer  direction  than  that  it  is  to  be  in  the  name  of  any  person 
who  will  bring  the  suit — "the  party  suing  for  the  same."  It  is 
true,  that  an  informer  has  no  right,  at  common  law,  to  an  action 
for  a  penalty;  and,  therefore,  he  cannot  bring  an  action  unless 
the  statute  give  it  to  him.  [After  commenting  on  and  approving 
Fleming  v.  Bailey,  5  East,  313,  the  opinion  proceeds:]  When  a 
statute  prohibits  a  thing  as  an  offense  to  the  public,  under  a  pen- 
alty, no  debt  arises  to  a  private  person,  unless  the  statute  also 
gives  the  penalty  or  a  part  of  it  to  him  who  will  sue  for  it,  as  laid 
down,  long  before  the  ca.sc  cited,  by  Sergeant  Hawkins.  PI.  C. 
Bk.  2,  ch.  25,  s.  17.  The  reason  is,  that  the  penalty  for  such  pub- 
lic offense  belongs  to  the  sovereign  as  a  debt,  and  is  to  be  recov- 
ered by  action  in  the  name  of  the  sovereign.  Rex  v.  Malland,  Str. 
828.  The  case  of  Fleming  v.  Bailey  is,  then,  an  authority  to  this 
only,  that  applying  a  part  of  the  penalty,  after  its  recovery,  to 
the  benefit  of  an  informer,  does  not  confer  on  him  the  power  of 
suing  for  the  penalty.  In  other  words,  that  the  term  "informer," 
in  the  statute,  does  not  per  se  imply,  that  in  such  a  case  he  may 
be  "the  plaintiff"  in  an  action  for  the  recovery,  but  only  the 
informer  or  prosecutor,  as  he  is  sometimes  called.  But  the  pro- 
vision in  this  statute  is  not  of  that  kind.  It  creates  a  penalty,  "to 
he  recovered  by  warrant,  and  applied  one-half  to  the  use  of  the 
party  suing  for  the  same,  and  the  other  half  to  the  wardens  of  the 
poor."  This  recognizes  the  right  of  action  in  some  person.  In 
whom?  "Why,  "the  person  suing,"  as  plainly  as  it  can  be.  Ser- 
geant Hawkins,  in  the  section  already  quoted,  states,  that  when  a 
statute  gives  a  part  of  a  penalty  "to  him  who  will  sue  for  it,"  he 
took  it  to  be  settled,  that  any  one  may  bring  an  action  and  lay  it 
tarn  pro  domino  rege  quam  pro  seipso;  thus  using  the  very  terms 
in  which  the  act  under  consideration  is  expressed.  There  are, 
indeed,  many  acts  in  which  the  like  language  is  found,  on  which 
informers  have  sued  in  their  own  names.  Both  the  English  stat- 
ute and  our  own  against  usury,  for  example,  have  the  words,  "the 
cne  moiety  of  which  forfeitures  to  be  to  him  that  will  sue  for  the 
same  by  action  of  debt,  and  the  other,"  etc. ;  and  we  know  that  in 
both  countries  the   action   of  debt  in  such   cas&s   is   constantly 


Sec.    1.]  BY   JUDICLU.   PROCEEDIXGS.  109 

brought  in  the  name  of  the  informer  qui  tam.  Those  words,  "to 
him  that  will  sue  for  the  same"  and  "to  the  use  of  the  party  suing 
for  the  same, ' '  not  only  determine  the  interest  which  the  informer 
is  to  have  in  the  penalty',  but  necessarily  imply,  if  they  do  not 
expressly  confer,  his  right  of  action  qui  tam.  .  .  .  Judgment 
affirmed. 

See  "Penalties,"  Century  Dig.  §§  20-22;   Decennial  and  Am.  Dig.  Key 
No.  Series,  §§  22-25. 


THE  GOVERNOR  v.  HOWARD,  5  N.  C.  465.     1810. 
Action  for  Penalty.     Repeal  of  Statute  Imposing  the  Penalty. 

[Action  of  debt  to  recover  a  forfeiture  or  penalty,  imposed  by  the  act 
of  1794,  for  knowingly  buying  an  imported  slave.  The  cause  was  trans- 
ferred to  the  Supreme  court,  where  it  was  decided  against  the  plaintiff. 

After  this  action  teas  commenced  and  after  issue  joined,  the  act  of 
1794  wos  repealed.  Such  repeal  was  pleaded  by  defendant  by  way  of  a 
plea  since  the  last  continuance.  Plaintiff  demurred  to  this  plea,  and  the 
defendant  having  joined  in  the  demurrer,  the  case  was  sent  to  the  Su- 
preme court.] 

H.y.L,  J.  It  is  laid  down  in  Cro.  Eliz.  138,  that  the  Attorney 
General  cannot  enter  a  nolle  prosequi  to  an  action  qui  tam,  except 
for  the  king's  part  of  the  penalty;  nor  can  the  king,  after  action 
commenced,  release  any  but  his  own  part  of  the  penalty.  2  Rl. 
Com.  436 ;  1 1  Co.  65.  But  it  is  in  the  power  of  parliament  to 
release  the  informer's  interest.  2  Bl.  Com.  436.  If  so,  they  surely 
Lave  the  power  of  taking  awa.y  the  informer's  right  of  action,  by 
repealing  tlic  act  which  gave  birth  to  it.  It  is  said  (Wni.  Bl.  451) 
in  Sir  William  lihickstone's  Reports,  "that  no  proceeding  can 
be  had  or  pursued  under  a  repealed  act  of  parliament,  though 
bcgiui  before  the  repeal,  unless  by  special  exception."  And  by 
Sir  I^ratthew  Hale  (P.  C.  291).  "that  when  an  offense  is  made 
treason  or  felony  by  an  act  of  parliament,  and  then  that  act  is  re- 
pealed, the  offense  committed  befoi-e  such  repeal,  and  the  pro- 
ceedings thfreupon  are  discharged  by  such  repeal."  From 
the.se  aulhorilies.  and  olhers  which  might  be  refei-red  to.  as  well  as 
from  the  circumstance  that  the  suit  in  the  present  instance  nuist  be 
brought  in  the  name  of  the  governor  alone  (the  act  having  directed 
the  forfeiture  to  be  sued  for  in  his  name),  although  after  a  recov- 
ery OTIC  moiety  thereof  is  1o  go  1o  the  infoniiei*  or  the  ]ie)'son  who 
brought  the  suit,  the  demurrer  imist  be  overruh^d  and  the  i^lea  al- 
lowed. 

In  Stnte  v.  .Mooney,  74  N.  C.  OS,  it  is  di-cjded  that  n  j)ardon  after  judg- 
nient  dofs  not  affect  the  Informer:  for  whifli  i.s  cited  5  CiUl.  214;  35 
Iowa,  410;  2  Bay.  5f)5:  2  Durn.  &  East,  560;  5  Co.  51;  3  Inst.  23S;  46  Penn. 
446;  8  BIarl<fnrd.  220;  2  Whart.  440.  See  "Forfeitures,"  Century  Dig. 
8  1;  Doff-nnial  and  Am.  Dig.  Key  No.  Series,  §  2;  "Statutes."  Century 
Dig.  §  .^48;   Derenninl  nnd  Am.  nig.  Key  No.  Series.  §  266. 


110  ISV    .IIDICIAI.    IMJOCKKniNOS.  \  (' /l . 


DUNHAM  V.  AXDERS.   128  N.  C.  207,  38  S.  E.  832.     1901. 
Action  for  a  Penalty,     licpral  of  Statute  Imposing  the  Penalty. 

[Action  by  the  stato,  ex  rol.  Diiiihani,  against  Anders,  commenced  be- 
fore a  justice  ol'  tlie  i)eace.  The  justice  gave  judgment  against  Anders, 
who  appealed  to  the  Superior  court.  In  the  Superior  court  judgment 
was  rendered  against  plaintiff,  and  he  ai)i)ealed.     Reversed. 

The  action  was  brought  to  recover  a  |)enalty  under  a  statute.  The 
plaintiff  recovered  a  judgment  for  the  i)enalty  in  the  justice's  court  on 
March  2;"),  1899.  Pending  the  appeal  to  the  Superior  court,  to-wit.  on 
March  2,  1901,  the  act  imposing  the  penalty  was  repealed.  This  repeal- 
ing act  contains  this  clause:  "This  act  shall  apply  to  suits  now  pending 
for  the  collection  of  such  penalties."  The  judge  of  the  Superior  court 
ruled  that  this  statute  "destroyed  the  plaintiff's  cause  of  action  and  re- 
lieved the  defendant  of"  the  penalty.] 

DoroLAS,  J.  The  only  point  presented  for  our  consideration 
is  whetlier  a  plaintiff  can  by  a  justice's  judgment,  remaining  unre- 
versed, acquire  such  a  vested  right  in  the  penalty  as  cannot  be 
taken  from  him  by  the  legislature. 

Cooley  in  his  work  on  Constitutional  Limitations,  says  at  page 
443:  "So,  as  before  stated,  a  penally  given  by  statute  may  be 
taken  away  by  statute  at  any  time  before  judgment  is  recovered." 
But  the  same  distinguished  author  says  at  page  443:  "But  a 
vested  i-ight  of  action  is  i)roperty  in  the  .same  sense  in  which 
tangible  things  are  property,  and  is  equally  protected  against  ar- 
bitrary interference." 

In  the  recent  case  of  Dyer  v.  Ellington,  126  N.  C.  941,  36  S.  E. 
177,  this  court  says  on  page  944:  "An  informer  has  no  natural 
right  to  the  penalty,  but  only  such  a  right  as  is  given  to  him  by 
the  strict  letter  of  the  statute.  It  is  not  such  a  right  as  is  intended 
to  be  protected  by  the  act,  but  is  one  created  by  the  act.  He  lias 
in  a  certain  sense  an  inchoate  right  when  he  brings  his  suit,  that 
is,  the  bringing  of  the  suit  designates  him  as  the  man  thereafter 
exclusively  entitled  to  sue  for  that  particular  penalty ;  but  he  has 
no  vested  right  to  the  penalty  until  judgment.  Until  it  becomes 
ve.sted,  we  think  it  can  be  destroyed  by  the  legislature.  7/  the 
pen-alty  had  been  reduced  to  judgment,  or  had  been  given  to  the 
injured  party  in  the  nature  of  liquidated  damages,  the  case  would 
be  essentially  different." 

In  that  case  the  act  of  remission  was  passed  while  the  action 
was  pending  in  the  justice's  court,  and  before  judgment.  In  the 
case  at  bar,  the  act  was  parsed  after  judgment  in  the  justice's 
court,  and  while  the  action  wa.s  pending  on  appeal  in  the  Superior 
court.  Upon  the  trial  in  the  latter  court,  all  the  issues  involved 
in  the  case  before  the  magistrate  were  found  for  the  plaintiff.  It 
thus  appears  that  no  error  was  found  in  the  justice's  judgment, 
which  neither  was,  nor  could  have  been,  reversed  upon  its  original 
merits.  It  therefore  stands  in  full  force  and  effect,  subject  only  to 
the  plea  in  bar  of  the  remitting  statute,  upon  w^hich  alone  the 
jiidcre  below  based  his  judgment  in  favor  of  the  defendant. 

This  brings  us  to  the  consideration  of  the  nature  of  a  judgment 
obtained  before  a  justice  of  the  peace,  and  the  effect  thereon  of  an 


^•fC.    2.]  BY    JUDICIAL,   PROCEEDINGS.  Ill 

appeal  to  the  Superior  court.  If  such  a  judgment  is  a  final  judg- 
ment, that  is,  a  judgment  finally  disposing  of  the  subject-matter 
of  the  action,  subject  only  to  reversal  on  appeal,  and  remains  in 
full  force  and  effect  until  such  reversal,  notwitstandnig  the  mere 
fact  of  appeal,  then,  in  our  opinion,  it  becomes  a  vested  right  of 
property  in  the  plaintifif  that  cannot  be  divested  except  by  a  re- 
versal on  its  original  merits.  In  other  words,  the  plaintiff  cannot 
be  divested  of  his  property  therein  by  merely  legislative  action. 

Of  course  if  the  plaintiff  had  failed  to  recover  before  the  justice 
of  the  peace,  and  had  himself  appealed,  he  would  have  had  no 
vested  right,  as  he  would  have  had  no  judgment  to  which  such  a 
right  could  attach.  lie  would  have  only  a  qualified  right  of  action, 
exclusive  as  far  as  the  particular  penalty  is  concerned,  but  sub- 
ject to  loss  by  legislative  interference.  A  judgment  of  a  justice 
of  the  peace  is  a  final  judgment  when  it  fully  disposes  of  the  sub- 
ject-matter of  the  action,  since,  imless  reversed  on  appeal,  it  finally 
detemiines  the  rights  of  the  parties.  An  appeal  to  the  Superior 
court  does  not  vacate  the  judgment,  nor  even  suspend  its  opera- 
tion. Code.  s.  875.  [The  North  Carolina  statutes  and  cases  on 
judgments  of  justices  of  the  peace  are  commented  on,  and  the 
opinion  proceeds:]  We  are,  therefore,  of  the  opinion  that  when 
the  plaintiff  obtained  judgment  for  the  penalty  before  the  justice 
of  the  peace,  he  acquired  a  vested  right  of  property  that  could  be 
divested  only  by  judicial,  and  not  by  legislative,  proceedings. 

On  the  issues  foiuid  in  the  Superior  court,  judgment  should 
have  been  rendered  for  the  plaintiff,  and  its  judgment  is  therefore 
reversed. 

See  also  Xorris  v.  Crocker,  13  Howard,  429.  The  principal  case  is 
approved  in  Bray  v.  Williams,  137  N.  C.  387.  49  S.  E.  887,  which  also 
holds  that  an  act  of  the  legislature  repealing  a  penal  law  after  action 
brought  for  the  pena.lty,  cannot  be  attacked  upon  the  ground  that  it  was 
introduced  and  passed  through  the  efforts  of  the  defendant  who  is  sued 
for  the  penalty.  The  repealing  act  relieves  the  defendant  of  all  costs 
in  the  absence  of  a  contrary  provision.  Ibid.  See  "Constitutional 
Law."  Century  Dig.  §  233;  Decennial  and  Ani.  Dig.  Key  No.  Series. 
§   104. 


Sec.  2.    When  Both  Criminal  and  Civil  Actions  Lie.    Merger. 

"In  all  ca.sos  the  crime  includes  an  injiii-y;  every  juiblic  offense 
is  also  a  ])rivato  wrong,  and  somewhat  more;  it  affects  the  indi- 
vi'bial,  and  it  likewise  alTects  tlie  comiininify.  Thus  trcjison,  in 
imagining  the  king's  death,  involves  in  it  conspiracy  against  an 
individual,  which  is  also  a  civil  injury:  but,  as  fliis  species  of  trea- 
s(.n  in  its  cnnscriucnccs  principally  tends  to  the  dissolulion  of  gov- 
cmment.  and  tbc  dcstrnction  llicri'by  of  the  order  and  peace  of 
society,  tbis  denominates  it  a  crime  of  Ihe  highest  magnitude. 
Murder  is  an  injurv'  to  the  life  of  iin  individual ;  but  the  law  of 
society  eoiisidei's  i»rineii>al!\-   the  hi-s  wliich   tlie  sl;ite  sustains  by 


llL'  n\    JIDICIAL    I'KOCEEDINGS.  \C/l.     1 

beiiier  deprived  of  a  member,  and  the  pernicious  example  tliereby 
set  for  othei-s  to  do  the  like.  Robbery  may  bo  eonsidei-ed  in  the 
same  view;  it  is  an  injury  to  in-ivate  property;  but  were  that  all, 
a  civil  satisl'aclion  in  damages  might  atone  for  it;  the  public 
mischief  is  the  thing,  for  the  prevention  of  which  our  laws  have 
made  it  a  capital  offense.  Tn  these  gross  and  atrocious  injuries  the 
private  wrong  is  swallowed  up  in  the  public:  wo  seldom  hear  any 
mention  made  of  satisfaction  to  the  individual;  the  satisfaction 
to  the  community  being  so  veiy  great.  And.  indeed,  as  the  public 
crime  is  not  otherwise  avenged  than  by  forfeiture  of  life  and  prop- 
erty, it  is  impossible  afterwards  to  make  any  reparation  for  the 
private  wrong,  which  can  only  be  had  from  the  body  or  goods  of 
the  aggressor.  But  there  are  crimes  of  an  inferior  nature,  in 
which  the  public  punishment  is  not  so  severe,  but  it  affords  room 
for  a  private  compensation  also;  and  herein  the  distinction  of 
crimes  from  civil  injuries  is  very  apparent.  For  instance:  in  the 
ease  of  battery,  or  beating  another,  the  aggressor  may  be  indicted 
for  this  at  the  suit  of  the  king,  for  disturbing  the  public  peace, 
and  be  punished  criminally  by  fine  and  imprisonment;  and  the 
party  beaten  may  also  have  his  private  remedy  by  action  of  tres- 
pass for  the  injurs^  which  he  in  particular  sustains,  and  recover 
a  civil  satisfaction  in  damages.  So.  also,  in  case  of  a  public 
nuisance,  as  digging  a  ditch  across  a  highway,  this  is  punishable 
by  indictment,  as  a  common  offense  to  the  whole  kingdom  and  all 
his  majesty's  subjects;  but  if  any  individual  sustains  any  special 
damage  thereby,  as  laming  his  horse,  breaking  his  carriage,  or  the 
like,  the  offender  may  be  compelled  to  make  ample  satisfaction,  as 
well  for  the  private  injury  as  for  the  public  wrong."  4  Blk. 
Com.  *6. 


BD.  OF  COMRS.  v.  WHITE  WATER  V.  C.  CO.  and  COFFIN,  2  Ind.  162, 

163.     1850. 
Indictment  and  Civil  Action  for  Same  Offense. 

TThe  plaintiffs  sued  the  defendants  in  case  founded  on  tort.  Judg- 
ment against  plaintiffs,  who  carried  the  case  to  the  Supreme  court  by 
writ  of  error.     Reversed. 

The  declaration  alleged.  In  substance,  that  the.  defendant  had  cut  a 
canal  across  the  public  highways  which  were  under  the  care  of  the 
plaintiffs,  and  which  plaintiffs  were  bound  to  repair;  that  thereby  the 
highways  in  question  were  rendered  unfit  for  travel;  that  the  plaintiffs 
had  been  forced  to  spend  twenty  thousand  dollars  for  bridges,  etc.,  in 
order  to  restore  the  highways.  The  defendants  filed  a  general  demur- 
rer to  the  declaration,  which  demurrer  was  sustained  in  the  court  be- 
low. Only  so  much  of  the  opinion  is  here  inserted  as  bears  upon  the 
subject  under  consideration.] 

Bl.\ckford,  J.  .  .  .  We  see  no  substantial  objection  to  the 
first  count  as  respects  the  defendant,  Coffin.  By  inaking  the  canal 
across  said  highways,  he  has,  for  aught  that  appears,  created  a 
public  nuisance  He  may  be  indicted  for  such  nuisance,  because 
of  the  injur>'  it  occasions  to  the  public  generally.   4  Bl.  Com.  167; 


gee.    2.]  BY    JUDICIAL    PROCEEDINGS.  113 

R.  S.  p.  974.  He  is  also  liable,  in  a  civil  suit,  to  any  person  who  may- 
have  sustained  any  special  damage  by  the  offense.  Thus,  where  a 
person  driving  laden  asses  was  delayed  several  hours  in  conse- 
quence of  the  defendant 's  keeping  a  gate  shut  across  a  highway,  it 
was  held  that  an  action  on  the  ease  would  lie  for  the  particular 
damage  thus  sustained.  Greasly  v.  Codling  et  al..  2  Bing.  263 ;  see 
also  :Martin  v.  Bliss,  5  Blackf.  35.     .     .     .     Judgment  reversed. 

See  "Highways,"  Century  Dig.   §§  440,  444;    Decennial   and  Am.    Dig. 
Key  No.  Series,  §§  160,  163. 


WHITE  V.  FORT,  10  N.  C.  251,  262-265.     1824. 
Merger  of  the  Civil  Into  the  Criminal  Action. 

[Trespass  vi  et  armis  for  burning  plaintiff's  tavern  and  furniture. 
Verdict  for  plaintiff  subject  to  the  court's  opinion  on  a  point  reserved. 
The  court  being  of  opinion  that  plaintiff  could  not  maintain  this  action, 
because  the  charge  against  the  defendant  amounted  to  a  felony  for 
which  the  defendant  had  not  been  tried  under  an  indictment.  rendere(\ 
judgment    against    the    plaintiff.     Plaintiff    appealed.     Reversed. 

It  appeared  in  evidence  that  the  tavern  was  situated  a  short  distance 
from  the  house  in  which  plaintiff  and  his  family  lived;  that  one  ot 
plaintiffs  household  slept  in  the  tavern,  and  that  travelers  who  became 
plaintiff's  guests  slept  there;  that  the  burning  was  done  "privately  in 
the  night;"  that  ))laintiff  had  preferred  to  the  grand  jury  a  bill  of 
indictment  against  the  defendant  for  arson  in  burning  the  house,  whic/^ 
was  returned  "not  a  true  bill;"  and  that  no  other  criminal  proceedings 
were  had  upon  the  charge.] 

Taylor.  C.  J.  The  two  objections  taken  to  the  plaintiff's  re- 
covery are  that  the  civil  trespass  is  merged  in  the  felony,  a  prose- 
cution for  which  ought  firet  to  have  been  regularly  had  to  the  con- 
viction or  ar-finittal  of  the  defendant;  and  tliat  the  rejection  of  the 
bill  l)y  the  giaud  jury  is  not  a  suflicient  compliance  with  the  law 
to  enable  the  plaintiff  to  maintain  the  action. 

It  is  difficult  to  ascertain  with  precision  the  source  whence  the 
doctrine  of  merger  was  derived.  As  it  exists  (ndji  in  Ihosr  cases 
where  forfeiture  is  the  consequence  of  attainder  or  conviction,  a 
presumption  is  furnished  that  the  primary  object  was  to  cause 
persons  to  prosecute  crimes,  and  thereby  to  increase  the  resources 
of  the  crown  ;  on  the  other  liand.  as  ff>rfeitures  were  annexed  only 
to  the  higher  crimes,  trejuson  tuid  fehmy,  the  suppression  of  which 
was  most  essential  to  the  peace  and  welfare  of  society,  the  civil 
remedy  may  have  been  suspended  in  order  to  prompt  the  injured 
to  brintr  olfenders  to  justiee;  not  to  increa.se  tlie  trejisure  of  tlie 
sovereign.  l»ut  to  guard  s(»eiety  against  the  etVecIs  of  tliese  more 
aggravated  ;ind.  in  early  ages,  more  frequent  offenses.  Many 
offenses  below  the  grade  of  felony  are  now  more  djiiigerous  to  so- 
ciety tlian  many  felonies;  an<1  wlien  it  is  iiKpiii-ed  why  the  civil 
remedy  is  not  suspended  in  them  until  the  offender  is  l)rought.  to 
tnal  criminally,  the  answer  is.  such  offenses  liiive  grown  out  of 
Remedies — 8. 


114  i!V   .irnuM.M,  I'Kockkoings.  [CV/.   ?. 

llio  arlilifial  slate  of  socioty,  aud  wcri;  uukiiown  to  the  rude  sim- 
plieity  ol"  its  early  eouditioii.  iu  that,  robbery  and  rapine  were 
the  crimes  to  be  punished;  in  its  more  advanced  stages,  artifice 
and   Fraud. 

\Vhatever  may  have  been  the  origin  of  the  rule,  there  are  ample 
proofs  scattered  through  the  books  of  its  having  been  a  fixed  rule 
of  the  common  law  before  the  period  of  our  revolution;  and  that 
in  oases  of  conviction  trover  or  trespass  would  lie  against  the 
wrongdoer.  The  principle  of  the  action  is  referred  to  the  policy 
of  effecting  the  punishment  of  felons,  and  preventing  the  injured 
party  from  compounding  them.  Lofft.  90.  There  are  dicta,  but 
no  adjudged  case,  counteua^ncing  a  suit  after  acquittal  until  that 
cited  from  12  East.  What  is  said  in  that  case  is  so  strong,  and  to 
my  mind  unanswerable,  as  to  conclude  the  question.  "All  the 
cases  Avhich  show  that  an  action  lies  after  the  conviction  of  the 
defendant  for  the  felony  apply  strongly  in  support  of  it  after 
acquittal ;  for  it  is  a  stronger  case  to  permit  the  party  injured  to 
proceed  upon  his  civil  remedy  to  recover  damages  after  a  convic- 
ton  of  the  offender  when  the  law  has.  bj'  means  of  the  forfeiture 
of  l\is  property  consequent  upon  a  conviction,  taken  away  from 
him  the  means  of  satisfying  the  damages.  Besides,  when  a  de- 
fendant, after  an  acquittal  of  the  felony,  is  called  upon  to  make 
recompense  in  civil  damages  to  the  party  grieved,  it  would  be 
stranger  for  him  to  be  permitted  to  allege  that  he  was  not  properly 
acquitted  than  in  the  case  it  w^ould  be  to  allege  that  he  had  not 
been  properly  convicted.  And  here  the  defendant  cannot  say, 
against  the  record  of  acquittal,  that  this  was  a  felony." 

Tf  this  suspension  of  the  remedy  was  the  consequence  of  for- 
feiture alone.  I  should  hold  that  it  had  no  existence  here ;  but  I 
cannot  satisfy  myself  that  it  is  so.  On  the  contrary,  it  appears 
to  me  to  be  one  among  the  many  inducements  held  out  by  the 
general  policy  of  the  criminal  law  for  persons  to  prosecute.  The 
rewards  and  immunities  given  to  persons  "svho  bring  offenders  to 
justice,  as  well  in  ca.ses  where  there  is  no  forfeiture  as  where 
there  is,  afford  abundant  proofs  of  this  policy.  I  cannot  think 
that  forfeiture  has  had  any  force  iv  this  state  since  1778,  when 
it  ivas  declared  what  part  of  the  common  laiv  should  he  in  forcr 
here.  It  is  not  probable  that  a  prerogative  should  be  designedly 
introduced  which  a  most  devoted,  but  at  the  same  time  an  enlight- 
ened, supporter  of  the  throne  pronouneed  an  "odious  one."  Lofft. 
90.  It  was  introduced  originally  to  increase  the  king's  ordinary 
revenue,  a  branch  of  which  it  constituted;  and  if  such  means  of 
increasing  the  revenues  of  the  state  rightfully  existed,  it  would 
not  have  been  overlooked  by  the  succession  of  able  men  who  have 
filled  the  office  of  attorney  general  at  different  pei-iods.  Yet,  with 
exceptions  of  tlie  eonfiscations  and  attainders  during  the  war,  not 
a  single  instance  has  occurred  in  the  memory  of  any  one  wherein 
a  forfeiture  has  been  exacted.  Yet  some  unfortimate  persons  have 
fallen  victims  to  the  law.  leaving  wealth  which  is  now  enjoyed  by 
their  postenty.  T  lay  no  stress  on  the  two  acts  which  have  been 
passed,  suggested,  no  doubt,  by  the  fears  of  relations  and  creditors 


Sec.    3-]  BY    JUDICIAL   PROCEEDINGS.  115 

and  obtained  from  abundant  caution.  They  ousrht  not  to  be  con- 
sidered as  legislative  declarations  that  forfeitures  existed,  for 
every  one  knows  how  little  interest  is  taken  in  private  acts  gen- 
erally. 

As  to  the  manner  in  which  the  injured  party  shall  prosecute, 
it  is  vain  to  search  the  boolcs,  because  instances  of  suit  after 
acquittal  have  only  recently  occurred.  All  that  good  sense  and 
reason  seem  to  require  is  that  the  matter  should  be  fii'st  heard  and 
di.sposed  of  before  a  criminal  tribunal.  If  the  party  prefer  an 
accusation  in  good  faith,  although  the  bill  should  be  rejected  by 
the  grand  j^r5^  he  has  done  as  much  as  he  can  towards  prosecut- 
ing, and  has  satisfied  the  policy  of  the  rule.  In  England  he  might 
have  his  appeal,  but  here  he  can  do  nothing  more  than  has  been 
done  in  this  case.    I  think  the  plaintiff  is  entitled  to  judgment. 

P'or  valuable  information  on  the  subject  of  merger  or  suspension  of 
the  civil  remedy  where  the  injury  amounted  to  a,  felony,  see  Hyatt  v. 
Adams,  16  Michigan,  at  p.  185,  and  B.  &  W.  R.  R.  v.  Dana,  1  Gray,  83. 
The  doctrine  does  not  obtain  as  part  of  the  common  law  in  Massachu- 
setts, 1  Gray,  83.  See  Bishop  Grim.  Law  (8  Ed.),  s.  267,  for  the  con- 
fusion which  exists  in  the  common  law  as  to  the  merger  of  the  civil 
remedy  into  criminal  prosecution.  The  Revisal  of  1905,  s.  353,  abol- 
ishes the  doctrine  of  merger  in  such  cases.  See,  also,  1  Cyc.  681;  20 
Am.  &  Eng.  Enc.  L.  600.  See  "Action,"  Century  Dig.  §  25;  Decennial 
and  Am.  Dig.  Key  No.  Series,  §  5. 


Sec.  3.  Change  of  Remedy  by  Statute. 

BROXSOX  V.  KINZIE,  1  Howard    (U.  S.)    311,  315,  317,  318-320.     1843. 
To  What  Extent  the  Legislature  May  Change  the  Remedy. 

[In  1838  Kinzie  nu-wle  a  mortgage  to  Bronson.  In  February,  1841,  the 
legislature  i)assed  an  act  allowing  mortgagors  and  their  judgment  cred- 
itors to  redeem  lands  sold  under  decree  of  foreclosure,  upon  certain 
t(!rnis.  Bionson  had  filed  a  bill  for  foreclosure  before  the  act  of  1841 
was  iiassed.  The  case  went  to  the  supreme  court  upon  a  division  of 
opinion.  The  question  presented  is:  Was  the  act  of  1841  a  valid  change 
in  the  remedy.     Only  a  portion  of  the  opinion  is  here  inserted.] 

Taney,  C.  J.  .  .  .  If  the  laws  of  the  state  passed  after- 
wards had  donr'  notliiug  jiiore  than  change  the  remedy  upon  con- 
tracts of  this  description,  tlicy  would  be  lia1)]e  to  no  constitutional 
f)bjcf'tinn.  For,  undoubtedly,  a  state  may  regulate  at  pleasure  the 
modes  of  proceeding  in  its  courts  in  relation  to  past  contracts  as 
well  as  future.  It  may.  for  example,  shorten  the  period  of  time 
within  which  claims  shall  be  barrod  by  the  statute  of  limitations. 
It  may.  if  it  tliiiiks  proper,  direct  that  the  necessaiT'  implements 
of  agriculture,  or  the  tools  of  the  mechanic,  or  articles  of  necessity 
in  housf'hold  furnifnro,  shall,  like  wearing  a7)pan'l.  not  be  liable 
to  exccnlioti  on  judgiiifiifs.  Ki'giilal  ions  ol'  lliis  dcsci-ipt  ion  liavi' 
always  been  f'onsidered,  in  ovory  civilizfd  eouuniuiity.  as  properly 


11(i  u\   .iri>i("i.\i,   i'U'(t('i:i:i>iN'OS.  \('/i.  ^■ 

boloiiiring  to  tlie  ivnu'dy.  to  bo  cxcirisecl  or  not.  l)y  every  sov- 
eivi«;nty,  ju'cordiiifx  to  its  own  views  of  policy  and  hnnianity.  It 
imist  reside  in  cveiy  state  to  enable  it  to  secure  its  citizens  from 
inijust  and  hai'assin<;  litiiralion.  and  to  ptolcct  Iheni  in  tliosc  ]>nr- 
suits  which  arc  necessary  to  the  existence  and  well-bein?:  of  every 
couuHunity.  And,  allh()Ut!;ii  a  new  remedy  may  be  deemed  less  con- 
A'«euient  than  the  old  one.  and  may  in  some  degree  render  the  re- 
(unery  of  debts  move  tardy  and  dillleidt.  yet  it  will  not  follow  that 
the  law  is  unconstitntional.  Wiialever  belonjis  merely  to  the  rem- 
edy may  be  altered  according  to  the  will  of  the  state,  provided  the 
alteration  does  not  impair  the  obligation  of  the  contract.  But  if 
that  etT'eet  is  produced,  it  is  inunalerial  whether  it  is  done  by  act- 
ing on  the  remedy  or  directly  on  the  contract  itself.  In  either 
case  it  is  prohibited  by  the  constitution.     .     .     . 

It  is  diflficult,  perhaps,  to  draw'  a  line  that  would  be  applicable 
in  all  causes  between  legitimate  alterations  of  the  remedy,  and  pro- 
visions which,  in  the  form  of  remedy,  impair  the  right.  But  it  is 
manifest  that  the  obligation  of  the  contract,  and  the  rights  of  a 
party  under  it.  may.  in  effect,  be  destroyed  by  denying  a  remedy 
altogether:  or  may  be  .seriously  impaired  by  burdening  the  |)ro- 
ceedings  with  new  conditions  and  restrictions,  so  as  to  make  the 
remedy  hardly  worth  pursuing.  And  no  one,  we  presume,  would 
say  that  there  is  any  substantial  difference  between  a  retrospective 
law  declaring  a  ])articular  contract  or  class  of  contracts  abrogated 
and  void,  and  one  which  takes  away  all  remedy  to  enforce  them, 
or  encumbers  it  with  conditions  that  render  it  useless  or  im- 
practicable to  pursue  it.     .     .     . 

We  proceed  to  apply  these  principles  to  the  case  before  us.  Ac- 
cording to  the  long-settled  rules  of  law  and  equity  in  all  of  the 
states  whose  jui-isprudence  has  been  modeled  upon  the  prin(ni)l(s 
of  the  common  law,  the  legal  title  to  the  premises  in  fpiestion 
vested  in  the  complainant  upon  the  failure  of  the  mortgagor  to 
comply  Avith  the  conditions  contained  in  the  proviso;  and  at  law 
he  had  a  right  to  sue  for  and  recover  the  land  itself.  But  in  equity 
this  legal  title  is  regarded  as  a  trust  estate,  to  secure  the  payment 
of  the  money;  and.  therefore,  when  the  debt  is  discharged,  there 
is  a  resulting  trust  for  the  mortgagor.  Conard  v.  The  Atlantic  Tns. 
Co.,  1  Pet.  441.  It  is  upon  this  construction  of  the  contract  that 
courts  of  equity  lend  their  aid  either  to  the  mortgagor  or  mort- 
gagee, in  order  to  enforce  their  respective  rights.  The  court  will, 
upon  the  application  of  the  mortgagor,  direct  the  reconveyance  of 
the  property  to  him,  upon  the  payment  of  the  money;  and,  upon 
the  application  of  the  mortgagee,  it  w  ill  order  a  sale  of  the  prop- 
erty to  discharge  the  debt.  But,  as  courts  of  equity  follow  the 
law,  they  acknowledge  the  legal  title  of  the  mortgagee,  and  never 
deprive  him  of  his  right  at  law  until  his  debt  is  paid;  and  h(!  Is 
entitled  to  the  aid  of  the  court  to  extinguish  the  equitable  title  of 
the  mortgagor,  in  order  that  he  may  obtain  the  benefit  of  his 
security.  For  this  purpose,  it  is  his  absolute  and  undoubted  right, 
under  an  ordinary'  mortgage  deed,  if  the  money  is  not  paid  at  the 
appointed  day.  to  go  into  the  court  of  chancery  and  obtain  its 


Sec.    3.]  BY    JUDICIAL    PROCEEDINGS.  11  < 

order  for  the  sale  of  the  whole  mortgaged  property  (if  the  whole 
is  necessary),  free  and  discharged  from  the  equitable  interest  of 
the  mortgagor.  This  is  his  right  by  the  law  of  the  contract ;  and  it 
is  the  duty  of  the  coiu't  to  maintain  ajid  enforce  it,  without  any 
unreasonable  delay. 

"When  this  contract  was  made,  no  statute  had  been  passed  by  the 
state  changing  the  rules  of  law  or  equity  in  relation  to  a  contract 
of  this  kind.  None  such,  at  least,  has  been  brought  to  the  atten- 
tion of  the  court;  and  it  must,  therefore,  be  governed,  and  the 
rights  of  the  parties  under  it  measured,  by  the  rules  above  stated. 
They  were  the  laws  of  Illinois  at  the  time;  and,  therefore,  entered 
into  the  contract  and  formed  a  part  of  it,  A\Hthout  any  expres-s 
stipulation  to  that  effect  in  the  deed.  Thus,  for  example,  there  is 
1)0  covenant  in  the  instrument  giving  the  mortgagor  the  right  to 
redeem,  by  paying  the  money  after  the  da}-  limited  in  the  deed  and 
before  he  was  foreclosed  by  the  decree  of  the  court  of  chancery : 
yet  no  one  doubts  his  right  or  his  remedy,  for,  by  the  laws  of  the 
state  then  in  force,  this  right  and  this  remedy  were  a  part  of  the 
law  of  the  contract,  without  any  express  agreement  by  the  parties. 
So,  also,  the  rights  of  the  mortgagee,  as  known  to  the  hiw,  re(iuired 
no  express  stipulation  to  define  or  secure  them.  They  were  an- 
nexed to  the  contract  at  the  time  it  was  made,  and  formed  a  part 
of  it;  and  any  subsequent  law,  impairing  the  rights  thus  acquired, 
impairs  the  obligation  which  the  contract  imposed. 

This  brings  us  to  examine  the  statutes  of  Illinois  which  have 
given  rise  to  this  controverey.  As  concerns  the  law  of  February 
19.  1841,  it  appears  to  the  court  not  to  act  merely  on  the  nMiiedy, 
but  directly  upon  the  contract  itself,  and  to  engraft  upon  it  new 
conditions  injurious  and  unjust  to  the  mortgagee.  It  declares  that, 
although  the  mortgaged  premises  should  be  sold  under  the  decree 
of  the  court  of  chancery,  yet  that  the  equitable  estate  of  the  mort- 
gagor shall  not  be  extiuguislied.  but  shall  continue  t'oi'  twelve 
months  after  the  sale ;  and  it  moreover  gives  a  new  and  like  estate, 
which  before  had  no  existence,  to  the  judgment  creditor,  to  con- 
tinue for  fifteen  months.  If  such  rights  may  be  added  to  the  orig- 
inal contract  by  subsequent  legislation,  it  would  be  difficult  to  say 
at  what  point  they  must  .stop.  An  equitable  interest  in  the  prem- 
i.ses  may.  in  like  manner,  be  conferred  upon  others;  and  the  right 
to  redeem  may  be  so  prolonged  as  to  deprive  the  mortgagee  of  the 
benefit  of  liis  security,  by  rendciintr  the  i)i-operty  nns;il;ii)l(>  for 
anything  like  its  value.  This  stntute  gives  to  the  mortgagor  and 
to  the  judgment  creditor  an  equitable  estate  in  the  premises,  which 
neither  of  thorn  would  luive  been  entitled  to  under  the  original 
contract;  and  these  new  interests  nre  directly  and  materially  in 
conflict  with  those  which  the  mortgagee  acquired  when  the  mort- 
gage was  made.  Any  such  mo<lification  of  a  contract  by  subse- 
quent legislation,  against  the  eons-^'nt  of  one  of  the  parties,  un- 
questionably iTni)airs  its  obligations,  and  is  prohibited  by  the  con- 
stitution. 

The  soeond  point  certified  arises  under  the  law  of  February  27, 
1^41.     The  observations  already  made  in  relation  to  the  other  act 


lis  HV    JUDICIAL    PROCEEDINGS.  [Cll ■    2. 

apply  with  equal  force  to  this.  It  is  true  that  this  law  apparently 
acts  upon  the  remedy,  and  not  dii-ootly  upon  the  contract.  Yet  its 
ell'eet  is  to  tlopi'ive  Ihe  party  oi'  his  pre-exist iiij,'  ri^lit  to  roreeioso 
the  mortgage  by  a  sale  of  the  premises,  and  to  impose  upon  him 
conditions  which  would  frequently  render  any  sale  altogether  im- 
possible. And  this  law  i.s  still  more  ob.iectioniil)U'.  becjuise  it  is  not 
a  general  one,  and  prescribing  the  mode  of  selling  mortgaged 
premises  in  all  cases,  but  is  confined  to  judgments  rendered,  and 
contracts  made,  prior  to  the  1st  of  May,  1841.  The  act  was  passed 
on  the  27th  of  February  in  that  year;  and  it  operates  mainly  on 
past  contracts,  and  not  on  future.  If  the  contracts  intended  to  be 
affected  by  it  had  been  specifically  enumerated  in  the  law,  and 
these  conditions  applied  to  them,  while  other  contracts  of  the 
same  description  were  to  be  enforced  in  the  ordinary  coui-se  of 
legal  proceedings,  no  one  would  doubt  that  such  a  law  was  uncon- 
stitutional. Here  a  particular  class  of  contracts  is  selected,  and  in- 
cumbered w'ith  these  new  conditions ;  and  it  can  make  no  difference, 
in  principle.  Avhether  they  are  described  by  the  names  of  the  par- 
ties, or  by  the  time  at  which  they  were  made.     .     .     . 

See  Myers  v.  K.  Trust  Co.,  139  Fed.  Ill,  1  L.  R.  A.  (N.  S.)  1171,  and 
note:  Harrison  v.  R.  Paper  Co.,  140  Fed.  385,  3  L.  R.  A.  (N.  S.)  9.54, 
and  note;  Best  v.  Baumgardner,  1  L.  R.  A.  35G,  and  note;  4  Rose  Notes, 
2.53  et  seq.;   8  Cyc.  995,  and  notes 


Sec.    1.]  CONCERNING   REAL   ESTATE.  119 


CHAPTER  III. 

REMEDIES  CONCERNING  REAL  ESTATE. 


Sec.  1.    Writs  of  Entry,  Assize  and  Right. 

DEN  V.  MORRIS,  7  New  Jersey  Law,  6,  7-10.     1822. 
Writs  of  Entry  and  Assize  Evcplained. 

[This  was  an  action  of  ejectment.  In  the  course  of  the  opinion  is 
the  following  discourse  on  the  ancient  writs  of  Entry  and  Assize.] 

« 

KiRKPATRiCK,  C.  J.  ...  By  the  eoimnon  law,  estates  of 
freehold  in  lands  passed  by  livery  of  seisin  only ;  that  is,  by  a  de- 
livery over  of  the  actual  possession.  He,  therefore,  who  was  in 
the  actual  possession  of  land,  was.  prima  facie,  the  tenant  of  the 
freehold,  and  had  in  him  the  heritable  seisina  facit  stipitem.  If 
he  were  ousted  or  dispossessed  of  this  freehold,  by  one  who  had  no 
right,  he  might,  without  process  of  law,  make  a  peaceable  entry, 
or,  if  deterred  from  that,  he  might  make  claim  from  year  to  year, 
which  was  called  continual  claim,  as  near  the  land  as  he  could,  and 
such  entrj'-  or  claim  restored  him  to  his  lawful  seisin,  and  made  him 
capable  again  of  conveying,  transmitting  either  by  descent  or  pur- 
chase. This  right  of  entry,  though  it  might  be  tolled  or  taken 
away  by  a  descent  cast,  and  so,  generally  speaking,  nnist  be  pur- 
sued during  the  life  of  him  that  made  the  ouster,  or  be  forever  lost, 
yet  it  was  limited  to  no  particular  period  or  number  of  years;  so 
that  if  it  was  not  actually  lost  by  descent  oi-  otherwise,  the  lawful 
fiwner  might,  at  all  times,  restore  himself  by  entering  upon  the 
wrongdoer,  in  a  peaceable  manner,  and  turning  him  out,  but  if 
he  suffered  it  to  be  once  lost,  he  could  no  longer  restore  himself  by 
liis  own  act.  but  must  have  recourse  to  his  action  at  law.  And.  in- 
deed, even  where  it  was  not  lost,  as  it  but  seldom  happened  that 
the  wrongdoer  would  tamely  submit  to  be  turned  out  without 
force,  the  owner,  if  his  object  was  to  gain  the  actual  possession  and 
•  •njoynicnt  of  the  land,  and  not  merely  to  put  himself  in  the  ca- 
pacity to  make  a  lawful  conveyance,  w;is  generally  obligt^d  to  have 
recourse  to  such  action,  and  to  call  to  his  aid  the  process  of  the  law, 
fo  restore  to  him  that  right  which  he  could  not  obtain  by  peace- 
able moans  without  it;  so  that,  in  most  cases  it  iiuiy  be  said,  he  was 
I'Ut  to  his  action,  even  wlien  his  i-iL'lit  of  entiy  was  not  tolled  or 
taken  away. 

This  action  niie-bt  lie.  in  the  first  place,  by  Writ  of  Entry,  in 
which  he  undertook  to  prove  liis  own  former  possession.  ;ind  tliat 
the  flefendant.  or  some  f»?ie  niMh-i-  whom  he  hel<l,  liiid  (lis|M)ss('S.scd 


120  CONCERNING    KKAL    ESTATE.  [CIl.    S. 

liiiu;  to  wliicli  lilt'  (IcfiMulnnt  luiglit  answoi-  l)y  doiiyinji;  llic  fact 
ol'  tlu'  (.lispossi'ssioii.  or  by  showiiii^  in  liiinsoU"  an  oUlvv  and  a  hcttor 
passession  ;  ami  then,  upon  llio  trial,  it  was  adjiids^'d  ±"or  him  who 
had  the  (.'It'aivsl  ri<;ht  ;  or  it  niifjht  hi',  in  tlu>  soeond  place,  after  the 
iviirn  of  Henry  II..  hy  ^VI•it  of  Assize,  which  went  n]ion  the  suf^^^'s- 
ti(Mi,  that  the  demandant's  ancestor  had  died  in  possession,  and 
that  he  was  the  next  heir;  and  therefore  directed  the  sheriff  to  in- 
<|uire,  by  a  jni-y.  whetliei-  this  were  so,  and,  if  found  for  the  de- 
mandant, tlie  land  was  innnediately  restored.  Hut  .still,  even  if  the 
(Jemandant  ]>revailed  in  these  actions,  it  only  rcslorcd  to  him  Iiis 
former  j^osscssion,  it  decided  nothing  loiih  respect  to  the  right  of 
j)rop(rtij:  all  that  ho  liad  to  show,  in  order  to  maintain  his  suit, 
was  the  possession  of  liimself  or  his  ancestor,  and  this  mifxlit  be 
overcome  hy  the  defendant  showing  an  older  and  a  better  pos.scs- 
sion;  for  it  never  was  pretended  that  the  demandant's  must  bo 
such  a  possession  as  established  the  ultimate  rij^jht :  for  this,  either 
party  miwht  afterwards  resort  to  his  Writ  of  Riglit.  In  the.se  poa- 
scssonj  adioni,  therefore,  neither  the  deed  of  feoffment,  by  which 
the  estate  was  created,  nor  the  actual  livery  of  seisin  npon  such 
deed  were  necessarily  o-iven  in  evidence,  but  the  mere  possession 
only.  And  so  al.so  after  the  29  Car.  II,  which  directed  that  all  con- 
veyances of  land  should  be  in  writing,  and  not  otherwise,  it  was  not 
necessary'',  upon  the  same  principle,  to  give  the  writing  in  evideiice, 
and  the  reason  was  that  the  deed  of  feoffment  and  livery  of  seisin 
thereupon,  in  ancient  times,  and  the  w^ritten  conveyance  under  the 
statute,  related  to  and  were  evidence  of,  the  commencement  of  the 
estate,  and  of  the  ultimate  right  only,  which  was  not  at  all  in  ques- 
tion ;  but  that  they  could  be  no  proof  of  the  actual  and  subsequent 
possession  upon  Avhich  the  ou.ster  was  alleged  to  have  been  commit- 
ted, and  which  was  the  foundation  of  those  possessory  actions,  and 
the  only  thing  to  be  proved  in  them,  or  recovered  by  them.  It  is 
true  that  those  might  be  given  in  evidence,  and  might  greatly 
strengthen  the  proof  of  possession,  but  they  were  not  essential  to 
the  maintenance  of  the  action;  that  depended  upon  the  mere  pos- 
session. 

To  these  real  actions  for  the  recovery  of  the  possession  of  lands, 
succeeded,  in  common  u.se.  the  action  of  ejectment.  This  was  not 
originally  devised  as  a  remedy  for  injuries  done  to  real  estates,  that 
is,  to  estates  of  freehold  in  land,  but  as  a  remedy  for  injuries  done 
to  chattels  real,  such  as  terms  for  yeai's,  which  were  considered  as 
mere  chattel  interests.  But  then,  as  one  who  came  into  a  court  of 
justice  to  complain  that  he  had  been  ousted  of  his  term,  must  neces- 
sarily show  that  such  term  existed,  and  that  the  lease  under  which 
he  claimed  was  a  good  and  valid  lease,  and,  of  course,  that  the 
lessor  had  a  right  to  make  it.  the  title  of  the  lessor  was  thereby 
brought  into  question,  as  fully  and  upon  the  same  principles  a.s  it 
would  have  been  in  the  real  action ;  so  that  though  the  action  of 
ejectment  got  clear  of  all  the  intricacy  and  perplexity  of  the  real 
action,  and  so  became  an  easy  and  expeditious  method  of  trying 
the  title  to  land,  yet  it  required  precisely  the  same  proof  of  title 


i}ec.    1.]  CONCERNING   REAL   ESTATE.  121 

in  substance  as  the  real  action  did.  For  though  the  form  of  action 
may  have  been  changed,  yet  the  great  principles  of  right  have  not 
been  changed,  nor  can  they  be  without  a  total  subversion  of  the 
whole  system  of  property  in  land.  In  a  real  action,  the  demandant 
must  show  his  possession,  his  ouster,  and  his  right  to  re-enter ;  in 
an  ejectment,  the  lessor  of  the  plaintiff  must  show  the  very  same 
thing — he  must  show  that  he  has  been  in  possession  of  the  land; 
that  it  is  now  withholden  from  him,  which  is  an  ouster ;  and  that 
he  had  a  right  to  re-enter  and  make  the  lease  in  question.  I  say 
he  must  show  those  things,  for  the  lease,  entry  and  ouster,  which 
are  confessed,  are  the  mere  form  of  the  action,  and  have  nothing 
to  do  with  the  substantial  right.  The  title,  therefore,  which  the 
lessor  of  the  plaintiff,  by  the  consent  rule,  is  bomid  to  rest  upon, 
and  which  he  is  obliged  to  make  out  at  the  trial,  is  his  right  of 
entry  (for  if  he  had  this  right,  it  is  always  confessed  that  he  had 
a  right  to  make,  and  did  make  the  lease)  a  right  which,  upon  the 
principles  of  the  common  law,  necessarily  results  from  his  having 
had  an  anterior  and  peaceable  possession  of  the  lands  in  question, 
and  their  being  now  withholden  from  him  by  the  defendant ;  a 
right  to  which  cannot  be  overcome  by  any  subsequent  possession, 
unless  it  has  been  tolled  or  taken  away  in  the  manner  before  men- 
tioned, or  is  restrained  by  the  statutes  of  limitation.     .     .     . 

See  "Entry,  Writ  of,"  Century  Dig.  §  1;  Decennial  and  Am.  Dig.  Key 
No.  Series,  §  1;  "Ejectment,"  Century  Dig.  §§  30-40;  Decennial  and  Am. 
Dig.  Key  No.  Series,  §  10. 


GREEN  V.  LITER,  8  Cranch,  229,  244.     1814. 
Writ  of  Right  Explained. 

[Writ  of  right  brought  by  Green,  the  demandant,  against  the  tenants 
to  recover  seisin  of  lands  in  Kentucky.  The  writ  was  sued  out  under 
the  Virginia  statute  regulating  the  practice  in  such  cases.  The  case 
was  carried  to  the  suijrenie  court  of  the  United  States,  from  the  United 
States  circuit  court  for  the  Kentucky  district,  upon  a  division  of  the 
lower  court  upon  certain  questions  of  law.  In  the  opinion  appear  the 
following  observations  u!)on  the  ancient  Writ  of  Right.] 

Stdrv.  J.  .  .  .  The  fifth  question  is  that  wliicli  has  been 
deemed  most  important;  and  to  this  IIk;  counsel  on  each  side  have 
directed  their  efforts  with  great  ability. 

It  is  clear,  by  the  whole  current  of  authority,  tliat  actual  .sei/in. 
or  seizin  in  deed,  is.  at  connnon  law.  necessary  to  maintain  a 
Writ  of  Right.  Nor  is  this  iicciiliar  to  jiclions  on  the  m(>r(^  right. 
It  ef|ually  apj)Iies  to  wi'its  of  entry';  and  Ww  language  of  the 
count,  in  both  ca.scs,  is,  thai  the  deniandant.  or  his  ancestor,  was. 
within  the  lime  of  limitalidii.  seized  m  his  demesne  as  of  fee.  etc., 
taking  the  esplees.  etc.  It  is  highl\'  i)r()b;d)le  that  the  fonndation 
of  this  nde  was  laid  in  lln-  e;irliesi  i-ndiinenls  ol"  titles  at  Hie 
commo?!   law.      It   is  well    known   that,   in    ;ineien1    times.   ?io  de(Ml 


-1--  CONCEKNl>C(i    HKM.    KSTA  li:.  [Ck.    .?. 

or  rlijirtoi*  was  not'i^ssary  to  I'onvcy  a  fee  siiii|>lc.  The  lille,  the 
I'uU  ami  perfect  cloiuiiiion.  was  coiivcyc'tl  by  a  iiu'rc  livery  of  seizin 
hi  the  preseuee  of  tlie  viciiia^'e.  It  was  the  notoriety  of  this 
ceremouy,  performed  in  tlie  presenee  of  liis  peers,  that  gave  the 
tenant  his  feudal  investiture  df  llie  inheritance.  Deeds  and 
charters  of  iV'olVmcnt  were  of  later  age;  and  were  lield  not  to 
eonvey  the  estate  itself,  but  only  to  evidence  the  nature  of  the 
conveyance.  The  solemn  act  of  livery  of  seizin  was  absolutely 
necessary  to  produce  a  perfect  title,  or,  as  Fleta  calls  it,  juris 
et  seisinae  eonjunctio.  Hut  whatever  may  be  its  origin,  the  rule 
as  to  the  actual  seizin  has  long  since  become  an  inllexible  doc- 
trine of  the  conmion  law. 

It  has  been  argued,  that  the  a^t  of  Virginia,  of  1786,  c.  27, 
meant  in  this  respect  to  change  the  doctrine  of  the  common  law, 
because  that  act  has  given  the  form  of  the  count  in  a  writ  of 
right,  and  omits  any  allegation  of  seizin  and  taking  esplees. 
There  is  certainly  some  countenance  in  the  act  for  the  argument. 
lUit,  on  mature  consideration,  we  are  of  the  opinion  that  it  can- 
not prevail.  The  form  of  .joining  the  mise  in  a  writ  of  right,  is 
also  given  in  the  same  act;  and  that  form  includes  the  same 
inquiiy,  namely,  ' 'which  hath  the  greater  right,"  a.s  the  forms 
at  common  law.  It  would  seem  to  follow  that  the  legislature 
did  not  mean  to  change  the  nature  of  the  facts  which  were  to 
be  inquired  into,  but  only  to  provide  a  more  summary  mode  of 
proceeding.  The  clause  in  the  same  act  allo^ving  any  special 
matter  to  be  given  in  evidence  on  the  mise  joined,  may  also  be 
called  in  aid  of  this  construction.  That  clause  certainly  shows 
that  it  was  not  intended  to  relieve  the  demandant  from  the  effect 
of  any  existing  bar;  and  Avant  of  seizin  was.  at  common  law^  a 
fatal  bar.  The  statute  of  limitations  of  Virginia,  of  19th  De- 
cember, 1792.  c.  77.  which,  as  to  this  point,  is  a  revisal  of  the  old 
statute,  limits  a  writ  of  right  upon  ancestral  seizin,  to  fifty  years, 
and  upon  the  demandant's  own  seizin,  to  thirty  years  next  before 
the  teste  of  the  writ.  It  is.  therefore,  incumbent  on  the  demandant 
to  prove  a  seizin  within  the  time  of  limitation;  otherwise,  he  is 
without  remedy;  and  if  so.  it  must  be  involved  in  the  issue  joined 
on  the  mere  right.  We  are  therefore  of  opinion,  that  the  act 
of  1786  did  not  mean  to  change  the  nature  of  the  inquiry  as  to 
the  titles  of  the  parties,  but  merely  to  remedy  some  of  the  in- 
conveniences in  the  modes  of  proceeding. 

If  then  an  actual  seizin  or  seizin  in  deed  be  necessary  to  be 
proved,  it  becomes  material  to  inquire  what  constitutes  such  a 
seizin.  It  has  been  .supposed,  in  argument,  that  an  actual  entry 
under  title,  and  perception  of  esplees  were  necessary  to  be  proved 
in  order  to  show  an  actual  seizin.  But  this  is  far  from  being 
true,  even  at  the  common  law.  There  are  cases  in  which  there 
is  a  constructive  seizin  in  deed,  which  is  sufficient  for  all  the 
T)urposes  of  action  in  lecral  intendment.  In  Hargrave's  note,  3  Co. 
Lift.  20.  a.  it  is  said,  that  an  entry  is  not  always  necessary  to 
give   a   seizin    in    deed;    for  if  the   land   be   in    lea.se   for   years. 


^'eC.    1.]  COKCERNING   REAL    EiSTATE.  123 

curtesy  may  be  without  entry  or  even  receipt  of  rent.  The  same 
is  the  doctrine  as  to  a  seizin  in  a  case  of  possessio  fratris.  So 
if  a  grantee  or  heir  of  several  parcels  of  land  in  the  same  county 
enter  into  one  parcel  in  the  name  of  the  whole,  where  there 
is  no  contlicting  possession,  the  law  adjudges  him  in  the  actual 
seizin  of  the  whole.  Litt.  s.  417,  418.  In  like  manner,  if  a  man 
have  a  title  of  entry  into  lands,  but  dare  not  enter  for  fear  of 
bodily  harm,  and  he  approach  as  near  the  land  as  he  dare,  and 
claim  the  land  as  his  own,  he  hath  presently,  by  such  claim,  a 
possession  and  seizin  in  the  lands,  as  well  as  if  he  had  entered  in 
deed.  Litt.  s.  -119.  And  livery  within  view  of  the  land  will, 
lUDder  such  circmnstances,  give  the  feoffee  a  seizin  in  deed  as 
effectually  as  an  actual  entry.  There  are,  therefore,  cases  in 
which  the  law  gives  the  party  a  constructive  seizin  in  deed.  They 
are  founded  upon  this  plain  reason,  that  either  the  claim  is 
made  sufficiently  notorious  by  an  actual  entrj'^  into  part,  of  which 
the  vicinage  •can  take  notice,  or  the  part>^  has  done  all  that, 
under  the  circumstances  of  the  case,  he  was  bound  to  do.  Lex 
non  cogit  sen  ad  vaua  aut  impossibilia.  The  same  is  the  result 
of  conveyances  deriving  their  effect  under  the  statute  of  uses; 
for  there,  without  actual  entry  or  livery  of  seizin,  the  bargainee 
ha-s  a  complete  seizin  in  deed;  Com.  Dig.  Uses  (B.  1.)  (I.).  Cro. 
Eliz.  46;  1  Cruise  Dig.  12;  Shep.  Touch.  223,  &c.  Harg.  Co. 
Litt.  271,  note.  And  the  Kentucky  act  respecting  conveyances, 
which  is,  in  substance,  like  the  statute  of  uses,  gives  to  private 
deeds  the  same  legal  effect. 

It  has,  liowever,  been  supposed,  in  argument,  that  not  only  an 
actual  seizin  or  complete  investiture  of  the  land,  but  also  a  per- 
ception of  the  profits,  or,  as  it  is  technically  called,  a  taking  cf 
the  esplees.  is  absolutely  noccssars^  to  support  a  wi'it  of  right. 
It  cannot,  however,  be  admitted  that  the  taking  of  the  esplees 
is  a  traversable  averment  in  the  count.  It  is  but  evidence  of  the 
seizin ;  and  the  seizin  in'  deed  once  established,  either  by  a  pedis 
f)ositio.  or  by  oonstmetion  of  law.  the  taking  of  esplees  is  a  neces- 
sary inference  of  law.  If,  therefore,  a  seizin  be  established,  al- 
though the  land  be  lea.sed  for  a  term  of  years,  and  thereby  the 
profits  belong  to  the  tenant,  still,  the  legal  intendment  is  that 
the  esplees  follow  the  seizin.  And  so  it  wonld  bo.  although  a 
mere  trespasser.  Avithout  claiming  title,  should  actually  take  the 
profits  during  the  time  of  the  seizin  alleged  and  proved.  And, 
indeed,  of  certain  real  property,  a.s  a  barren  rock,  a  complete 
seizin  may  exist  without  tlie  existence  of  esplees. 

The  result  of  this  reasoning  is,  that  wherever  there  exists  the 
union  of  title  and  .seizin  in  deed,  either  by  actual  entrv'  and 
livery  of  seizin,  or  by  intendment  of  law,  as  by  conveyances  under 
the  statute  of  uses,  or  in  the  other  instances  which  have  been 
before  staled,  there  the  esplees  are  ktiit  to  the  title,  so  as  to  enable 
the  party  to  maintain  a  writ  of  right.  And  it  will  be  found 
extremely  (lifficull  to  maintain  that  a  deed,  wbieb.  by  the  lex  loei. 
conveys  a  perfeet  title  to  waste  and  vacant  lands,  without  further 


V2A  CONCERNING    REAL    KSTxVTE.  [Ch.    o. 

coroinouy,  will  not  yet  euable  tlio  grantee  to  support  that  title 
by  irivini;:  him  the  lii^jhest  i-ciiieily  .ipplit-able  to  it,  without  an 
aetual  entry. 

And  this  leads  us  to  say.  thai  even  il',  at  ei)iimion  law,  an  aetual 
pedis  positio,  followed  up  by  an  aetual  pereei)tion  of  the  profits, 
were  neeessary  to  mainlain  a  writ  of  i'i|J:ht,  which  we  do  not  admit, 
the  doetrine  would  be  inapi)lieable  to  the  waste  and  vacant  lands 
cf  our  country.  The  common  law  itself,  in  many  cases,  dispenses 
with  such  a  rule;  and  the  ivtuson  of  the  rule  itself  ceases  when 
applied  to  a  mere  w  ilderness.  The  object  of  the  law-  in  rcquii-ing 
actual  seizin  was  to  evince  notoriety  of  title  to  the  neighborhood, 
and  the  conseiiuent  burdens  of  feudal  duties.  In  the  simplicity 
of  ancient  times  there  were  no  means  of  ascertaining  titles  but 
bv  the  visible  seizin ;  and.  indeed,  there  was  no  other  mode,  be- 
tween  subjects,  of  pa.ssing  title,  but  lively  of  the  land  itself  by 
the  symbolical  delivery  of  tnrf  and  twig.  The  moment  that  a 
tenjxnt  was  thus  seized,  he  had  a  perfect  investiture;  and  if 
oustixil.  could  maintain  his  action  in  the  realty,  although  he  had 
not  been  long  enough  in  pas.session  even  to  touch  the  esplees. 
The  very  object  of  the  rule,  therefore,  w^as  notoriety,  to  prevent 
frauds  upon  the  lord  and  npon  the  other  tenants.  But  in  a  mere 
uncultivated  countiy,  in  wild  and  impenetrable  woods,  in  the  sul- 
len and  solitary  haunts  of  beasts  of  prey,  what  notoriety  could 
an  entry,  a  gathering  of  a  twig  or  an  acorn,  convey  to  civilized 
man  at  the  distance  of  hundreds  of  miles?  The  reason  of  the 
rule  could  not  apply  to  such  a  state  of  things;  and  cessante  ra- 
tione.  cessat  ipsa  lex.  We  are  entirely  satisfied  that  a  conveyance 
of  wild  or  vacant  lands  gives  a  constructive  seizin  thereof,  in  deed, 
to  the  grantee,  and  attaches  to  him  all  the  legal  remedies  incident 
to  the  estate.  A  fortiori,  this  principle  applies  to  a  patent;  since, 
at  the  common  law,  it  imports  a  livery  in  law.  TTpon  any  other 
con-struction,  infinite  mischiefs  would  result.  Titles  by  descent 
and  devise,  and  by  purchase,  where  the  parties  from  whom  the 
title  was  derived  were  never  in  actual  seizin,  would,  upon  prin- 
ciples of  the  common  law.  be  utterly  lost.     .     .     . 

"The  mise  joined  in  a  writ  of  right  necessarily  involves  the  titles  of 
both  parties  to  the  suit  and  institutes  a  comparison  between  them.  It 
is  consequpntly  the  right  of  each  party  to  put  any  fact  in  evidence 
which  destroys  the  title  of  the  other;  for  the  question  in  controversy 
is,  which  hath  the  better  mere  right  to  hold  the  demanded  premises. 
.  .  .  Among  the  best  established  doctrines  of  the  common  law  is, 
that  seizin  in  deed  either  hy  possession  of  the  land  and  perception  of 
the  profits,  or  by  construction  of  law,  is  indispensal)le  to  enable  the 
demandant  to  maintain  his  suit.  The  tenant  may,  therefore,  show  in 
his  defense,  that  the  demandant  had  no  such  actual  seizin;  for  the 
seizin  of  the  freehold  by  the  tenant,  which  is  admitted  by  the  bringing 
of  the  suit  against  him,  is  a  sufficient  title  for  the  tenant  until  the  de- 
mandant can  show  a  better  title."  Green  v.  Watkins,  7  Wheat.  *30. 
See  as  to  'Assize  of  Novel  Disseizin,"  Den  v.  Craig,  15  N.  J.  L.  191.  See 
further  as  to  these  ancient  and  obsolete  remedies,  3  Blk.  C.  10.  See 
"Real  Actions,"  Century  Dig.  §§  1-17;  Decennial  and  Am.  Dig.  Key  No. 
Series,   §§  1-3. 


Sec.   2.]  CONCERNING   REAL    ESTATE.  125 


Sec.  2.    Ejectment  Prior  to  the  Code  Practice. 

"The  action  of  ejectment  is  a  fictitious  mode  of  legal  proceed- 
ing by  which  almost  all  titles  to  lands  and  tenements  may  be 
tried,  and  possession  obt<iinod  by  the  party  entitled  to  it.  It  is 
termed  a  mixed  action,  being  real  in  respect  of  the  lands,  but 
personal  in  respect  of  the  damages  and  costs.  It  is  also  deemed 
a  possessory  action,  because  it  is  founded  on  the  right  to  the 
possession  of  the  premises  in  dispute.  In  the  earlier  period  of  our 
history,  the  only  mode  of  recovering  the  possession  of  lands 
wrongfully  withheld  was  by  a  real  action  or  writ  of  assize,  which 
were  ap])licable  only  to  freehold  titles,  estates  for  years  being 
then  considered  only  a  preearioiLs  possession,  and  as  not  trans- 
ferring to  the  lessee  any  title  to  the  land ;  the  only  remedy  which 
a  lessee  had,  in  case  he  w^as  wrongfully  ousted  by  the  lessor,  was 
by  a  writ  of  covenant  on  the  bi-each  of  contr'act.  whereby  he  was 
enabled  to  recover  his  term  as  well  as  damages,  if  ousted  by  the 
lessor:  but  if  dispossessed  by  any  person  claiming  under  the 
les.sor,  he  could  recover  damages  only  from  the  lessor  for  a  breach 
of  the  covenant,  but  not  the  possession  of  the  land  from  which 
he  was  ousted. 

"As  a  writ  of  covenant  lay  only  between  the  immediate  parties 
to  the  grant,  if  the  lessee  was  ejected  by  a  stranger,  his  remedy 
was  by  a  writ  of  ejectione  firmae.  which  was  a  mere  personal 
action  of  trespass,  whereby  he  was  enabled  to  recover  damages 
only,  the  true  measure  of  which  was  the  mesne  profits  but  not 
the  term,  though  in  such  a  case  the  landlord  himself  might  re- 
cover the  possi'ssinn  by  a  I'cnl  action.  In  j^rogrcss  of  time,  how- 
ever, when  agricultural  interest  became  a  subject  of  legislative 
regard,  a  full  remedy  was  provided  for  the  lessee,  by  the  intro- 
duction of  the  writ  of  cpiare  ejecit  infra  terminum,  whereby  the 
lessee  was  enabled  to  recovei-  lioth  bis  term  and  damages  from 
any  person  whatsoever  that  ousted  him.  It  is  upon  this  writ 
I  bat  the  modem  action  of  ejectment  is  founded.  The  precise 
period  when  tliis  remedy  was  adopted  is  not  satisfactorily  ascer- 
tainpfl.  bnt  all  the  anilioi'ities  agree  Hint  it  was  between  the  years 
1455,  in  the  reign  of  Hen.  VI.  and  14f)!).  in  the  reign  of  lien.  VII. 
'The  action  of  ejectment.'  said  Lord  Mansfiet-d.  C.  J.,  'is  the 
creature  of  Westminster  TTall,  introduced  within  the  timc^  of  mem- 
ory at)d  moulded  gradn;ill\'  into  ;i  eouf^e  of  i)r-aetiee  by  Ihe  rules 
of  the  courts. ' 

"As  originally  a  term  for  years  only  ef>uld  be  recovered  in  ;iti 
action  of  ejectment,  in  order  to  convert,  il  info  ;i  tiielhod  of  Irving 
freehold  titles,  it  wiis  necessary  that  a  term  should  be  ci-eated.  To 
obtain  that  requisite,  the  party  claiming  a  i-ight  to  the  po.ssession 
entered  upon  the  premises  in  dispute,  and  there  sealed  a  lease  for 
years,  which  he  delivered  to  ajiother  person  who  accompanied  him. 
An  nctual  entry  w;is  necessMiy,  frir.  a<'cording  to  the  old  law.  it 
would   be   iii.'iintcn.'ince  if  a   person   not  in   j)o.s.session   couvr\vefl  a 


1-li  CONCERNING    KKAI,    ESTATE.  [Cli.    ,9. 

title  to  iiiiotlii  r.  Tlic  losscio  liuviiii:;  iii'([iiir('cl  a  i-i<j;lit  to  the  i)os- 
sessiou  by  moans  of  the  lease,  remained  upon  the  hind,  and  tlien 
the  person  who  eame  next  upon  tlie  freehold  animo  possidendi, 
or  by  aeeident  or  by  agreement  beforehand,  was  accounted  an 
ejector  of  the  lessee,  and  a  trespasser  on  his  possession.  An  action 
of  ejectment  was  then  commenced  against  the  person  in  pos- 
session or  the  party  so  entering,  wlio  was  denominated  the  casual 
ejector.  But  as  tlu'  pei-son  in  possession  miglit  thus  be  deprived 
ol'  his  hmds  without  having  any  opportunity  of  defending  his 
title,  Avhen  the  action  was  instituted  against  any  other  person  than 
himself,  it  was  made  a  standing  rule  of  court,  that  the  plaintilf 
should  not  proceed  against  the  casual  ejector  w'ithout  serving  the 
party  in  possession  with  notice  of  the  proceedings  or  a  copy  of 
the  declaration.  The  party  in  possession  having  received  such 
notice  might,  ujion  apiilication  to  the  court,  defend  the  suit  in 
the  name  of  the  casual  ejector,  if  lie  thought  yiroper,  and  if  he 
neglected  to  do  so,  the  suit  proceeded  against  the  casual  ejector. 
"When  the  cause  came  on  to  be  tried,  the  plaintiff  was  obliged  to 
prove  the  lessor's  title,  since  his  own  depended  upon  it.  lie  was 
also  obliged  to  prove  the  lea.se.  his  own  entiy  on  the  premises,  and 
his  ouster  by  the  defendant.  The  claimant's  title  was  thus  indi- 
rectly determined.  Tn  form  an  ejectment  has  been  not  inaptly 
described,  'an  ingenious  fiction  for  the  trial  of  title  to  the  pos- 
session of  lands;  it  appears  as  a  trick  between  two  to  dispossess 
a  third  by  a  sham  suit  and  judgment,  an  artifice  which  would  be 
highly  criminal,  unless  the  court  converted  it  into  a  fair  trial 
with  the  proper  party.' 

''The  proceedings  in  ejectment  continued  to  be  conducted  in  the 
manner  above  described  until  the  time  of  Lord  Chief  Justice 
RoLLE,  who  presided  in  the  court  of  upper  bench,  so  called  during 
the  protectorate,  by  whom  a  new  method  was  invented  of  trying 
titles  by  ejectment,  without  resorting  to  the  troublesome,  and 
sometimes  inconvenient  formalities  which  attended  the  actual 
making  of  the  lease,  entry  and  ouster.  By  the  new  method,  the 
suit  is  conducted  in  fictitious  names,  and  all  the  preliminaries 
retpiired  by  the  ancient  practice  are  feigned,  for  no  lease  is  sealed. 
DO  entry  or  ouster  is  actually  made;  the  process  consists  entirely 
of  a  string  of  legal  fictions."    Leigh's  Nisi  Prius,  vol.  2  p.  *819. 

In  3  Biu*rows,  1204.  Lord  Mansfield  said:  "An  ejectment  is 
an  ingenious  fiction,  for  the  trial  of  titles  to  the  possession  of 
land.  In  fonn.  it  is  a  trick  between  two,  to  dispo.ssess  a  third  Ijy 
a  sham  suit  and  judgment.  The  artifice  would  be  criminal  unless 
the  court  converted  it  into  a  fair  trial  with  the  proper  party.  The 
control  the  court  have  over  the  judgment  against  the  casual 
ejector  enables  them  to  put  any  terms  upon  the  plaintiff,  which 
are  just.  He  was  .soon  ordered  to  give  notice  to  the  tenant  in 
possession.  "When  the  tenant  in  possession  asked  to  be  admitted 
defendant,  the  court,  was  enabled  to  add  conditions;  and  there- 
fore obliged  him  to  allow  the  fiction,  and  to  go  to  trial  upon  the 
real  merits.  It  might  happen,  that  the  tenant  in  possession  was  a 
mere  farmer  a<   will.     Tie  w^as  bound  to  give  notice  to  his  land- 


^gC.    2.]  CONCERNING   REAL   ESTATE.  127 

lord.  The  same  reason,  of  a  fair  trial  with  the  proper  party,  re- 
quired the  landlord  to  be  admitted  defendant ;  with  the  tenant,  if 
he  was  amicable,  or  without  him,  if  he,  contrary  to  the  duty  of 
his  relation,  should  betray  the  cause.  There  can  be  no  ground  for 
admitting  the  landlord  to  be  a  co-defendant,  which  does  not  hold 
to  his  defending  alone  in  ease  the  other  abandons.  The  plaintiilf 
ought  not  to  recover  by  collusion  with  one,  to  the  prejudice  of  a 
third:  he  ought  not  to  recover,  without  a  trial  with  the  person 
interested  in  "the  question  and  affected  by  the  judgment.  Eveiy 
point  relative  to  the  proceeding  in  ejectments  is  of  consequence. 
1  am  glad  we  have  this  occasion." 

FORMS : 

Declaration  in  Ejectment  on   a   Single   Demise.      (Eaton's 

Forms,  196.) 

North  Carolina,  Superior  Court  of  Law, 

Warren  County.  Spring  Term,  1848. 

Richard  Roe  was  attached  to  answer  John  Doe  of  a  plea,  where- 
fore the  said  Richard  Roe,  with  force  and  arms,  entered  into  a 
certain  messuage  and  tract  of  land,  containing  five  hundred  acres, 
situate  in  the  county  of  Warren  aforesaid,  and  bounded  as  fol- 
lows, to-wit:  (boundaries),  which  A.  B.  had  demised  to  the  said 
John  Doe  for  a  term  which  is  not  expired,  and  ejected  him  from 
his  said  farm,  and  other  wrongs  to  him  then  and  there  did,  etc. 
And  thereupon  the  said  John  Doe.  by  J.  S..  his  attorney,  com- 
phiins:    That  whereas  the  said  A.  B..  on  the  first  day  of  January. 
A.  D.  1848.  in  the  county  aforesaid,  had  demised  to  said  John 
Doe  the  said  tenement,  to  have  and  to  hold  the  same  to  him  and 
his  a.ssigns.  from  thenceforth,  for  and  during,  and  unto  the  full 
end  and  term  of.  twenty-one  years  thence  next  ensuing.    By  virtue 
of  which  demise,  the  said  John  Doe  entered  into  the  said  tenement, 
and  became  and  was  possessed  thereof  for  the  said  term  so  to  him 
thereof  granted.     And  the  said  John  Doe.  being  so  thereof  pos- 
sessed, the  said  Ricliard  Roe.  afterwards,  to-wit.  on  the  day  and 
year  aforesaid,  with  force  and  arms,  entered  into  the  said  tene- 
ment in  which  the  said  John  Doe  was  so  interested,  in  manner 
:iud  foi-  the  term  aforesaid,  which  is  not  yet  expired,  and  ejected 
tlie  said  Jf)lni  l^oe  from  his  said  farm,  and  other  wrouus  to  him 
tlKMi   and  there  did.  to  the  great  damage  of  the  said  John  Doe, 
and  against  the  peace  of  the  state.    Wherefore  the  said  John  Doe 
saith.  that  lie  is  injured  and  hath  sustained  damage  to  the  value 
of  fifty  dollars,  and  therefore  he  brings  suit.  etc.     (Signed)  J.  S.. 
riaintifT's  .\l1orney. 

Notice  to  Tenant  ix  .\ctual  Possession  ok  Premises.     (Eaton. 

200.) 

Mr.  CD.:  T  am  informed  that  yoii  are  in  jiossessioii  of,  or 
claim  title  to  tlie  premises  in  this  declaration  of  ejectment,  or  to 
some  part   thercftf.  and   T.  being  .sued   in  Ibis  action   as  a   casual 


lL>,s  CONCKKNlNti     WKAl.    KSI'ATE.  [(7*.    3. 

ejector  only,  do  advise  you  lo  appear  in  the  Superior  C'ourt  of 
Law  of  Warren  county,  at  tlie  term  to  be  held  at  the  court  house 
in  AVarrenton.  on  the  third  IMouday  after  the  fourth  ^loiiday 
of  Mareh.  184!),  then  and  there,  by  nUe  of  said  court,  to  cause 
yourself  to  be  made  defendant  in  my  stead;  otherwise  I  shall 
suffer  judiiment  to  be  entered  by  default  against  me,  and  you  will 
he  turned  out  of  possession.  Yours,  etc.,  Richard  Roe. 
Dated  this  ir>th  day  of  Januar>'.  A.  1).  1849. 


PROSEcrTK>N  Bond  to  be  Given  by  Plaintiff's  Lessor.     (Eaton, 

201.) 

Know  all  jiien  by  these  presents,  that  we,  A.  B.  and  E.  F.,  are 
held  and  tirmly  bound  unto  J.  S.,  clerk  of  the  Superior  court  of 
Warren  county,  in  the  sum  of  five  hundred  dollare.  for  the  pay- 
ment whereof,  we  bind  ourselves,  our  heirs,  executors  and  ad- 
ministrators. Sealed  with  our  seals,  and  dated  this  15th  day  of 
April.  A.   1).  1849. 

The  condition  of  this  oblip^ation  is  such,  that  whereas  a  declara- 
tion in  ejectment  in  the  name  of  John  Doe.  on  the  demise  of  A. 
B..  against  Richard  Roe.  with  a  notice  to  C.  D.  as  tenant  in  pos- 
session, has  been  returned  by  the  sheritf  of  Warren  County  to  the 
Spring  Term.  1849.  of  said  court;  now  if  the  said  A.  B.  shall 
prosecute  the  same  with  effect,  or  othei-wise  pay  all  such  costs 
and  damages  a.s  shall  be  awarded  on  failure  thereof,  then  the 
said  obligation  is  to  be  void,  otherwise  to  remain  in  full  force 
and  effect.     (Signatures  and  seals.) 

Consent  Rule.    (Eaton,  202.) 

North  Carolina,  Superior  Court  of  Law, 

Warren   Coimty.  Spring  Term.  1849. 

John  Doe,  on  the  demise  of  A.  B.  v.  Richard  Roe. 
It  is  ordered  by  the  consent  of  the  attorneys  of  both  parties,  that 
C.  D.  be  made  defendant  in  the  stead  of  the  now  defendant  Rich- 
ard Roe.  and  do  forthwith  appear  at  the  suit  of  the  plaintiff,  and 
receive  a  declaration  in  an  action  of  trespass  and  ejectment  for 
the  premises  in  question.  And  it  is  further  ordered  by  the  like 
consent,  that  the  said  C.  D.  shall  forthwith  plead  not  guilty 
thereto:  and  on  the  trial  of  the  issue  shall  confess  lease,  entry  and 
ouster,  and  insi.st  on  his  title  only,  otherwise  that  judgment  he 
entered  for  the  plaintiff  against  the  said  Richard  Roe  by  default. 
And  if  on  the  trial  of  the  said  issue  the  said  C.  D.  shall  not  con- 
fess lease,  entry  and  ouster,  Avhereby  the  plaintiff  shall  not  be 
able  further  to  pro.secute  his  suit  against  the  said  C.  D.,  then  no 
costs  shall  be  alloAved  for  not  further  prosecuting  the  same,  but 
the  said  C.  D.  shall  pay  costs  to  the  plaintiff  in  that  case,  to  be 
taxed  by  the  clerk.  And  it  is  further  ordered,  that  if.  on  the 
trial  of  the  said  is.sue,  a  verdict  .shall  be  given  for  the  said  C.  D., 
or  it  shall  happen  that  the  plaintiff  shall  not  further  prosecute 
his  said  suit  for  any  other  cause  than  for  not  confessing  lease, 


Sec.    2.]  COXCERXING    REAL    ESTATE.  129 

entry  and  ouster  as  aforesaid,  then  the  lessor  of  the  plaintiff  shall 
pay  the  said  C.  D.  his  costs  in  that  ease  to  be  adjudsred. 

(Signed)     E.  F..  Attorney  for^Plaintiff. 

G.  H..  Attorney  for  Defendant. 

Affidavit  of  Service  of  Declaratiox'.     f  Eaton.  203.) 

(Title  of  ease  as  above.) 

J.  S..  sheriff  of  Warren  County,  nialjeth  oath,  that  on  the  10th 
day  of  Februarv',  1849.  he  did  personally  serve  C.  D..  the  tenant 
in  the  actual  possession  of  the  premises  mentioned  in  the  declara- 
tion of  ejectment  hereunto  annexed,  with  a  true  copy  of  the  said 
declaration,  and  of  the  notice  thereunder  written,  and  at  same 
time  read  over  to  him  the  said  notice,  and  explained  to  him  the 
intent  and  meaning  of  the  said  declaration  and  notice,  and  of  the 
service  thereof. 

Plea  ix  Ejectmext.     (Eaton.  252.1 

C.  B..  defendant,  ats.  John  Doe.  on  the  demise  of  A.  B..  plaintiff. 
And  the  said  defendant,  by  E.  F..  his  attorney,  comes  and  de- 
fends the  force  and  injury,  when  etc..  and  says,  that  he  is  not 
guilty  of  the  said  supposed  trespass  and  ejectment  above  laid  to 
his  charge,  or  any  part  thereof,  in  manner  and  form  as  the  said 
John  Doe  hath  above  complained,  and  of  this  he  puts  himself  upon 
the  country. 

BoxD  OF  Defexdaxt  Before  He  is  Allowed  to  Plead.     (Eaton, 
254.) 

(Title  of  the  case.) 

Know  all  men  by  these  presents,  tliat  we.  C.  D.  and  E.  F..  are 
held  and  firmly  bound  unto  John  Doe  in  the  sum  of  two  hun- 
dred dollars,  for  the  payment  wliereof  we  bind  ourselves,  our 
heirs,  execntors  and  administrators.  Sealed  with  our  seals  and 
dated  this  23d  day  of  Xovember.  1858. 

Tlie  condition  of  this  obligation  is  such,  that  whereas  a  declara- 
tion in  ejectment,  in  Ihc  name  of  the  said  John  Doe,  on  the  demise 
of  A.  B..  against  Kichard  Roe,  with  a  notice  to  said  C.  D.  as 
tenant  in  possession.  h;is  been  served  upon  the  said  C.  D.  by  the 
sheriff  of  Warren  County,  and  returned  to  November  Term.  1858. 
of  the  Conrt  of  Pleas  and  Qnartci-  Sessions  of  said  county,  and 
tho  said  (\  D.  desires  to  bo  made  a  rlefendant  in  said  action  ac- 
cording to  l;i\v:  iiftw  if  tlie  said  C.  D.  shall  answer  said  action, 
anrl  abide  by  the  jndgment  whidi  may  bo  rendered  tlierein.  then 
the  said  o})lig;ition  is  to  be  void,  otherwise  to  remain  i)i  full  force 
and  effeet.     (Signed  and  se.-iled  by  C.  D.  and  E.  F.). 

VEFtniCT  Axn  Ji'DOMKNT  FOR  Platntifp.     rEaton.  297.) 
(Title  of  the  ease.) 

The  fallowing  jurors,  to-wit   (name  Ihem).  being  chosen,  tried 
and  sworn  to  s[)e;ik  the  trulh  of  the  iiiatler  wifhin  eoniained.  say, 
Remedies — 0. 


l;{()  CONCKKXIN(^    RKAI-    KSTATK.  [Cli.    3. 

that  tlio  dotV-iuliint  is  iruillN'  of  llu'  livspass  .iiid  ('.ji-ctmciit  in  tin' 
declaration  inontionod,  and  tlii\v  assess  tlic  plaiiiirfs  dainajjos  by 
leasoii  thereof  to  sixpence.  Therefore  it  is  cdnsithM-ed  that  the 
said  John  Doe  do  recover  against  the  defendant  his  term  yet  to 
come  of  and  in  the  tenements  specified  in  the  declaration,  and  also 
his  said  damages  and  costs  of  suit.  And  llie  said  plaintiff  prays 
for  a  writ  of  possession  aeeordinply.  wliich  is  granted  unto  him. 

Verdict  and  Judgment  for  Defendant.     (Eaton,  299.) 

(Title  of  the  case.) 

The  following  jurors,  to-wit   ( ),  being  chosen,  tried  and 

sworn  to  speak  the  truth  of  and  concerning  the  issue  .ioined  be- 
tween the  parties,  say.  that  the  defendant  is  not  guilty  of  th(» 
trespass  and  ejectment  laid  to  his  charge,  in  manner  and  form 
as  the  plaintiff  hath  complained.  Therefore  it  is  considered  that 
the  plaintiff  take  nothing  by  his  writ,  and  that  the  defendant  do 
recover  against  the  plaintiff's  lessor,  and  also  against  E.  P..  the 
surety  for  the  prosecution,  his  costs  of  suit. 

Declaration  in  Trespass  for  Mesne  Peofits.     (Eaton,  210.) 

(Title  of  the  ease.) 

C.  D.  Avas  attached  to  answer  A.  B..  of  a  plea  of  trespass  with 
force  and  arms.  etc.  And  thereupon  the  said  plaintiff,  by  E.  F., 
his  attorue}',  complains,  for  that  the  said  defendant,  heretofore, 
to-wit,  on  the  fii'st  day  of  May,  1848,  with  force  and  arms,  broke 
and  entered  into  a  certain  messuage,  close  and  tract  of  land  of 
the  said  plaintiff,  situate  in  the  county  of  Warren  aforesaid,  and 

bounded  as  follows,  to-wit   ( ),  and  containing  five  hundred 

acres,  and  ejected,  expelled  and  removed  the  said  plaintiff  from 
his  possession  and  occupation  thereof,  and  kept  him  so  expelled 
and  removed  for  a  long  time,  to-wit,  from  thenceforth,  until  thi^ 
first  day  of  January,  1850,  and  during  that  time  took  and  received 
to  the  use  of  the  said  defendant,  all  the  issues  and  profits  thereof, 
being  of  great  yearly  value,  to-wit,  of  the  value  of  one  hundred 
and  fifty  dollars.  "Whereby  the  said  plaintiff,  during  all  that 
time,  not  only  lost  the  issues  and  profits  of  the  said  tenement,  with 
the  appurtenances,  but  was  deprived  of  the  use  and  means  of 
cultivating  the  same,  and  was  forced  to,  and  did  necessarily,  lay 
out  and  expend  a  larsre  sum  of  money,  to-wit,  the  suni  of  fifty 
dollars,  in  and  about  the  recovery  of  the  possession  of  the  said 
tenement,  with  the  appurtenances,  to-wit,  in  the  county  aforesaid. 
And  other  w^rongs  to  the  said  plaintiff  then  and  there  did  against 
the  peace  of  the  state,  and  to  the  damage  of  the  said  plaintiff 
of  four  hundred  dollars,  and  therefore  he  brings  suit. 

Plea  of  Trespass  for  !Mesne  Profits.     (Eaton.  255.) 

(Title  of  the  case.) 

And  the  said  defendant,  by  E.  F..  his  attorney,  comes  and  de- 
fends the  forr-o  and   injury,  when   '^■tf..  and  says,  that  he  is  not 


Sec.   2.]  CONCERNING   REAL    ESTATE.  131 

t^uilty  of  the  said  supposed  trespasses  above  laid  to  his  charge,  or 
any  or  either  of  them,  or  any  part  thereof,  in  manner  and  form  as 
the  said  plaintiff  hath  complained.  And  of  this  he  puts  himself 
upon  the  country. 

And  for  a  further  plea  in  this  behalf,  the  said  defendant  says, 
that  the  said  plaintiff  ought  not  to  have  or  maintain  his  aforesaid 
action  against  him.  because  he  says,  that  the  several  supposed 
causes  of  action  in  the  declaration  mentioned,  did  not,  nor  did  any 
or  either  of  them  accrue  to  the  said  plaintiff,  at  any  time  within 
three  years  next  before  the  connnencement  of  this  suit,  in  manner 
and  form  as  the  said  plaintiff  hath  above  complained ;  and  this  he 
is  ready  to  verify.  Wherefore  he  prays  judgment,  if  the  said 
plaintiff  ought  to  have  or  maintain  his  aforesaid  action  against 
him. 

Verdict  and  Judgment  in  Trespass  for  IMesne  Profits.    (Eaton, 
300.) 

(Title  of  the  case.) 

The  following  jurors,  to-wit   ( ),  being  chosen,  tried  and 

sworn  to  speak  the  truth  of  and  concerning  the  issues  joined  be- 
tween the  parties,  as  to  first  of  said  issues,  say,  that  the  defendant 
is  guilty  of  the  trespa.sses  laid  to  his  charge,  in  manner  and  form 
as  the  plaintiff  hath  complained;  and  as  to  the  second  of  said 
issues,  they  say.  that  the  causes  of  action  in  the  declaration  men- 
tioned did  accrue  to  the  plaintiff  within  three  yeare  next  before 
the  connnencement  of  this  suit;  and  they  assess  the  plaintiff's 
damages,  by  reason  of  the  trespasses  aforesaid,  to  one  hundred 
and  fifty  dollars.  Therefore  it  is  considered  that  the  plaintiff  do 
recover  against  the  defendant  his  damages  aforesaid,  with  interest 
thereon  from  the  first  day  of  this  term  until  paid,  and  also  his 
costs  of  suit. 

In  Goodtitle  v.  Tombs.  3  "Wilson,  at  p.  120,  it  is  said  by  Wn.MOT, 
C.  J.:  "Before  the  time  of  Hen.  7.  plaintiffs  in  ejectment  did  not 
recover  the  term ;  but  until  about  that  time,  the  mesne  profits  were 
the  measure  of  damages.  I  bnish  out  of  my  mind  all  fiction  in  an 
ejectment,  the  nominal  plaintiff,  the  nominal  defendant,  the 
ca.sual  ejector,  the  di-amatis  ])ersonae  or  actoi-os  faliulae,  and  con- 
sider flie  recovery  Ijy  defaull,  or  after  a  verdict  as  tlie  same  thing, 
viz.:  a  recovery  by  the  les.sor  of  llic  lilainliff,  of  his  term  against 
the  tenant,  in  the  actual  wrongful  possession  of  the  land.  l'..\  (lie 
old  law  and  practice  in  an  action  of  ejectment  fas  T  bc^Foi-e  said) 
you  recovered  iH.diing  but  damages,  the  measure  wliereof  was  the 
mesne  profits :  no  Icriii  was  recovered;  but  wlien  it  became  estab- 
lished tliat  tlie  term  should  be  recovered,  tlie  eject  menf  \v;is  licked 
into  the  form  of  a  i-eal  action;  the  proceeding  was  iti  r-eui.  and  the 
thing  itself,  the  term  oidy  w;is  )-er'overe(l,  ;uid  noniiruil  damages, 
but  not  the  mesne  profits;  \\  liercupon  this  other  mode  of  recover- 
ing the  jnesne  profits  in  an  action  of  trespass  was  introduced.  ;uid 
jrrafted  upon  the  present  fiction  of  ejectment;  ajid  T  tak.'  il.  that 
the  present  fiction  is  put  in  the  place  of  the  ejectment  at  conniion 
law,  wliicl)  was  indeed  ;i  true,  and  not  a  fictitious  action,  and   in 


.>_ 


I  CONCKKNIN(J     HK.AI,    KSTATE.  \('ll. 


uhifh  the  iiiosno  i)rotils  only,  ami  not  the  term,  were  recovered, 
lor  it  was  no  other  tlian  a  mere  action  of  trespass.  You  have 
turned  mc  out  of  possession,  and  kept  mc  out  ever  since  tlie  de- 
mise hiid  in  tlie  declaration,  thei-efore  1  desire  to  be  paid  the 
dainafjes  to  the  vahie  of  the  mesne  prolits  which  1  lost  thereby; 
and  tliis  is  just  and  reasonable." 

In  an-  anonymous  case  in  6  IModern,  30!!,  we  find : 
Per  CuriaiM.  It  is  a  i;reat  abuse,  in  ejectment,  that  people 
make  nominal  lessees  persons  not  in  rerum  natura,  or  at  best  not 
known  to  the  defendant;  so  that  he  thereby  may  lose  his  costs. 
And  Per  Onuies.  The  attoraey  that  does  so  ought  to  pay  costs. 
And  in  this  case  an  attorney  was  put  to  answer  interrogatories 
for  such  a  practice. 


ADDERTON  v.  MELCHOR.  31  N.  C.  349.     1849. 
John   Doe  ami  Richard  Roe.    Lessor  of  the  Plaintiff.    Legal   Fictions 

in  Ejectment. 

[Ejectment  by  Den  on  the  demise  of  Adderton.  Judgment  against 
plaintiff,  and  he  appealed.     Affirmed. 

In  the  declaration  were  counts  on  the  demise  of  persons  who  were 
dead  when  the  action  was  commenced.  The  court  below  ordered  these 
counts  to  be  stricken  out.] 

Pearson,  J.  There  was  no  error  in  making  the  rule  absolute. 
Indeed,  the  counsel  for  the  real  parties  admits,  that  the  idea  of 
laying  a  demise  in  the  name  of  one,  who  had  died  many  years 
before  the  institution  of  the  suit,  was  an  "experiment."  The 
experiment  ought  not  to  have  succeeded.  It  was  obviously  an 
attempt  to  pervert  a  fiction  of  law  from  its  true  purpose  and  in- 
tent. The  proper  time  for  making  the  motion  was  at  the  appear- 
ance term,  but  the  court  should,  at  any  time  (at  least  before  ver- 
dict), have  allowed  the  application,  and  should  have  permitted  the 
plea  and  consent  ride  to  be  withdrawn,  if  necessary,  to  enable  the 
defendant  to  make  the  motion. 

The  action  of  ejectment  is  admirably  adapted  to  try  questions 
of  title  to  land,  and  the  fiction  of  "lease,  entry,  and  ouster"  is  a 
beautiful  illustraticm  of  the  fact,  that  a  fiction  of  law  "works 
wrong  to  no  one,"  and  is  never  introduced  into  legal  proceedings, 
except  for  the  purpose  of  avoiding  useless  delay  and  expense,  and 
furthering  the  ends  of  justice.  It  is  true  "John  Doe  and  Richard 
Roe"  are  very  much  abused  by  persons,  Avho  are  not  well 
acquainted  with  them,  but  they  are  deservedly  favorites  with  those 
who  have  cultivated  their  acquaintance.  No  one,  who  compre- 
hends the  full  scope  and  object  of  the  fiction,^  can  fail  to  be 
struck  with  it,  as  an  enduring  monument  of  the  wisdom  and  clear- 
sightedness of  the  fathers  of  the  law.  . 

After  it  became  common  for  freeholders,  instead  of  bringnig 
real  actions,  to  enter  upon  the  land  and  make  leases  for  years, 
so  that   the   lessees  might  bring  ejectment,   it   occurred  to   the 


Sec.   2.]  CONCERNING   REAL   ESTATE.  133 

courts,  that  the  fact  of  making  the  "entry  and  lease"  was  unneces- 
sary, and  was  attended  with  useless  expense  and  delay.  How  was 
this  to  be  avoided  ?  If  the  lease  and  entry  were  supposed,  and  the 
action  was  brought  against  the  tenant  in  possession,  he  had  a  right 
to  enter  his  plea,  and  could  not  be  called  on  to  make  any  admis- 
sions. The  expedient  adopted  was.  to  bring  the  action  against  the 
casual  ejector ;  let  him  give  notice  to  the  tenant  in  possession ; 
who.  when  he  applied  to  be  made  defendant,  might  be  required 
to  admit  ''lease,  entry  and  ouster."  as  a  condition  of  his  being 
allowed  to  defend.  lie  had  no  right  to  complain — he  was  not 
required  to  admit  anything  that  would  prejudice  his  right,  but 
simply  to  admit  those  things  to  have  been  done,  which  the  lessor 
might  easily  have  done,  by  increasing  the  trouble  and  expense. 
But  to  require  him  to  admit  a  thing,  which  could  not  have  been 
done,  at  the  institution  of  the  action — for  instance,  that  a  lease 
had  been  made  by  a  dead  man — would  be  unreasonable.  The 
proposition  would  have  shocked  Chief  Justice  Rolle,  who.  nearly 
two  centuries  ago.  had  the  honor  of  inventing  the  action  of  eject- 
ment in  its  present  form.    3  Blk.  199,  207. 

Besides  being  unreasonable,  as  requiring  the  admission  of  an 
impossibility,  it  would  be  a  palpable  violation  of  a  fundamental 
]>rinciple  of  the  action  of  ejectment.  "The  lessor  must  not  onlj' 
have  title  at  the  date  of  the  demise,  but  must  have  title  and  a 
right  of  entry  at  the  commencement  of  the  suit."  At  the  death  of 
the  proposed  lessors,  the  title  passed  out  of  them  to  their  heirs 
or  some  one  else.  When  this  action  was  instituted,  the  dead  les- 
sors had  neither  title  nor  right  of  entr^^  The  decision  of  the 
court  below  must  be  affirmed. 

See  "Ejectment,"   Century   Dig.   §   173;    Decennial   and   Am.   Dig.   Key 
No.  Series,  §  65. 


ATWELL  V.  McLIIRE,  49  N.  C.  371.     18r)7. 
Ejactment.     Rule  as  to  Proving  Defendant  to  he  in  Possession. 

[Ejectment  by  Doe  on  the  demise  of  Atwell.  .Judgment  against 
jilaintiff.  ;infl  ho  .'ii)pealed.     Reversed. 

Plaintiff  filpd  liis  declaration  on  December  7.  but  it  was  not  placed 
in  the  hands  of  the  sheriff  for  service  on  the  defendant  until  several 
days  thereafter,  and  was  not  actually  served  on  defendant  until  the 
following  March.  The  defendant  moved  from  the  locus  in  (|uo  on  De- 
cember 7,  the  day  the  declaration  was  filed,  but  on  the  same  day  he 
placed  Saunders  in  possession  as  his  tenant.  Saunders  attorned  to  the 
plaintiff,  Atwell,  immediately  after  the  return  day  of  this  action  and 
was  acf-eptcd  by  Atwell  as  his  tenant.  There  was  a  verdict  for  i)lain- 
tiff.  the  court  reserving  the  question  of  law  as  to  wlictlier  pbiintiff 
could  recover  on  the  above  facts.  The  defendant  Insisted  that  plaintiff 
should  be  nonsuited  berause  he  had  failed  to  show  fhnt  tho  defendant 
was  in  possession.     The  coiut  ordered  the  nonsuit.  | 

Pi:.\R.S0K,  J.  We  concur  with  his  Honor  upon  the  fii-st  point. 
Th<'  conniipnccincrit  of  nn   ad  inn   of  c  ji'dnicnt    i.s  llu'  time  wlien 


j;{4  c(>\(m:ij\in(;    km.ai,   i'statk.  [Cli.  3. 

the  di'<'laratii»n  is  scrvftl;  in  oIIum-  actions,  if  is  llu^  lime  when  the 
writ  is  issueil.  This  is  setlleil.  ami  the  i-casnii  of  the  tlislim-limi 
tx|Wained  in  Tlioni]^son  v.  Ked,  47  N.  ('.  4\'2. 

A  i-opy  of  tlie  declaration  was  served  on  the  defendant,  with  a 
note  from  liis  "lovin-j:  friend.  l\ichai-(l  Ko(>.''  sayinir:  "1  am 
iiifoniied  vou  are  in  ]n)ssession  of.  or  claim  title  to,  the  i)i'emises. 
etc.''  lie  entered  his  ai^pearance  to  the  action,  and.  hy  leave  of 
the  court,  had  himself  made  defendant,  entered  liis  pl(>a.  and  went 
to  trial  on  the  question  of  title.  Hoth  parties  claimed  under  one 
Alexander  ]\[eLui-e.  and  the  question  turned  upon  the  bona  fides 
of  a  deed,  alletred  to  have  been  executed  by  said  McLure  to  the 
lessor  of  the  plaintiff.  There  "vvas  no  quastion  as  to  the  identity 
of  the  land  sued  for.  and  a  verdict  was  for  the  plaintiff  upon 
the  merits. 

It  would  be  a  strange  result  if,  after  all  this,  the  defendant  is 
entitled  to  a  judgment,  on  the  ground  that,  although  he  claimed 
title  to  the  land,  yet  he  was  not  in  possession  when  the  action 
commenced.  It  would  be  a  mockery  of  justice  to  allow  the  de- 
fendant, after  fighting  the  case  upon  its  merits  and  losing  it,  to 
turn  around  and  say,  if  the  verdict  had  gone  in  my  favor,  I 
would  have  been  entitled  to  a  judgment,  and  I  am  equally  en- 
titled to  a  judgment  notwithstanding  the  verdict  has  gone  against 
nie.  So,  I  was  safe  anyhow,  and  had  a  chance  to  gain  the  case 
upon  the  merits.  Yet  this  is  contended  for,  and  was  so  held  by 
the  presiding  judge,  under  the  nde  as  laid  down  in  Albertson  v. 
Redding,  6  n'.  C.  283;  S.  C,  4  N.  C.  28.  "In  ejectment,  the 
plaintiff  is  bound  to  prove  the  defendant  in  possession  of  the  land 
which  he  seeks  to  recover." 

We  fully  approve  of,  and  feel  bound  by  this,  as  a  general  rule. 
But  in  order  to  fix  the  extent  of  its  application,  and  determine 
the  exceptions  to  its  operation,  it  is  necessary  to  examine  into  the 
"reason"  upon  which  it  is  based. 

The  action  of  ejectment  is,  in  form,  "trespass."  The  judg- 
ment is,  that  the  plaintiff  "recover  his  damages  and  costs."  The 
order  for  a  writ  of  possession  is  no  part  of  the  judgment.  No  one 
is  compelled  to  become  a  defendant.  A  copy  of  the  declaration  is 
served  to  give  notice  of  the  action,  and  to  enable  the  person,  if 
he  is  concerned  in  the  matter,  either  because  he  is  in  possession, 
or  because  he  claims  title  to  the  land,  to  apply  and  have  himself 
made  defendant.  The  object  of  the  fiction  of  a  "casual  ejector" 
is  to  put  it  in  the  power  of  the  court  to  refuse  to  allow  any  one 
to  be  made  a  defendant,  unless  he  will  enter  into  the  conmion  or 
special  rule.  In  this,  it  differs  from  all  other  actions.  In  detinue, 
the  defendant  is  compelled  to  appear  by  mesne  process,  and  the 
judgment  is  that  the  plaintiff  recover  the  specific  thing.  For 
these  rea.sons  it  is  necessary  for  the  plaintiff  to  prove  that  the 
defendant  had  the  article  in  his  possession  at  the  time  the  action 
was  commenced.  These  reasons,  as  we  have  seen,  do  not  apply  to 
the  action  of  ejectment;  consequently,  the  general  rule  above  re- 
ferred to.  in  respect  to  that  action,  must  be  based  on  some  other 
ground. 


Sec.   2.]  CONCERNING   REAL   ESTATE.  135 

If  no  one  applies  to  defend  the  action,  the  plaintiff  cannot  take 
judgment  b}'^  default  against  the  casual  ejector,  imless  he  proves 
that  the  person  upon  whom  a  copy  of  the  declaration  was  served, 
was  in  possession;  for,  ^yithout  this,  no  case  is  constituted  in 
court,  and  if  a  judgment  was  rendered  against  the  casual  ejector, 
A  would  be  turned  out  of  possession  without  notice  or  an  oppor- 
tunity to  be  heard,  simply  by  serving  a  copy  on  B,  who  is  a 
stranger  and  has  no  concern  with  the  land.  This  branch  of  the 
rule  is,  therefore,  founded  upon  a  universal  principle  of  justice, 
ar.d  admits  of  no  exceptions. 

If  any  one  applies  to  defend  the  action,  and  is  permitted  to 
make  himself  a  party  defendant  for  that  purpose,  the  other 
branch  of  the  rule  is  called  into  action,  and  it  is  based,  as  we  shall 
see,  upon  particular  principles,  and,  consequent^,  admits  of 
many  exceptions. 

Suppose  the  declaration  is  for  twenty  acres  of  meadow,  and 
twenty  acres  of  pasture,  situate  in  the  parishes  of  Over  Stowey 
and  Nether  Stowey.  in  the  county  of  Somerset:  the  party  who  is 
made  defendant  proves  title  to  two  pieces  of  land,  answering  that 
general  description;  but  the  plaintiff  proves  title  to  two  other 
pieces  of  land,  answering  the  same  general  description ;  the  de- 
fendant shall  have  judgment,  unless  the  plaintiff  proves  that  he 
(the  defendant)  was  in  possession  of  one,  or  both,  of  the  latter 
two  pieces  to  which  the  plaintiff  had  proved  title;  and  although 
it  be  said  that  the  defendant  ought  to  have  disclaimed  in  regard 
to  the  two  pieces  of  land  claimed  by  the  plaintiff,  the  reply  is, 
how  could  he  tell  what  land  the  plaintiff  sued  for  ?  If  he  had  not 
defended  the  action,  he  might  have  been  turned  out  of  possession 
of  his  o^vn  two  pieces  of  land.  This  was  the  point  in  the  famous 
case  of  Gooflright  v.  Eich.  7  Term  Rep.  327.  where  the  branch 
of  the  general  rule  now  imder  consideration,  is  established.  The 
nile  is  based  on  a  particular  reason — to  prevent  surprise  on  a 
party  who, makes  himself  defendant.  The  Chief  Justice.  Kenyon, 
says  in  that  case,  "when  the  declaration  is  delivered,  the  lessor 
claims,  in  general  terms,  so  many  acres  of  land,  which  com- 
nninicates  but  little  intelligence  to  the  person  served  with  the 
copy.  If  the  latter  happen  to  be  in  possession  of  any  land  falling 
within  the  dosr-ription  in  the  declaration,  he  must  di^fend,  in  order 
to  preserve  liis  own  riglit.  Then  it  would  be  unjust  that  a  verdict 
should  be  found  against  him.  although  he  can  prove  title  to  every 
acre  of  land  in  the  parishes,  of  which  he  was  ever  in  possession ; 
.-.'iid  yet  fhis  is  the  consequence  of  the  plainlifT's  argument." 

Or  suppose  the  deeluralion  is  for  a  traet  of  land  selling  out  the 
metes  and  boundaries.  The  parly  upon  whom  the  declaration  is 
served,  makes  him.self  defendant.  On  tlie  trial.  i1  liiins  out  that 
the  defcndajit  has  title  to  so  nnicb  of  this  traet  as  he  is  in  pos- 
session of:  the  iihiinlifT  lias  title  to  the  remainder;  ])ut  the  defend- 
ant never  was  in  posse.ssiori  of  that  part ;  the  defendant  is  entitled 
to  a  judgment,  because  the  plaintiff  lias  failed  to  prove  that  he 
was  in  possession  nf  anv  land  to  whieh  he  had  title.  This  was  the 
point  in   .Mbfrtson   v,  Kt-dding.  supra.  Avhere  the  English  rule  is 


j;ui 


CONCERNING    KKAI,    KSTATE.  [CIl. 


adopted  by  a  majority  of  the  court;  altlioufxh  Taylor,  C.  J, /lis- 
seuts  ou  the  ground  tluit.  as  our  doclaralions  an;  inoro  specilic  in 
the  description,  the  reasons  for  tlie  HnfAlish  rule  do  not  apply,  and 
he  prefei-s  to  require  delciuhnits  to  enter  a  disclaimer.  Uut  the 
general  rule  has  ever  since  been  considered  settled,  as  laid  down 
bv  the  majority  of  the  court.  Henderson,  J.,  in  delivering  the 
opinion  of  the  court,  puts  it  on  this  i-ea.son  :  "If  the  defendant's 
l-ossession  does  not  interfere  with  the  plaintilf's  claim,  the  mis- 
chief (that  is  the  costs)  should  be  borne  by  the  plaintitf,  who  has 
misled  the  defendant,  rather  than  by  the  defendant,  who  has 
trusted  to  the  plaintiff's  assertion;  otherwise  the  defendant  would 
be  compelled  to  decide,  at  his  own  peril,  whether  the  lauds  de- 
scribed are  those  possessed  by  him ;  although  he  is  told  so  by  the 
plaintiff,  and  this,  too.  when  the  plaintilf  describes  by  artificial 
boundaries,  the  beginning  and  extent  of  which  may  be  entirely 
unknown  to  the  defendant." 

So  the  principle  of  the  rule  is  to  prevent  surprise  on  the  party 
who  makes  himself  a  defendant;   and  the  exceptions  are,  that 
when  there  is  no  surprise,  and  the  parties  go  to  trial  on  the  ques- 
tion of  title,  there  being  no  difficulty  as  to  the  identity  of  the  land, 
and  both  plaintiff  and  defendant  setting  up  title  to  the  whole 
of  it,  if  the  verdict  goes  against  the  defendant,  it  is  not  for  him 
to  say  that  he  was  not  in  possession  at  the  time  the  action  was 
commenced.     It  is  sulficient.  so  far  as  he  is  concerned,  that  he 
claimed  title  to  the  land,  and  made  himself  a  defendant  for  the 
purpose  of  asserting  it.     Accordingly  in  Mordecai  v.  Oliver,  10 
N.  C.  479,  it  was  ruled  in  the  court  below,  that  under  the  circum- 
stances of  that  case,  it  was  not  necessary^  that  there  should  be  an 
actual  possession  by  the  defendant,  to  maintain  the  action;  ''that 
if  the  defendant  claimed  to  be  in  possession,  or  claimed  the  lands 
in  controversy,  and  entered  himself  a  defendant,  with  a  view  of 
maintaining  such  claim,  that  was  sufificient  to  enable  the  plaintiff 
to  maintain  the  action."    This  ruling  was  approved  in  this  court, 
and  the  case  of  Albertson  v.  Redding  was  referred  to  as  fixing  the 
general  rule;  but  the  case  under  consideration  was  held  to  be 
an  exception^     AVe  will  remark  in  passing,  that  the  form  of  the 
notice  set  out  by  Blackstone  in  the  appendix  to  the  third  book  is, 
"you  are  in  possession  of,  or  claim  title  to,"  etc.     So  in  Gorham 
v.'  Brenon.  13  N.  C.  174.  the  defendant  had  never  been  in  pos- 
session, but  he  came  in  and  defended  the  title  and  possession  of 
one  Brenon.  and  there  was  judgment  for  the  plaintiff,  making 
that  case  also  an  exception.    So  in  Wise  v.  Wheeler,  28  N.  C.  186, 
the  defendant  had  never  been  in  possession,  and  never  made  an 
admission  in  i-egard  to  possession,  but  he  had  himself  made  de- 
fendant, and  succeeded  in  showing  title,  and  there  was  judgment, 
but  there  was  no  intimation   that  the  plaintiff  would  not  have 
been  entitled  to  judgment  had  he  succeeded  in  the  question  of 
title:  in  fact,  this  is  a.ssumed  by  the  direction  given  to  the  case. 
So  in  :McDowell  v.  Love.  30  N.  C.  502.  the  defendant  never  w^as  in 
possession,  but  he  procured  himself  to  be  made  defendant  upon 
an  affidavit  setting  out  "that  the  premises  in  dispute  were  his," 


Sec.    2.]  COXCERXING    REAL    ESTATE.  137 

and  that  Chambers  went  into  possession  as  his  tenant ;  the  decla- 
ration had  been  served  on  Chambers,  and  Love  was  made  defend- 
ant on  this  affidavit.  The  principal  contest  was  as  to  a  part  of  the 
land  covered  by  the  defendant's  grant,  but  the  plaintilf  insisted 
that  he  was  entitled,  at  all  events,  to  a  judgment  in  respect  to  a 
small  slip  of  land  not  covered  by  defendant's  grant,  on  the 
ground  that  by  coming  in  as  landlord  to  defend,  he  admitted  him- 
self to  be  in  possession,  and  no  evidence  was  necessaiy.  The  court 
below  held  otherwise,  applying  the  general  rule.  In  this  court 
that  judgment  was  reversed,  on  the  ground  that  "the  affidavit 
supplied  proof  of  the  tenant's  possession  of  all  the  land  within 
the  boundaries  described  in  the  declaration,"  and  the  case  fell 
within  the  exception.  In  Carson  v.  Burnett,  18  N.  C.  51:6,  the  dec- 
laration described  several  tracts.  The  defendant  having  suc- 
ceeded in  showing  title  to  all  the  parts  of  which  his  tenant  was  in 
possession,  the  plaintilf  attempted  to  secure  a  verdict  by  proving 
title  to  a  part  covered  by  the  declaration,  but  of  which  the  tenant 
had  never  been  in  possession ;  it  was  held  he  could  not  be  allowed 
to  do  so,  "for  it  would  be  a  surprise  if  the  defendant  were  called 
on  to  defend  for  portions  of  the  land  of  which  his  tenant  never 
had  possession,"  although  they  were  set  out  in  the  declaration; 
and  the  general  rule  was,  for  that  reason,  applied  to  the  case. 

These  are  all  the  cases  in  the  reports  on  the  subject.  They  fix 
the  general  rule,  that  the  plaintiff  must  show  the  defendant  in 
po.ssession,  on  the  principle  of  preventing  surprise,  and  the  excep- 
tions are  plainly  deducible  therefrom. 

Our  case  falls  luider  the  exceptions.  There  is  no  pretense  of 
sui*prise.  The  defendant  claimed  the  land  in  controversy,  and 
entered  himself  a  defendant,  with  a  view  of  maintaining  such 
claim.  There  was  no  difficulty  in  regard  to  the  identity  of  the 
land,  and  the  case  is  stronger,  because  he  had,  a  very  short  time 
before  the  declaration  was  served,  put  one  Saunders  in  possession 
as  his  tenant.  If  a  copy  had  been  served  on  Saunders,  the  de- 
ft-ndant.  as  landlord,  might  have  come  in  and  defended.  It  can 
make  no  difference,  so  far  as  he  is  concerned,  that  tlie  declara- 
tion was  served  on  him.  He  availed  himself  of  the  opportunity 
of  trying  the  f|uostion  of  title,  under  the  same  advantages,  as  if 
the  declaration  had  been  served  on  his  tenant.  Having  done  so. 
he  can.  with  no  show  of  justice,  insist,  not  only  that  it  should 
nil  pass  for  nothing,  l)iit  that  he  should  have  judgment  for  his 
omia.  As  to  Saunders,  when  the  plaintilf  asked  for  a  writ  of 
possession  fbut  for  his  attoniment),  he  might  have  opposed  the 
issuing  of  tlic  writ,  or  had  it  supei-soded  upon  molion  of  audita 
f|iK'rela.  The  orrlcr  foi-  llic  writ  of  possession  is  no  ]>art  of  the 
judgment,  but  is  now  in  most  instances  granted  as  of  course,  un- 
less there  be  special  grounds  for  not  allowing  it.  It  was  ordered 
in  analogy  to  the  wi-if  of  habcrr-  facias  scisinain  in  a  real,  or  mixed 
action,  to  j)i-fv<'nt  llic  ni'ccssity  of  the  tci'mor's  resorting  to  a 
court  of  of|nity.  It  would  be  refused,  unless  there  was  proof  that 
a  copy  of  the  declaration  had  been  served  on  the  tenant,  even 
although  the  landlord,  as  in  lliis  cnsc  bad  <'(niii'  in  anil  made  bim- 


138  rONTKHNING    KKAI,    KSTATK.  [C'h.    3. 

soil'  (.KlriKhiiit.  in  order  lo  try  the  lillo.  aiid  there  was  judgment 
against  him. 

Per  Curiam.     The  judgment  of  nonsuit  set  aside,  and  judgment 
for  the  i>laintilT  on  tlie  verdict. 

See  'Ejectment,"   Century  Difi.    S§    Go,   202;    Decennial  and   Am.   Dig. 
Kev   Xo.   Series.   §   10. 


HARGROVE  v.  POWELL,  19  N.  C  97.     1836. 

Ejotmcnt    by    Cotenaiit   Against    Cotenant.     General   and   Special   Con- 
sent Rule. 

I  Ejectment  by  Den  on  the  demise  of  Hargrove,  against*  Powell.  Judg- 
ment against  defendant,  and  he  appealed.     Affirmed. 

Hargrove  was  ousted  by  the  defendant,  his  cotenant.  This  ouster  was 
in  April,  1833;  but  the  declaration  alleged  that  the  demise  was  on 
August  1,  1832,  and  the  ouster  on  August  2,  1832.  Upon  these  facts 
the  defendajit  insisted  that  there  was  no  proof  of  an  actual  ouster  at 
the  time  alleged  in  the  declaration.  The  court  instructed  the  jury  that 
the  actual  ouster  of  April,  1833,  was  a  circumstance  from  which  they 
might  infer  a  previous  adverse  iwssession  by  defendant.  Upon  a  mo- 
tion being  made  for  a  new  trial,  the  court  refused  it,  saying  that  even 
if  the  above  instructions  were  erroneous,  the  defendant  could  not  avail 
himself  of  plaintiff's  failure  to  prove  an  actual  ouster,  for  the  reason 
that  the  defendant  had  entered  into  the  consent  rule.l 

Daniel.  J.  We  are  of  opinion  that  tlie  judge  was  correct  in 
refusing  a  new  trial,  on  both  points  in  the  ea.se.  First,  the  de- 
mand of  the  plaintiff  to  be  let  into  possession  in  April.  1833.  and 
the  refusal  by  the  defendant,  accompanied  with  the  declaration 
that  he  held  the  lands  for  his  father-in-laAV,  was  a  circumstance 
properly  left  to  the  jury,  from  which  they  might  infer  the 
previous  adverse  possession,  or  an  actual  ouster  at  the  date  of  the 
demise,  as  stated  in  the  declaration.  Secondly,  the  general  con- 
sent rule  will  in  all  cases  be  sufficient  to  prevent  a  nonsuit  for 
want  of  a  real  lease,  entr>\  and  ouster,  except  when  it  is  neees- 
sarv  that  an  actual  entry  should  be  made  upon  the  land  previously 
to  the  commencement  of  the  suit;  as  in  cases  when  fines  with 
proclamations  have  been  levied.  Adams  on  Ejectment.  90.  236. 
When,  therefore,  an  ejectment  is  brought  by  a  joint  tenant,  par- 
cener, or  tenant  in  common,  against  his  companion  (to  support 
which,  an  actual  ouster  is  necessary),  the  defendant  ought  to 
apply  to  the  court  upon  affidavit,  for  leave  to  enter  into  a  special 
rule,  requiring  him  to  confess  lease  and  entry  at  the  trial ;  but 
not  ouster  also,  unless  an  actual  ouster  of  the  plaintiff's  lessor  by 
him.  the  defendant,  should  be  proved;  and  this  special  rule  will 
always  be  granted  unless  it  appear  that  the  claimant  has  been 
actually  obstructed  in  his  occiTpation.  lie  (a  tenant  in  common) 
shall  not  be  compelled  to  confess  "ouster."  when  he  does  not  dis- 
pute the  title;  but  when  he  does  dispute  it.  he  shall  be  compelled 
to  confass  lease.  entr\'.  and  ouster,  before  he  pleads.  Gates  ex 
dem.    Wigfall  v.  Brydon.  3  Burr.  TROT  :  Doe  ex  dem.  Ginger  v.  Roe, 


Sec.    -2.]  CONCERNING   REAL   ESTATE.  139 

2  Tauu.  397;  Prindle  v.  Lytte.  4  Cowen's  Rep.  16,  Jackson  v. 
Stiles,  6  Cowen's  Rep.  391.  AVe  think  the  .indgment  must  be 
affirmed. 

See  note  by  Judge  Battle  at  the  end  of  this  case  for  further  discus- 
sion of  ejectment  between  cotenants;  also  Mordecai's  L.  L.  574.  See 
"Ejectment,"  Century  Dig.  §§  143,  203;  Decennial  and  Am.  Dig.  Key 
No.  Series,  §  48. 


JARED  V.  GOODTITLE,   1  Blackford,  29-30.     1818. 
Ejectment.     Title  Involved — Legal  or  Eqmtable? 

[This  action  was  brought  by  Hill  against  .Tared.  Tt  was  ejectment, 
and  entitled  Goodlitle,  on  the  demise  of  Hill.  v.  Jared.  There  was  a 
verdict  and  judgment  against  Jared,  the  defendant  below,  who  carried 
the  case  to  the  supreme  court  by  writ  of  error.     Reversed. 

The  defendant  below,  Jared,  requested  the  court  to  instruct  the  jury 
that  the  plaintiff  must  prove  a  clear  legal  title  to  the  locus  in  quo,  or 
he  could  not  recover.  This  the  court  declined  to  do,  and  Jared  ex- 
cepted.] 

Blackford,  J.  ...  In  the  ca.se  before  us,  it  appears  from 
the  record,  that  the  defendant  below  requested  the  court,  among 
other  things,  to  instruct  the  jvuy,  that  to  entitle  the  plaintiff  to 
recover,  he  should  prove  a  clear  legal  title  in  his  lessor  to  the  land 
in  question.  This  is  certainly  the  law,  and  without  such  proof  the 
plaintiff  below  had  no  right  to  a  verdict.  The  court  ought  to  have 
given  the  instruction,  and  in  consequence  of  their  refusal,  the 
judgment  is  erroneous.     .     .     . 

Per  Curiam.     The  judgment  is  reversed. 

See  "Ejectment,"  Century  Dig.  §§  16-62,  136:  Decennial  and  Am.  Dig. 
Key  No.  Series,  §§  8-15,  42. 


SMITH  V.  ALLEN,  1  Blackford,  22-23.     1818. 
Ejectment.     Title  Involved — Legal  or  Equitable? 

r Ejectment  by  Allen,  on  the  demise  of  Bigger,  against  Smith.  Verdict 
and  judgment  against  Smith,  the  defendant  below,  and  he  took  the  case 
to  the  supreme  court  by  writ  of  error.     Affirmed. 

On  thf  trial  Stiiith  offered  to  show  by  parol  evidence  that  the  former 
ownpr,  under  whom  botii  parties  dainipd  title,  had  sold  him  the  land; 
that  he  had  taken  possession  and  made  improvements;  and  that  all  this 
was  before  the  sheriff's  deed  under  which  the  plnintiff  claimed. 1 

Blackford.  J.  The  object  of  tlic  pjnol  testimony,  ro joctod  by 
the  Circuit  Court,  was  to  i)rovc  the  oxistcincc  of  an  equitable  title 
in  the  defcndaut  below,  to  the  premises  in  question,  prior  to  the 
date  of  the  judgiufnt.  This  prinf'i|)Ie.  liowever,  is  clearly  laid 
down,  that,  in  the  action  of  eject incnf.  an  cf|uitnblo  title  cannot  be 
set  up  in  opposition   to  a  Icgjil  one.     Jjn-ksoii  d.   Smifli  v.   I'icrce. 


1-lU  CONCKHNINi;    KKAL    ESTATE.  [CIl.    3. 

2  Johns.  Rep.  221  ;  Jackson  il.  Whitlx'ck  v.  Doyo,  3  Johns.  Rep. 
422.  AVe  think,  therefore,  the  court  were  riglit  in  rejectting  the 
testimony  objected  to.     .  Aftii-iiicd. 

Equitable  deltMises  were  not  available  at  law,  when  law  and  equity 
were  adniinisteieil  in  separate  courts;  but  by  bringing  a  suit  in  equity, 
one  having  an  equitable  estate  could  obtain  iclici'.  tender  the  Code 
practice,  law  and  equity  are  administered  in  the  same  court  and  in  the 
siune  action;  and  hence,  an  equitable  defense  may  be  set  up  in  the  de- 
fendant's answer.  See  Turner  v.  Lowe,  66  N.  C.  413,  and  Condry  v. 
Cheshire,  SS  N.  C.  375,  inserted  at  ch.  3,  s.  3.  So  one  may  recover  on 
an  equitable  title.  Geer  v.  Geer.  109  N.  C.  679,  14  S.  E.  297;  Arrington 
V.  Arrington,  114  N.  C.  116,  19  S.  E.  278;  Westfelt  v.  Adams,  131  N.  C. 
379.  42  S.  E.  823;  Mordecai's  L.  L.  817.  See  "Ejectment,"  Century  Dig. 
§  107;  Decennial  and  Am.  Dig.  Key  No.  Series,  §  26. 


PRICE  V.  OSBORN,  34  N.  C.  26.     1851. 
Ejectment.     What  Title  Plaintiff  Must  Prove. 

I  Ejectment  by  Doe  on  the  demise  of  Price.  .Judgment  of  nonsuit 
against  the  plaintiff,  and  he  appealed.  Affirmed.  The  facts  appear  in 
the  opinion.] 

Nash,  J.  We  concur  with  his  Honor,  before  whom  the  case 
was  tried,  in  the  judgment  he  gave.  The  demise  in  the  declara- 
tion is  laid  on  the  25th  of  December,  1848.  In  the  latter  part  of 
the  year  1847,  David  Price,  the  lessor  of  the  plaintiff,  and  who 
was  the  owner  of  the  land,  leased  it  to  Robert  L.  Osborn  for  the 
year  1848.  Osborn  entered  into  possession,  and  continued  it  dur- 
ing the  whole  of  that  year,  and  until  some  time  in  1849,  when  he 
died,  and  the  defendant,  his  widow,  continued  on  the  land.  On 
the  26th  of  December,  1848,  the  date  of  the  demise,  R.  L.  Osborn, 
the  lessee,  was  in  possession  of  the  premises  under  his  unexpired 
lease.  His  possession  was  a  lawful  one.  and  David  Price,  the  les- 
sor, had  no  right  of  entry,  and  without  such  right  he  could  make 
no  lease  to  the  plaintiff.  In  ejectment,  the  lessor  of  the  plaintiff 
must  recover  upon  the  strength  of  his  own  title;  he  must  show  a 
good  title  to  the  premises,  and  a  right  of  entry  vested  in  him  at 
the  time  of  the  demise,  otherwise  he  cannot  recover.  Brown  on 
Actions.  466;  1  Chit.  PI.  880;  2  East.  250;  13  East,  210,  212. 

Per  Curiam.     Judgment  affirmed. 

See  "Ejectment,"  Century  Dig.  §  64;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §  17. 


DOE  V.  WEST,  1  Blackford,  133-134.     1820. 
Ejectment.     What   Title  Plaintiff  Must  Prove. 

[Ejectment  by  Doe  on  the  demise  of  Wood.  Verdict  and  judgment 
against  plaintiff,  and  he  appealed.  Reversed.  The  court  below  in- 
structed the  jury  that  the  plaintiff  must  trace  his  title  back  to  the  gov- 


Sec.   2.]  CONCERNING   REAL   ESTATE.  1-tl 

ernment  and.  there  being  no  evidence  to  that  effect,  they  should  find 
for  the  defendant.  Plaintiff  excepted.  The  facts  appear  in  the  outset 
of  the  opinion.] 

Scott,  J.  In  this  case  there  was  a  judgment  for  the  defendant 
in  ejectment.  \\e  are  informed  by  the  record  that,  on  the  trial 
of  the  cause,  the  plaintiff  produced  no  patent  from  the  govern- 
ment to  Ileth.  from  whom  he  derived  his  title :  but  a  deed  of  con- 
veyance was  produced  from  ITeth  and  wife  to  Ogden,  in  which 
deed  it  was  mentioned  that  Hetli  held  the  premises  by  patent  from 
the  President  of  the  United  States  of  America.  Conveyances 
were  also  produced  from  Ogden  and  wife  to  Baird,  and  from 
iJaird  and  wife  to  TVood,  the  plaintiff's  lessor.  The  plaintiff  also 
proved  that  Baird  was  in  peaceable  possession  of  the  premises 
previously  to  the  possession  of  the  defendant.  No  evidence  was 
offered  on  the  part  of  the  defendant,  nor  was  any  objection  made 
to  the  validity  of  the  deeds  produced  by  the  plaintiff.  On  motion 
of  the  defendant's  counsel,  the  court  instructed  the  jury  that,  in 
order  to  recover,  the  plaintiff'  must  trace  his  title  back  to  the 
government ;  and  having  no  evidence  before  them  that  the  prem- 
ises in  controversy  were  held  by  Heth  by  patent  from  the  Presi- 
dent of  the  United  States,  they  were  bovnid  to  find  a  verdict  for 
the  defendant. 

It  is  often  necessaiy  for  the  plaintiff  to  show  a  right  of  prop- 
erty in  order  to  establi.sh  a  right  of  possession.  In  some  instances 
he  must  show  an  estate  in  fee;  in  others  a  less  estate  is  sufficient. 
But  it  is  in  all  eases  indispensable,  that  the  plaintiff  show  a  clear, 
legal  right  of  possession  in  his  lessor.  And  whatever  title  he  has, 
must  be  derived  from  a  legitimate  source.  A  mere  conveyance 
from  A  to  B  is  no  evidence  of  title,  unless  it  appears  that  A  had 
a  subsi.sting  right.  "Whatever  kind  of  title  the  plaintiff  may 
show,  or  from  whatever  source  it  may  be  derived,  the  right  of 
possession  is  tlie  object  to  whicli  the  eye  of  the  law  is  uniformly 
directed;  and  to  that  object  the  evidence  should  always  apply. 
Ejectment  is  a  po.ssessory  action.  The  subject  of  controversy  is 
not  the  ultimate  title  to  the  land  itself,  but  the  legal  right  of 
possession.     1  P.urr  110:  T)  Burr.  2830;  3  Dnll.  457;  1  Bibb.  128; 

2  Bibb.  IT)!);  Ruiin.  42.  The  right  of  property  may  be  in  one  per- 
son, the  right  of  possession  in  another,  and  the  actual  possession 
ill  a  third.  2  P>lk.  Com.  202.  The  plaintiff'  in  ejectment  a.sserts 
a  legal  right  of  pos.session  in  his  lessor.  It  is  immaterial  liow 
minute  his  interest  is.  ju-ovided  it  be  a  legal  interest.     Kunn.  1: 

3  Dall.  4n').  The  first  and  lowest  grade  of  interest  in  real  estate 
in  actual  oceupancy,  wliieh,  in  lapse  of  time,  may  rii^en  into  a 
perfect  jind  iiulefeasible  title.  2  Blk.  r(.m.  1f>S.'  So  far  as  it 
goes,  however,  it  is  a  legal  interest,  and  gives  a  right  against 
every  man  who  cannot  show  a  better  iillr.  TJunn.  Ul.  In  Eng- 
land, and  in  some  of  our  sister  states,  it  has  been  decided  that 
twenty  years'  peaceable  possessUm  gives  a  riglit  wliieb  is  suffi- 
cient to  maintain  ejectment.  2  Bac.  Abr.  42)?:  1  P.urr.  1 U) ;  2 
Bibb.  150.  In  tho.se  deeisiojis.  thr  precise  time  of  twenty  years 
has  reference  to  a  statute  of  limitations;  and   Hie  decisions  are 


Ml'  C(KNC"KKN'l\ti     K'KAI,    KSTA'PE.  \  (  ' ll .    .'). 

invdicati'il  im  tlu'  sii|)i)osilion  ol'  some  pie-cxisting  riglit  of  pos- 
si'ssion.  whicli  is  lost  l)y  tho  eontinu.ince  of  an  adverse  possession 
for  sueh  a.  lenixth  (»!'  time.  We  have  no  operative  statute  of  limi- 
tations, and  if  such  a  statute  existed,  it  eould  have  no  bearing;  on 
the  tirst  oeeupant.  The  title  hei-e  set  np  is  a  ]>rior  peaceable  pos- 
session, and  actual  oeeupaney  derived  from  lleth,  who  claims  to 
hold  under  the  <?overnment.  The  defendant  mip:ht  protect  him- 
self by  showinir  title  in  himself,  oi-  that  the  plaintiff's  title  had 
expired.  In  this  ease  no  title  was  i)roved.  or  even  allegetl,  in  the 
defi'udant;  no  attempt  was  made  to  prove  an  adverse  po.ssession, 
or  to  show  that  the  plaintiff's  interest  had  ceased.  Heth  claims 
to  hold  by  patent  from  the  I'nited  States.  lie  conveys  to  Ogden. 
Ogden  conveys  to  Kaird.  We  find  Baird  in  i)eaceable  possession. 
These  facts,  unconti-adieted.  are  sufficient  to  justify  the  presump- 
tion, that  the  possession  accompanied  the  conveyances  from  Ileth 
down  to  Baircl.  and  that  ITeth  was  the  first  occupant.  This  is 
presuming  no  more  for  the  plaintiff  than  is  authorized  by  prec- 
edents. 2  Cowp.  597:  7  T.  R.  2;  1  11.  Bl.  447;  Esp.  N.  P.  469. 
In  such  cases  the  plaintiff  need  not  show  twenty  years'  posses- 
sion. The  lengtli  of  time  is  not  material.  Eight  or  ten  years  in 
one  case,  and  three  years  in  another,  were  decided  to  be  sufficient 
to  entitle  the  plaintiff  to  recover.  4  Johns.  202;  2  Johns.  22. 
The  possession  is  prima  facie  evidence  of  the  right  of  property. 
It  is  a  fact  from  which,  in  the  ab.sence  of  all  other  testimony,  the 
jury  had  a  right  to  presume  a  perfect  title,  and  is  in  itself  a  good 
title  against  all  the  world,  except  him  who  can  show  a  better  title. 
In  the  case  before  us.  the  plaintiff,  and  those  under  whom  he 
claims,  had  peaceable  and  undisturbed  possession,  and  actual 
occupancy  of  the  premises,  under  a  claim  of  title  from  the  gov- 
ernment. No  person,  without  a  paramount  claim,  has  a  right  to 
disturb  his  possession,  or  ciuestioii  his  title.  If  the  defendant 
holds  imder  Baird.  he  has  no  right  to  say  that  Baird  has  no  title. 
If  he  rasts  on  his  possession  alone,  and  has  no  color  of  title,  he 
nmst  yield  to  the  plaintiff's  right,  acquired  by  prior  possession: 
hr  must  he  considered  merely  as  an  intruder;  and  against  such, 
a  prior  peaceable  possession  is  a  good  legal  title.  2  Johns.  22;  4 
Johns.  202.  From  these  considerations  we  are  of  the  opinion  that 
the  Circuit  Court  erred  in  instructing  the  jury  that  the  plaintiff 
miLst  show  a  patent  from  the  government  to  Heth. 

Per  Curiam.     The  judgment  is  reversed,  and   the  verdict  set 
aside  with  casts. 

"The  rule  of  law,  that  a  plaintiff  must  reoover  on  the  strength  of 
his  own  title,  and  not  the  weakness  of  his  adversary's,  must  be  limited 
and  explained  by  the  nature  of  each  case  as  it  arises.  Since  the  rule 
is  universal,  that  the  plaintiff  in  ejectment  must  show  the  right  of 
possession  to  be  in  himself  i)o?itively — and  it  is  immaterial  to  his  right 
of  recovery,  whether  it  be  out  of  the  tenant  or  not,  if  it  be  in  himself — 
it  follows  that  a  tenant  is  always  at  liberty  to  i^rove  the  title  out  of 
the  plaintiff,  although  he  does  not  prove  it  to  exist  in  himself.  Possible 
difficulties  may  be  suggested  as  to  the  application  of  this  principle  to 
mere  tort-feasors  or  forcible  disseisors."     fSuch  cases  are  generally  pro- 


iSeC.    2.]  CONCERXIXG    REAL    ESTATE.  143 

vided  for  by  statutes  against  forcible  entry.  1  Love  v.  Simms,  9  Wheat. 
515,  523-524. 

"The  rule  that  the  plaintiff  in  ejectment  must  recover  on  the  strength 
of  his  own  title,  either  as  being  in  itself  good  against  all  the  world,  or 
good  against  the  defendant  by  estoppel,  is  too  well  established  in  the 
law  of  this  state  to  be  in  the  slightest  degree  shaken  by  the  elaborate 
argument  of  the  plaintiff's  counsel.  ...  As  early  as  the  year  1816, 
it  was  said  by  Mr.  IMordecai,  .  .  .  that  he  did  not  intend  to  contro- 
vert the  rule  so  long  established,  that  the  plaintiff  in  ejectment  must 
recover  on  the  strength  of  his  own  title.  We  do  not  intend  to  weaken 
the  foundation  of  the  rule  by  supposing  it  to  be,  at  this  day  [1856]  open 
to  discussion."     Battle,  J.,  in  Taylor  v.  Gooch,  48  N.  C.  at  p.  468. 

"A  plaintiff  must  generally  show  title  good  against  the  world;  while 
a  defendant  can  ordinarily  prevent  his  recovery  by  showing  a  better 
title  outstanding  in  any  person.  But  it  is  an  oid  and  well  established 
rule  .  .  .  that  where  both  parties  claim  title  under  the  same  per- 
son, neither  will  be  allowed  to  deny  that  such  person  had  title.  [McCoy 
V.  Lumber  Co.,  149  X.  C.  1,  62  S.  E.  699.1  While  a  defendant  in  such 
cases  may  set  up  a  title  superior  to  him  through  whom  both  claim  as 
the  common  source,  provided  he  connects  himself  with  it,  he  is  not 
allowed,  as  in  other  cases,  to  show  a  better  title  than  that  of  a  plain- 
tiff in  a  third  person."  Avery,  J.,  in  Bonds  v.  Smith,  106  X.  C.,  at  p.  565, 
11  S.  E.  322. 

F'or  a  very  valuable  note  on  this  subject  of  the  title  which  plaintiff 
must  show  in  ejectment,  see  18  L.  R.  A.  781-792.  See  "Ejectment,"  Cen- 
tury Dig.  §§  16-62,  94-98;  Decennial  and  Am.  Dig.  Kev  Xo.  Series. 
§§  8-15,  24. 


WISE  V.   WHEELER,   28  X.  C.   196.     1845. 

Rights  of  Landlords  and  Tenants  and   Third  Persons   in   the  Matter  of 

Defending   the  Action. 

[Ejectment  by  Den,  on  the  demise  of  Wise.  Verdict  and  judgment 
against  jilaintiff,  and  he  appealed.     Affirmed. 

When  the  action  was  commenced,  Samuel  J.  Wheeler  was  in  posses- 
sion, and  the  notice  was  sei-ved  upon  him.  He  failed  to  appear,  but 
by  order  of  court  John  H.  Wheeler  was  made  defendant.  John  H. 
Wheeler  put  in  evidence  a  deed  made  to  him  by  Samuel  J.  Wheeler. 
The  plaintiff  attacked  this  deed  for  fraud  and,  to  establish  the  fraud, 
offered  the  dedarations  of  Samuel  J.  Wheeler  made  while  he  was  in 
possession  and  shortly  before  the  execution  of  the  deed.  This  evidence 
was  ruled  out  by  the  court,  and  the  plaintiff  excepted.] 

Xasii,  J.  .  .  .  The  (lec-laration.s  of  Saiimol  J.  Wheeler  were 
properly  rejected,  and  for  the  rea.son  assifjned  l)y  his  Honor,  that 
he  wa,s  no  party  to  the  reeord.  He  was  the  tenant  in  possession, 
and  the  notice  had  been  served  upon  him.  Tliere  Mas.  however, 
no  obli^'ation  ni)f)n  him  to  defend  the  suit.  It  was  at  his  pleasure 
to  do  so  or  not.  Tpon  his  deejijiiufj  to  he  made  the  defendant, 
the  plaintift".  upon  the  proper  ]iroof  of  the  service  of  the  notice, 
was  entitled  to  a  judfrmcnl  liy  default  aofainst  the  casual  ejector. 
The  cftM.s('(|U'-nci'  (»f  which  y)roct'edinfj  would  he.  that  tlw^  plnintifl' 
would  he  subjected  to  the  payment  of  the  costs  ineurred.  leaviujj; 
lijm  to  recov(,'r  them  in  an  action  for  the  mesne  |)rofits.  a<?ainst 
Ihe  defanltinrr  tenant.  If,  lio\ve\ei-.  Ili<'  feiKint  in  pos-session.  be 
in  pos.session  a.s  tenant    t(»  aTiy  ntlier  person.   lli<'   landlord   has  a 


Ml  CONCEUNINd    HKW.    KSTATE.  [Ch.    3. 

liirlit.  upon  makinsr  tliat  appear  to  tlio  ('(mhI   in  the  proper  man- 
ner,  to  be  niaile  tlie  defendant,  eitlier  in   \)\;\i-v  ol'  tlie  tenant   or 
^vith  him.    Fairclaim.  on  demise  of  Fowler  v.  Shamtitle.  2  liurr. 
1310;  Adams  on  K.jeetment.  228.     It  is  the  right  of  the  hindh)rd, 
at  connnon  hiw.  to  come  in  and  be  made  a  party  defendant.     No 
other  person  lias  this  ri^ht;  and  if  a  ])arty  shonld  be  permitted 
to  defend  as  landlord,  whose  title  is  ineonsistent  with  that  of  the 
tenant,  aceordinfr  to  the  En<xli.sh  practice,  the  plaintiff  may  apply 
to  a  .indire  at  his  chambers,  or  to  the  court,  and  have  the  rule  dis- 
ehartred  with  costs.     Adams  on  Eject.  232.     But  if  he  neorlect  to 
do  so.  and  the  party  continue  on  the  record  a.s  defendant,  he  will 
not  be  permitted  to  set  up  such  inconsistent  title  as  a  defense  at 
the  trial.     Kniirht  v.  Lady  Smythe.  4  M.  &  S.  347;  Adams.  232; 
Belfour  and  Henly's  Heirs  v.  Davis  and  Nixon.  20  N.  C.  443; 
Havis  V.  Evans.  27  N.  G.  525.     But.  althoupjh  no  one  but  a  land- 
liu-d  can  be  made  defendant,  against  the  Avill  and  pleasure  of  the 
]>laintitY.  yet  the  latter  may  consent  to  any  person  coming  in  as 
defendant,  and  upon  any  title,  when  the  tenant  in  possession  has 
Tuade  default.     In  such  case,  the  service  of  a  new  declaration 
would  be  admitted  by  the  defendant.     As,  however,  the  party  so 
made  defendant  was  not  the  person  actually  in  pos.session,  it  is 
not  sufficient  he  should  enter  into  the  common  rule,  but  he  nuLst 
consent  to  be  considered  in  actual  possession.     This  is  rendered 
necessaiy  by  the  rule  adopted  in  our  courts,  that  notwithstanding 
the  confession  of  lease,  entry,   and  ouster  by  the  defendant  in 
entering  into  the  common  rule,  the  plaintiff  at  the  trial  must 
prove  the  defendant  to  have  been  in  possession  at  the  commence- 
ment of  the  action.     If  the  new  defendant  w^ere  not  obliged  to 
admit  himself  in  possession,  the  plaintiff  could  not  recover.    It  is 
to  he  rememhered  that,  in  form,  the  action  of  ejectiuent  is  nearly 
throughout  a  fiction,  and  the  courts  have  exercised  the  privilege 
of  moulding  it  to  suit  the  purposes  of  justice.     The  court,  there- 
fore, ought  in  no  case  to  permit  a  stranger  to  defend,  without  his 
agreeing  to  he  considered  in  possession,  and  without  the  consent  of 
the  plaintiff.     Originally,  after  the  tenant  was  brought  into  court 
by  the  service  of  a  declaration  and  notice,  another  declaration  was 
served  upon  him ;  the  latter  is  noAv  dispensed  Avith.  but.  as  before 
stated,  if  the  parties  agree,  another  declaration  may  still  be  served 
npou  another  party,  at  the  time;  all,  indeed,  is  by  consent.     The 
(inly  person  who  is  compelled  to  appear  is  Kichard  Roe.     Adams, 
357,  358.  In  the  ease  now  before  us,  we  are  to  presume  all  the  regu- 
lar steps  were  taken,  in  order  to  make  John  H.  Wheeler  the  de- 
fendant.   He  defended  alone.    The  presumption  is  that  he  was  ad- 
mitted by  consent,  as  it  does  not  appear  to  have  been  opposed,  and 
it  is  probable  that  all  parties  wished  to  try  the  validity  of  the  deed 
of  trust  as  soon  as  possible.    Samuel  J.  "Wheeler  was  no  party,  and 
his   declarations   were  not   evidence   against  the  real  defendant- 
They  were  not  offered  to  explain  his  possession.     .     .     . 
Judgment  affirmed. 

See  •'Ejectment,"  Century  Dig.   §§  143,  144.  203;    Decennial   and  Am. 
Dig.  Kpv  Xo.  Series,  §§  48,  49. 


Sec.    2.]  COXCERNIXG    REAL    ESTATE.  1-45 


MADDREY  V.  LONG,   S6  X.   C.   383.     1882. 

What  Defenses  Permissible  to  Landlords  and  Others  Let  in  to  Defend. 
Parties  Let  in  by  Consent  Distinguished  from  Those  Let  m  by  Rule 
of  Laic.     Old  Practice  and  Code  Practice. 

[Action  by  Maddrey  to  recover  land.  Verdict  and  judgment  against 
defendants,  and  they  appealed.     Reversed. 

The  action  was  brought  against  Long,  but,  by  consent,  J.  T.  Crocker 
and  R.  T.  Stephenson  were  let  in  to  defend  the  action.  The  plaintiff 
put  in  evidence  a  sheriff's  deed  to  himself,  and  the  record  of  a  judg- 
ment and  execution  against  the  defendant  Long,  under  which  the  locus 
in  quo  had  been  sold  and  conveyed  to  the  plaintiff.  He  also  showed 
that  Long  was  in  possession. 

The  defendants  Crocker  and  Stephenson  offered  to  show  judgments 
and  executions,  sale  under  executions  and  sheriff's  deed  to  themselves 
for  the  locus  in  quo.  Upon  objection,  this  proposed  proof  was  ruled 
out,  upon  the  ground  that  Crocker  and  Stephenson  could  not  avail  them- 
selves of  any  defense  which  was  not  open  to  their  codefendant  Long, 
they  having  been  permitted  to  come  in  and  defend  the  action.  Crocker 
and  Stephenson  excepted.] 

Ashe,  J.  There  is  error.  The  principle  upon  which  his  Honor 
ruled  out  the  evidence  of  the  defendants  (Crocker  and  Stephen- 
son) has  no  application  to  this  case.  Under  the  former  practice  it 
was  a  well  settled  rule  that  when  a  landlord  was  let  in  to  defend  an 
action  of  ejectment,  he  stood  in  the  place  of  the  tenant,  and  could 
make  no  defense  which  the  tenant  could  not  have  made.  Wiggins 
V.  Riddick,  33  N.  C.  380;  Belfour  v.  Davis,  20  N.  C.  443.  But 
where  a  defendant  is  let  in  to  defend  such  an  action  hy  consent,  he 
is  not  restricted  to  the  defense  of  the  party  in  possession,  upon 
whom  the  process  was  originally  served,  but  any  defense  he  can 
make  is  open  to  him.  Wise  v.  Wheeler,  28  N.  C.  196,  and  Lee  v. 
Flannagan,  29  X.  C.  471.  in  which  case  Ruffin.  C.  J.,  said:  "We 
had  occasion  to  look  into  this  question  in  AVise  v.  AVheeler.  and  held 
that  when  the  tenant  in  possession  makes  default,  and  another  is 
let  in  by  consent  to  defend,  upon  admission  of  actual  possession  in 
that  person,  it  must  bo  understood,  that  it  was  the  ob.iect  of  those 
parties  to  try  the  title  between  themselves  at  once  without  the  delay 
or  expense  of  a  new  suit."  These  cases  were  decisions  under  the 
old  practice. 

Since  the  adoption  of  the  Code  it  has  been  held  in  the  case  of 
I.sler  V.  Foy,  GG  N.  0.  547.  that  under  the  provisioiis  of  the  Code, 
ss.  61.  65.  a  huidlord  let  in  to  defend  in  a  civil  action  foi-  the  re- 
covery of  hind,  is  not  restricted  to  the  defenses  to  which  his  tenant 
is  confinf'd.  nor  is  this  principle  varied  by  the  cii'cumstance  that 
Ihc  plaintift'  is  tlw  purchaser  at  execution  sale  against  such  tenant, 
and  that  the  latter  was  in  possession  at  the  date  of  sale  and  of  the 
commencement  of  the  action.  There  is  no  conflict  between  that 
ca.se  and  Whisenhunt  v.  Jones.  78  N.  C.  361.  The  main  questions 
in  that  case  turned  upon  the  points  of  notice  and  damages — ■ 
whether  Ihe  w;uit  of  notice  to  leave  to  the  original  defendants, 
who  wore  tenants,  could  be  taken  atlvantage  of  by  those  who  were 
allowed  to  come  in  and  defend  the  action,  imd  whether  the  dam- 
Rpmcdles — 10. 


14tt  {-ONCKIfXlNC     KKAI,     KS'I'A'I'K.  |(7(.    ,V. 

nsres  wore  to  be  assessed  to  the  coimneneeinent  of  the  action,  or  up 
to  the  trial. 

There  was  ei-ror  in  tlie  i-nliiit;  of  liis  TToiioi-  in  rejeetinc:  the  evi- 
denee  olferetl  l)y  the  defendants,  and  tiiey  are  on  that  aeeouut  en- 
titled to  a  new  trial.  This  will  therefore  be  certified  to  the  court 
below  to  tlie  end  that  a  venire  de  novo  may  be  awarded.  Venire 
de  novo. 

See  also  Bryant  v.  Kinlaw,  90  N.  C  337.  See  "Ejectment,"  Century 
Dig.  §  92:   Decennial  and  Am.  Dig.  Key  No.  Series,  §  23. 


MILLER  V.  MELCHOR,  35  N.  C.   439.     1852. 
Ejectment.     Title  Involved.    Damages. 

[  Ejectment.  Doe,  on  demise  of  Miller,  against  Melchor.  Referred 
to  arbitrators.  Award  for  plaintiff.  .ludgment  against  defendant,  and 
he  appealed.     Affirmed. 

Among  other  things  the  award  was  for  ten  dollars  to  the  plaintiff  as 
the  actual  damages  he  had  sustained.  To  this  the  defendant  objected, 
and,   upon   his   objection   being   overruled,   he   excepted.] 

Pearson,  J.  If  the  arbitrators  had  exceeded  their  authority  in 
assessing  ten  dollars  as  damages  instead  of  "six  pence,"  the  ob- 
jection would  not  extend  to  the  whole  award  as  far  as  the  amount 
is  divisible.  The  excess  could  be  rejected  as  surplusage.  But  the 
arbitrators  did  not  exceed  their  authority.  It  was  proper  for  them 
to  assess  the  actual  damages,  so  a.s  to  make  the  award  final,  and 
prevent  the  necessity  of  an  action  for  mesne  profits,  which,  when 
confined  to  the  time  laid  in  the  demise,  is  a  mere  elongation  of  the 
action  of  ejectment;  that  action  being  divided,  at  the  suggestion  of 
the  court,  into  two  parts  in  order  to  save  time  and  merely  as  a 
matter  of  convenience. 

The  declaration  in  ejectment  demands  damages  and  originally 
nothing  else  was  recovered.  Afterwards  the  court  made  the  rein- 
edy  more  adequate,  by  adding  a  writ  of  possession,  but  in  form  it  is 
still  an  action  for  damages  only,  and  when,  by  the  adoption  of  the 
fictions  invented  by  Chief  Justice  Rolle,  ejectment  became  the 
most  convenient,  cheap,  ea.sy,  and  speedy  remedy,  as  well  for  all 
having  an  estate  of  freehold  as  for  those  having  estates  less  than 
freehold;  and  when,  in  C(msequence  thereof,  ejectment  almost  uni- 
versally took  the  place  of  real  actions  and  became  the  mode  of  try- 
ing titles,  it  Avas  seen  that  a  great  deal  of  time  was  unnecessarily  in 
many  ca.ses  consumed  in  the  examination  of  witnesses  and  in  the 
discassion  of  the  question  of  damages.  For,  if  upon  the  title  the 
case  was  with  the  defendant,  then  the  expense  of  witnesses  in  gen- 
eral to  the  amount  of  damages  and  the  time  consumed  in  their  ex- 
amination and  the  discussion  incident  thereto,  was  "labor  lost;" 
and  in  cases  where  an  incpiiry  as  to  the  question  of  damages  was 
made  necessary  by  a  verdict  in  favor  of  the  plaintiff  upon  the 
"title."  such  inquiry  had  a  tendency  to  distract  the  jury  and  call 


Sec.    2.]  COXCERXIXG    REAL    ESTATE.  1 -H 

oft  attention  from  the  main  question,  and  it  was  better  for  both 
])arties  to  postpone  it.  Hence  it  was  suggested  by  the  court  and 
acquiesced  in  by  the  profession,  that  the  action  might  be  divided, 
so  as  to  let  the  question  of  title  alone  be  passed  on  in  the  ejectment, 
with  nominal  damages,  "for  conformity."  if  title  was  with  the 
plaintiff,  and  leave  the  amount  of  damages  to  be  ascertained  by 
an  action  for  mesne  profits. 

This  has  been  the  universal  practice,  but  it  would  not  be  error 
for  the  court  to  instruct  the  jury  that,  if  they  found  for  the  plain- 
tiff upon  the  title,  they  were  at  liberty  to  find  actual  damages  for 
the  time  the  defendant  had  wrongfully  kept  the  lessor  of  plaintiff 
out  of  possession ;  and  in  some  cases  it  is  necessary  for  the  jury,  in 
the  action  of  ejectment,  to  find  the  actual  damage,  as  if  the  lessor 
be  to  pay  rent  for  years,  when  the  term  expires  pending  the  ac- 
tion ;  or  tenant  for  life,  or  per  autre  vie.  and  his  estate  terminates 
pending  the  action.  In  such  cases  an  action  for  mesne  profits  can- 
not be  brought,  because  it  is  an  action  of  trespass  q.  c.  f..  and  it  is 
necessary  to  regain  the  possession  so  that,  by  the  fiction,  it  can  re- 
late back  to  the  prior  possession ;  and  as  this  cannot  be  done,  the 
amount  of  damage  must  be  assessed  in  the  action  of  ejectment.  It 
is  a  plain  analog}',  as  arbitrators  are  required  to  make  a  final 
award,  and  no  secondary  action  is  contemplated,  that  Avhen  an  ac- 
tion of  ejectment  is  7'eferred.  the  actual  damages  should  be  as- 
sessed according  to  the  form  of  action  and  the  ancient  practice. 
.     .     .     Judgment  affirmed. 

See  "Ejectment,"   Century  Dig.   §   441 ;    Decennial   and  Am.   Dig.   Key 
No.  Series,  §  127. 


WHISSEXHUXT  v.  JONES.  78  N.  C.  361,  .363.     1878. 
Ejectment.    Mesne  Profits  atid  Damages. 

r Action  to  recover  possession  of  land.  Verdict  and  judgment  against 
defendant,  and  he  appealed.     Affirmed. 

Among  other  things,  the  defendant  insisted  that  damages  could  be 
given  only  up  to  the  time  the  action  was  commenced,  and  not  up  to  the 
time  the  action  was  tried.  The  court  ruled  otherwise,  and  he  excepted. 
Only  ihat  i)ortion  of  the  opinion  is  inserted  which  l>ears  upon  this  point.] 

Bynum,  J.  .  .  .  The  last  exception  is  that  damages  could 
only  be  given  to  the  coimrK'nccmcnt  of  the  action,  and  not  to  the 
time  of  trial.  We  think  f)thor\vise.  The  action  is  for  the  recovery 
of  the  pos.st'ssion  of  land,  and  for  damages  for  tlu^  time  the  defend- 
ants have  wroiitrfiilly  kept  tlu'  i)hnntiff  out  of  possession.  Tlatl 
this  l>een  thr«  f>ld  action  of  ejectment,  it  has  hccn  dccidc^d  tiiat  in 
that  action,  whicli  was  originally  and  ])rf»perl.\-  an  action  for  dam- 
ages only,  tlic  actual  flainagcs  could  bo  asses.sed  for  tlu'  tres|)ass. 
"When  afterwards  the  jiction  of  ejectment  was  divided  into  two 
actions,  one  to  try  the  title  and  the  other  to  recover  the  mesne 
profits  after  the  pos.sessio)i  h:i(l  Iteeii  iicovcccd,  il  w;i,s  still  eoin- 
petent  in  the  latter  action,  to  recover  damages  for  the  cnliic  time 


14S  CONCKllNINi;    KKAI-    KSTAl'K.  \('h.    ■'-. 

the  premises  wert^  oeeiipird  li\'  tlic  dt  iViKliiiits.    ^Miller  v.  Melehor, 
35  N.  C.  439. 

The  only  difTerenee  between  the  net  ion  of  trespass  for  the  mesne 
protits  nnder  the  old  system,  and  the  present  aetion  nnder  the 
Code,  is,  that  in  tlie  former,  the  writ  did  not  lie  nnlil  the  posses- 
sion had  been  aetnally  recovered  in  the  aetion  of  ejectment,  while 
in  the  hitter  ease  the  aetion  is  for  both  the  possession  and  tlie  dam- 
ac;es  for  the  use  and  oeen])ation  at  llie  sam(>  time,  lint  they  are 
both  alike  in  this,  that  by  either,  damages  are  recovered  for  the 
time  the  plaintiff  was  kept  ont  of  possession  I)y  the  defendants. 
The  purpose  of  the  Code  in  actions  of  tliis  nature,  as  it  is  in  all 
othei-s.  is.  that  a  complete  determination  shall  be  made  of  all  mat- 
ters in  controversy  growint;  out  of  the  same  subject  of  the  action. 
Evidently  this  action  would  fall  short  of  that  consummation,  if  the 
plaintiff  could  recover  damages  only  up  to  the"  commencement  of 
the  action,  and  should  be  ^uit  to  another  action  to  recover  the  dam- 
ages sustained  sub.se([uently.  but  before  the  time  of  the  trial.  That 
the  damages  up  to  the  time  of  trial  are  recoverable  in  this  action, 
is  further  apparent  from  the  provisions  of  the  Code,  sees.  217.  261 
(4),  262  (a),  (e).  Taylor's  Landlord  and  Tenant,  sees.  710-712. 
We  are  therefore  of  opinion  that  the  mesne  profits,  by  way  of  dam- 
ages, were  properly  assessed  vip  to  the  time  of  trial.  Jones  v.  Car- 
ter. 73  N.  C.  148.     .     .     .     Affirmed. 

That  damages  are  allowed  up  to  the  time  of  trial,  see  Jones  v.  Coffey, 
109  N.  C.  at  p.  519,  14  S.  E.  84,  inserted  at  ch.  3,  sec.  3,  post,  approving 
the  principal  case.  In  Camp  v.  Homesley,  33  N.  C.  at  p.  212,  Ruffin,  C.  .1., 
says:  "As  the  action  for  mesne  profits  is  substantially  a  continuation 
of  the  ejectment,  for  the  luirpose  of  recovering  the  actual  damages, 
which  were  formerly  nominally  assessed,  it  follows,  that  whenever  a 
person  is  allowed  to  maintain  ejectment,  he  may  have  trespass  against 
the  same  party  by  way  of  comijleting  his  remedy.  Hence,  it  is  settled, 
that  after  a  recovery  in  ejectment,  and  entry,  a  tenant  in  common  may 
sue  his  companion,  who  has  ousted  him,  for  the  mesne  profits."  See 
"Damages,"  Century  Dig.  §  .567;  Decennial  and  Am.  Dig.  Key  No.  Series, 
§  225. 


WHITE  v.  COOPER,  53  N.  C.  48,  50.     1860. 
Ejectment.    Jttdgment  Hoto  Far  an  Estoppel  at  Common  Law. 

[Trespass  quare  clausum  f regit.  Judgment  against  the  plaintiff  for 
costs,  and   he  appealed.     Reversed. 

The  points  upon  which  the  case  was  carried  up  were  not  clearly 
stated  in  the  case  on  appeal,  as  appears  from  the  opening  remark  in 
that  portion  of  the  opinion  which  is  here  inserted;  but  to  what  extent 
a  judgment  in  ejectment  is  an  estoppel,  is  discussed  by  Pearson,  C.  J., 
with  his  usual  ability.! 

Pearson,  C.  J.  .  .  .  "We  are  left,  therefore,  to  infer  that  his 
honor  put  his  decision  upon  the  supposed  effect  of  the  judgment 
in  the  action  of  ejectment. 

It  is  set  out  in  the  statement  of  the  case:  "The  locus  in  quo  was 


Sec.   2.]  CONCERNING   REAL   ESTATE.  1-19 

proved  to  be  within  the  description  in  the  declaration  and  writ  of 
possession ;  from  which,  by  a  suggestion  at  the  bar,  an  implication 
is  to  be  made,  that  it  was  not  within  the  description  in  the  grant, 
imder  which  the  defendant  claimed ; "  in  other  words,  the  def end- 
ant 's  title  does  not  cover  the  locus  in  quo,  and  the  question  in- 
tended to  be  presented  is,  does  the  judgment  in  the  action  of  eject- 
ment operate  as  an  estoppel  and  conclude  the  plaintiff  in  this  ac- 
tion, in  respect  to  the  title.  Or  can  the  plaintiff  maintain  the  ac- 
tion of  trespass  q.  c.  f.,  before  he  has  regained  the  possession  of  his 
land  by'  an  action  of  ejectment  and  a  writ  of  possession. 

Adopting  this  construction  of  the  case,  which  we  feel  at  liberty 
to  do,  as  we  can  give  it  no  other  meaning,  the  opinion  of  this  court 
differs  from  that  of  his  honor. 

The  judgment  in  ejectment  is  conclusive  in  respect  to  the  title 
for  the  purposes  of  that  action,  and  of  the  action  of  trespass  q.  c.  f . 
for  the  mesne  profits,  when  the  latter  is  used  merely  as  a  continua- 
tion of  the  former,  and  the  plaintiff  confines  his  demand  for  dam- 
ages to  the  time  covered  by  the  demise  in  the  declaration  in  eject- 
ment. If  he  goes  out  of  it,  the  question  of  title  is  open — on  the 
ground  that  it  has  only  been  considered  by  the  court  with  a  view  to 
deciding  that  the  lessor  had  such  a  title  as  enabled  him  to  make  the 
demise  for  the  purpose  of  bringing  the  action  of  ejectment.  This 
is  well  settled,  and,  accordingly,  it  is  very  common  for  the  second 
action  of  ejectment  to  be  brought.  Indeed,  one  of  the  principal 
benefits  growing  out  of  its  substitution  for  real  actions,  is  the  fact, 
that  the  judg^nent  docs  not  operate  as  an  estoppel  in  respect  to  the 
title,  but  leaves  it  to  be  tried  a  second  or  a  third  time,  so  as  to  have 
it  satisfactorily  settled. 

So  it  is  agreed,  that  if  the  plaintiff  had  brought  ejectment,  he 
could  have  maintained  it,  as  his  title  covers  the  locus  in  quo,  and 
the  defendant's  does  not,  and  the  judgment  in  the  first  action  of 
ejectment  could  have  no  bearing  on  the  second.  It  is  also  agreed, 
that  had  the  plaintiff  brought  ejectment  and  reeovored,  he  could 
then  have  maintained  an  action  of  trespass  q.  c.  f.  for  mesne  profits 
during  the  time  for  which  the  present  action  is  brought.  The 
question,  therefore,  is  narrowed  to  this:  Is  there  any  ground  upon 
which  the  question  of  title  is  concluded,  where  a  defendant  in 
ejectment,  after  being  evicted  by  a  writ  of  possession,  makes  an 
actual  entry  and  brings  trespass  q.  c.  f.,  that  would  not  apply  to  an 
action  of  ejectment  brought  by  him. 

"Wo  have  seen  that  the  qiiostion  of  title  is  not  cniidndod  in  tlie 
second  action  of  ejnctnumt.  for  the  reason  that  the  judgment  in  the 
first  action  only  decides,  that  the  lessor  had  such  a  title  as  enabled 
him  to  make  the  demise  for  the  purpose  of  that  action.  This  reason 
applios  will)  ofjual  forr-f  to  tho  action  of  trespass  quare  clausum 
frf'git.  and  excludes  the  idea  that  the  question  of  title,  ontside  of 
the  first  action,  is  concluded  in  any  other  action. 

Accordinerly,  it  is  settled,  that  if  the  title  of  the  lessee  does  not 
rcaeh  baek  to  the  date  oF  the  demise,  tlie  objection  is  fatal ;  but  it 
makes  no  difference  whetlier  the  lease  is  for  five.  ten.  or  twenty 
years,  hecauae  the  court  does  not  pass  on  the  title  beyond  the  ter- 


i:>0  CONC'EKNING    KKAL    ESTATE.  [CIl.    3. 

minatioii  i>l"  tlie  JU'tiou;  Bullt'i's  N.  \\  l»)(i;  Atkyns  v.  Horde,  1 
Uurr.  114;  wlioiv  Lord  M;inslii'Ul  s;iys:  -'riie  rci-oveiy  in  ejectinent 
is  a  ivoovory  of  tlie  possession,  wilhoitl  prejudice  lu  Ike  riijhl,  as  it 
may  aftenvanls  appear,  even  between  the  same  parties,  lie  who 
enters  under  it,  is  only  possessed  aceording  to  his  right.  If  he  has 
a  frechokl.  he  is  in  as  a  freelioUlor.  If  he  has  no  title,  ho  is  in  as 
a  trespasser.  If  hi-  had  no  right  to  tlie  possession,  tlien  he  takes 
only  a  naked  possession." 

It  may  be  eoneeded.  that  if  the  plaintiff  in  ejectment  after  judg- 
ment follows  it  up  by  an  action  for  the  mesne  profits  and  recovers, 
the  defendant  cannot  afterwards  recover  back  such  profits,  al- 
though in  a  second  action  of  ejectment,  he  has  succeeded  in  estab- 
lishing title  in  himself.  So,  it  may  be  conceded  that  for  the  entiy, 
under  the  writ  of  possession,  the  plaintiff  in  the  first  action  is  pro- 
tected by  the  judgment  and  writ,  although  it  turns  out  that  the 
land  did  not  belong  to  him.  This  is  on  the  ground  that  the  judg- 
ment in  ejectment  concludes  the  title  for  the  purposes  of  that  ac- 
tion; hence,  we  find  many  writs  of  error  to  reverse  a  judgment  in 
ejectment,  and  it  is  held  that  the  pendency  of  a  Avrit  of  ei-ror  ope- 
rates as  a  supersedeas  to  the  action  for  mesne  profits ;  Demford  v. 
Ellys,  12  Mod.  138;  and  it  Avould  seem,  if  the  judgment  in  eject- 
ment did  not  conclude  the  question  as  to  mesne  profits  and  the  en- 
try under  the  writ  of  possession,  every  purpose  would  be  answered 
by  a  second  action  of  ejectment,  and  there  could  be  no  motive  for 
bringing  a  writ  of  error. 

There  is  no  intimation  in  the  books,  and  no  reason  can  be  given 
for  carrying  the  effect  of  a  judgment  in  ejectment  beyond  the  point 
here  conceded.  After  the  termination  of  the  action  and  the  execu- 
tion of  the  writ  of  possession,  if  he  have  no  title,  in  the  words  of 
Lord  ^Mansfield,  "he  (the  lessor)  is  as  a  naked  trespasser,"  and,  of 
course,  may  be  sued  as  such,  and  made  to  pay  damages  to  the  real 
owner,  for"  every  act  done  thereafter.     .     .    .    Judgment  reversed. 

See  Sharon  v.  Tucker,  144  U.  S.  533,  .^41-543,  12  Sup.  Ct.  720,  inserted 
at  ch.  10,  sec.  G,  for  the  relief  afforded  in  equity  against  "the  protracted 
litigation  for  the  possession  of  the  property  which  the  action  of  eject- 
ment at  common  law  permitted."  "That  action  [ejectment]  being 
founded  upon  a  fictitious  demise,  between  fictitious  parties,  a  recovery 
in  one  action  constituted  no  bar  to  another  similar  action  or  to  any 
number  of  such  actions.  A  change  in  the  date  of  the  alleged  demise 
was  sufficient  to  support  a  new  action.  Thus  the  party  in  possession, 
though  successful  in  every  instance,  might  be  harassed  and  vexed,  if 
not  mined,  by  a  litigation  constantly  renewed.  To  put  an  end  to  such 
litigation  .  .  .  courts  of  equity  interfered  and  closed  the  contro- 
versy." Field,  J.,  in  Sharon  v.  Tucker,  supra,  at  p.  542,  12  Sup.  Ct.  722. 
How  this  relief  was  afforded  in  equity,  and  upon  what  principle  equity 
interfered  in  such  cases,  are  questions  treated  of  in  ch.  10,  s.  6.  See 
".Judgment,"  Century  Dig.  §  1051;  Decennial  and  Am.  Dig.  Key  No.  Series, 
§  554. 


Sec.    3.]  CONCERNING    REAL    ESTATE.  151 


Sec.  3.     Ejectment  Under  the  Code  Practice. 

CAPERTOX  V.  SCHMIDT,  26  Cal.  479,  85  Am.  Dec.  187.     1864. 

Action  to  Recover  Heal  Estate  Under  the  Code  Practice.     Estoppel   by 

Judgment  in    Such  Actions. 

[In  1858  Capertou  and  Hays  sued  Schmidt  for  a  tract  of  land,  alleg- 
ing that  they  were  the  oicners  in  -fee  and  entitled  to  the  possession. 
Schmidt  pleaded  that  he  owned  in  fee  an  undivided  40/81  part  thereof; 
and  after  a  trial  on  the  merits  it  was  adjudged  that  Caperton  and  Hays 
recover  the  possession  of  41/81  of  the  land  then  in  controversy,  and  that 
Schmidt  recover  of  them  40/81  thereof. 

Thereafter  Caperton  sued  Schmidt  for  the  same  land,  alleging  that  he. 
Caperton,  was  the  owner  in  fee  and  entitled  to  the  possession.  Schmidt 
pleaded  the  former  judgment  as  an  estoppel  and  offered  in  evidence  the 
record  in  the  former  action  to  sustain  such  plea.  Plaintiff,  Caperton, 
objected;  and  the  evidence  was  ruled  out.  Defendant  excepted.  Judg- 
ment against  defendant,   and   he  appealed.     Reversed.) 

Sawyer,  J.  .  .  .  The  former  proceeding  and  judgment  hav- 
ing been  set  np  by  way  of  estoppel,  the  question  is.  whether  the 
record  and  judgment  in  the  first  action  were  admissible  in  evi- 
dence on  the  trial  of  the  second. 

It  is  perfectly  well  settled  that  the  judgment  of  a  court  of  con- 
current jurisdiction  directly  upon  the  point  is.  as  a  plea,  a  bar; 
and  where  there  has  been  no  opportimity  to  plead  it.  and  it  is  of- 
fered in  evidence,  it  is  admissible  and  conclusive  between  the  same 
parties  and  their  privies  upon  the  same  matter  directly  in  issue  in 
another  court ;  and  also  Avhen  coming  incidentally  in  question  in 
another  court  for  another  purpose.  The  entire  current  of  authori- 
ties in  England  and  America  establish  the  rule  as  here  limited,  and 
many  extend  it  further:  1  Greenl.  Ev.  ss.  528-531;  Duchess  of 
Kingston's  Case.  20  ITow.  St.  Tr.  355:  Landon  v.  Litchfield,  11 
Conn.  24'.) :  Marsh  v.  Pier.  4  Rawle.  289.  26  Am.  Dec.  131 :  Smith  v. 
Whiting,  n  :\lass  446;  Staik.  Ev.  bv  Sharswood.  333:  Patter  v. 
Baker,  19  N.  IT.  167:  Betts  v.  Starr.  5  Conn.  550.  13  Am.  Dec.  94; 
Adams  v.  Barnes,  17  ^Mass.  365:  Gardner  v.  Buckbee.  3  Cow.  127. 
15  Am.  Dec.  256;  2  Smith's  Lead.  Cas.  572:  Youna  v.  Rummell.  2 
Hill,  481,  38  Am.  Dec.  594;  Lawrence  v.  Hunt.  10  Wend.  85.  25 
Am.  Dec.  539;  8  Wend.  40. 

And  the  rule  is  applir-aljle  to  real  as  well  as  personal  actions. 
"Each  species  of  judtrinent  from  one  in  an  action  of  tn^spnss  to 
one  upon  a  writ  of  right,  is  erpially  conclusive  upon  its  subject- 
matter  by  way  of  bar  to  future  litigation  for  the  thing  thereby  de- 
<'ided.  .  .  .  'What,  therefore.'  Lord  Coke  says,  'that  in  per- 
sf»nal  actions  concci-nirig  debts,  goods,  and  efTects  (by  way  of  dis- 
tinction from  f)tli('r  act  ions),  a  rci-ovcry  in  one  action  is  a  bar  to 
anothor.  is  not  true  of  personal  actions  alone.  Imt  is  equally  and 
universally  true  as  to  ;ill  actions  whatsoever  (|uoad  llieir  subject- 
matter:'  "  Cutram  v.  .Morewood.  3  East.  357.     .     .     . 

The  eontrovciNv.  then,  is  as  to  what  isdireeth-  i?i  issue  in  an  ac- 


152  CONCERNING    REAL    KSTATE.  [Ch.    3. 

tiou  to  iveover  the  possession  of  real  estate  under  our  system  of 
jiloading  ixud  prai'tu-o. 

From  habit,  and  as  a  matter  of  convenience,  we  ordinarily  speak 
of  the  action,  in  a  general  sense,  as  an  action  of  ejectment.  This  is 
well  enoiii^h,  so  long  as  wo  do  not  siiU'er  ourselves  to  be  misled  by 
confounding  the  action  to  recover  real  estate  in  use  in  this  state 
with  the  action  of  ejectment  at  common  law,  and  as  a  consequence 
embarrass  oui'sclves  by  attempting  to  apply  the  rules  of  law  pecul- 
iar to  the  latter  action  to  the  former.  Technically  and  substan- 
tially, we  have  no  action  of  ejectment.  The  forms  constitute  the 
substance  of  that  action  at  common  law.  True,  practically,  the 
possession  of  the  land  was  recovered.  But  this  was  equally  true  of 
the  writ  of  entry,  and  an  assize.  All  these  were  possessory  actions 
merely.  And  there  would  be  just  as  nuich  propriety  in  calling  our 
action  to  recover  the  possession  of  land  a  writ  of  entry,  or  an  as- 
size, as  an  ejectment.  The  pleadings  are  more  nearly  assimilated 
to  the  pleadings  in  a  writ  of  entry,  or  an  assize,  than  to  the  plead- 
ings in  an  action  of  ejectment.  In  theory,  the  writ  of  entry  and 
the  assize  were  actions  to  recover  the  freehold,  while  ejectment  was 
an  action  to  recover  the  term  of  the  tenant — a  mere  chattel  inter- 
est. But  in  our  state,  an  action  is  rarely  brought  by  a  tenant, 
either  in  substance  or  form,  to  recover  his  term.  Practically,  the 
possession  of  the  land,  and  nothing  more,  was  recovered  at  common 
law  in  each  of  the  actions  named. 

In  regard  to  the  two  former  actions,  IMr.  Blackstone  says: 
''These  remedies  are  either  by  writ  of  entry  or  an  assize,  which  are 
actions  merely  possessory,  serving  only  to  regain  that  possession, 
whereof  the  demandant  (that  is,  he  who  sues  for  the  land)  or  his 
ancestors  have  been  unjustly  deprived  by  the  tenant  or  possessor 
of  the  freehold  or  those  under  whom  he  claims ;  they  decide  noth- 
ing with  respect  to  the  right  of  property;  only  restoring  the  de- 
inandant  to  that  situation  in  which  he  was  (or  by  law  ought  to 
have  been)  before  the  dispossession  committed.     .     .     . 

"The  first  of  the.se  remedies  is  by  writ  of  entry,  which  is  that 
which  disproves  the  title  of  the  tenant  or  possessor,  by  showing  the 
unlawful  means  by  which  he  entered  or  continues  in  possession." 
The  writ  requires  the  tenant  to  deliver  seizin,  or  show  cause  why  he 
will  not.  "This  cause  may  be  either  a  denial  of  the  fact  of  having 
entered  by  or  under  such  means  as  are  suggested,  or  a  justification 
cf  his  entry  by  reason  of  title  in  himself,  or  in  those  under  whom 
he  claims;  whereupon  the  posses.sion  of  the  land  is  awarded  to  him 
who  produces  the  clearest  right  to  possess  it:"  Sharswuod's  Blk. 
Com.  180,  181. 

After  stating  the  exceptions,  Blackstone  says:  "But  in  general 
the  writ  of  ontiy  is  the  universal  remedy  to  recover  possession. 
when  wrongfully  withheld  from  the  owner:"  Sharswood's  Blk. 
183.  Notwithstanding  these  actions  are  merely  possessory,  and 
"decide  nothincr  with  respect  to  the  right  of  property"  (a  question 
which  r-ould  only  be  dfterTuined  in  a  writ  of  right),  a  judgment  in 
one  writ  of  ontry  was  r-onr-lnsivp  in  anothor.  or  in  an  assize  for  the 
same  land. 


Sec.   3.]  CONCERNING   REAL   ESTATE.  153 

Says  Mr.  Blackstone :  "  As  a  writ  of  entry  is  a  real  action  which 
disproves  the  title  of  the  tenant  by  showing  the  imhiwful  com- 
mencement of  his  possession,  so  an  assize  is  a  real  action  which 
proves  the  title  of  the  demandant  merely  by  showing  his  or  his 
ancestor's  possession;  and  these  two  remedies  are,  in  all  other  re- 
spects, so  totally  alike  that  a  judgment  or  recovery  in  one  is  a  bar 
agauist  the  other;  so  that  when  a  man's  possession  is  once  estab- 
lished by  either  of  these  possessoiy  actions,  it  can  never  be  dis- 
turbed by  the  same  antagonist  in  any  other  of  them :"  Sharsw.  Blk. 
184;  see  also  Adams  v.  Barnes.  17  Mass.  365. 

"Actions  of  ejectment  have  succeeded  to  those  real  actions  called 
possessory  actions ;  but  an  inconvenience  was  found  to  result  from 
them  which  did  not  follow  from  real  actions,  to  which  it  has  been 
found  necessaiy  to  apply  a  remedy.  Real  actions  could  not  be 
brought  twice  for  the  same  thing;  but  a  person  might  bring  as 
many  ejectments  as  he  pleased,  which  rendered  the  rights  of  par- 
ties subject  to  endless  litigation:"  Archbold's  note  to  Sharsw. 
Blk.  206. 

The  inconclusiveness  of  the  judgment  resulting  from  the  form 
of  proceeding  was  admitted  to  be  an  inconvenience,  and  the  neces- 
sary remedy  for  it.  referred  to  by  ]Mr.  Archbold.  was  an  injunction, 
which  was  at  length  granted,  after  two  or  more  trials:  Archbold's 
note  to  Shai*sw.  Blk.  206.  In  these  real  actions,  then,  Ave  may  say, 
with  at  least  as  much  propriety  as  the  respondent's  counsel  says  of 
Ihe  action  of  ejectment,  "the  object  is  the  recovery  of  possession; 
the  subject-matter  to  be  tried  is  the  right  of  possession  as  between 
plaintiff  and  defendant;  that  is  the  extent  of  the  issue."     .     .     . 

In  several  of  the  states,  as  in  New  York  and  Illinois,  there  are 
special  statutes  regulating  actions  for  the  recoveiy  of  real  estate. 
In  such  cases,  the  forms  of  the  common-law  action  of  ejectment  are 
generally  abolished,  and  another  form  substituted;  and — what 
would  naturally  be  expected  as  a  consequence  of  the  change  of  the 
form  in  the  action — the  effect  of  the  judgment  is  also  modified, 
regulated,  and  prescribed.  Sometimes  one  new  trial  in  the  same 
action  is  granted,  as  a  matter  of  right,  and  another  upon  a  proper 
showing,  in  the  discretion  of  the  judge.  But  when  finally  deter- 
mined in  that  action,  it  is  made  conclusive.  The  statutoiy  form  of 
a  declaration  in  New  York  does  not  even  allege  title.  It  only  al- 
leges a  possession  by  plaintiff,  and  an  ouster  by  defendant.  Yet 
the  judgment  is  made  conclusive.  A  second  trial,  if  any  he  had, 
mnst  be  in  the  same  action. 

But  these  provisions  granting  new  trials,  as  a  matter  of  abso- 
lute right,  were  adopted  many  years  ago,  when  the  old  ideas  as  to 
the  peculiar  importance  and  sacredness  of  real  estate,  in  eompari- 
son  with  pei*sonalty,  still  lingered  in  the  minds  of  the  people.  At 
this  day.  and  fs|)f'r'ially  in  flie  new  states.  1  if  fie  nioi-e  importance  is 
attached  to  real  estate  than  to  pni-sonal  pi-o|)erty  of  equal  value. 
It  is  almost  as  mueh  an  ;irliclc  nf  fi-affic.  enmmerce.  and  speculation 
as  merchandise.  No  restrainfs  are  flirown  around  its  alienafinn. 
except  so  far  as  are  neeessary  for  the  proteetion  of  parties  dealing 
in  it.  by  enabling  them  to  traee  and  preserve  the  evidenee  of  titles. 


l.")l  inNCKKNIN<;     M'.AI,     KSTATK.  \  (' ll .    .?. 

iiiul  jmlirt'  (»t'  llu'ir  viilidity.  Since  I  In-  chaiij^o  in  the  form  of  ac- 
lii«ns.  iu>  tt'clmiciil  rcison  exists  -aiui  we  can  pcircMve  no  snhstan- 
lial  reason  inlierent  in  the  nature  of  tlie  i)i'opei'ty — why  the  lilie 
to  a  piece  oi'  land  shonhl  not  l>e  linally  deterniined  by  one  trial 
fairly  eondiieted.  in  A\liicli  no  errors  occur,  that  does  not  apply 
with  at  least  etpial  force  to  an  action  for  the  recovery  of  a  horse,  a 
siiip.  or  other  piece  of  personal  property  of  equal  value;  and  a 
judgment  upon  title  to  a  ship  or  other  pereonal  iiroperty  is  conclu- 
sive: Dennison  v.  Hyde,  15  Conn.  516.  In  fact,  if  there  is  any  dif- 
ference, the  reason  is  stronji(>r  for  a  second  trial  in  tlie  ease  of  per- 
sonalty than  of  realty ;  because,  from  the  fixed  character  of  real  es- 
tate, the  nnniiments  of  title  can  be  more  easily  preserved  and 
traced.  The  evidence  of  title  may  be,  and  generally  is,  of  record, 
open  to  the  examination  of  all — always  at  hand,  and  easily  pro- 
duced whenever  occasion  requires;  while  the  evidence  of  title  to 
pei-sonalty  generally,  to  a  great  extent,  rests  in  parol — is  more 
evanescent  in  character,  more  liable  to  be  lost,  or  if  in  existence 
more  liable  to  be  beyond  the  reach  of  the  party  at  the  particular 
time  when  he  has  occasion  to  produce  it.  Hence  a  party  is  much 
less  likely  to  be  able  to  present  the  full  strength  of  his  case  at  the 
time  when  forced  into  trial  of  the  right  to  personal  property,  than 
upon  a  similar  trial  as  to  realty.  Neither  is  there  anything  in  the 
particular  estate  which  a  party  may  have  in  the  property,  or  the 
character  of  the  right  sought  to  be  enforced,  that  distinguishes  one 
kind  of  property  from  the  other. 

One  party  may  have  the  absolute  i-iglit  of  property;  the  second, 
the  right  of  enjoyment  for  a  specified  time;  a  third,  a  right  of  im- 
mediate possession;  and  a  fourth,  the  actual,  rightful  or  wrongful 
possession  of  personalty  as  well  as  of  realty ;  and  there  may  be  in- 
juries to  the  riglits  of  each  of  these  parties,  for  which  they  have  a 
remedy.  A  party  may  recover  possession  who  has  no  right  of  prop- 
erty, as  well  as  in  the  case  of  realty ;  and  we  can  see  no  reason  why 
a  judgment  upon  a  matter  in  regard  to  realty,  once  put  in  issue, 
litigated  and  determined — whether  it  be  title,  a  right  of  present 
possession,  or  something  else — should  not  l)e  conclusive,  as  well  as 
when  it  relates  to  personalty.  No  principle  of  the  common  law 
would  be  violated  by  such  a  result.  On  the  contrary,  its  rules 
require  it.  Nor  would  it  be  contrary  to  any  principle  of  public 
policy.     .     .     . 

It  does  not  follow  that  a  party  suing  to  recover  the  possession  of 
land  must  use  the  same  stereotyped  form  of  complaint,  or  that  he 
mnsf  allege  title  in  fee,  hecanse  he  mai/  do  it.  TTe  need  not  of  ne- 
cessity adopt  the  precise  form  of  complaint  which  was  in  contro- 
versy and  approved  in  Payne  v.  Treadwell,  16  Cal.  243.  The  form 
may  be  adapted  to  the  estate  sought  to  be  recovered  and  the  facts 
desired  to  be  put  in  issue.  The  cause  of  action  should  be  stated 
according  to  the  facts.  In  the  language  of  Mr.  Chief  Justice  Field 
in  that  ease  (p.  245).  the  plaintiff  may  aver  "that  he  is  seized  of 
premises,  or  of  .some  estate  therein,  in  fee,  for  life  or  for  years, 
according  to  the  fact ."  or  "when  the  plaintiff  has  been  in  posses- 


Sec.   O.J  CONCERNING    REAL   ESTATE.  155 

sion  of  the  premises  for  which  he  sues,  it  will  be  sufficient  for  him 
to  allege  iu  his  complaint  such  possession  and  entry,  ouster,  and 
continued  withholding  by  the  defendant.  Such  allegations  are 
proper  when  they  correspond  with  the  facts,  but  they  are  not  essen- 
tal:"  lb.  244.  But  whatever  is  put  in  issue,  and  determined,  is 
conclusive  and  final. 

If  a  partij  declares  upon  a  seizin  in  fee,  and  tJnis  puts  his  title 
in  issue,  and  chooses  to  rely  upon  a  prior  possession  merely,  or  does 
not  choose  to  put  in  all  his  evidence  of  title,  or  is  unable  from  any 
accident  to  get  it  in.  he  is  in  no  woree  position  than  many  other 
parties.  Avho  for  any  reason  fail  in  personal  actions  to  get  in  suf- 
ficient or  all  their  evidence.  Prudent  counsel,  where,  from  any  un- 
foreseen accident  they  fail  to  make  as  strong  a  case  as  the  facts 
and  the  evidence  attainable  should  enable  them  to  do.  and  they  are 
not  satisfied  of  the  sufficiency  of  their  proofs,  will  submit  to  a  non- 
suit, or  in  a  proper  ease,  with  the  i:)ermission  of  the  court,  with- 
draw a  juror  and  begin  again.  //  they  do  not,  they  cannot  com- 
plain that  the  judgment  against  them  in  the  action  should  he  fol- 
lowed hy  its  legitimate  consequences. 

In  order  that  we  may  not  be  misapprehended,  we  will  add  that 
the  estoi)pel  of  a  verdict  and  judgment  is  necessarily  limited  to  the 
I'ights  of  the  parties  as  they  exist  at  the  time  nhen  such  verdict  and 
judgment  are  rendered,  and  cannot  preclude  either  party  from 
showing  that  their  rights  have  been  varied  or  extinguished  at  a 
suhsecjuent  period.  No  injury,  therefore,  can  result  on  that 
ground. 

In  this  case,  the  record  offered  in  evidence,  and  excluded  by  the 
court,  shows  that  in  the  former  suit  the  title  was  distinctly  put  in 
issue  and  determined  (the  possession  of  an  undivided  half  was  ad- 
mitted by  the  answer)  ;  that  the  undivided  forty-one  eighty-first 
parts  was  found  and  adjudged  to  be  in  the  plaintiffs  and  forty 
eighty-first  parts  in  the  defendant ;  that  the  same  title  and  the  same 
ouster  were  relied  on  in  this  action. — foi-  the  plaintiffs  proved  that 
the  defendant's  possession  extended  as  far  back  as  1857.  before  the 
commencement  of  the  former  action,  and  no  evidence  of  title  ac- 
f|uirod  since  the  former  suit  was  offered.  The  court  therefore  erred 
in  refusing  to  admit  the  record  in  evidence,  and  the  judgment  must 
be  reversed.     .     .     . 

In  Taylor  v.  Gooch.  110  N.  C.  at  p.  392.  15  S.  E.  2,  it  is  said  by 
Clark,  .1..  in  1892:  "This  is  the  fifth  time  this  matter,  which  has  been 
in  litipation  more  than  forty  years,  has  been  in  this  court.  .  .  . 
This  aftlon,  having  hegnn  lonp:  heforn  the  a(lo))tinn  of  the  prosent  re- 
formed proffdnre  |  i.  e.  Code  of  Civil  Procedure  |,  our  old  friends,  .John 
Doe  and  Rirhard  Roe,  figure  as  parties  to  the  action.  It  is  probably 
their  last  appearanro  upon  the  legal  stage  in  this  state.  Originally  in- 
troduff'd  as  a  means  of  evading  the  excessive  technicalities  of  the  old 
real  actions,  the  disapi)earanrp  of  the  fiction  niarKs  a  still  more  notai)le 
advance  in  the  iirogress  and  simplification  of  the  methods  of  legal  ))ro- 
cedure."  See  ".Tndgment,"  Century  Dig.  §  1285;  Decennial  and  Am.  Dig. 
Key  No.  Series.  §  747. 


156  CONCERNING    UKAh    ESTATE.  [Cll. 


HAKKIOY  V.   HOUSTON,  G5  N.  C.   137.     1871. 
Ejectment.    Transition  from  Common  Law  to  Code  Practice.     Estoppel. 

1  Action  to  rerover  land.  There  is  liere  inserted  only  tlie  discussion, 
of  Rodman,  J.,  upon  ejectment  before  the  adoption  of  the  Code  prac- 
tice, and  to  what  extent  the  fundamental  principles  of  the  action  sur- 
vive since  the  adoption  of  the  Code  practi(  e.  | 

KoDMAN,  J.  Tho  lictitious  proceedings  by  which  a  claimant  to 
llie  possession  of  land  was  formerly  in  the  habit  of  asserting  his 
claim,  have  often  been  the  stibject  of  ridicule  and  reproach  by 
those  who  either  did  not  understand,  or  would  not  appreciate,  the 
reasons  upon  which  they  w-ere  fotmded.  The  forms  in  the  now 
abolisheci  action  of  ejectment,  are  yet  too  familiar  to  the  profession 
to  need  to  be  recited,  except  in  the  briefest  manner,  in  order  to 
show  the  purposes  which  they  had  in  view,  and  the  dii^culties  they 
were  designed  to  avoid.  The  claimant  made  a  fictitious  lease  to 
John  Doe,  who  was  .supposed  to  have  entered  on  the  land,  and  to 
have  been  ejected  by  Kichard  Roe,  who  was  known  as  the  casual 
ejector,  and  theretipon  Doe  brings  suit  against  Roe  for  the  trespass 
and  ejectment,  and  Roe,  by  notice  served  on  the  tenant  in  posses- 
sion, advises  him  to  appear  at  court  and  defend  the  action.  This 
notice  was  regarded  as  the  summons  or  process  to  obtain  an  ap- 
pearance in  the  action.  The  object  of  the  fictions  was  to  avoid  cer- 
tain inconveniences  which  had  been  found  to  attend  the  real  ac- 
tions, and  actions  ejectione  firmae,  formerly  in  use.  1  Roscoe,  Real 
Act.  1 ;  2  lb.  481. 

1.  It  often  happened  that  by  some  slip  or  accident,  one  of  the 
parties  obtained  a  judgment  not  upon  the  merits  of  his  case,  and 
unless  set  aside  l)y  the  court,  which  there  might  be  no  ground  for 
doing,  the  judgment  w^as  a  perpetual  estoppel  against  the  other 
party,  by  which  he  was  deprived  of  his  freehold  or  inheritance  in 
the  lands.  To  avoid  this  harsh  result,  it  became  necessary  to  have 
an  action  in  which  the  possession  alone  could  be  considered  as  in 
controversy,  and  the  judgment  in  which  would  not  finally  hind 
the  parties  and  their  privies.  This  it  was  at  last  found  could  be 
best  accomplished  through  the  device  of  a  fictitious  lease  and 
ouster,  which  Avas  accordingly  introduced  through  Rolle,  C.  J., 
during  the  protectorate. 

2.  Where  a  title  to  land  was  asserted,  and  a  judgment  according 
to  that  title  demanded,  it  was  necessars'  to  describe  both  the  land 
and  the  title  of  the  defendant,  with  a  particularity  which  fre- 
quently exposed  a  ju,st  right  of  some  sort  to  be  lost  through  tech- 
nicalities. 

When  our  constitution  abolished  the  forms  of  actions  at  law,  and 
presr-ribed  that  there  sliould  be  but  once  form  of  action  (Art.  TV. 
sec.  1),  and  the  C.  C.  P.  sec.  93,  prescribed  what  the  complaint 
should  contain ;  by  which  the  fictitious  proceedings  in  ejectment 
were  abolished  ;  it  was  never  contemplated  to  surrender  the  advan- 
tages which  had  been  gained  by  so  much  Lnbor  and  experience,  and 
to  return  to  the  old  real  v\-rits  with  all  thpir  inevitable  attendants 


Sec.    3.]  CONCERNING   REAL    ESTATE.  157 

of  particularity,  and  consequently  of  technicality,  or  that  a  single 
accidental  or  partial  verdict,  should  forever  estop  a  party  from  as- 
serting a  just  claim. 

To  preserve  those  advantages,  we  must  consider  that  bj^  an  ac- 
tion in  which  the  plaintift'  demands  possession  of  land  under  the 
Code,  nothing  more  is  put  in  issue  than  a  right  of  entry  or  a  right 
to  the  present  possession.  At  least  Ave  must  so  consider  it.  when 
no  certain  estate  is  alleged  and  claimed  in  the  complaint  and  put 
in  issue  hy  the  pleadings;  whether  a  judgment  in  an  action  alleg- 
ing and  demanding  a  certain  estate,  would  be  an  estoppel  between 
the  parties  as  to  the  right  to  the  estate  alleged,  is  a  question  of  too 
much  nicety  and  importance  to  be  the  subject  of  observation  until 
the  case  shall  occur.  We  consider  that  the  judgment  in  an  action 
to  recover  possession,  is  in  the  nature  of  a  judgment  in  the  former 
action  of  ejectment  -.  that  the  constitution  and  C.  C.  P.  intended 
only  to  abolish  the  fictitious  part  of  that  action,  and  that  the  sum- 
mons in  the  present  action  takes  the  place  of  the  notice  from  the 
casual  ejector  to  the  tenant  in  possession. 

The  recognition  of  this  construction  of  the  Code  seemed  indis- 
pensable to  any  decision  of  the  questions  of  practice  arising  in  this 
ease. 

Under  the  former  practice  in  ejectment,  when  a  tenant  in  pos- 
session was  sued,  his  landlord  might  come  in  and  be  made  a  party, 
either  alone  or  with  a  tenant,  in  the  discretion  of  the  court.  C.  C. 
I',  sec.  61 .  prescribes  that  in  actions  generally,  all  persons  may  be 
made  defendants,  who  claim  interests  adverse  to  the  plaintiff;  and 
that,  in  an  action  to  recover  the  possession  of  real  estate,  the  land- 
lord and  tenant  may  be  joined  as  defendants.     .     .     . 

See  "Ejectment,"  Century  Dig.  §  3;  Decennial  and  Am.  Dig.  Key  No. 
Series.  §  2. 


.lOHXSOX  V.  PATE.  90  X.  C.  334,  336-337.     1884. 
Juilgment  Hon-  Far  an   Estoppel  Under  the  Code  Practice. 

fCivil  action  to  recover  real  properly,  .Judgment  against  defendant, 
and  he  apjiealcd.     AfRrnied. 

Plaintiff  alleged,  inter  alia,  that  he  was  entitled  to  recover  the  locus 
in  quo  hy  reason  of  an  estoppel  arising  out  of  a  jtulgnient,  in  his  favor 
and  against  the  defendant,  rendeied  in  ;i  former  action  hetween  them — 
in  which  action  was  involved  the  title  to  the  land  sued  for  in  this  ac- 
tion. Defendant  demurred,  and  the  demurrer  was  overruled.  The 
question  jiresented  was  as  to  the  effect  of  the  former  judgment  as  an 
esto|>i)el.  The  date  of  the  judgment  in  (pieslion  is  not  disclosed  in  the 
reported  case,  hut  it  sufficiently  apjiears,  from  that  portion  of  the  oi)in- 
lon  here  Inserted,  that  the  judgment  was  in  an  action  hrought  since 
the  Code  practice  was  adojitpd    in   Xorth   Carolina,! 

Smith,  C.  J.  .  .  .  We  are  next  to  iii<|iiirc  iiilo  the  effect  of 
the  present  record  upon  the  title  to  the  land  as  between  the  same 
contesting  parties. 

We  nre  relieved  from  the  necessity  of  cojisirlering  the  point  by  a 


ir.S  CdNCKUNlNC     Ki;.\L    KS'l'A'I'K.  |  f  7/.    .V. 

recent  division,  uvi'rlookod  among  the  references  furnished  by  the 
appellant  s  counsel,  and  we  quote  a  part  of  the  opinion  in  Davis  v. 
lliggins,  S7  N.  C.  2!)S : 

"Allhoucrli  some  doubt  was  expressed  upon  the  point  bj'  Rod- 
nuui.  J.,  in  Jt)hnson  v.  Nevill"  (an  erroneous  citation  intended  for 
Harkey  v.  Houston.  65  N.  C.  l-'^T),  "an  early  decision  made  after 
tlie  introduction  of  the  new  system  of  pleading  under  the  Code 
(C.  C.  P.),  it  has  been  since  settled  that  a  matter  put  in  issue  and 
material  to  the  result,  is  co)ichisivehj  determined  hy  the  verdict 
and  judgment,  ivkerc  land  is  sought  to  he  recovered,  as  it  would  he 
if  the  recover}/  of  personal  propertij  were  the  ohject.  Here,  both 
the  pleadings  and  the  issue  involve  the  determination  of  the  title 
and  consequfnt  right  of  possession  in  the  plaintiff,  and  this  is  dis- 
tinctly and  definitely  decided  in  the  verdict." 

The  remark  made  in  the  opinion  in  Kitchen  v.  Wilson,  80  N.  C. 
101.  a.ssimilating  that  action  to  the  former  superseded  action  of 
ejectment,  as  to  the  pi'oof  required  in  order  to  a  recovery  of  pos- 
session, had  no  reference  whatever  to  the  effect  of  a  verdict  finding 
aflu-mative  facts  in  issue  as  res  adjudicata  between  the  same  par- 
ties. 

Recurring  to  the  complaint  in  the  former  case,  it  asserts  posi- 
tively a  title  vesting  in  the  plaintiff  in  these  lands  and  a  conse- 
quent right  to  have  possession.  These  avennents  the  demurrer  ad- 
mits, and  the  effect  is  the  same  as  if  they  had  been  controverted  and 
found  upon  issues  passed  upon  by  a  ,iury.  The  judgment  could 
only  be  for  the  recovery  of  possession  and  damages  upon  a  verdict 
putting  title  in  the  plaintiff.  It  must  be  declared  there  is  no  error, 
and  the  judgment  is  affirmed,  but  the  cause  may  be  remanded  for 
an  inquiry  into  the  plaintiff's  damages  if  he  shall  so  elect;  and  if 
not.  final  judgment  will  be  entered  here. 

See  further  Land  Co.  v.  Lange,  150  N.  C.  26,  63  S.  E.  164.  See  "Judg- 
ment." Century  Dig.  §§  1047,  1051;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §  554. 


COLGROVE  V.  KOONCE,  76  N.  C  363.     1877. 
Letting  in  Parties  to  Defend  Under  the  Code  Practice. 

fColgrove  sued  Koonce  for  the  possession  of  land.     Upon  his  own  mo- 
tion Isler  was  made  a  party  defendant,  at  spring  term,  1873.     At  a  sub- 
sequent  term,   upon   motion   of  one   of  the  other  parties  to  the  action, 
this  order  making  Isler  a  party  was  stricken  out,  and   Isler  appealed.- 
Affirmed. 1 

Rodman,  J.  This  is  an  action  to  recover  land.  During  its  pen- 
dency Isler  moved  to  be  made  a  party  defendant  without  setting 
forth,  so  far  as  appears  on  record,  any  claim  to  the  land  or  an.y 
I'cason  why  he  should  be  made  defendant.  The  motion  was  al- 
lowed and  Isler  filed  an  answer,  in  which  he  claimed  a  title  para- 


Sec.  3.]  coxcERxixi;  real  estate.  150 

mount  and  adverse  to  both  plaintiff  and  defendants.  At  a  subse- 
quent term  the  original  defendants  moved  to  supersede  the  order 
by  which  Isler  was  allowed  to  become  a  party  defendant.  The 
judge  granted  the  motion  and  Isler  appealed  to  this  court.  By  the 
law  prior  to  the  Code  of  Civil  Procedure,  no  person  but  one  claim- 
ing to  be  the  landlord  of  the  tenant  in  possession  (the  defendant  in 
the  action  of  e.jectment)  had  a  right  to  be  made  a  defendant  with- 
out the  consent  of  the  plaintiff.  ^"SYise  v.  Wheeler.  28  N.  C.  19(3. 
By  C.  C.  P.  sec.  61.  the  landlord  may  be  joined  as  defendent ;  "and 
iuiy  person  claiming  title  or  right  of  possession  to  real  estate  may 
be  made  party  jtlaintiff  or  defendant  as  the  case  may  require." 

It  seems  to  us  that  this  section  applies  only  when  the  person  ap- 
]»lyiug  to  be  made  a  party  is  connected  in  interast  with  one  or  the 
other  of  the  original  parties  and  not  when  he  claims  adversely  to 
both.  As.  for  example,  if  ho  claims  to  be  a  co-tenant  with  the 
plaintiff,  or  in  privity  with  the  defendant  or  a  common  possession 
with  them.  Section  65  says :" The  court  .  .  .  ma!/ determine 
any  controvei-sy  before  it.  when  it  can  be  done  without  prejudice 
to  the  rights  of  others,  or  by  saving  their  rights;  but  when  a  com- 
plete determination  of  the  controversy  cannot  be  had  without  the 
presence  of  other  parties,  the  court  must  cause  them  to  be  brought 
in.  And  when  in  an  action  for  the  recovery  of  real  or  personal 
])roperty.  a  person  not  a  party  to  the  action  but  having  an  interest 
in  the  subject  thereof,  makes  ai)plieation  to  the  court  to  be  made 
a  party  it  may  order  him  to  be  brought  in  by  the  proper  amend- 
ment." It  is  clear  that  Isler  does  not  come  within  the  first  para- 
graph of  this  section.  It  is  not  ncccssarji  to  pass  on  his  claim  in 
order  to  a  conqilete  determination  of  the  controversy  between  thi' 
original  parties. 

It  is  equally  clear  that  he  does  come  within  the  terms  of  the 
second  paragraph,  and  in  such  ca.se  it  is  discretionary  with  the 
court  to  order  liim  to  be  made  a  party  or  not.  according  to  the 
nature  of  his  claim  and  the  circumstances  of  the  case. 

Isler  may  now  sue  the  present  defendants  or  any  othei-s  who 
may  be  in  possession  when  he  brings  In's  suit. 

Tlie  considerations  therefore  which  must  determine  the  discre- 
lion  of  the  judge  in  deciding  whether  he  will  leave  Isler  to  his 
separate  action  or  make  him  a  pai'ty  to  the  present  action,  seem  to 
be  wlicfher  justice  would  be  furthered  and  circuity  of  action  pre- 
vented by  making  him  a  jiarty;  in  otlier  words,  would  it  be  con- 
V(>nient  in  the  legal  sense. 

If  he  were  made  a  party  plaint  iff  aiul  the  plaint  id's  iM^eovered. 
I  lie  right  to  the  possession  would  sfill  be  undetermined  between 
liirn  and  the  or-iginal  plaintiff.  Or  else  it  would  be  necessary  in 
tile  course  of  the  trial  to  decide  upon  tlie  respective  rights  of  the 
eo-|)IiiintifTs.  tlius  luiving  a  trial  witliin  .i  1i-ial  nnd  mak'iufr  a  nuil- 
tiplii-jitioii  fif  issues  likely  to  confuse  ;i  jury.  This,  we  think, 
v.ould    not   be  cojivrMiient. 

If  he  wer-e  iiKidc  ;i  defendant  and  the  pl.iinlill"  shuiild  recover, 
his   rights   would    be   defeniiined    along    with    those    i>\'    his   co-de- 


l(i()  CONCKK.NING    KEAL    ESTATE.  [(7(.    j\ 

i"oiHlauts.  If,  liowever,  the  defendants  should  have  judgment,  it 
would  still  remain  to  be  determined  whether  he  or  the  original 
defendants  was  entitled  to  the  possession. 

We  are  unable  to  pereeive,  therefore,  how  any  eonvenienee 
would  be  attained  by  allowing  Isler  to  become  a  party  to  the 
present  action,  llis  claims  will  not  be  prejudiced  by  its  result 
whatever  that  may  be.  nor  are  they  by  its  pendency.  These 
views  are  substantially  those  held  in  Smitherman  v.  Saunders, 
70  N.  C.  270. 

The  judge  did  not  err  in  excluding  Isler.     Judgment  affirmed. 

See  ■•Ejectment,"  Century  Dig.   §§   145,  146;    Decennial  and  Am.   Dig. 
Key  No.  Series,  §§  50,  51. 


TURNER  V.  LOWE,  66  N.  C.  413.     1872. 
Equitable  Defenses  Under  the  Code  Practice. 

[Action  to  recover  possession  of  land.  Verdict  and  judgment  against 
defendant,   and  he  appealed.     Reversed. 

Plaintiff  claimed  that  defendant  was  his  tenant.  Defendant  admitted 
this,  but  set  up  as  a  counterclaim  "various  facts  which  he  claimed  to 
constitute  an  equitable  defense.  The  court  ruled  out  the  evidence  of- 
fered to  sustain  such  defense."  The  question  presented  is:  Can  equitable 
defenses  be  set  up  in  actions  to  recover  real  estate?] 

Rodman,  J.  The  rule  that  a  tenant  cannot  dispute  hi.s  land- 
lord's title,  has  not  been  impaired  by  any  recent  legislation  or 
by  any  recent  decision  of  this  court.  It  holds  good  now  wherever 
it  formerly  did. 

But  a  tenant  might  always  show  an  equitable  title  in  himself 
against  the  legal  title  of  his  landlord,  or  any  facts  which  made 
it  inequitable  in  the  landlord  to  use  his  legal  estate  to  turn  him 
out  of  possession. 

"When  law  and  equity  w-ere  administered  by  distinct  tribunals, 
the  tenant  was  obliged  to  go  into  a  court  of  equity  for  that  pur- 
pose. But  now  that  they  are  administered  by  the  same  court,  and 
without  any  distinction  of  form,  the  tenant  can  set  up  in  his  an- 
stver  any  equitable  defense  he  may  have  to  his  landlord's  claim. 
Calloway  v.  Hamby,  65  N.  C.  631,  is  a  case  in  which  that  Avas  suc- 
cessfully done,  and  the  defendants  were  held  entitled  to  a  spe- 
cific performance  of  the  plaintiff's  covenant  to  convey  the  land. 
1  f  such  a  clefen.se  cannot  be  set  up  in  a  Superior  Court,  it  cannot 
any^vhere,  for  we  have  no  separate  court  of  equity. 

We  have  not  been  at  liberty  to  consider  the  particular  equity 
set  up  in  this  case.  The  judge  refused  to  hear  it  on  the  ground 
that  no  equity  ivould  avail  as  a  defense.  In  this  he  erred.  Judg- 
ment reversed. 

See  Smith  v.  Allen,  1  Blackford,  22-23,  inserted  at  ch.  3,  s.  2,  ante. 
See  "Ejectment,"  Century  Dig.  §  107;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §  26. 


Sec.   3.]  CONCERNING   REAL   ESTATE.  161 


DILLS  V.  HAJMPTON,  92  X.  C.   565,  571.     1885. 
Tenant's  Disputing  Title  of  Landlord. 

[Action  for  damages  caused  by  an  alleged  trespass  by  defendant  ou 
land  claimed  by  plaintiff.  Verdict  and  judgment  against  defendant,  and 
he  appealed.     Affirmed. 

The  plaintiff  had  demised  the  locus  in  quo  to  Inman.  Inman  had  as- 
signed his  term  to  Bumgarner.  The  defendant,  who  was  overseer  of 
the  road,  moved  a  fence  on  the  land  in  order  to  open  a  road.  Defend- 
ant had  no  authority  for  opening  such  road;  but  he  had  obtained  the 
permission  of  Bumgarner  to  move  the  fence.  The  court  instructed 
the  jury  that,  if  defendant  had  procured  a  license  from  Bumgarner  to 
enter  the  land,  the  defendant  could  not  deny  the  plaintiff's  title,  for 
that  the  title  and  possession  of  the  tenant  is  the  title  and  possession  of 
the  landlord.  This  instruction  was  pertinent  to  the  case,  because  the 
defendant,  in  his  defense,  denied  the  plaintiff's  title  to  the  locus  in  quo 
and,  consequently,  plaintiff's  right  to  recover  for  the  alleged  trespass. 
The  question  presented  is:  Can  one  who  justifies  an  act  done  as  licensee 
of  a  tenant,  dispute  the  title  of  such  tenant's  landlord?  Only  such  part 
of  the  opinion  as  bears  upon  this  question  is  here  inserted.] 


AsiiE.  J.  .  .  .  There  is  no  principle  better  settled  than 
that  a  tenant  can  not  dispute  the  title  of  his  landlord,  and  it  is 
also  well  settled  that  the  doctrine  of  estoppel,  as  applicable  to 
tenants,  prevails  against  one  who  enters  or  takes  possession  under 
a  mere  license.  Bigelow  on  Estoppel.  425.  In  Johnson  v.  Baytup, 
3  A.  &  E.  188.  where  a  "lessor  of  a  plaintiff  being  in  possession 
of  a  house  and  premises,  defendant  asked  leave  to  get  vegetables 
in  the  garden,  and  having  obtained  the  key  for  that  purpose, 
fraudulently  took  pos^session  of  the  house  and  set  up  claim  of 
title;  held,  that  having  entered  by  leave  of  the  party  in  posses- 
sion, she  could  not  defend  an  ejectment,  but  was  bound  to  de- 
liver up  the  premises  before  she  proceeded  to  contest  the  title — 
a  mere  licensee  being  in  this  respect  on  the  same  footing  as  a  ten- 
ant." The  same  doctrine  is  maintained  in  this  state  in  Whitaker  v. 
Ccawthorne.  H  N.  C.  380.  and  to  the  same  effect  are  Glvnn  v. 
Grays.  20  X.  TT.  lU-.  AVilson  v.  Motley.  50  N.  Y.  120;  The  Hamil- 
ton and  Rossville  Tlvdraulic  Co.  v.  The  Cinn..  TTnm.  and  Drnvton 
R.  R..  20  Ohio  St.  341. 

The  defendant  is  estopped  as  licensee  of  Bumganior  to  den;^ 

iiis  title,  and  T'nmgarner  as  tenant  of  the  plaintiff  is  estopped  to 

ileny  liis  title,  criio.  the  defendant  is  estopjied  to  deny  the  title 

of  the  plaintiff.     So  there  wa.s  no  error  in  the  tliird  insti-uction. 

The  judgment  of  the  Superior  Court  is  affirmed. 

For  tho  nilo  and  ifs  pxception,  see  Hodges  v.  Watprs,  1  L.  R.  A.  (N. 
S.)  1181.  and  note;  X.  L.  H.  P.  Co.  v.  F.  S.  Co..  69  Atl.  883,  18  L.  R.  A. 
(N.  S.)  396;  Berk  v.  Grain  Co..  107  X.  W.  1032.  7  L.  R.  A.  (N.  S.)  930 
fand  note,  a.s  fo  .subfen;ints)  ;  Lafferty  v.  Evans.  87  Par.  304.  21  L.  R.  A. 
CS.  R. )  363  fas  fo  vendees  to  disputf  title  of  vendor).  Sep  "Landlord 
and  Teii.-mt."  Century  Dig.  §§  177.  178;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §  64. 

RemediPB — 11. 


lli:2  CONCERNING    \{K\\.    KSl'AI'lO.  [('//. 


BAIX  AND  OTIIKIIS  \.  THE  STATE,  86  N.  C.  40.  50.     1882. 
Ejectment  Ai/ainst  Acient  of  the  Stole. 

|.\(tion  hrouglit  in  1  lu'  Supreme  Court,  uiuUt  tlie  original  jtirisdiction 
of  artious  against  liie  State,  to  rei'over  possession  of  real  estate.  Judg- 
ment  against   plaint ift'a. 

The  plaintiffs  alleged  title  in  themselves  to  one-fourth  part  of  the 
lands  used  and  occupied  by  "The  Insane  Asylum  of  North  Carolina." 
The  attorney  general  appeared  for  the  state  and  moved  to  dismiss  the 
action  for  want  of  jurisdiction  in  the  court.  | 

RuFPiN.  J.  .  .  .  In  the  case  in  hand,  "The  Insane  Asylum 
of  North  Carolina"  is  a  body  corporate — so  expressly  declared  to 
be.  and  invested  with  all  the  title  to  the  lands  mentioned  in  the 
complaint,  which  was  ever  acquired  by  the  state.  See  Act  of 
1868-69.  eh.  67.  It  is  too.  in  express  terms,  endued  with  a  ca- 
pacity to  sue  and  be  sued,  and  is  in  actual  possession  of  the 
premises;  so  that  as  ajrainst  it.  the  phiintiffs  can  have  full  and 
adequate  relief  aft'orded  them  for  every  injury  complained  of.  in 
the  superior  court  of  Wake  county,  where  the  land  lies,  and  there 
is  no  necessity  for  resorting  to  the  exceptional  jurisdiction  of  this 
court,  which  at  best  is  poorly  provided  with  facilities  for  the  trial 
of  the  facts  of  any  cause. 

As  to  the  objection  urged,  that,  inasmuch  as  the  state,  the  real 
party  in  interest,  could  not  be  brought  before  the  Superior  Court, 
so  neither  should  her  agent,  the  asylum,  be  permitted  to  be  sued 
there — as  that  would  be.  in  effect,  to  sue  the  state,  and  to  do  in- 
directly what  could  not  be  done  directly — we  need  only  refer  to 
the  opinion  delivered  by  Chief  Justice  Marshalt.  in  Osboni  v. 
Bank,  6  Curtis.  251.  The  very  point  w'as  there  discussed,  and  it 
was  held  after  much  consideration  that  the  action  could  be  main- 
tained against  the  agent,  and  that  he  be  held  to  answer  for  tres- 
passes committed  in  his  capacity  as  such.     .     .     .     Dismissed. 

See  Sanders  v.  Saxton,  182  N.  Y.  447,  1  L.  R.  A.  (N.  S.)  727,  and  note; 
Tindal  v.  Wesley,  167  U.  S.  204.  In  United  States  v.  Lee,  106  U.  S.  196, 
1  Sup.  Ct.  240,  it  is  held  that  the  United  States  cannot  be  sued  except 
in  those  cases  provided  by  congress;  but  that  this  doctrine  has  no  ap- 
plication to  officers  and  agents  of  the  United  States  who  are  sued  for 
real  estate  in  their  i)ossession,  or  held  by  them  by  virtue  of  their  official 
positions.  The  lawfulness  of  the  possession  of  such  officers  and  agents 
and  the  right  or  title  of  the  United  States  may  be  passed  upon,  by  a 
court  of  competent  jurisdiction,  in  an  action  brought  against  such  offi- 
cers and  agents  in  possession.  [This  case  involved  the  title  of  the  gov- 
ernment to  Arlington.!  In  Cunningham  v.  M.  &  B.  R.  R.  Co.,  109  U.  S. 
at  p.  452,  3  Sup.  Ct.  297,  it  is  said  of  U.  S.  v.  Lee,  supra,  "The  judg- 
ment in  that  case  did  not  conclude  the  United  States,  as  the  opinion 
carefully  stated,  but  held  the  officers  liable  as  unauthorized  trespassers 
and  turned  them  out  of  their  unlawful  possession."  In  Cunningham  v. 
M.  &  B.  R.  R.  Co.,  109  U.  S.  446,  3  Sup.  Ct.  292,  609,  is  discussed  the 
limits  of  the  doctrine  announced  in  U.  S.  v.  Lee,  supra.  See  "Courts," 
Century  Dig.  §  701;   Decennial  and  Am.  Dig.  Key  No.  Series,  §  238. 


Sec.    3.]  CONCERNING    REAL    ESTATE.  163 

OVERCASH  V.  KITCHIE,  89  N.  C.  384,  391.     1883. 
Ejectment  By  and  Against  Co-otvners. 

[Action  to  recover  land.  Verdict  and  judgment  against  defendant, 
and  he  appealed.     Atfirmed. 

Several  errors  were  assigned  by  the  defendant,  but  the  only  one  ma- 
terial to  the  subject  under  consideration  is  sufficiently  explained  in  that 
portion  of  the  opinion  here  inserted.  The  question  here  presented  is: 
Can  one  of  several  co-owners  of  realty  maintain  ejectment  for  the  com- 
mon property  against  his  cotenants  or  third  persons.! 

^Merrimon.  J.  .  .  .  It  is  said,  however,  that  the  infant  heirs 
of  Singleton  Brawley  are  tenants  in  common  with  the  plaintiff. 
.  .  .  and  that  the  plaintiff  cannot  sue  alone.  This  is  a  mis- 
apprehension of  the  law.  One  tenant  in  common  may  sue  in 
many  cases  without  joining  his  co-tenants.  Each  has  a  separate 
and  distinct  freehold,  and  he  may  sue  to  recover  passession  when 
lie  has  been  disseized.  There  are  cases  in  which  they  nmst  sue 
jointly,  as  where  they  make  a  joint  demise  of  their  common  estate, 
resenting  rent;  in  such  case  the  action  to  recover  must  be  joint. 
1  f ,  however,  one  of  the  several  tenants  in  common  bring  an  action 
to  recover  the  possession  of  land  of  which  he  has  ])een  disseized, 
and  claim  the  oifire  estate  instead  of  his  proper  undivided  share, 
he  will  not  be  nonsuited,  but  will  have  judgment  for  such  share  in 
common  as  he  shows  himself  entitled  to.  And  it  has  been  held, 
that  one  of  two  joint  tenants  may  recover  the  entire  estate  in  an 
action  of  eiectment  against  one  who  has  )io  title.  Bronson  v. 
Pavnter.  20  X.  C.  527;  Holdfast  v.  Shepard.  28  N.  C.  361;  Camp 
v.  'llomeslev.  33  N.  C.  211;  Robinson  v.  Johnson,  36  Vt.  74; 
Chandler  v.'  Spear.  22  Vt.  388 ;  AVash.  on  Real  Prop.  572.  There 
is.  therefore,  no  ground  for  the  fourth  exception.  .  .  .  Af- 
firmed. 

See  "Ejectment, '•  Century  Dig.  §  374;  Decennial  and  Am.  Dig.  Key 
No.  Series,  §  114. 


GIU'HRIST  V.  MIDDLETON,  KtT  X.  C.  663.  681-685,  12  S.  E.  85.     1890. 
Ejectment  By  and  Against  Co-owners. 

(Action  to  try  title  to  land  and  to  recover  possession  thereof.  Ver- 
flict  and  judgment  against   defendant,  and  he  ai)i)ealed.     Affirmed. 

The  complaint  set  up  title  in  the  plaintiff  and  demanded  judgment  for 
posEpasion  of  llie  whole  of  the  locus  in  quo.  Dt'feudanfs  answer  made 
a  general  denial.  The  court  charged  the  jury,  inter  alia,  that,  as  de- 
fendant had  shown  title  In  himself  to  three-fifths  of  the  land,  they  could 
not  find  that  plaintiff  was  entitled  to  recover  more  than  two  fifths:  but 
if  they  Iwljeved  certain  testimony,  eti'.,  they  could  render  a  verdict  in 
favor  of  plaintiff  for  two-fifths  of  the  land.  The  verdict  being  that 
plaintiff  ownerl,  etc.,  two-fifths  of  the  land,  it  was  "adjudged  that  the 
liiaintiff  recover  of  the  deferuhint  two-fifths  of  the  land  descril>ed  in 
tlie  <  ((iiipbiint,  and  STtl.Sd  damages,  and  the  costs  of  this  action."  The 
tdaintiff  <lirl   not  allege  or  prove  that  he  had  made  ;iny  demand  u|)oii  the 


llM  CONCERNING    REAL    ESTATE.  \('ll.    ,?. 

defendant,  prior  to  luiiigiuf;  this  artioii.  to  he  lol  into  possession  with 
defendant  as  to  two  nndivided  fifths  of  the  land.  The  defendant  did 
not  offer  to  let  plaintiff  into  jiossesslon  as  to  any  part  of  the  land;  l)ut 
set  np  an  unqualiticd  <lt>iiial  of  iilaintiff's  claim  of  the  whole  of  the  land — 
the  answer  denied  that  plaintiff  had  any  riffhts  in  the  land.  The  qnes- 
tion  Involved  is:  If  a  plaintiff  sues  for  the  possession  of  land,  elaimlng 
title  to,  and  the  right  of  possession  of,  the  whole,  ran  he  recover  any- 
tiling  upon  proof  that  he  owns,  etc,  not  the  whole,  but  only  an  undi-' 
v-idcd  iiittrcst  or  share — the  defendant  owning  the  lesidue?] 

Avery.  J     .     .     .     It  is  a  well-settled  rule  of  law  that  a  ten- 
ant in   oonunon   cannot  niaintnin   an   action   a<rainst   his   cotenjint 
lor  the  possession,  or  title  and  possession,  of  their  nndivided  land, 
unless  an  aetnal  onster  is  proved  or  admitted  by  the  pleadings. 
ITalford  v.  Tetherow,  2  Jones  (N.  C),  393.     It  i's  conceded  that, 
in  order  to  prove  an  aetnal  onster  by  conduct  in  pais,  it  nnist 
be  shown  that  the  tenant  in  possession,  in   refnsing  the   lawfnl 
demand  of  his  eotenant.  or  otherwise,  asserted  a  dominion  over 
the  common  property  irreconcilable  with  the  recognition  of  the 
I'ights  of  the  latter.     Hence,  it  has  been  held   (1)  that  the  .solo 
reception  of  the  profits  of  land  by  one  tennnt  in  common  is  not 
an  onster,  and  will  raise  no  presumption  of  an  ouster  against 
his  fellows,  until  he  has  enjoyed  the  exclusive  profits  of  such 
rents  for  20  years;  and  the  grantee  of  a  tenant  in  common,  though 
he  may  hold  possession  under  a  deed  pur])orting  to  convey  the 
•whole,   stands   in   this  r&spect  precisely   in  the  position   of  his 
grantor.     Linker  v.  Benson.  67  N.  C.  150:  Caldwell  v.  Neelv.  81 
N.  C.  114:  Page  v.  Branch.  07  N.  C.  97.  1  S.  E.  Rep.  625.    (2)  That 
where  a  tenant  in  common  of  a  tract  of  land  demands  of  his 
eotenant.  who  is  in  possession  of  it.  the  whole  tract,  instead  of 
asking  to  be  let  into  posses.sion  to  the  extent  of  his  interest,  the 
refusal  to  comply  with  such  a  demand  is  not  an  ouster.    IVFeredith 
V.  Andres.  7  Ired.  5.     (3)  That,  so  long  as  the  relation  of  tenant 
in  common  of  land  exists  between  two  persons,  an  action  of  tres- 
pass will  not  lie  in  favor  of  one  against  the  other  for  asserting 
dominion  over  the  common  property.     ]\IcPherson  v.  Seguine,  3 
Dev.  ]53.    In  stating  the  foi-egoing  well-estnblished  principles,  we 
have  given  a  summary  of  the  points  settled  by  all  the  authorities 
cited  and  relied  upon  by  the  defendant  to  sustain  the  position 
that  the  plaintiff,  upon  the  admitted  facts,  or  upon  the  proof  and 
the  pleadings,  cannot  recover,  because  there  is  no  sufficient  evi- 
dence of  an  ouster,  and  that  the  judge  below  should  have  so 
instructed   the  jniy.     It  seems  in  this  case  that  neither  party 
pursued  the  proper  or  advisable  course  in  the  attempt  to  assert 
his  rights.     The  plaintiff,  if  he  did  not  intend  to  incur  any  risks. 
ought  to  have  made  a  formal  demand  to  be  put  into  possession  as 
to  two  undivided  fifths  of  the  land,  with  the  defendant,  and  on 
refusal  or  failure,  within   a  rea.sonable  time  on  the  part  of  the 
latter,  to  comply  with  snch  demand,  he  would  have  had  the  un- 
fpiestioned  right  to  maintain  an  action  for  pos.se.ssion.     Wlien  the 
])laintiff  brought  suit  claiming  the  whole,  and  without  giving  any 
yirevious  notice,  the  defendant  could  have  answered  that  he  was 
holding  possession  as  a  tenant  in  common  for  the  benefit  of  both 


Sec.   3.]  CONCERNING   REAL   ESTATE.  165 

himself  and  the  plaintiff,  and  had  always  been  ready  and  willing 
to  let  in  his  cotenant  to  the  extent  of  his  interest,  which  was 
two-fifths,  and  to  acoiint  for  any  rents  received,  if  the  plaintiif  had 
jjiade  demand  to  be  so  let  in,  and  for  an  account  of  profits.  Johns- 
ton V.  Pate,  83  N.  C.  110.  Upon  the  finding  or  admission  that 
the  interests  of  the  parties  were  as  averred  in  the  answer,  the 
defendant  would  have  been  entitled  to  judgment  for  costs.  Sedg. 
&  W.  Tr.  Title  Land,  §§  283,  284.  But  the  blunder  of  the  plain- 
tiff was  cured  when  the  defendant  set  up  an  unqualified  denial  of 
the  claim  of  sole  seisin  on  the  part  of  the  plaintiff.  Allen  v. 
Salinger,  103  N.  C.  17,  8  S.  E.  Rep.  913;  Id.,  105  N.  C.  333,  10 
S.  E.  Rep.  1020.  If  defendant  deliberately  waives  his  right,  and 
loses  his  opportunity'  to  admit  by  answer  or  disclaimer  the  true 
interest  of  the  plaintiff,  and  then  attempts  to  deny  the  ouster,  he 
cannot  complain  that  he  loses  the  benefit  of  the  relation  of  co- 
tenant  by  his  previous  denial  of  its  existence.  It  has  been  gen- 
erally, if  not  universally,  held  by  the  courts  in  this  country  that 
a  denial  of  a  plaintiff's  title  or  right  of  entry,  or  an  averment 
that  the  defendant  held  adversely  against  all  persons,  or  the  claim 
of  exclusive  possession  with  a  plea  of  "not  guilty."  was  an  ad- 
mission of  actual  ouster.  Harrison  v.  Taylor,  33  Mo.  211  ;  Siglar 
v.  Van  Riper.  10  Wend.  414;  :\Iiller  v.  :\Ivles.  46  Cal.  535;  Greer 
v.  Tripp,  56  Cal.  209 ;  Noble  v.  McFarland,  51  111.  226 ;  McCal- 
lum  v.  BosweU,  15  U.  C.  Q.  B.  343;  Scott  v.  McLeod.  14  U.  C. 
Q.  B.  574.  In  Clason  v.  Rankin,  1  Duer.  337,  Chief  Justice  Oak- 
lev  laid  down  the  rule  that  "a  denial  in  the  defendant's  answer 
of  all  right,  title,  and  interest  in  the  plaintiff  is  an  admission  that 
his  own  possession  is  adverse,  and  may  therefore  be  treated  as  a 
confession  of  ouster,  superseding  the  necessity  of  proof  upon  the 
trial."  It  is  true  that  Judge  Pearson,  in  Halford  v.  Tetherow, 
2  Jones  (N.  C),  396,  after  laying  down  the  rule  that  "one  tenant 
in  common  cannot  sue  his  fellow,  unless  there  is  an  actual  ouster, 
either  proven  or  admitted  by  the  pleading,"  declares  that  putting 
in  the  plea  of  "not  guilty"  in  e.iectment,  without  entering  into 
ilie  consent  rule,  was  not  an  admission  of  "an  actual  ouster.' 
and  in  this  respect  differed  from  the  supreme  court  of  Illinois. 
But,  conceding  that  the  principle  stated  in  that  case  was  correct, 
this  court,  in  Allen  v.  Salinger,  followed  the  rulings  of  the  courts 
of  Now  Yoi-k,  that,  under  the  new  procedure,  where  the  title  is 
not  in  issue,  a  general  denial  of  the  allegations  of  the  title  and 
especially  of  the  right  to  immediate  possession,  is  unquestionably 
tantamount  to  the  confession  of  ouster  in  the  fictitious  action  of 
p.jeetment;  so  that  the  pleadings  in  this  ca.sc  place  the  plaintilT 
and  defendant  in  precisely  the  same  position  as  the  parties  in 
ITalford  v.  Tetherow  would  have  occupied  towards  each  other  if 
the  fact  ]\:\(]  been  set  oul  in  the  record  that  they  had  entered  into 
the  consent  rule  which  Judge  Pkah.so.v  deelai-ed  would  have  been 
flr  admission  of  ouster  in  the  pleadings.  It  is  not  reasonable  to 
suppose  tluit  the  defendant,  when  it  has  been  settled  that  the  an- 
swer is  to  be  eonstrued  as  an  afl mission  of  ouster,  will  any  lonirer 
insist  that  it  was  erroneous  to  render  judLniir'nt  Ihat  Ihe  plaintiff 


IbO 


(■(»N(  KKNI  N(i     \i\:\\.    KSTATE. 


[Ch. 


be  U't  iuto  possession  as  to  t\\i>  iiiitlix  idcd  lil'ths,  oi-  to  iiislniet  the 
jury   that    if  they    roiiml   that.   l)y   i-oiilimious  adverse   possession, 
lie  had  aetpiireil  title  to  tiiat  propt)rtion  of  the  whole,  they  would 
tind  a  wroiiiirul   possession  on   the  i)art  of  the  dei'eiulant   to  the 
sanK'  extent,  ami  assess  thf  damages  two-lil'tlis  of  the  value  of  the 
whole  of   the   land.      If  tlel'endaut's  possession   was  advei'se,  the 
only  ([uestion  that   ai'ises  out  of  that  admission  is  whether  there 
shall  be  a  jmlgment  against  him  for  the  sole  and  exclusive  right 
to  the  laud  in  dispute,  and  for  the  whole  of  the  rents,  or  for  the 
undivided  fraetional  interest  of  ^vhich  the  jury  find  him  the  right- 
ful owner.     One  tenant  in  eounnon  of  land  may  sue  alone,  and 
recover  the  entire  interest  in  the  common  property  against  an- 
other claiming  advei-sely  to  his  coteuants,  as  well  as  to  himself, 
though  he  actually  prove  title  to  only  an  undivided  interest.    This 
he  is  allowed  to  do  in  order  to  protect  the  rights  of  his  cotenants 
against  trespassers  and  disseisors.     But  where  it  appears  in  the 
establishment  of  the  titles,  or  is  admitted,  as  in  this  case,  that  a 
defendant,  who  has  confessed  ouster  by  denying  the  plaintiff's 
title,  is  in  reality  a  tenant  in  conunon  with  the  latter,  it  is  the 
duty  of  the  court  to  instruct  the  jury,  by  a  specific  finding,  to 
ascertain  and  determine  the  imdivided  interest  of  the  plaintiff. 
This  course  obviates  the  danger  of  concluding  the  defendant  by  a 
general  finding  that  the  plaintiff  is  the  owner.     The  principle 
enunciated  in  Allen  v.  Salinger,  103  N.  C.  14,  8  S.  E.  Rep.  913, 
and  approved  in  Lenoir  v.  Mining  Co.,  106  N.  C.  473,  11  S.  E. 
Rep.  516,  brought  into  perfect  harmony  the  rulings  of  this  court 
in  Overcash  v.  Kitchie.  89  N.  C.  384,  and  in  Yancey  v.  Greenlee, 
90  N.  C.  317,  by  showing  how  one  tenant  in  common  might  sue 
a  trespasser,  who  is  infringing  upon  the  rights  of  himself  and  his 
cotenants.  and  recover  the  entire  land,  or  sue  his  eotenant,  who 
simply  refuses  to  recognize  his  right  in  his  answer,  and  recover 
such  interest  as  he  may  establish  title  for.    There  is  no  error,  and 
the  judgment  must  be  affirmed. 

See  "Ejectment,"  Century  Dig.  §§  373.  374;    Decennial  and  Am.   Dig. 
Key  No.   Series,   §§  114,  115. 


FRITSCHE  V.  FRITSCHE,  77  Wis.  270,  45  N.  W.  1089. 
Ejectment  for  an  Easement. 


1890. 


[Ejectment  for  a  private  way.  .Judgment  against  defendant,  and  he 
appealed.     Reversed.     The  facts  appear  in  the  opinion.] 

Lyox,  J.  This  is  an  action  of  ejectment  brought  to  recover  a 
private  right  of  way  claimed  by  the  plaintiff  on  certain  lands  of 
the  defendant.  The  right  thus  claimed  was  established  by  the 
judgment  of  this  court  affirming  the  judgment  of  the  circuit  court 
in  an  action  at  law  brought  by  the  plaintiff  against  defendant  for 
obstructing  such  right  of  way.  The  opinion  in  that  action  is  filed 
lierewith.     See   ante.   1088.  "  After  the  judgment   of  the   circuit 


Sec.    3.]  CONCERNING    REAL    ESTATE.  167 

court  for  the  plaintiff  was  entered  in  that  action,  affirming  the 
existence  of  such  right  of  way,  the  defendant  again  obstructed  the 
same  at  the  same  point,  and  thereupon  this  action  of  ejectment 
was  brought  to  recover  such  right  or  easement.  The  circuit  court 
held  that  the  judgment  in  the  former  action  is  res  adjudicata 
of  plaintiff's  right,  and  thereupon  gave  judgment  herein  in  his 
favor,  from  which  the  defendant  ai)peals.  The  ruling  was  doubtless 
correct,  and  the  judgment  would  also  be  correct  if  ejectment  couhi 
be  maintained  to  recover  a  mere  easement.  But  it  is  well  settled, 
both  on  principle  and  by  authority,  that  the  action  cannot  be 
maintained  for  such  pui-pose.  It  was  so  held  in  Citv  of  Racine  v. 
Crotsenberg.  61  AVis.  481.  21  N.  W.  Rep.  ry20.  The  subject  is 
there  quite  fully  con.sidered.  and  it  is  unnecessary  to  repeat  the 
discussion  here.  The  remedy  of  the  plaintiff'  is  by  action  at  law 
for  damages,  or.  if  the  wrong  be  persisted  in,  by  a  suit  in  equity 
for  an  injimction.  The  judgment  must  be  reversed,  and  the  cause 
will  be  remanded,  with  directions  to  the  circuit  court  to  dismiss 
the  complaint. 

For  ejectment  for  a  i)ublic  easement,  see  Canton  Co.  v.  Baltimore,  66 
Atl.  679,  11  L.  R.  A.  (X.  S.)  129,  and  note.  See  "Ejectment,"  Century 
Dig.  §  2.5;    Decennial  and  Am.  Dig.  Key  No.  Series,  §  9. 


TEXX.  AXD  COOSA  R.  R.  CO.  v.  E.  ALA.  R.  R.  CO.,  75  Ala.  479,  51  Am. 

Rep.  475.     1883. 
Ejectment  for  the  Roadbed  of  a  Railroad. 

(Ejectment  to  recover  the  track  and  roadbed  of  a  railroad.  .Judg- 
ment  againsc   i>laintiff.     Plaintiff  appealed.     Reversed. 

Action  to  recover  "real  estate"  described  as  the  track  or  roadbed  of 
the  plaintiff  from  Gunter's  landing  to  Gadsden,  etc.,  together  with  the 
right  of  way,  grading,   trestles,  etc.] 

Stone,  J.  .  .  .  It  is  objected  that  plaintiff  has  not  suffi- 
cient property  in  the  realty  to  maintain  ejectment;  that  plaintiff 
has  only  an  ea.sement.  and  no  title  to  the  soil ;  and  that  ejectment 
will  not  lie  for  the  recovery  of  ati  casement. 

It  is  true  that  ejectment  will  not  lie,  as  a  general  rule,  for  an 
easement,  or  to  be  let  into  the  use  and  occujiation  of  a  servitude. 
The  reason  is  that  the  party  complaining  has  only  a  right  in  com- 
mon with  th(!  public,  or  with  some  other  person  or  i^ersons,  to 
the  use  or  occuj)a1ion  claimed.  The  right  is  a  riualificd.  limited 
one.  and  in  ordinary  cases,  is  not  disturbed  by  another's  similar 
occupation.  It  is  but  a  privilege  to  go  on  the  lands  of  another  for 
a  specified,  litnili-d  |»iirpf»se.  and  has  no  element  of  e.xehisivene.ss 
in  it.  A  right  of  wav.  or  of  conunon.  inav  be  given  as  illustra- 
tions of  this  principli'.  '.]  Wa.sh.  Kase.  (3  ed.)  260.  270;  Cliild 
v.  Chappell.  !)  N.  Y.  246;  Morgan  v.  Hoyes,  65  Me.  124;  Re.-s  v. 
T-awless.  12  Am.  Dee.  20").  There  are  eases  which  go  beyond  this 
doctrine.     Vduu]    v.   TnieUee  Tnrnpike  (%»..   24   Tal.   474;    I'nion 


l(iS  COXCERXING    REAL    ESTATE.  [Ch.    3. 

Canal  Co.  v.  Younir,  HO  Am.  Dee.  212;  2  Wait,  Act.  and  Def.  747; 
2  Kedf.  Ky.  bo^. 

Ljmds  claimed  and  eoudenmcd  as  roadbed  and  right  of  way  of 
a  railroad  stand  in  a  dilterent  category  from  that  of  ordinaiy 
easements.  Over  them  is  acquired,  not  the  right  of  use  to  be 
enjoyed  in  eonnnon  with  the  public,  or  witli  other  persons.  The 
light  and  use  are  exclusive,  and  no  one  else  has  any  right  of  way 
thereon.  M.  &  0.  R.  R.  Co.  v.  Williams,  53  Ala.  595;  M.  &  M. 
Rv.  Co.  V.  Blakely.  59  Ala.  471  ;  Tan)icr  v.  L.  &  N.  R.  Co.,  60  Ala. 
G21;  S.  &  N.  R.  Co.  V.  Pilgreen,  62  Ala.  305;  Cook  v.  Cent.  R. 
Co.  &  Banking  Co.,  67  Ala.  533;  R.  &  G.  R.  Co.  v.  Davis,  19  N. 
C.  451;  Jackson  v.  R.  &  B.  R.  Co.,  25  Vt.  150;  T.  &/  B.  R. 
Co.  v.  Potter,  42  Vt.  265. 

Ejectment  was  originally  classed  as  a  possessory  action.  Henee 
it  was  that  at  common  law  any  number  of  actions  could  be  main- 
tained, by  laying  the  demise  at  a  later  date.  One  recovery  waij 
only  conclusive  as  to  one  and  the  same  demise.  A  right  to  the 
immediate  ]>ossession.  in  fonii  legal  as  distinguished  from  equita- 
ble, Avould  always  maintain  the  action,  and  it  will  yet.  Prior  pos- 
session is  suflficient  against  any  one  aftenvard  found  in  posses- 
sion, unless  the  latter  can  show  a  paramount  title,  or  a  possession 
continuous,  peaceable  and  adverse,  of  sufftcient  duration  to  toll  the 
entry.  Tyler,  Eject.  70,  165;  Anderson  v.  Melear,  56  Ala.  621. 
A  lessee  or  termor,  during  the  continuance  of  a  valid  lease,  may 
maintain  the  action  against  the  lessor,  although  the  owner  of  the 
entire  fee,  less  the  term.  So  the  title  of  a  railroad  corporation  to 
the  possession  of  the  soil  covered  by  the  roadbed  and  right  of 
way,  will  after  condemnation  dominate  all  adverse  claim  of  pos- 
session, even  by  the  owner  of  the  fee.  "Although  the  right  which 
a  railroad  company  acquires  to  land  taken  under  their  charter 
is  said  to  be  merely  an  easement,  yet  the  nature  of  their  business, 
their  obligations  to  the  community  and  the  public  safety  require 
that  the  possession  of  the  land  so  taken  should  be  absolute  and 
exclusive  against  the  adjacent  landowner,  so  far  as  to  secure  fully 
every  purpose  for  which  the  railroad  is  made  and  used."  Conn. 
&  Pass.  River  R.  Co.  v.  Holton,  32  Vt.  43.  "One  who  has  the 
exclusive  right  to  mine  coal  upon  a  tract  of  land  has  the  right 
of  possession  as  against  the  owner  of  the  soil,  so  far  as  it  is 
necessary  to  carry  on  his  mining  operations."  Turner  v.  Rey- 
nolds, 23  Penn.  St.  199,  206.  "The  right  of  municipal  corpora- 
tions, or  public  authorities  vested  with  no  higher  estate  than  a 
public  easement,  or  right  by  dedication,  to  invoke  the  remedy  of 
ejectment,  for  the  possession  of  streets,  public  squares,  town  com- 
mons, church  and  market  grounds,  is  upheld  in  many  cases." 
Scdqr.  &  Wait  Trial  of  Title  to  Lands,  sec.  271.  See  also  Jackson 
v.  :\ray,  16  Johns.  184;  Winona  v.  TTutf,  11  Minn.  119;  Cinn.  v. 
White,  6  Pet.  431;  Dummer  v.  Jersey  City.  40  Am.  Dec.  213; 
Tfoboken  Land  Co.  v.  Mavor.  36  N.  J.  L.  540;  Doe  v.  Booth, 
2  Bos.  &  Pul.  219 ;  3  Wait.  Act.  &  Def.  6.  7.  In  the  following  cases 
will  be  found  a  curious  discussion,  tending  strongly  to  show  that 
the    roadbed    and    superstructure — in    fact,    everything    attached 


Sec.    3.]  CONCERNING   REAL   ESTATE.  169 

to  the  soil  on  which  a  railroad  is  built — are  considered  realty. 
Kandall  v.  Ehvell,  52  N.  Y.  521,  11  Am.  Rep.  747 ;  Hoyle  v.  P. 
&  M.  R.  Co.,  54  N.  Y.  314,  13  Am.  Rep.  595.  And  there  is  cer- 
tainly much  reason  for  the  opinion.  The  roadbed  and  right  of 
way  are  as  immovable  as  the  soil  itself,  the  superstructure  is 
attached  to  the  soil,  and  the  corporation  has  the  exclusive  right  to 
the  possession  of  it.  In  Cent.  Pac.  R.  Co.  v.  Benity,  5  Sawyer, 
118,  Fed.  Cas.  No.  2551,  the  precise  question  we  are  considering 
was  presented,  and  the  court.  Circuit  Justice  Sawyer  participat- 
ing, decided  the  action  of  ejectment  would  lie.  So  we  hold  it 
will  lie  in  this  case.     .     .     .     Judgment  reversed. 

See  "Ejectment,"  Century  Dig.  §  25;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §  9;  '-Railroads,"  Century  Dig.  §  129;  Decennial  and  Am.  Dig. 
Key  No.  Series,  §  55. 


McCOMBS  V.  WALLACE,  66  N.  C.  481.     1872. 
Summary  Proceedings  in  Ejectment. 

tSummaiy  proceedings  in  ejectment  before  a  justice  of  the  peace. 
Appeal  to  the  Superior  Court.  Judgment  there  against  defendant,  and 
he  appealed.     Reversed. 

Plaintiff  purchased  the  locus  in  quo  at  a  sale  by  a  trustee,  to  whom 
defendant  had  conveyed  it  in  trust  for  creditors,  etc.,  and  brought  a 
proceeding  before  a  justice  of  the  peace  to  evict  the  defendant.  The 
deed  of  trust  stipulated  that  the  defendant  should  "retain  i)ossession 
of  said  premises  until  the  same  shall  be  sold  by"  the  trustee.] 

Rodman,  J.  The  question  in  this  case  is  not  whether  the  de- 
fendant is  tenant  of  the  phiintiff,  in  any  sense  of  that  word;  but 
whether  he  is  such  a  tenant  as  is  embraced  within  the  Landlord 
and  Tenant  Act,  1868-69,  ch.  156,  p.  355. 

Sec.  19  of  that  act  says:  "Any  tenant  or  lessee  of  any  house 
or  land,  and  the  a.ssigns,  undertenants,  or  legal  representatives  of 
such  tenants,  who  shall  hold  over,  and  continue  in  the  possession 
of  the  demised  premises,  or  any  part  thereof,  without  permission 
of  the  landlord,  and  after  demand  made  for  its  surrender,  may 
be  renutved  frrmi  such  preinises  in  the  manner  hereinafter  pre- 
scribed, in  either  of  Ihe  following  cases:  1.  Whenever  a  tenant 
in  possession  of  real  estates  holds  over  after  his  term  has  expired. 
2.  "When  the  tenant  or  lessee,  or  other  person  under  him,  has 
done  or  oniiflcd  any  act,  by  wln'fh,  according  to  the  stipulations 
of  the  lea.se,  his  e.state  has  ceased." 

A  justice  has  jurisdiction  only  in  the  ca.ses  described  in  this 
section.  The  .-ict  tlicn  j)n'Sf'ribos  the  proceedings  before  the  jus- 
tice. 

Upon  a  careful  consideration  of  this  act  we  tliink  it  was  intended 
only  to  apply  to  a  ea.se  in  wliieh  the  tenant  entered  into  posses- 
sion under  some  eontraet.  either  aetujil  or  implied,  with  the  sup- 
posed  landlorrl.  or  witb   some  person   luider  whom   the  supposed 


17(1  CONCKKNINt;     KKAL    KSTAl'K.  [C/l.    .i. 

lamlloiil  I'laiiiu'tl  in  pi'ivity.  or  wlicii  llic  li'iiaiil  liiiiiscir  was  in 
privity  with  soiiu^  person  wlio  had  so  ciiti'rod. 

'Phis  const riu't ion  wonid  cxrhuK'  two  chisses  of  cases,  which 
wc  think  wcic  not  intoniK'd  to  he  I'Mihraeed  in  the  act,  viz:  Ven- 
dees entering;  into  possessii>n  inidcr  a  contract  of  pnrcliase,  and 
vendors  continninp;  in  possession  nnder  circnnistances  like  the 
present.  Sncli  jiersons  are  ceilainly  temnits  at  will  or  snireranee 
for  many  pnrposes.  and  they  are  frequently  so  called.  Jones  v. 
Hill.  (i4  N.  (\  1!>S.  Hnt  Ihey  seem  to  he  excluded  as  well  hy  the 
U'onh  of  the  section  above  cited,  as  hy  the  ^enei-al  scope  and  spirit 
of  the  act.  Tlu'  witi'tls  of  the  section  clearly  i'e(juire  that  the  entry 
should  he  nnder  a  demise  of  some  soit.  althoujrh  there  is  no  rea- 
son for  saying  that  it  must  be  foi-  any  definite  term,  it  may  well 
be  at  will. 

In  this  case  the  possession  of  tlu'  defendant  was  not  acipiired 
from  either  the  trustee  or  the  plaintiff;  there  was  nothing  which 
can  be  called  a  demise;  his  possession  arose  out  of  his  own  title, 
and  continued  until  the  sale,  by  virtue  of  the  reservation  in  the 
trust.  His  term  has  not  expired;  he  had  lio  term,  for  that  implies 
a  term  derived  from  some  other  person.  The  reservation  was  per- 
haps void,  for  a  term  of  years  cainiot  be  reserved  by  the  grantor 
of  an  estate  in  fee.  In  that  case  the  defendant  would  be  a  vendor 
continuing  to  liold  the  possession  after  his  sale,  which  would  also 
effectually  exclude  the  idea  of  a  demise.  The  case  of  such  a  ten- 
ant is  not  within  the  mischief  which  the  act  was  intended  to 
remedy.     Judgment  reversed. 

If  a  tenant  hold  over,  for  ever  so  short  a  time,  the  landlord  has  the 
election  to  hold  him  as  tenant  for  another  year  and  for  another  year's 
rent,  or  to  eject  him.  At  one  time  it  was  held  that  nothing  would  ex- 
empt a  tenant  from  the  additional  year's  tenancy;  but  it  is  now  held 
that  if  the  tenant's  removal  be  rendered  im[)ossible  by  inevitable  acci- 
dent or  the  act  of  God — as  by  such  sickness  of  a  member  of  his  family 
as  would  render  a  removal  dangerous  to  life — he  will  be  exempted  from 
liability  for  another  year's  holding  and  rent.  Herter  v.  Mullen,  159  N. 
Y.  28:  see  also  13  L.  R.  A.  598,  13  lb.  (X.  S. )  398,  and  note.  If  a  tenant 
abandon  the  demised  premises,  the  landlord  may  elect:  (1)  To  terminate 
the  contract  of  lease  and  recover  the  rent  due  up  to  the  time  of  the 
abandonment:  (2)  To  suffer  the  premises  to  remain  vacant  and  sue  for 
the  rent  of  the  whole  term;  (3)  To  notify  the  tenant  of  his  refusal  to 
accept  a  surrender  of  the  premises,  and  sublet  the  premises  for  the  un- 
expired term  to  reduce  the  tenant's  liability  on  the  contract— holding  the 
tenant  liable  for  the  difference.  13  L.  R.  A.  (N.  S.)  398,  and  note,  citing 
Scheelky  v.  Koch,  119  N.  C.  80,  25  S.  E.  713.  See  "Landlord  and  Tenant," 
Century  Dig.  §§  1273,  1295;  Decennial  and  Am.  Dig.  Key  No.  Series, 
§§  296,  301. 


Mcdonald  v.  Ingram,  124  n.  c.  272,  32  s.  e.  677.    i899. 

Summary  Proceedings  in  Ejectment. 

[Summary  proceeding  in  ejectment  before  a  justice  of  the  peace.  Ap- 
Ijeal  to  the  superior  court.  Verdict  and  judgment  against  the  plaintiff, 
and  he  appealed. 


Sec.    3.]  CONCERNING    REAL    Et?TATE.  171 

Plaintiff  claimed  that  the  defendant  was  his  tenant  holding  over  after 
the  term  had  expired.  The  defendant  denied  the  tenancy  and  set  up  as 
a  defense  that  she  was  the' equitable  owner  of  the  premises.  The  judge 
of  the  superior  court  ruled  that  the  title  to  real  estate  was  involved  and 
dismissed  the  case  for  want  of  jurisdiction  in  the  justice's  court. 

The  only  equitable  title  that  the  defendant  claimed,  was  an  oral  agree- 
ment by  plaintiff  to  sell  the  locus  in  quo  to  her — she  having  previously 
conveyed  it  to  the  plaintiff  and  remained  in  possession.  According  to 
plaintiff's  evidence,  the  defendant  remained  in  possession  as  his  tenant. 
According  to  defendant's  evidence,  she  remained  in  possession  under  the 
oral  agreement  of  repurchase  above  mentioned.  'But  the  evidence  in- 
troduced utterly  fails  to  show  that  there  was  ever  any  contract  on  the 
part  of  the  plaintiff  to  sell  her  back  this  property.  It  plainly  appears 
that  he  offered  to  sell  it  back  to  the  defendant  for  what  it  had  cost  him; 
but  that  she  did  not  accept  the  offer."  The  matter  quoted  is  taken  from 
that  portion  of  the  opinion  which  is  omitted.  I 

FuRCHES.  J.  .  .  .  The  jurisdiction  of  a  justice  of  the 
peace  in  actions  for  possession  is  entirely  .statutory,  and  is  limited 
to  landlords  and  tenants.  If  title  is  involved,  he  cannot  proceed 
with  the  trial,  for  want  of  jurisdiction.  But  the  plea  of  ownership 
by  the  defendant  will  not  oust  the  jurisdiction  of  the  court,  but 
it  will  proceed  with  the  trial  until  it  is  made  to  appear  from  the 
evidence  that  the  question  of  title  is  involved.  The  only  question 
the  court  can  try.  under  the  statute,  in  this  proceeding  is,  ''Was 
the  defendant  the  tenant  of  plaintiff,  and  does  she  holcl  over  after 
the  expiration  of  the  tenancy?"  It  seems  that  justices  of  the 
peace,  as  between  landlords  and  tenants,  have  concurrent  jurisdic- 
tion with  the  superior  courts;  and.  as  justices  of  the  peace  have 
no  jurisdiction  to  declare  or  to  enforce  an  equity,  that  in  such 
i-ases.  as  they  have  justice's  jurisdiction,  they  stand  very  nuidi  as 
they  would  have  stood  in  actions  of  ejectment  at  law.  before  the 
joinder  of  jurisdictions  of  law  and  equity  in  the  same  court.  And 
if  we  were  to  give  the  statute  and  the  proceedings  thereunder  this 
intenirotation.  it  would  seem  that,  to  oust  the  jurisdiction,  the 
title  .so  pleaded  by  the  defendant  should  arise  after  iho  tenancy 
allegf'd  by  plaintiff  had  conunenced.  This  view  seems  to  he  sus- 
l;iined  as  to  legal  fitles.  but  not  as  to  equitable  titles,  in  Davis 
V.  Davis.  83  N.  C.  71.  and  Parker  v.  Allen.  84  N.  C.  466.  Why 
there  should  be  a  difference  between  legal  and  e(|uitable  titles 
•'if  there  is)  does  not  plainly  appear.  But  it  is  held  in  Pni-ker  v. 
Allen,  supra,  fhat.  if  there  is  evidence  tending  to  establish  an 
equitable  title  in  the  defendant,  and  the  court  finds  from  such 
evidence  this  contention  in  favor  of  llie  defendant,  and  dismisses 
the  action  for-  want  of  jurisdiction,  bis  action  is  final,  as  fhis  court 
lias  no  right  to  review  the  court  below  uj)on  findings  of  fact. 
T!uf.  if  there  is  no  evidence  to  supporf  Die  findings  of  the  court 
below,  it  then  becomes  a  question  of  hiw.  imd  Ibis  coui-t  has  the 
ricrht  to  review  and  reverse  the  judgnienl  ;ippealed  from. 
As  fhere  is  no  evidence  tending  fo  esl;iblish  an  equilalde  fille  in 
defendant.  Ibere  was  error  in  dismissin<;  Ibe  aclion.  And  fliere 
must  be  a  ik'w  trial,  when  Hm'  niiiller  will  lie  s)ibmitted  to  a  jury 
upon  proper  issues  as  1o  wlirtlicr  th-'  (Ict'cndMnf   is.  or  was  when 


17:2  CONCERNING    REAL    ESTATE.  [Ck.    3. 

this  aetiou  eoinnieneed,  the  tenant  of  the  plaintiff,  and  whether 
tliat  tenancy  \\;n\  tenninafed.     Ninv  trial. 

In  Credle  v.  Gibbs,  65  N.  C.  192,  the  statute  leRiilating  siimniary  pro- 
ceedings in  ejectment  is  declared  to  be  constitutional,  although  jurisdic- 
tion is  conferred  upon  a  justice  of  the  peace — the  court  holding  that  the 
titlf  to  real  estate  is  not  involved  in  this  proceeding.  See  Greer  v.  Wil- 
bar.  72  N.  C.  r>92.  and  ilauser  v.  Morrison,  146  N.  C.  248,  59  S.  E.  693, 
which  hold,  that  if  it  be  shown  that  the  defendant  is  a  mortgagor  or  a 
vendee  under  a  valid  contract  to  convey,  he  cannot  be  evicted  under 
these  proceedings;  such  proceedings  being  restricted  to  the  cases  ex- 
pressly set  out  in  the  statute,  Revisal,  sec.  2001.  "Contrivances"  by 
mortgagees  to  Itring  mortgagors  within  the  remedy  afforded  by  the  stat- 
ute are  of  no  avail.  See  caustic  remarks  of  Pearson,  C.  J.,  in  Greer  v. 
Wilbar,  72  N.  C.  592.  See  ".Justices  of  the  Peace,"  Century  Dig.  §§  90, 
91;   Decennial  and  Am.  Dig.  Key  No.  Series,  §  36. 


DOE  V.  MACE,  7  Blackford,  2,  3.     1843. 
Ejectment  by  Mortgagee  against  Mortgagor.    Notice  to  Quit. 

[Ejectment.  Doe,  on  the  demise  of  Brown  and  others,  against  Mace 
and  others.  Verdict  and  judgment  against  plaintiffs,  and  they  appealed. 
Reversed. 

The  plaintiffs  were  the  heirs  and  personal  representatives  of  a  de- 
ceased mortgagee.  The  defendants  were  the  mortgagor  and  those  hold- 
ing under  him.  The  court  instructed  the  jury  that  plaintiffs  could  not 
recover  without  proving  notice  to  quit,  or  a  demand  of  possession,  before 
bringing  the  action.] 

Sullivan,  J.  .  .  .  The  question  is,  whether  a  mortgagee 
can  dispossess  the  mortgagor,  and  those  holding  under  him,  ivith- 
out  a  demand  of  possession  or  notice  to  quit?  We  have  decided 
at  the  present  term,  in  the  case  of  Doe  d.  Shute  v.  Grimes  et  al., 
that  the  mortgagee  is  entitled  at  law  to  the  immediate  possession 
of  the  mortgaged  premises,  unless  there  be  an  agreement  between 
the  parties  that  the  mortgagor  shall  remain  in  possession.  Form- 
erly, a  mortgagor  in  possession  was  regarded  in  the  light  of  a  ten- 
ant at  ivill  to  the  mortgagee.  Powsley  v.  Blackman,  Cro.  Jae.  659, 
upon  w^hich  was  predicated  the  opinion  that  a  notice  to  quit  was 
necessary  before  he  could  be  dispossessed.  That  view  is  now  ex- 
ploded, and  it  is  generally  aclmowledged  at  this  day  that  no  such 
relation  exists  betw^een  them.  He  is  not  entitled  to  the  em- 
blements, nor  does  he  hold  by  paying  rent ;  he  is  in  possession  by 
the  sufferance  merely  of  the  mortgagee,  and  is  therefore  not 
entitled  to  notice  to  quit  before  ejectment  may  be  brought  against 
him.  The  English  authorities,  since  the  days  of  Ld.  Mansfield, 
are  uniform  to  this  point.  Keech  v.  Hall.  Doug.  21 ;  Moss  v. 
Gallimore,  lb.  279;  Birch  v.  Wright.  1  T.  R.  378:  Doe  d.  Fisher 
V.  Giles  et  al..  5  Bing.  421 ;  Doe  d.  Roby  v.  Maisey.  8  B.  &  C.  767. 
In  the  T'^nited  States  there  is  some  contrariety  in  the  decisions,  but 
the  weifrht  of  them  is  in  aeenrdanee  with  the  English  authorities. 

With  regard  to  thf  undeHessees  of  the  mortgagor,  the  law  is, 


Sec.   3.]  CONCERXING   REAL   ESTATE,  173 

that  they  are  liable,  also,  to  be  ejected  without  notice,  provided 
they  have  been  let  into  posses-sion  by  the  mortgagor  suhsequenthj 
to  the  mortgage,  and  without  the  pri^nty  of  the  mortgagee.  But 
if  the  tenancies  were  created  prior  to  the  mortgage,  the  situation 
of  the  mortgagee  is  the  same  as  that  of  the  mortgagor  before  the 
raortsrage  was  made.  Keech  v.  Hall,  supra  -.  Thimder  d.  Weaver 
V.  Belcher,  3  Ea.st,  449 :  Doe  d.  Sheppard  v.  Allen,  3  Taunt.  78. 
There  was  evidence  which  tended  to  show,  that  the  underlessees 
held  by  virtue  of  a  lease  from  the  mortgagor,  made  since  the  date 
of  the  mortgage.  The  testimony  was  not  conclusive  to  the  point, 
but  the  jury  might  have  fairly  inferred,  from  the  testimony 
adduced,  that  the  lessees  did  so  hold.    Judgment  reversed. 

In  some  states  the  English  rule  prevails,  and  the  mortgagee  may 
bring  ejectment  against  the  mortgagor:  while  in  others  this  rule  has 
been  changed  by  statute,  the  mortgage  being  made  only  a  lien  or  security 
for  the  debt,  and  the  mortgagee  cannot  bring  ejectment.  10  Am.  &  Eng. 
Enc.  L.  505,  506:  1  Jones  on  ivrortgages,  ss.  17-59.  For  the  respective 
rights  of  mortgagor  and  mortgagee,  and  purchasers  at  foreclosure  sale, 
to  emblements,  etc.,  on  mortgaged  premises,  see  Jones  on  Mortgages,  ss. 
697,  1658.  Teal  v.  Walker,  111  U.  S.  242,  4  Sup.  Ct.  420.  For  a  sum- 
mary of  the  law  in  North  Carolina  on  the  respective  rights  of  mortgagor 
and  mortgagee,  and  their  assigns,  to  the  possession  of  the  mortgaged 
land  and  the  emblements  thereof,  see  Mordecai's  Law  Lectures,  531-541; 
see  also  Killebrew  v.  Hines,  104  X.  C  182,  10  S.  E.  159,  251;  Hinton  v. 
Walston,  115  X.  C.  7.  20  S.  E.  164.  See  also  Credle  v.  Ayer,  126  X.  C  11, 
35  S.  E.  128,  inserted  post,  ch.  3,  sec.  18.  See  "Mortgages,"  Century  Dig. 
§§  484,  485;   Decennial  and  Am.  Dig.  Key  Xo.  Series,  §  213. 


CONDRY  v.  CHESHIRE,  88  X.  C  375.     1883. 
Ejectment  by  Oioner  of  Eqtiitahle  Title. 

[Action  to  recover  possession  of  land.  Verdict  and  judgment  against 
defendant,  and  he  api)ealed.     Affirmed. 

By  the  will  of  John  McLelland  the  locus  in  quo  was  devised  to  R.  H. 
Parks  for  the  sole  and  separate  use  of  Mary  Condry.  Mary  Condry 
brought  this  action  to  recover  the  land.  Parks,  the  trustee,  being  dead, 
his  heirs  and  executors  were  made  defendants.  Cheshire  claimed  title 
under  a  sale  made  by  order  of  court  in  a  proceeding  to  which  IMary  Con- 
dry was  not  a  party.  Cheshire  contended  that  as  the  legal  title  to  the 
locus  in  quo  was  in  the  heirs  of  Parks,  the  trustee,  the  plaintiff  should 
be  nonsuited;  but  the  judge  ruled  to  the  contrary.! 

Ashe,  J.  The  first  ground  of  appeal  taken  by  the  defendants  is 
without  fonndation.  It  ha.s  l)een  deeidt.'d  by  this  court  and  is  now 
to  be  considered  a  settled  law  of  the  .stat»\  that  a  plaint ilT  in  an 
action  to  recover  real  property  may  recover  upon  an  e(|uitable 
title,  even,  as  in  Ibis  ca.se.  wliere  the  legal  estate  is  in  his  trustee. 
Murray  v.  P.lacklfdge,  71  N.  f.  402;  Fanner  v.  Dani.-l.  82  N. 
C.  152. 

"That  the  owner  of  the  perfect  equitable  title  may  maintain  ejectment, 
or  other  possessory  action,  under  our  system  of  procedure,  may  be  re- 
garded a.s  settled  beyond  controversy.  Taylor  v.  Peatman,  92  N.  C.  601; 
Condry  v.  Cheshire,  HH  N.  C.  :575."  Skinner  v.  Terry,  134  N.  C.  at  p.  309, 
46  R.  E.  ."17.  Sef  "Ejeftment,"  Century  Dig.  §  56;  Decennial  and  Am. 
Dig.  Key  Xo.  Series,  §  13. 


}'i  \  (•(•NCKKNINC    K'KAL    KSl'Al'K.  li'll.    .9. 


FARMKU  V.  DANIKL,  82  N.  C.  152,  158-159.     1880. 
F-quitahJc  Title  as  a  Defense. 

I  Action  to  recover  i>osse.ssioii  of  laml,  lieard  upon  a  case  agreed.  Judg- 
ment against  plaint ifts,  and  llicy  appealed.     Atlirnied. 

Plaintiffs  claimed  as  heirs  at  law  of  a  former  owner.  Defendant  set 
Mp  title  under  a  judicial  sale  made  in  proceedings  to  which  the  i)laintiffs 
in  this  action  were  i)arties.  It  was  shown  that  the  sale  was  made  and 
reported  to  the  court,  the  price  paid,  and  an  order  made  for  the  execu- 
tion of  the  deed  to  the  purchaser;  hut  the  deed  was  never  in  fact  made, 
or.  if  made,  it  could  not  he  found.  The  defendant  connected  himself,  by 
mesne  conveyances,  with  the  purchaser  at  the  judicial  sale.  The  question 
presented  is:  Can  an  equitable  title  be  set  up  as  a  defense  in  an  action 
to  recover  real  estate?] 

DiLLARD,  J.  .  .  .  Seeing'  that  tlie  defendant,  by  assign- 
ment from  the  original  purchaser,  has  such  a  perfeet  e(|uitable 
right  to  have  a  deed  passing  the  title,  if  he  has  not  already  one. 
it  remains  to  in(|nir('  wliether  snch  an  equity  can  be  set  up  so  as 
to  defeat  the  action  of  the  plaintiffs.  Fonnerhj,  if  no  title  had 
passed  to  the  purcha.ser  by  an  actual  deed,  or  by  the  operation  of 
the  decree  per  se  under  the  act  of  assembly  in  such  case  made  and 
l>iovided,  the  plaintiffs  would  have  been  entitled  in  a  court  of  law 
to  recover,  and  the  defendant  would  have  been  forced  to  go  into 
a  court  of  equity  l\y  an  independent  suit  or  by  motion  in  the 
original  cause  and  have  the  recover}'-  enjoined.  But  noic,  under 
our  new  system  of  courts,  such  circuity  is  avoided  and  the  de- 
ft )idant  is  cntiilcd  to  set  up  his  cquitahlc  title  as  a  defense  to  the 
plaintiff's  legal  title — which  they  claim  to  have — and  in  the  su- 
perior court  the  defendant  is  entitled  to  the  same  relief  as  for- 
merly he  was  compelled  to  seek  in  the  courts  of  equity.  This  right 
of  defendant  to  set  up  his  equitable  right,  and  the  sufficiency 
thereof  to  defeat  the  legal  title  of  the  plaintiffs,  if  such  they  have, 
is  adjudged  and  established  by  several  decisions  of  this  court,  to 
some  of  which  we  Avill  refer. 

In  the  case  of  Stith  v.  Lookabill.  76  N.  C.  465.  the  plaintiff. 
Stith.  claimed  as  purchaser  under  an  execution  against  one  Cam- 
man  holding  in  trust  for  certain  persons,  and  the  defendant  de- 
fended as  tenant  to  one  Sturges  who  was  the  owner  by  assignment 
of  the  equitable  interests  of  the  cestuis  que  trust,  and  the  court 
held  that  although  the  sheriff's  deed  pa.ssed  the  legal  title  to 
Stith.  he  was  not  entitled  to  recover  against  the  owner  of  the 
equitable  estate  in  possession.  In  Ten  Broeck  v.  Orchard,  74  N. 
C.  409,  it  was  held  that  in  an  action  to  recover  land  on  the  legal 
title,  the  defendant  might  .set  up  an  equitable  claim  in  defense 
of  the  action.  And  to  the  same  effect  are  the  cases  of  Turner  v. 
Lowe.  66  X.  C.  413.  and  Bank  v.  Clenn.  68  N.  C.  35. 

It  is  urged  by  the  ])laintifts  that  however  sufficient  in  general 
the  right  in  equity  to  have  the  legal  title  may  be,  to  bar  the  action 
of  the  holder  of  the  legal  title,  yet  such  an  assertion  of  equitable 
defense  cannot  avail  the  defendant  in  this  case  for  several  rea- 
sons:  1.   Becau.se  such  equitable  right  is  not  set  up   in   the  an- 


Sec.    3.]  CONCERNING    REAL    ESTATE.  175 

swer.     .  .     Neither  of  these  o])jeetion.s  to  the  snffieiency  of  tho 

equitable  title  as  a  defeuse  against  the  plaintiffs'  recovery  is  in 
our  opinion  tenable. 

As  to  the  first  objection :  The  plaintiffs  in  their  complaint  put 
their  ease  on  the  averment  of  a  right  of  possession  in  themselves 
and  the  defendant  denies  a  right  of  possession  in  the  plaintiffs 
and  avers  a  right  of  posse&sion  in  himself,  and  upon  the  issue 
thus  made,  the  parties  treated  the  issue  as  embracing  an  equitable 
defense.  Accordingly  in  the  case  agreed,  they  set  forth  facts 
constituting  such  defense  and  leave  the  legal  infei-ence  therefrom 
to  be  made  by  the  court.  In  such  case  we  will  treat  the  defense 
set  up  in  the  case  agreed  a.s  authorized  by  and  within  the  scope 
of  the  pleadings  just  as  the  parties  considered  it.  ]\IcRae  v.  Battle. 
69  X.  C.  98.     .     .     .     Affirmed. 

See  "Ejectment,''  Century  Dig.  §  107;   Decennial  and  Am.  Dig.  Kej-  No. 
Series,  §  26. 


.TOXES  V.  COFFEY.  109  N.  C.  515,  519,  14  S.  E.  84.     1891. 
Ejectment.    Mesne  Profits  and  Damages. 

[Action  to  recover  possession  of  land  and  damages  for  its  detention. 
Verdict  and  judgment  against  defendant,  and  he  appealed.     Reversed. 

The  action  was  commenced  March  18,  1889,  and  tried  in  .June,  1891.  On 
the  question  of  damag.?s  the  judge  charged  that  the  plaintiff  could  re- 
cover a  fair  rental  value  for  the  land  and  for  any  spoil  or  injury  done 
to  the  land  during  the  adverse  occupation  thereof  by  the  defendant,  "and 
as  far  back  as  the  beginning  of  the  plaintiff's  title,  on  .January  12.  1882, — 
jirovided  defendant  had  occui)ied  and  possessed  the  land  from  the  com- 
mencement of  such  title  in  1882,  and  from  such  time  down  to  the  time 
of  the  trial."  Defendant  excepted.  Only  so  much  of  the  case  and  opin- 
ion is  here  inserted  as  bears  upon  the  question  of  the  damages  recover- 
able in  such  actions.] 

Av^Rv.  .]....  Our  statutes— sections  267  (subd.  5).  474. 
475.  of  the  Code — provide  that  a  ])]aintiff  who  prevails  in  an  ac- 
tion involving  the  title  or  right  to  the  po.s.session  of  land  may 
recover  also  in  the  same  action  the  clear  annual  value  of  the 
ij^nd.  and  damatjcs  for  waste  or  in.juix"  to  the  premi.ses  up  to  the 
time  of  trial;  but  the  defendant  is  not  liable  for  rents  accruing 
(;r  waste  or  other  injurs^  comnn'ttcd  for  any  p(M-iod  pi-evious  to 
thn-f*  years  before  suit  was  bi-ought.  exccjit  when  thr  di't'cndant 
pfflVrs  a  claim  for  impi-oveiiH-nts.  Slici-rill  v.  Connor.  1<I7  X.  C. 
6.S0.  12  S.  E.  K4.p.  588;  Reed  v.  Exum.  84  X.  C.  430;  Whi.ssen- 
\\\\\)\  V.  Jones.  78  X.  C".  .361.  AVe  think  that  there  Avas  error  in 
the  instruction  L'iven  to  the  jury  that  they  might  allow  as  diim- 
ages  the  fail-  rent.il  vjilue  and  for  any  spoil  as  far  back  as  January 
12.  1882.  although  the  summons  was  not  issued  till  1S8!).  lint 
it  is  not  necessary  or  proper  that  the  verdict  should  be  disturbed 
as  \()  the  other  issues.  The  defendant  has  not  shown  that  the  jury 
were  misled  to  his  prejudice  in  pass'iio"  upon  tliciii.     .\   new  trial 


17(1  CONCERNING    REAL    ESTATE,  [Ck.   3. 

will  be  awardod.  therefore,  only  as  to  the  issue  involving  the  dani- 
ages.     Now  trial  as  to  issue  of  damages. 

See  W'hissenhunt  v.  .lones,  78  N.  C.  3G1,  inserted  at  ch.  3,  sec,  2,  ante, 
"Under  tlie  fonncr  lyrafticc  in  actions  of  ejectment,  damages  were  re- 
coverable only  up  10  the  time  the  atlion  wos  bcf/itti;  but  under  the  j)res- 
ent  sxistcm  they  are  recoverable  «p  to  the  trial.  Pearson  v.  Carr,  97  N.  C. 
104.  1  S.  E.  91(i;  Arrington  v.  Arrington,  114  N.  C.  at  p.  120,  19  S.  E.  278; 
10  Am.  &  Eng.  Enc.  L.  (1st  ed.)  5L!7;  Sutherland  on  Damages,  sec,  848." 
Credle  v.  Avers,  126  N.  C.  at  p.  16,  Sf)  S.  E.  128,  inserted  at  ch.  3,  sec.  18, 
post.  See  "Ejectment,"  Century  Dig.  §§  449-451;  Decennial  and  Am.  Dig. 
Key  No.  Series,  §  132. 


Sec.  -i.     Betterments. 

WHARTON  V.  MOORE  et  al.,  84  N.  C.  479,  482-484.     1881. 
The  Doctrine  of  Betterments  Discussed. 

[Civil  action  tried  upon  a  case  agreed.  Judgment  against  defendants, 
and  they  appealed.     Affirmed. 

The  defendants  purchased  city  lots  from  a  mortgagor,  and  built  houses 
on  such  lots  before  they  had  any  actual  notice  of  the  mortgage.  After- 
wards the  houses  and  lots  were  sold  under  a  decree  to  foreclose  the  mort- 
gage, and  the  proceeds  were  held  subject  to  the  ruling  of  the  court  as  to 
the  claims  of  the  defendants  for  the  value  of  the  betterments  put  on  the 
lots  by  them.  The  lots  were  worth  $250  each  in  their  unimproved  state. 
The  betterments  put  on  by  the  defendants  added  five  hundred  dollars 
to  the  value  of  each  lot.  The  rental  value  of  the  lots  before  being  built 
on  was  not  more  than  the  taxes.  The  defendants  claimed  that  they  were 
entitled  to  the  value  of  their  betterments  to  the  extent  that  the  lots  were 
enhanced  in  value  thereby.  The  plaintiff,  who  sued  to  foreclose  the 
mortgage,  claimed  the  entire  proceeds,  and  the  judge  ruled  with  him. 
Defendants  excepted.] 

Ashe,  J.  ,  ,  ,  This  right  to  betterments  is  a  doctrine  that 
has  gradually  grown  up  in  the  practice  of  the  courts  of  equity, 
and  while  it  has  been  adopted  in  many  states,  it  is  not  recognized 
in  others.  But  it  may  now  be  considered  as  an  established  prin- 
ciple of  equity,  that  whenever  a  plaintiff  seeks  the  aid  of  a  court 
of  equity  to  enforce  his  title  against  an  innocent  person,  who  has 
made  improvements  on  land,  without  notice  of  a  superior  title, 
believing  himself  to  be  the  absolute  owner,  aid  will  be  given  to 
him  (the  plaintiff),  only  upon  the  terms  that  he  shall  make  due 
compensation  to  such  innocent  person  to  the  extent  of  the  en- 
hanced value  of  the  premises,  by  reason  of  the  meliorations  or  im- 
provements, upon  the  principle  that  he  who  seeks  equity  must 
do  equity.  Story's  Eq.  Juris,  s.  799;  2  Greenl.  Ev.  s.  549.  But 
it  was  only  in  these  cases  where  the  right  has  been  set  up  by 
way  of  defense  that  the  courts  have  lent  their  aid.  It  had  not 
been  given  to  a  party  seeking  affirmative  relief,  before  the  ease 
of  Bright  V.  Boyd,  1  Story  Rep..  Fed.  Cas.  No.  1,875,  where  Judge 
Story  held,  that  a  plaintiff,  after  a  recoveiy  at  law  against  him 
of  a  tract  of  land  by  reason  of  illegality  in  the  proceedings  of  an 


Sec.    4.]  CONCERNING    REAL    ESTATE.  177 

administrator  to  sell,  under  wliieli  he  had  purchased,  could  re- 
cover by  bill  in  equity  the  value  of  the  lasting  improvements  put 
by  him  on  the  land.  The  case  of  Matthews  v.  Davis.  6  Humphrey, 
324.  and  Henry  v.  Polland,  4  Humphrey  (Tenn.).  362.  soon  fol- 
lowed and  were  to  the  same  effect,  relying  upon  Judge  Story's 
decision  as  authority.  But  these  cases  pressed  the  doctrine  fur- 
ther than  we  have  foimd  it  carried  in  any  other  state  except  this. 
In  the  case  of  Albea  v.  Griffin.  22  N.  C.'9.  which  was  a  bill  filed 
by  the  vendee  for  a  specific  performance  of  a  contract  for  the 
sale  of  land,  and  the  defense  was  the  Act  of  1819  avoiding  parol 
contracts  for  the  sale  of  land.  Judge  Gaston,  giving  the  opinion 
of  the  court,  says:  "Although  payment  of  the  purchase  money, 
taking  possession,  and  making  improvements,  will  not  entitle  the 
vendee  to  a  specific  execution  of  a  parol  agreement  for  the  sale 
of  land,  yet  he  has  in  equity  a  right  to  an  account  of  the  pur- 
chase money  and  the  value  of  his  improvements,  deducting  there- 
from the  annual  value  during  his  possession." 

This  court  in  several  cases  has  recognized  the  doctrine  of  bet- 
terments to  the  extent  of  the  enhanced  value  of  the  land,  in  cases 
where  the  contract  for  the  sale  of  land  has  been  rescinded,  or  the 
title  has  failed  bv  reason  of  the  contract's  not  being  in  writing. 
Wetherell  v.  Gorman,  74  N.  C.  603;  Hill  v.  Brower,  76  N.  C.  124; 
Smith  V.  Stewart,  83  N.  C.  406. 

But  we  have  been  unable  to  find  any  case  in  which  the  doctrine 
lias  been  held  to  apply  to  mortgagors.  In  our  Act  of  1871-72,  pro- 
viding a  remedy  to  recover  betterments  for  innocent  defendants 
against  whom  a  reeoveiy  may  be  had  in  an  action  in  the  nature  of 
ejectment,  it  is  expressly  declared  in  the  act  that  its  provisions 
shall  not  apply  to  any  suit  brought  by  a  mortgagee  against  a 
mortgagor  to  recover  the  mortgaged  premises.  It  is  very  probable 
the  legislature  in  making  the  exception  had  in  view  the  generally 
admitted  principle  that  the  right  to  betterments  is  not  conceded 
to  mortgagors,  for  the  current  of  authorities  is  to  the  effect  that  it 
has  no  application  to  them.  In  2  Washburn  on  Real  Prop.,  it  is 
laid  down  that,  "if  tlie  mortgagor  or  any  one  standing  in  his  place 
enhances  the  value  of  the  premises  by  improvements,  they  become 
additional  security  for  the  debt,  and  he  can  only  claim  the  sur- 
plus, if  anv,  upon  such  sale  being  made,  after  satisfving  the 
debt." 

In  'Martin  v.  lieatty.  rA  Til.  Kc)).  100.  it  is  held  that  mon(\v  ex- 
pended in  improvements  upon  inorlgagrd  premises  by  tlie  mort- 
gagor or  his  grantee,  subsefpient  to  the  mortgage,  cannot  be  given 
a  lien  prior  to  that  of  the  mortgagee.  And  in  Rice  v.  Dewey,  54 
Barb.  ex.  Y.).  4.');").  it  was  decided  that  "wliere  lands  sold  and 
conveyed  by  mortgage  are  chai'ged  with  the  moiigage  debt,  im- 
provements that  constitute  a  ])a)'t  of  the  fealty,  irrespective  of 
the  f|uestion  by  whojn  they  ;iir  made,  are  efpially  subject  to  the 
lien  of  tlie  inorttragee  ;is  the  bind  upon  whieli  lliev  are  made." 

In  Massnelnisetts  it  is  held  that  the  owner  of  an  eqiiit.\'  of  re- 
demption is  not  entitled,  as  against  tlie  mortgagee,  to  be  allowed 
for  improvements  maili'  upon  tin-  pi-cmiscs.  Cliilds  v.  Dolan.  Al- 
RpmecHes — 12. 


178  CONCERNING    REAL    ESTATE.  [Ch.    3. 

Ion's  Rop.  ;nO.  To  the  same  olVoct  arc  Union  Wator  Co.  v.  IMurpliy, 
'2'2  (\il.  ti'Jl  ;  M('(^niih(M-  V.  r.ihnnn.  15  111.  ;?S1.  •.u\^\  1  Jon(>s  on 
Mortira.ui's.  s.  147. 

There  is  no  error  Let  1liis  he  certified  to  the  superior  court 
of  Wake  county  that  proceedings  niny  ho  had  lh(>re  in  accordance 
uith  this  opinion. 

See  ch.  9.  sec.  3,  Ball  v.  Piddock.  21  N.  J.  Eq.  311.  See  Revisal,  sees. 
652-660.  In  Railroad  v.  MrCaskill,  98  N.  C.  at  mid.  p.  537,  it  is  said, 
with  reference  to  betterments:  "The  court  expressly  told  the  jiu-y  that 
they  should  not  estimate  the  value  of  the  improvements  by  the  actual 
cost  in  making  the  same,  but  by  the  enhanced  value  they  gave  the  prem- 
ises. This  instruction  conforms  to  the  rule  i)rescribed  by  the  statute, 
recognized  and  settled  in  Wetherell  v.  Gorman.  74  N.  C.  603;  Daniel  v. 
Grumpier,  75  N.  C.  184;  Smith  v.  Stewart,  83  N.  C.  406."  See  Frederick 
V.  Frederick,  102  S.  W.  858,  13  L.  R.  A.  (N.  S.)  514,  for  betterments  by 
life  tenant;  Gibson  v.  Field.  98  Pac.  1112,  20  L.  R.  A.  (N.  S.)  378,  bring- 
ing wild  lands  into  cultivation.  See  "Mortgages,"  Century  Dig.  §  722; 
Decennial  and  Am.  Dig.  Key  No.  Series,  §  274;  "Improvements,"  Cent. 
Dig.  §§  4-15;  Decennial  and  Am.  Dig.  Key  No.  Series,  §  4. 


Sec.  5.     Slander  of  Title. 

TASBURGH  v.  DAY,  Cro.  Jac.  484.     1620. 
Essentials  to  the  Action.    Actual  Damage. 

[Action  on  the  Case.  The  declaration  charged,  in  substance,  that 
plaintiff  ^vas  seized  of  the  advovvson  of  Sandcroft  and  intended  to  sell  it 
for  the  payment  of  his  debts;  that  the  defendant,  knowing  of  this  and 
intending  to  slander  plaintiff's  title  to  the  advowson  and  to  hinder  his 
sale  thereof,  "spake  of  the  plaintiff  these  scandalous  words:  'True  it  is 
that  Sir  .John  Tasburgh  was  the  true  and  undoubted  patron  of  Sand- 
croft, but  now  he  hath  lost  that  patronage  and  i)resentation,  by  being  a 
simonist  and  a  recusant — both  which  I  will  prove  him  to  be;'  by  I'eason 
of  which  words  plaintiff  was  slandered  in  his  good  name  and  hindered 
in  the  sale  of  the  advowson."] 

[Per  Curiam.]  The  defendant  pleaded  not  guilty;  and  it  was 
found  for  the  plaintiff,  and  damages  assessed  to  one  hundred 
poimds. 

It  was  moved  in  arrest  of  judgment,  that  this  action  lies  not ; 
for  he  doth  not  show  that  he  had  any  prejudice  by  the  slandering 
of  his  title;  nor  doth  he  show  that  there  was  any  communication  to 
sell  it  to  any.  nor  that  any  who  intended  to  buy  it  was  therel)y 
hindered  in  his  buying;  and  without  some  special  cause  shown 
the  action  lies  not;  and  for  the  words  touching  his  person,  they 
are  not  actionable,  for  thej^  do  not  touch  him  in  his  office  of  jus- 
tice of  peace,  nor  is  there  any  damage  to  him  by  the  speaking  of 
which  the  common  law  takes  any  cognizance.  The  court  were  all 
of  opinion  that  the  action  lay  not,  and  therefore  it  was  adjudged 
for  the  defendant. 

See  "Libel  and  Slander,"  Century  Dig.  §  389;  Decennial  and  Am.  Dig. 
Key  No.  Series,  §  135. 


Sec.    5.]  CONCERNIXG   REAL   ESTATE.  179 


KENDALL  v.  STONE,  5  N.  Y.  14.     1851. 
Actual  Damage  as  a  Result  of  the  Slander.    Essentials  to  the  Declaration. 

I  Action  on  the  Case  for  slander  of  title.  Judgment  against  defendant, 
and  he  appealed.     Reversed. 

The  declaration  alleged  that  by  reason  of  the  slanderous  utterances  of 
defendant,  A.  H.  Wheeler  was  deterred  from  purchasing  the  land  of  the 
plaintiff.  The  loss  of  the  sale  to  Wheeler  was  the  only  special  damage 
alleged.  The  proof  was  that  Wheeler  had  entered  into  a  binding  contract 
to  buy  the  land,  but  when  he  heard  what  the  defendant  said  alx)ut  the 
title,  he  became  dissatisfied  and  requested  to  be  released  from  his  con- 
tract, which  request  the  plaintiff  granted,  and  the  contract  with  Wheeler 
was  rescinded  by  the  mutual  consent  of  the  parties  thereto.] 

Gardiner.  J.  The  cause  of  action  in  this  case  is  denominated 
slander  of  title,  by  a  figure  of  speech,  in  which  the  title  to  land 
is  personified,  and  made  subject  to  many  of  the  rules  applicable 
to  personal  slander,  when  the  words  in  themselves  are  not  action- 
able. To  maintain  the  action  the  words  must  not  only  be  false, 
but  they  must  be  uttered  maliciously — (Smith  v.  Spooner.  3  Taun. 
254;  Pater  v.  Baker,  3  Man.  Gr.  "^and  Scott,  868)— and  be  fol- 
lowed, as  a  natural  and  legal  consequence,  by  a  pecuniary  dam- 
age to  the  plaintiff,  which  must  be  specially  alleged  in  the  declara- 
tion, and  substantiallv  proved  on  the  trial.  Beach  v.  Rannev, 
2  Hill.  314;  6  Hill.  524. 

The  declaration  in  this  case  alleges,  in  the  only  count  to  which 
the  evidence  applies,  that,  by  means  of  the  grievances,  divers  good 
citizens,  and  especially  one  Asa  H.  Wheeler,  were  deterred  from 
purchasing  the  lands  in  question,  and  the  plaintiff  was  prevented 
from  disposing  of  the  same,  and  thereby  deprived  of  the  ad- 
vantages to  be  derived  from  the  sale  thereof,  etc.  The  loss  of 
a  sale  to  "Wheeler  is  therefore  the  only  special  damnge  incurred 
by  the  plaintiff,  alleged  in  the  declarntion.  nnd  estnblished  by  the 
evidence. 

The  superior  court  placed  the  recovery  on  this  ground,  and  it 
is  obviously  the  only  one  on  which  it  can  be  sustained. 

Before  the  words  were  spokf^n.  the  plaintiff  and  "Wheeler  had 
entered  into  an  agreement  in  wi-iting.  for  the  sale  of  the  lot  in 
question,  which  was  executed  by  the  vendor  and  accepted  by  the 
vendee.  avIio  nprm  its  deliver^'  paid  two  hundred  and  fifty  dollars 
towards  the  pui'chaso  money.  The  aqvcemenl  tras!  ohligafor]/  upon 
hoik  parties.  Either  could  have  enforced  a  specific  performance 
in  equity,  find  thei'eby  attained  the  precise  result  contemplated  by 
thf  contract.  T'nclfr  thfso  circumst.nncos.  the  representations 
ohargod  were  made  by  the  defeiulant.  The  efT(>ct  of  tluMu  was  not 
to  prevent  a  sale  of  the  land,  for  that  li;ii1  been  secured  by  the 
existing  contrnet.  Wheeler  was  induced  by  the  misrepi'csentiition 
to  desire  a  reliiifjuishment  of  the  agreement.  This  wns  assented 
to  by  the  pbiintifF.  the  .'igreei^ieTit  was  j-eseiuded,  and  the  note  oF 
the  vendor  reeeived  fo?'  the  nmount  rif  the  money  advanced  by 
the  purehnser.  This  suit  was  then  instituted,  and  speeird  d.'im;iges 
claimed  of  the  defendant,  substnntinllv  for  tlie  uouruiniliiient  of 


iM)  i-ONH'KKNINt;     IJKAl.    KsrA'l'K.  1/7;.    ,7. 

the  contract  which  liad  been  s\ifi'ciulciva  by  the  consent  and  ajrrcc- 
incnt  of  tlic  phiintitT.     This  is  a  brief  staleiiiciit  of  the  proeeedinj?. 

"The  court  charixed  tluit  it  was  ]tretty  manifest,  from  the  testi- 
mony of  Wheeler,  that  the  i)laintitl'  had  sustaiiK'd  (hunagcs;  that 
the  former  would  have  taken  the  tith'  if  it  liad  not  been  for  the 
words  spoken  by  the  ilefendant. ""  To  this  tliere  was  an  exception, 
ami  tlie  ([uestion  i.s,  wlictlier  tlie  special  chima^'c  aUe^'ed  l)y  llie 
plaint itV,  which  is  the  ^ist  of  the  action,  was  established  by  thi.s 
evidence. 

It  has  been  doubted,  whethei-  in  any  case  where  there  is  a  sub- 
sisting: contract  and  its  performance  is  prevented  by  the  repre- 
sentations of  a  third  person,  an  action  would  lie  in  behalf  of  the 
person  with  whom  the  contract  was  made.  The  eases  are  col- 
lected in  :\roody  v.  Baker.  5  Cowen.  351.  The  judfjes  in  that  case 
were  divided  in  opinion,  but  Justice  Woodwoktii,  who  delivered 
the  opinion  of  the  court,  conceded,  that  the  action  would  not  lie, 
w  here  the  contract  was  for  the  payment  of  money ;  and  the  prin- 
ciple of  the  concession  extends  to  every  case  where  a  breach  of 
the  contract  is  sasceptible  of  a  fixed  and  definite  compensation  in 
money,  or  where  it  may,  according  to  the  usual  practice  of  the 
courts,  be  specifically  enforced  against  the  delinquent  party. 

A  misrepresentation  which  should  induce  a  party  to  violate  a 
contract  for  the  sale  and  delivery  of  goods,  or  stock,  would  no 
more  be  the  subject  of  an  action,  than  one  which  should  cause  the 
refusal  to  pay  a  promissory  note.  ]\Iorris  v.  Langdale.  2  Bos.  & 
Pul.  284;  Vicars  v.  Wilcox.  8  East.  1.  There  is  no  differenec  in 
principle  between  a  contract  for  the  delivery  of  merchandise,  and 
for  the  sale  of  land,  except,  that  in  the  latter  case,  the  remedy 
of  a  specific  performance  is  more  complete  than  a  pecuniary  com- 
pensation. 

I\Iy  own  opinion  would  be.  that  no  action  could  be  sustained  in 
such  a  case,  upon  the  ground  taken  in  Vicars  v.  Wilcox,  supra, — 
that  the  damage  must  be  the  legal,  and  not  the  illegal  con.se- 
quence  of  the  words  spoken.  This  principle  Avas  recognized  in 
Butler  V.  Kent,  19  J.  R.  228,  and  in  Beach  v.  Ranney,  2  Hill,  309, 
that  in  an  action  for  w^ords  not  actionable  per  se,  the  damage  must 
be  "the  natural  and  immediate  consequence  of  the  speaking  of 
the  words."  See  also  Crain  v.  Petrie.  6  Hill,  524;  INIoody  v. 
Baker,  supra. 

In  this  ea.se,  the  Avords  charged  were  not  the  immediate  cause 
of  the  nonfulfillment  of  the  contract,  in  any  conceivable  view  that 
can  be  taken.  But  if  I  am  wrong  in  this,  there  is  no  case  that 
holds,  that  where  the  special  damage  consists  in  the  violation  of 
a  contract,  the  plaintiff  may  discharge  the  obligation,  and  then 
recover  damages  in  an  action  of  tort  for  its  nonperformance.  The 
right  claimed  to  be  affected  by  the  slander,  originated  in  and  sub- 
sisted by  virtue  of  the  contract;  when  that  was  discharged,  it 
fell  wnth  it.  The  vendor  and  vendee  elected  to  consider  the  agree- 
ment as  null  from  the  beginning.  When  the  suit  was  instituted, 
therefore,  there  could  be  no  injuiy.  for  there  was  no  right  to  be 
affected.     Yet   under  these  circumstances,  the  plaintiff  has  been 


Sec.    5.]  CONCERNING    RE.VL    ESTATE.  181 

permitted  to  recover  a  thousand  dollars  bj-  way  of  damages,  be- 
cause Wheeler  wished  to  ])o  discharged  from  a  purchase  of  a  lot, 
the  stipulated  value  of  which  was  nine  hundred  dollars,  and  was 
discharged  by  the  vendee  accordingly. 

In  Bird  v.  Randall.  3  Burr.  1345,  the  action  was  for  enticing  a 
servant  from  the  employment  of  the  plaintiff.  The  servant  was 
boimd  to  the  master  for  five  years,  under  a  penalty  of  one  hundred 
pomids.  The  plaintiff  sued  the  servant,  and  recovered  judgment, 
which  was  paid  after  the  suit  against  the  defendant  was  at  issue 
and  noticed  for  trial.  It  was  held  that  the  defendant  was  dis- 
charged. The  recovery  against  the  servant  by  him,  and  payment, 
put  an  end  to  the  contract,  as  Lord  ^Mansfield  remarks,  and.  in 
his  reasoning,  he  i)uts  a  sati.sfaction  upon  the  same  ground  as  a 
release  or  discharge  of  the  contract.  The  judgment  must  be  re- 
versed. 

See  "Libel  and  Slander,"  Century  Dig.  §§  389,  390;   Decennial  and  Am. 
Dig.  Key  No.  Series,  §§  131,  135. 


SMITH  V.  SPOOXER,  3  Taunton,  246,  255.     1810. 

Malice. 

TAction  on  the  Case  for  slander  of  title.  Verdict  against  defendant 
with  liberty  to  move  for  a  nonsuit.  Rule  nisi  to  set  aside  the  verdict 
and  enter  a  nonsuit.     The  nonsuit  was  ordered. 

The  derlaration  alleged  that  i)laintiff,  being  owner  of  a  term  of  years, 
offered  it  for  sale  at  auction;  that  defendant  was  present  at  the  sale  and 
announced  that  i)laintiff  rould  give  no  title  to  the  term;  that  plaintiff  had 
suffered  damages  therel)y.  Defendant  pleaded  the  general  issue.  De- 
fendant insisted  that  plaintiff  should  be  nonsuited  because  there  was  no 
I»roof  of  express  malice  on  the  part  of  the  defendant.] 

L.vwREXCE.  J.  .  .  .  An  action  can  only  be  maintained 
where  tlie  words  are  spoken  maliciously.  It  is  not  necessary  to 
plead  specially;  it  is  for  the  plaintiff  to  prove  malice,  which  is 
the  gist  of  the  action,  and  is  a  part  of  the  declaration  important 
to  be  proved  by  the  plaintiff.  The  specially  pleading  a  justifica- 
tion would  admit  the  facts  stated  in  the  declaration,  and  amongst 
fithers  the  malice.  Now  as  to  the  facts,  what  is  this  case?  A  man 
tliinkincr  he  has  a  right  to  recover  possession  of  a  term  for  some 
Jiiiseondiict  of  his  tenant,  and  hearing  the  term  is  to  be  sold,  goes 
to  the  auction,  and  says  the  vendor  cannot  make  a  title;  now  does 
not  he  act  herein  ;is  an  honest  man?  "What  would  havi'  lieen 
said,  if  he  liad  lain  by.  ajid  perjnitted  anotber  to  purchase  it.  be- 
fore he  disclosed  his  claim?  Tbc  rule,  thei-cfniv,  nnist  l)e  made 
absolute  for  a  nonsuit. 

For  a  valual)|p  collection  of  aufhorifies  on  the  subject  of  slander  of 
fitle.  «pe  13  L.  R,  A.  707,  notes  and  liriefg.  See  also  CanbMi  v.  Mcronnell, 
nn  N.  r.  87'..  21  S.  E.  023.  and  S.  C.  120  N.  C.  Ifil.  27  S.  E.  100.  The 
hf-ndiint..  tf.  (i,o  last  case  is:   "An  action  for  slander  of  title  caimnf   be 


182  CONCERNING    KKAL    KtsTATE,  [C7(.    3. 

luaintaiutHl  unless  the  plaint  iff  shows  the  falsity  of  the  words  published 
or  spoken;  the  nuilieious  intent  witli  wiiiih  they  were  uttered;  and  a 
pet-uniary  loss  or  injury  to  hiinsell."  In  I'aull  v.  llaU'erty,  (i'A  Penn.  St. 
40,  o  Am.  Kep.  r>lS,  it  is  lu>ld  liial  a  inaliiious  statement  as  to  the  quality 
and  value  of  land,  whieh  statement  causes  the  owner  to  lose  a  sale  of  the 
land,  is  aetional)l<>.  The  court  say:  "A  statement,  however  malieious, 
that  land  is  without  timber,  when  notoriously  well  timbered,  eooild 
never  be  the  subjei't  of  danuiges.  lUit  very  different  would  be  the  case 
of  those  occult  qualities  or  internal  values  which  science  and  exi)erience 
may  be  able  to  detect.  .  .  .  The  representation  iu  this  case  was,  that  an 
experienced  iron  manufacturer  was  of  opinion  that  the  iron  ore  on  the 
land  was  but  a  "pocket"  or  nest  that  would  suddenly  run  oiit.  .  .  .  This 
was  a  most  successful  mode  of  depreciating  the  value  of  the  laud  as  min- 
eral land,  and  if  this  was  false  and  malicious,  as  well  as  injurious  to  the 
plaintiff,  why  shall  he  not  be  indemnified?"  See  "Libel  and  Slander," 
Century  Dig.  §  390;  Decennial  and  Am.  Dig.  Key  No.  Series,  §  131. 


Sec.  G.     Eemoval  op  Cloud  upon  Title,  and  Quieting  Title. 

AVEHRMAX  v.  CONKLIN,  155  U.  S.  314,  321-323,  15  Sup.  Ct.  129.     1894. 
Jurisdiction  in  Equity  and  under  Modern  Statutes. 

IThis  was  a  bill  in  equity  brought  by  the  appellees,  Conklin  and  wife, 
to  enjoin  the  plaintiff,  Wehrmau,  from  prosecutug  an  action  ot  ejectment 
against  the  appellees.  The  case  was  brought  in  the  Circuit  Court  of  the 
United  States  for  the  Northern  District  of  Iowa.  Defendant  demurred 
for  want  of  jurisdiction  and  want  of  equity  in  the  bill.  The  demurrer 
was  overruled.  Answer  filed.  Decree  against  Wehrman  in  which  his 
claims  to  the  locus  in  quo  "were  adjudged  to  be  invalid  and  groundless 
and  the  complainants  decreed  to  be  the  true  and  lawful  owners  of  the 
land,  and  their  title  to  be  quieted  against  the  claims  of  the  defendant, 
who  was  perpetually  enjoined  from  further  proceedings  at  law.  From 
this  decree  defendant  appealed  to  this  court.  The  opinion  of  the  court 
below  is  found  in  38  Fed.  Rep.  874,  and  upon  final  hearing  in  43  Fed.  Rep. 
12."  Among  other  things,  the  bill  alleged  that  Wehrman's  title  and  in- 
terest in  the  locus  in  quo  had  been  sold  in  1862,  under  attachment  pro- 
ceedings, and  purchased  by  Carlos  S.  Greeley,  who  held  possession  and 
paid  the  taxes  for  twenty  years,  and  then  sold  to  Conklin  who  had  been 
in  possession  ever  since;  that  Wehrman  for  more  than  twenty-seven 
years  took  no  steps  to  assert  his  title,  nor  did  he  give  notice  of  any 
claim  until  the  commencement  of  his  action  at  law,  to  restrain  the  prose- 
cution of  which  this  suit  is,  in  part,  brought;  and  that  a  certain  convey- 
ance under  which  Wehrman  claimed  title  was  a  cloud  upon  Conklin's 
title.  The  prayer  was,  that  the  action  of  ejectment,  brought  by  Wehr- 
man, be  stayed  and  that  he  be  enjoined  from  further  proceedings  at  law.] 

Mr.  Justice  Brown  :  This  is  a  bill  in  equity,  not  only  to  stay 
an  action  in  ejectment  at  law,  but  to  remove  a  cloud  east  upon 
the  Conklin's  title  to  the  lands  in  question,  created  by  a  deed  from 
Adolph  Wehrman  to  Frederick  AVehnnan,  appellant  and  defend- 
ant in  the  bill,  and  to  quiet  their  own  title  thereto. 

1.  Defendant's  principal  contention  is  that  equity  has  no  juris- 
diction of  the  case,  for  the  reason  that  the  contest  concerns  the 
leoral  title  r.nly.  and  tb;it  yilriintifFs  have  n   plain,  adequate,  and 


Sec.    6.]  CONCERNING    REAL    ESTATE.  183 

complete  remed}'  at  law.  .  .  .  The  general  principles  of 
equity  jurispradence  as  administered  both  in  this  country  and 
in  England,  permit  a  bill  to  quiet  title  to  be  tiled  only  by  a  party 
n\  possession  against  a  defendant  who  has  been  inetfectually  seek- 
ing to  establish  a  legal  title  by  repeated  actions  of  ejectment,  and 
as  a  prerequisite  to  such  bill  it  was  necessary  that  the  title  of  the 
plaintilt"  should  have  been  established  by  at  least  one  successful 
trial  at  law.  Pom.  Eq.  Jur.  §§  253,  139-1,  1396.  At  coimnon  law  a 
party  might  by  successive  fictitious  demises  bring  as  many  actions 
of  ejectment  as  he  chose,  and  a  bill  to  quiet  title  was  only  per- 
mitted for  the  purpose  of  preventing  the  party  in  possession  being 
annoyed  by  repeated  and  vexatious  actions.  The  jurisdiction  was, 
in  fact,  only  another  exercise  of  the  familiar  power  of  a  court  of 
equity  to  prevent  a  multiplicity  of  suits  by  bills  of  peace.  A 
statement  of  the  undei-lying  principles  of  such  bills  is  found  in 
the  opinion  of  this  court  in  Holland  v.  Challen,  110  U.  S.  15,  19. 
3  Sup.  Ct.  195.  497.  in  which  it  is  said:  "To  entitle  the  plaintiff 
to  relief  in  such  cases,  the  concurrence  of  three  particulars  was 
essential:  He  must  have  been  in  possession  of  the  property;  he 
must  have  been  disturbed  in  its  possession  by  repeated  actions  at 
law;  and  he  must  have  established  his  right  by  successive  judg- 
ments in  his  favor.  Upon  these  facts  appearing,  the  court  would 
interpose  and  grant  a  perpetual  injunction  to  quiet  the  possession 
of  the  plaintiff  against  any  further  litigation  from  the  same 
source.  It  was  only  in  this  way  that  adequate  relief  could  be 
afforded  against  vexatious  litigation  and  the  irreparable  mischief 
which  it  entailed." 

This  method  of  adjusting  titles  by  bill  in  equity  proved  so  con- 
venient that  in  many  of  the  states  statutes  have  been  passed  ex- 
tending tlie  jurisdiction  of  a  court  of  equity  to  all  cases  where  a 
party  in  pos.session,  and  sometimes  out  of  possession,  seeks  to  clear 
up  his  title  and  remove  any  cloud  caused  by  an  outstanding  deed 
or  lien  which  he  claims  to  be  invalid,  and  the  existence  of  Avhich 
is  a  threat  against  his  peaceable  occupation  of  the  land,  and  an 
obstacle  to  its  sale.  The  inability  of  a  court  of  law  to  afford  relief 
was  a  strong  argument  in  favor  of  extending  the  jurisdiction  of 
a  court  of  equity  to  this  class  of  cases. 

The  statute  of  Towa.  upon  which  this  bill  is  based,  is  an  example 
of  this  legislation,  and  provides  (Code.  §  3273)  that  "an  action 
to  determine  and  quiet  title  to  real  property  may  be  brought  by 
any  one  having,  or  claiming  an  interest  therein,  whether  in  or  out 
of  possession  of  the  same,  atrainst  any  person  claiming  title 
thereto,  thougli  not  in  possession." 

It  will  be  observed  tliat  this  statute  enlarges  the  jurisdiction  of 
courts  of  equity  in  the  following  particlars: 

n)  It  dors  nril  roqnire  that  plaintiff  should  have  been  annoyed 
(tr  threatened  by  i-cpejited  actions  of  fjeftment. 

^2)  It  dispenses  wilh  the  necessity  of  his  title  having  been 
previously  fstablislu'd  at  law. 

(3)    The  bill    may   be    filfd    by   ;i    luicfy  ]i;iving  an   rTpiitable   as 


184  COiNCEKNliNG    KEAL    ESTATE.  [(7(,    3. 

well  as  a  legal  title.  Orissom  v.  :Moore,  10(5  Tiul.  200.  G  N.  E.  629; 
Stanley  V.  llolliilay  (hid.  Sup.).  30  N.  K.  (534;  Eehols  v.  Hubbard 
(Ala.),  7  South.  SIT. 

(4)  In  some  states  it  is  not  even  neees.sary  that  plaintiff  should 
be  in  possession  of  the  land  at  the  time  of  tiling  the  bill. 

These  statutes  have  geiiei';illy  lieon  held  to  be  within  the  eon- 
stitutional  power  of  the  legislature. 

See  Pom.  Eq.  Juiisp.  vol.  G,  §§  724-743;  Tracy  v.  Wheeler,  107  N.  W.  68, 
6  L.  R.  A.  (N.  S.)  51G,  and  note;  Miller  v.  Coxe,  133  N.  C.  758  (to  cancel 
a  mortgage  barred  by  the  statute  oi  limitations);  Ala.  Coal  Co.  v.  Gulf 
Coal  Co.,  40  So.  397,  7  L.  R.  A.  (N.  S.)  712,  and  note  (by  owner  of 
mineral  interest);  Heppenstall  v.  Leng,  66  Atl.  991,  12  L.  R.  A.  (N.  S.) 
652,  and  note  (vendor  may  maintain  after  making  contract  to  sell); 
Whitehouse  v.  Jones,  55  S.  E.  730,  12  L.  R.  A.  (N.  S.)  49-81,  and  note 
covering  the  whole  subject — including  the  practice  in  equity  and  under 
modern  statutes.  See  'Quieting  Title,"  Century  Dig.  §§  36-43,  54,  55; 
Decennial  and  Am.  Dig.  Key  No.  Series,  §§  9-12,  22,  23. 


BUSBEE  v.  MACY,  85  N.  C.   329.     1881. 
What  is  Such  a  Cloud  as  Will  Confer  Jurisdiction? 

[Controversy  without  action  under  C.  C.  P.  s.  315  (Revisal,  ss.  803- 
805).  Judgment  against  defendant,  and  he  appealed.  The  avowed  pur- 
pose of  the  controversy  was,  to  remove  an  alleged  doud  upon  plaintiff's 
title  to  certain  real  estate.] 

RuFFiN,  J.  A  question  of  .iurisdiction  meets  us  at  the  very 
outset  of  this  case.  The  plaintiff  alleges  that  the  deed  under  which 
the  defendants  claim  and  against  which  he  seeks  relief,  is  abso- 
lutely void  for  uncertainty  upon  its  face.  Ought  then  a  court 
of  equity  to  take  cognizance  of  the  cause  and  undertake  to  quiet 
plaintiff's  fears,  when  upon  his  own  showing  they  are  utterly 
gromidle.ss  and  idle? 

The  coui'ts  of  equity  in  the  exercise  of  what  is  called  "pre- 
ventive or  protective  .justice."  have  been  long  accustomed  to  re- 
lieve against  deeds  or  other  instruments.  Avhich  it  is  feared  may 
be  used  vexatiously  and  injuriously  at  some  future  day,  w^hen 
the  evidence  to  impeach  them  may  be  lost,  and  against  such  as 
may  presently  operate  as  clouds  upon  the  title  of  others,  and 
cause  their  truo  interests  to  be  suspected. 

But  to  .justify  the  interposition  of  the  court  for  any  such  pur- 
pose, the  difficulty  complained  of  must  appear  to  exist,  and  the 
cloud  sought  to  be  removed,  present,  at  least,  some  semblance  of 
validity.  Otherwise  the  court  will  not  interpose,  since  to  do  so, 
would  be  to  engage  in  the  vain  effort  of  giving  relief  to  one  who 
cannot  possibly  be  in.jured.  Accordingly  we  find  it  said  in  1 
Stor>^'s  Eq.  Jur.  s.  700.  a.  that  when  the  illegality  of  the  instru- 
ment complained  of  appears  upon  its  face,  so  that  its  nullity  can 


Sec.    6.]  CONCERNING   REAL   ESTATE.  185 

admit  of  no  doubt,  it  is  the  established  rule  of  the  court  not  to 
use  its  authority  to  order  its  cancellation,  for  in  such  a  case  there 
can  be  no  danger  that  the  lapse  of  time  may  deprive  the  party 
of  his  full  means  of  defense,  nor  can  it  in  any  just  sense  be  said 
that  such  a  paper  can  cast  a  cloud  upon  his  title  or  diminish  its 
securitv.  To  the  same  effect  are  the  decisions  of  courts  in  the  fol- 
lowing cases :  Scott  v.  Onderdonk,  14  N.  Y.  9 ;  Cox  v.  Clift,  2 
Comstock  (N.  Y.).  118;  Pierrott  v.  Elliott.  6  Peters.  95;  Gamble 
V.  Loop.  14  Wis.  466;  Head  v.  James,  13  Wis.  641;  and  Farnham 
V.  Campbell.  34  N.  Y.  480. 

These  cases  all  go  upon  the  idea  that  the  court  will  not  engage 
in  a  work  of  supei-erogation.  liy  declaring  that  to  be  a  void  deed, 
which  upon  its  face  is  no  deed,  and  of  no  greater  consequence  than 
a  blank  piece  of  paper. 

So  it  is  in  this  case.  The  plaintiff's  o^^'n  allegations  furnish  a 
complete  answer  to  his  demand  for  relief,  for  if  they  be  true,  he 
has  a  perfect  defense,  manifested  by  the  very  deed  under  which 
his  adversaries  claim  the  land,  and  as  lasting  in  its  nature  as  that 
deed  itself;  and  a  decree  of  this  court,  declaring  that  deed  to  be 
void,  can  render  it  no  more  inoperative  than  it  now  is.  according 
to  the  statement  made  in  the  complaint. 

We  are  of  the  opinion,  therefore,  that  the  plaintiff's  action 
must  be  dismissed,  and  accordingly  do  so  adjudge.  But  as  the 
defendants  .seem  to  insist  upon  the  validity  of  the  deed,  lest  we 
may  mislead  them,  or  prejudice  the  plaintiff,  we  declare  our  judg- 
ment to  be  founded  solely  upon  a  consideration  of  the  complaint, 
and  not  of  the  cause  upon  its  merits.    Action  dismissed. 

See  Pell's  Revisal,  s.  1589,  which  is  the  Act  of  1893,  generally  known 
as  "the  .Tacol)  Battle  Act,"  as  amended  by  the  Act  of  1903.  In  Rumbo 
V.  Manufacturing  Co.,  129  N.  C.  at  p.  10,  39  S.  E.  582,  it  is  said:  "It 
was  because  the  general  assembly  thought  the  equitable  doctrines — as 
laid  down  in  Busbee  v.  Macy,  85  N.  C.  329,  and  Busbee  v.  Lewis,  Ibid. 
332,  and  lilc?  casps— inconvenient  or  unjust,  that  the  Act  of  1893  was 
passed."  The  amendment  of  1903,  now  incorporated  in  sec.  1589  of  the 
Revisal  of  1905,  was  intended  to  meet  the  ruling  of  the  court,  in  McLean 
V.  Shaw,  125  N.  C.  491,  34  S.  E.  634,  that  a  judgment  lien  is  not  included 
in  the  terms  "estate"  and  "interest"  used  in  the  act  of  1893.  See  Mc- 
Arthur  v.  Griffith,  147  N.  C.  at  p.  549,  61  S.  E.  521,  where  it  is  said  by 
Walker,  J.:  "The  widow  and  heirs  of  J.  P.  Hannah  had  the  right  to 
bring  the  action  to  remove  the  cloud  from  their  title.  7  Cyc.  255,  256, 
and  6  Cyc.  319,  320,  and  notes.  Equity  interferes  to  remove  clouds  upon 
title,  because  they  embarrass  the  owner  of  the  property  clouded  and 
tend  to  impede  his  free  sale  and  disposition  of  it.  Byne  v.  Vivian,  5 
Vesey,  604;  Ward  v.  Dewey,  16  N.  Y.  531;  Bissell  v.  Kellogg,  60  Barbour, 
629.  A  cloud  upon  title  is  in  itself  a  title  or  incum])rancc,  api)arently 
valid,  but  in  fact  invalid.  It  is  something  which,  nothing  else  being 
shown,  constitutes  rin  incunibrancp  uiion  it  or  a  defect  in  it. — something 
that  shows  piinia  facie  the  riglit  of  a  third  i)arty  either  to  the  whole  or 
to  some  interest  in  It,  or  to  a  lien  upon  it.  2  Cooley  on  Taxation  (3  ed.), 
1418;  Detroit  v.  Martin.  34  Mich.  170.  When  the  claim,  which  is  a  Hen 
if  In  force,  aitjiears  to  be  valid  on  the  face  of  the  record,  and  the  defect 
or  invalidity  can  only  be  made  to  appear  by  extrinsic  evidence.  i)ar- 
tlcularly  if  the  proof  of  it  depends  upon  oral  testimony,  it  generally  pre- 
sents a  case  Invoking  the  aid  of  a  court  of  equity  to  remove  It  as  a  cloud 


18»i  CONCEKNIXG    KEAL    ESTATE.  [C7(.    3. 

upon  the  title.  Crorko  v.  .\iulre\vs.  40  N.  Y.  517;  Sanxay  v.  Hunger, 
42  Ind.  44;  2  Story  Eq.  .lur.  (lo  ed.),  ss.  G;>S-700.  If,  on  the  other  hand, 
the  title  be  void  on  its  fare — if  it  be  a  nullity,  a  mere  felo  de  se,  when 
produiet'.— so  that  an  aition  upon  it  will  fall  of  its  own  weight,  as  has 
been  said,  then  the  title  of  the  party  is  not  considered  as  necessarily 
clouded  thereby.  Busbee  v.  Macy,  So  N.  C.  329;  Busbee  v.  Lewis,  85  N. 
C.  :\:V2:  Browning  v.  Lavender,  104  N.  C  69,  10  S.  E.  77;  Thompson 
V.  Etowah  Iron  Co.,  91  Ga.  538.  17  S.  E.  663;  Lick  v.  Ray,  43  Cal.  83.  This 
equity  is  also  enforced  for  the  reason  that  the  proof  of  the  party  upon 
which  he  relies  to  show  the  invalidity  of  the  im  unibrame  may  bo  lost  by 
lapse  of  time.  Browning  v.  Lavendar,  supra.  The  widow  and  heirs  of 
J.  P.  Hannah  properly  brought  their  action  to  have  the  note  and  mort- 
gage cancelled,  so  as  to  remove  the  cloud  from  their  title.  Byerly  v. 
Humphrey,  nr.  \.  C.  151 ;  Murray  v.  Hazell,  99  N.  C.  1G8,  5  S.  E.  428.  The 
doctrine  relating  to  cloud  upon  title  is  founded  upon  true  principles  of 
equity  jurisprudence,  which  is  not  merely  remedial,  but  is  also  pre- 
ventive of  injustice.  If  an  instrument  ought  not  to  be  used  or  enforced, 
it  is  against  conscience  for  the  party  holding  the  same  to  retain  it.  since 
he  can  only  do  so  with  some  sinister  or  wrongful  design.  If  it  is  a 
negotiable  instrument,  it  may  be  used  for  a  fraudulent  or  improper  pur- 
pose. If  it  is  a  deed  purporting  to  convey  lands,  which  creates  an  ap- 
parent encumbrance,  its  existence  in  an  uncancelled  state  necessarily  is 
calculated  to  throw  a  cloud  over  the  title.  2  Story,  Eq.  Jur.  (13  ed.) 
s.  700,  and  notes." 

That  a  nonresident  may  be  lawfully  brought  into  court  by  service  of 
process  by  publication  in  proceedings  to  quiet  title  to  lands  within  the 
state  in  which  such  proceedings  are  prosecuted,  see  Vick  v.  Flournoy, 
147  N.  C.  at  p.  215,  60  S.  E.  978,  quoting  from  Boswell's  Lessee  v.  Otis, 
9  How.  336.  348.  See  also  Sharon  v.  Tucker,  144  U.  S.  533,  12  Sup.  Ct. 
720.  inserted  at  ch.  10,  sec.  G,  post.  See  "Quieting  Title,"  Century  Dig. 
§  20;    Decennial  and  Am.  Dig.  Key  No.  Series  §  7. 


Sec.  7.     Confusion  of  Boundaries  and  Processioning. 

HOUGH  v.  martin,  22  N.  C.  379,  383,  384.     1839. 
Equity  Jurisdiction  Over  Questions  of  Boundary. 

[Bill  in  equity  praying  that  the  rights  of  the  complainant  in  certain 
lands  devised  to  him  and  others  "might  be  settled  and  ascertained  and 
his  lands  admeasured  and  laid  off  to  him  by  metes  and  bounds,  and  for 
general  relief."  Defendants  demurred.  Demurrer  sustained,  and  plain- 
tiff appealed.     Affirmed. 

The  bill  alleged  the  making  of  a  will  by  .lames  Martin  and  set  out  a 
copy  thereof,  and  further  alleged  that  the  description  in  the  will  of  the 
several  tracts  of  land  devised  thereby  was  so  obscure  that  the  plaintiff 
was  unable  to  fix  upon  the  residue  devised  to  him;  that  one  of  the  de- 
fendants, taking  advantage  of  such  obscurity,  had  taken  possession  of 
land  that  of  right  belonged  to  plaintiff  under  the  will;  that  plaintiff 
had  brought  ejectment  for  such  land,  but  had  failed  in  his  action  be- 
cause of  his  inability  to  locate  his  claim  under  the  will,  and  that  he 
would  never  be  able  to  locate  his  claim  without  the  aid  of  the  court  of 
equity,  etc  Only  so  much  of  the  opinion  as  bears  upon  the  subject  of 
confusion  of  boundaries  is  inserted.] 

RfFFiN,  C.  J.  .  .  .  The  ohscnrity  of  the  will  furnishes  no 
snffieient  reason  for  npplyinqr  to  eqnity;  for  if  the  obscurity  be 


Sec.    7.]  COXCERNING   REAL   ESTATE.  18T 

not  so  great  as  to  render  the  disposition  altogether  imintelligible, 
it  will  be  valid  at  law,  as  far  as  it  can  be  understood;  and  if  it 
sound  to  folly,  so  far  as  not  to  amount  to  a  designation  of  any 
corpus,  it  necessarily  follows  that  no  court  can  help  it.  but  that 
it  must  be  ineffectual.  For  this  reason,  the  bill  cannot  assume 
the  aspect  of  one  for  ascertaining  confused  boundaries;  for  al- 
though the  court  of  equity  has  exercised  the  jurisdiction  of  set- 
tling boundaries  of  legal  estates,  yet  it  has  been  cautiously  exer- 
cised, and  in  only  a  few  instances,  and  in  none  in  which  the 
boundaries  were  not  once  certain,  and  had  been  rendered  uncer- 
tain by  the  default  of  the  defendant,  or  those  under  whom  he 
claimed.  In  the  case  before  us.  the  gravamen  is  not  that  a  single 
landmark  had  been  altered,  or  been  permitted  to  perish  by  the 
act  or  neglect  of  the  other  parties :  but  that  the  testator  Avas  in- 
explicit and  obscure  in  the  language  of  his  will. 

If.  however,  that  objection  did  not  exist,  the  present  ease  is  not 
within  the  principles  upon  which  the  jurisdiction  of  ascertaining 
boundaries  has  hitherto  proceeded.  In  all  the  cases,  there  was 
either  an  agreement  that  the  land  of  the  several  parties  should  be 
distinguished,  as  in  Norris  v.  Le  Nevo.  3  Atk.  31;  or  some  relation 
between  the  parties,  which  made  it  the  duty  of  one  of  them  to 
presence  the  landmarks,  and  therefore  the  boundaries  became  con- 
fused by  the  neglect  or  fraud  of  the  party  charged  with  that 
duty — as  a  tenant.  The  Duke  of  Leeds  v.  The  Earl  of  Strafford,  4 
Ves.  180;  Atty.  Gen.  v.  Fullerton.  2  Yes.  &  Bea.  264;  Willis  v. 
Parkinson,  1  Swanst.  9.  It  is  not  enough  that  the  boundary  is 
controverted,  or  that  it  has  become  confused,  although  it  was  once 
plain :  but  the  confusion  must  have  arisen  from  the  misconduct  of 
the  defendant,  wlio  is  therefore  equitably  obliged  to  aid  in  its  re- 
establishment.  ^Miller  v.  Warmington,  1  Jac.  &  Walk.  492.  Be- 
tween independent  proprietors,  equity  does  not  interpose,  where 
there  is  no  asrreoment.  fraud  or  neglect,  and  require  either  of 
them,  against  his  will,  to  have  his  legal  rights  determined  in  any 
but  the  established  legal  method.  Atkins  v.  Hatton.  2  Anstr.  386; 
Speer  v.  Crowter,  2  ^ler.  417.     .     .     .     Decree  affirmed. 

Where  one  had  an  easement  of  a  mill  race  through  another's  land,  and 
the  owner  of  the  servient  estate  destroyed  the  race,  it  was  held  to  be 
within  the  jurisdiction  of  a  court  of  equity  to  appoint  commissioners  to 
re-locate  the  race — the  grant  of  the  easement  being  a  general  one  and 
containing  no  exact  location  of  the  line  along  which  the  mill  race  was  to 
run.  It  being  suggested  that,  as  the  owner  of  the  easement  held  under 
an  executed  contract,  his  remedy  at  law  was  complete,  the  court  said: 
"The  remedy  at  law  is  clearly  inadequate,  and  the  case  falls  under  a  well 
.settled  head  of  equity  jurl.sdiction,  i.  e.,  'confusion  of  boundaries.'  It  is 
defined  by  Adams,  p.  238:  'Where  boundaries  have  been  confused  by  the 
misconduct  of  the  defendant,  or  by  those  under  whom  he  claims,  the 
court  will  issue  a  commission  to  ascertain  the  boundaries;  it  will,  at  the 
same  time,  decree  an  account  of  rents  and  jjrofits.'  There  will  be  a 
decree  declaring  the  right  of  the  plaintiff  and  directing  a  commission  to 
go  upon  the  land  and  mark  off  a  race  in  the  site  of  the  old  one,"  etc. 
Merriman  v.  Russell,  .').'•  X.  C.  at  mid.  [).  474.  See  "Boundaries, "  Century 
Dig.  §  i:!9;    Decennial  and  Am.   Dig.  Key  No.  Series  §  20. 


i^5  COiNCERNINi;    KKAl.    KSTATE,  [t'll.    3. 


PORTER  V.   DURHAM.  00  N.  C.  55,  57.     1884. 
Pruccssiomitfj  Land.     Introductory. 

Smith.  C.  J.  It  was  ivniarked  l)y  (iaston,  J.,  delivering  the 
opinion  of  llio  I'ourl  in  Cai-pcnli'i-  \-.  Whit  woi-tli.  2;")  N.  C.  204, 
that  the  "praetiee  oL"  prueessionin<r  lands,  though  reeo<jnized  in 
onr  statnte  I'or  nioi-e  than  a  eentury,  has  for  many  years  been  so 
f/enerally  disused,  that  few  of  the  profession  or  of  the  bench  can 
idaini  to  be  faniiliar  with  the  law  respecting  it."  The  same 
observation  will  l)ear  repetition  after  the  lap.se  of  forty  years, 
since  but  little  aid  can  be  derived  from  the  few  subsequent  cases 
to  be  found  in  the  reports  in  the  intei'pretation  of  its  provisions. 
Inasnnich  as  great  strictness  is  reijuired  in  following  its  directions 
in  order  to  obtain  practical  and  ettectual  results,  the  procedure 
prescribed  by  the  statute  has  almost  l)ecome  obsolete.     .     .     . 

See  "Boundaries,"  Century  Dig.  §  252;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  51. 


PARKER  V.  TAYLOR,  133  X.  C.  103,  45  S.  E.  473.     1903. 
Practice  Under  "Processioning  Act.''     Res  Judicata. 

[Action  for  trespass  in  cutting  timber.  Upon  an  intimation  of  the 
judge  that  he  could  not  recover,  the  plaintiff  took  a  nonsuit  and  appealed. 

The  complaint  alleged  that  the  defendant  had  cut  timber  beyond  a 
certain  line.  A  dividing  line  between  the  parties  had  been  determined 
in  a  special  proceeding  formerly  had  between  plaintiff  and  defendant's 
grantors.  The  defendant  pleaded  the  record  and  judgment  in  that  pro- 
ceeding as  an  estoppel.  The  plaintiff  admitted  that,  according  to  the 
line  as  located  by  the  judgment  pleaded,  the  locus  in  quo  was  on  the  de- 
fendant's side  thereof.  Upon  this  admission  the  court  intimated  that 
plaintiff  could  not  recover  in  this  action.  The  special  proceeding  re- 
ferred to  was  one  under  the  "Processioning  Act,"  and  the  judgment  of 
the  clerk  in  that  proceeding  "determined  the  location"  of  the  line  in 
question.] 

Clark,  C.  J.  When  the  occupants  of  adjoining  tracts  differ  as 
to  the  location  of  the  boundary  line  between  them,  but  in  no  wi.se 
question  the  title  of  each  other  to  their  respective  tracts,  it  would 
be  an  evident  hardship  to  drive  one  of  them  to  an  action  of  eject- 
ment in  the  superior  court,  and  to  establish  a  chain  of  title  which 
the  other  does  not  dispute.  There  should  be  in  such  cases  some 
cheaper  and  more  speedy  proceeding  to  establish  the  boiuidary 
line  between  them.  The  old  "Processioning  Act,"  originally 
passed  in  1723  (chapter  48.  Code  1883),  having  proved  defective 
for  that  purpose,  the  General  Assembly  repealed  it.  and  enacted 
in  its  stead  chapter  22.  p.  44.  Laws  1893,  which  pro^ndes  that 
"the  owner  of  land,  any  of  whose  boundarv^  lines  are  in  dispute, 
may  establish  said  line  or  lines  by  special  proceeding"  in  the 
county  where  the  land  or  any  part  thereof  is  situated.  The  act 
provides  for  the  method  of  procedure,  and  that  if  answer  is  filed 


Sec.    7.]  COXCERXIXG    REAL    ESTATE.  189 

denying  the  location  of  the  boundary,  a  survey  shall  be  ordered, 
and.  after  hearing  the  cause,  the  clerk  may  give  ''judgment  de- 
termining the  location"  of  said  bomidary  line,  with  right  to  either 
party  to  appeal  to  the  superior  court  at  term  for  a  trial  by  a  jury 
de  novo  of  the  issue.  This  la.st  provision  cured  the  objection  urged 
against  the  former  statute.  Britt  v.  Benton.  79  N.  C.  177.  In 
a  special  proceeding  for  partition,  if  the  plea  of  sole  seisin  is  set 
up.  the  issue  of  title  is  transferred  to  the  court  at  term  for  trial, 
and  the  action  becomes  substantiallv  an  action  of  ejectment. 
Purvis  V.  Wilson.  50  N.  C.  22.  69  Am.'Dee.  773 ;  Alexander  v.  Gib- 
bon. 118  N.  C.  796.  24  S.  E.  748.  54  Am.  St.  Rep.  757;  Hunevcutt 
v.  Brooks,  116  X.  C.  788.  21  S.  E.  558;  Bullock  v.  Bullock,  131  N. 
C.  29,  42  S.  E.  458.  In  this  special  proceeding  to  determine 
boundary',  whether  if  the  defendant  by  his  answer  raises  an  issue 
of  title,  the  cause  should  in  the  same  manner  be  transmitted  to  the 
court  at  term,  thenceforward  to  be  proceeded  in  as  if  originally 
brought  to  determine  the  issue  of  title,  as  in  an  action  of  ejectment 
(In  re  Anderson,  132  X.  C.  at  p.  247,  43  S.  E.  649;  Roseman  v. 
Roseman.  127  X.  C.  494.  37  S.  E.  518).  is  not  a  matter  before  us. 
But  when  the  answer  raises  only  an  issue  of  boundary,  the  judg- 
ment of  the  clerk  is  a  final  determination  of  that  issue,  unless 
appealed  from,  in  which  ease  the  verdict  of  the  jury  and  judgment 
would  be  final  as  to  the  boundary.  The  statute  provides  that  "oc- 
cupation of  land  shall  constitute  sufficient  ownership  for  the  pur- 
poses of  this  act."  The  sole  pui-pose  is  to  locate  the  boundaiy 
between  adjoining  proprietors,  who  do  not  question  each  other's 
title  to  their  respective  tracts;  for  if  an  issue  as  to  title  is  raised 
by  the  answer,  the  cause  would  be  transferred,  as  already  said,  to 
the  court  at  term.     .     .     . 

There  was  no  error.  The  line  was  located  by  a  judgment  to 
which  the  plaintiff  and  those  under  Avhom  these  defendants  claim 
were  parties.  The  plaintiff,  who  was  defendant  in  the  former  ac- 
tion, did  not  therein  raise  any  issue  as  to  title,  and  have  it  tried, 
as  he  might  have  done,  and  the  adjudication  as  to  this  being  the 
true  boundary  is  res  judicata.  The  judgment  of  the  clerk  "de- 
termining the  location"  of  the  line  is  authorized  by  the  statute, 
and  is  conclusive  of  that  fact  upon  parties  and  privies  to  said 
action.  Williams  v.  Hughes.  124  X.  C.  3,  32  S.  E.  325;  Midgett 
V.  :\ndgett,  129  X.  C.  21,  39  S.  E.  722.    Xo  error. 

For  the  practire  under  the  Code,  sees.  1924-1931,  see  Forney  v.  Wil- 
liamson, 08  N.  C.  320.  4  S.  E.  483.  In  that  rasp  it  is  said  by  Merrimon,  .T.: 
"Such  proreedings  have  always  been  fautiously  watched  and  strictly 
construed  by  the  courts,  indeed  they  have  been  seldom  siistained."  For 
the  present  "Processioning  Act"  of  North  Carolina,  see  Revisal,  sees.  325, 
326;  and  Woody  v.  Fountain,  143  N.  C  66,  55  S.  E.  425,  and  Green  v. 
Williams,  144   .\.  C.  Gd.  ."<]  S.  E.  549,  interpreting  the  same. 

"The  siieflal  i)roceoding  for  'i)rocessioiiing'  is  and  will  remain  a  cheaj) 
and  speedy  method  of  settling  a  boundary  where  only  the  boundary  is  in 
question,  and  should  be  encouiaged.  When  an  issue  of  title  is  raised  by 
the  answer,  Instead  of  throwing  the  costs  upon  the  plaintiff  and  forcing 
him  to  bring  a  new  action  to  term  time,  the  case  being  already  in  the 
superior  court  before  the  clerk,  the  statute  converts  it  into  an  action  to 
quiet  title  and  transfers  It  to  the  term  of  court  for  trial,  to  the  economy 


H)()  CONCIiRNlNG    HKAl.    ESTATE.  [Ch.   3. 

of  time  and  expoiist'."  Wmxiy  v.  Fountain,  143  X.  C.  at  p.  71,  55  S.  E. 
•12.").  See  "Boundaiies,"  Century  Dig.  §§  JOS,  262,  263;  Decennial  and 
Am.  Dig.  Key  No.  Series.  §§  43,  52. 


iSi:c.  8.  Remedies  Rel.vting  to  Tiiincs  Severed  from  the  Realty. 

BROTHERS  v.   HURDLE,  32  N.  C.  490.     1849. 
Fructus  Indiistriales  Produced  by  Disseizor. 

1  Trover  for  a  quantity  of  corn,  fodder,  peas,  and  beans.  Verdict  and 
judgment  against  defendant,  and  he  appealed.     Affirmed. 

The  defendant  admitted  the  conversion,  ])ut  undertoolc  to  justify  by 
showing,  tluit  prior  to  such  conversion  he  had  l)een  put  in  possession  of 
the  land  on  which  the  converted  articles  were  produced,  under  a  judg- 
ment in  his  favor  and  against  the  plaintiff;  that  the  crops  in  question 
were  of  the  growth  of  1846  and  that  the  judgment  was  rendered  in  the 
fall  of  1846,  in  an  action  of  ejectment  wherein  the  demise  was  laid  in 
1845.  It  was  proven  that,  at  the  time  the  defendant  was  placed  in  pos- 
session of  the  land,  the  corn  and  some  of  the  peas  and  beans  were  still 
unsevered;  while  the  fodder  and  some  of  the  peas  and  beans  had  been 
previously  severed,  though  they  were  then  stored  in  a  crib  on  the  land. 
The  judge  instructed  the  jury  that  the  plaintiff  was  entitled  to  recover 
the  value  of  the  fodder,  etc.,  which  had  been  severed  before  defendant 
took  possession  of  the  land. 

Pearson,  J.  There  is  no  error  in  the  instructions.  The  corn, 
etc..  which  was  attached  to  the  hind  at  the  time  the  defendant  was 
put  in  possession,  passed  with  it  and  belonged  to  him.  Hut  the 
fodder,  etc..  which  had  been  severed,  although  on  the  premises,  did 
not  pass  with  the  land ;  for  it  had  ceased  to  be  a  part  thereof,  and 
the  defendant  had  no  right  to  take  it.  His  remedy  was  an  action, 
not  for  the  specific  articles,  but  for  damages,  by  way  of  mesne 
profits.  If  the  defendant  had  the  right  to  take  the  specific  articles, 
he  would  for  the  same  reason  be  entitled  to  recover  their  value  in 
trover  against  the  plaintiff,  or  any  one.  to  whom  he  might  have 
sold  them.  The  amount  of  which  A\ould  be,  when  one,  who  has 
been  evicted,  regains  possession,  he  may  maintain  trover  against 
every  one  who  has  bought  a  bushel  of  corn  or  a  load  of  wood  from 
the  trespasser,  at  any  time  while  he  was  in  possession.  This,  espe- 
cially in  a  country  where  there  are  no  markets  overt,  would  be  in- 
convenient, and  no  person  could  safely  buy  of  one,  whose  title  ad- 
mitted of  question.  The  mere  statement  of  the  proposition  shocks 
our  notions  of  conunon  sense  and  calls  for  an  overpowering  weight 
of  authority  to  sustain  it.  There  is  no  authority  for  it  in  our 
reports,  the  invariable  practice  having  been  to  bring  trespass  for 
mesne  profits  and  for  damages,  if  there  has  been  any  destruction 
or  injury  to  the  freehold. 

Trover  for  the  specific  articles,  either  against  a  trespa.sser  or  a 
third  person,  has  never  been  attempted.  Upon  examination,  it  is 
found,  that  there  is  no  authority  for  it  anywhere. 

Our  attention  has  been  called  to  a  pa.ssage  in  the  New  York 
edition,  1846,  of  Adams  on  Ejectment,  p.  347,  where  it  is  said: 


Sec.    8.]  CONCERNING    REUL    ESTATE.  191 

"Crops  will  pass  to  the  lessor,  although  severed  at  the  time  the 
writ  of  possession  is  executed,  provided,  the  severance  was  after 
the  date  of  the  demise."  This  is  an  interpolation,  and  is  not  in 
any  of  the  former  editions.  Uppon  v.  Witherick.  3  Bing.  51,  is 
cited.  We  have  examined  that  case — it  does  not  sustain  the  posi- 
tion. .  .  .  The  only  other  case  cited,  which  has  any  bearing, 
is  Morgan  v.  Variek.  8  Wendell.  587.  That  was  an  action  of  tres- 
pass for  mesne  profits  and  de  bonis  asportatis.  The  plaintiff, 
having  been  let  into  possession  after  a  recovery  in  ejectment, 
brought  the  action  against  the  defendant  in  ejectment,  for  mesne 
profits  and  for  damages  for  remoAnng  certain  boilers  of  a  steam 
engine,  whicli  had  been  used  in  a  corn  mill  on  the  premises.  The 
judge  below  held,  that  the  plaintiff  could  recover  mesne  profits, 
but  was  not  entitled  to  recover  damages  for  removing  the  boilers. 
Savage.  C.  J.,  delivers  the  opinion  of  the  court.  It  is  not  a  I 
all  satisfactoiy  upon  the  point  of  the  case.  The  stress  of  the 
argument  is  spent  upon  a  collateral  question.  .  .  .  After  the 
long  discussion  .  .  .  this  conclusion  is  announced ;  but  it  is  a 
mere  assertion,  and  is  not  supported  either  by  argument  or  au- 
thority. 

In  this  case  the  articles  sued  for  were  amiual  products ;  and  my 
Lord  Coke  suggests  a  distinction  between  such  things  as  com, 
etc.,  which  come  by  the  act  and  operation  of  the  party;  "for,  if 
he  had  not  sowed  the  land,  no  com  would  have  been  there,"  and 
such  things  as  come  by  the  act  of  God,  as  trees,  etc.  We  do  not, 
however,  put  the  case  upon  this  distinction.  The  true  distinction 
is,  where  a  tenant,  or  one  having  a  particular  estate,  wrongfully 
severs  a  tree  or  other  tiling  from  the  freehold,  it  becomes  personal 
property  and  immediately  belongs  to  the  landowner  or  remainder- 
man, who  may  punish  the  tenant  for  waste  and  may  take  the 
tiling;  or  may  presently  bring  trover  against  the  tenant  or  any 
tliird  pei-son.  who  has  converted  it.  For,  as  there  is  no  possession 
adverse  to  him,  the  thing  when  severed  immediiately  belongs  to 
him  as  a  chattel.  Besides,  he  would  otherwise  be  without  remedy 
as  he  could  not  bring  trespass  quare  clausum  fregit,  the  tenant 
being  rightfully  in  po.ssession. 

But  when  one,  ivho  is  in  the  adverse  possession,  gathers  the  crop 
in  the  course  of  husbandry,  or  severs  a  tree  or  other  thing  from 
the  land,  the  thing  severed  becomes  a  chattel,  but  it  does  not  be- 
come the  property  of  the  owner  of  the  land;  for  his  title  is  di- 
vested— he  is  out  of  pos.session  and  has  no  right  to  the  immediate 
pos.session  of  the  thing,  nor  can  he  bring  any  action  until  he  re- 
gains possession.  Then,  by  the  jns  postliininii  or  fiction  of  rela- 
tion, ho  is  considcrfd  as  having  been  in  possession  all  the  time  for 
tlie  purpose  of  bringing  trespass  quare  cbuisnin  I'l-cgit  with  a  con- 
tinuando  from  day  to  day.  in  which  he  recovers  the  value  of  the 
mesne  j)rf)fits  and  damages  foi-  the  injury  done  to  his  freehold  by 
the  severance  of  ;iny  ]>ai-t  of  it.  or  for  any  injury  conseciuent  to 
the  breach  of  his  close.  Tliis  action  can  be  maintained  against  any 
one  wlio  has  been  in  possession  for  the  time  he  held  it.  but  the 
owner  of  file  l;ind   e;mnot  sue   for  the  lliiiiL'  sevej-ed   in   trover  or 


IHJ  CONCERNINi;    UKAI,    KSTATE.  [C'Jl.    3. 

ilotinne  jis  a  i-hattel ;  for  it  is  not  liis  cliattel — it  did  not  become 
so  at  tlic  tiiiu'  it  was  scvovcd.  and  tlio  titlo  to  it  as  a  chattol  cannot 
pass  to  liiiH  atliTwards.  wIkmi  lie  I't'irains  jiosscssion,  by  I'oi'ct'  of 
tlio  jus  iiostliniinii.  The  lid  ion  is  made  to  onablo  him  to  recover 
tor  broal\inc  his  close  and  the  injuries  consequent  thereto,  but  it 
is  not  nia(h>  for  llie  pni'pose  of  vestintr  a  ri«rht  to  chattels. 

Tiie  action  of  ti'espass  cpiare  chnisuni  fivgit  for  tlie  mesne  profits 
is  a  continuation  of  tlie  action  of  ejectment.  Hence,  the  jud^rment 
in  ejectment  is  conchisive  as  to  title.  Orifrinally,  the  plaintiff 
in  ejectment  recovered  actual  damajres.  Tt  was  only  for  the  sake 
of  convenience,  that  the  courts  adoi^ted  the  practice  of  trying  the 
title  only  in  the  ejectment  with  sixpence  damages,  and  then  as- 
certaining the  actual  damages  in  a  new  action  for  the  mesne  profits 
and  damages.  But  if  this  novel  application  of  the  action  of  trover 
or  trespass  de  bonis  asportatis  for  a  thing  severed  and  made  a  chat- 
tel, while  there  was  an  adverse  possession,  be  introduced,  it  would 
be  dilTicult  to  find  any  authority  for  holding,  that  a  recovery  in 
(\iectment  by  John  Doe  is  conclusive  of  the  lessor's  title  in  an  ac- 
tion by  him  for  the  i>ui"i^ose  of  proving  his  title  to  a  chattel. 

It  was  said  for  the  defendant,  that  the  plaintiff  ought  not  to  re- 
cover, because  he  could  get  the  value  of  the  fodder,  etc.,  by  way  of 
diminution  of  damages  in  an  action  by  him  (the  defendant)  for 
the  mesne  jn-ofits.  This  idea  is  of  the  first  impression.  We  pre- 
fer to  keep  rights  distinct,  and  allow  each  party,  when  his  rights 
are  invaded,  his  appropriate  action.    Judgment  affirmed. 

See  White  v.  Fox,  125  N.  C.  at  pp.  548,  549,  34  S.  E.  645,  where  the 
principal  case  is  fully  approved  and  several  other  cases  are  cited  sustain- 
ing the  doctrine.  See  also  Ray  v.  Gardner,  82  N.  C.  454,  for  a  clear-cut 
application  of  these  principles.  See  also  12  L.  R.  A.  (N.  S.)  194,  23  lb. 
531,  and  notes.  See  "Ejectment,"  Century  Dig.  §  436;  Decennial  and  Am. 
Dig.  Key  No.  Series,  §  124. 


POTTER  V.  MARDRE,  74  N.  C.  36.     1876. 
Trees  Severed  and  Converted  Into  a  Boat  or  the  Like. 

[Action  of  trespass  and  for  damages  for  entering  niion  land  and  carry- 
ing off  a  canoe.  Verdict  and  judgment  against  plaintiff,  and  he  ap- 
pealed.    Reversed. 

Plaintiff  was  a  life  tenant,  and  the  defendants  were  reversioners. 
Plaintiff  made  a  canoe  from  trees  cut  from  the  locus  in  quo.  Defend- 
ants entered  upon  the  land  and  carried  off  the  canoe.  Plaintiff  cut  down 
two  trees  on  the  land,  partly  for  the  purpose  of  making  shingles  to  re- 
pair a  house  on  the  land,  and  partly  to  make  the  canoe  in  question.  The 
canoe  was  for  use  in  fishing.  The  judge  charged  that  plaintiff  had  no 
right  to  use  timber  on  the  land  for  building  the  canoe,  and  that  the 
defendants,  as  reversioners,  were  entitled  to  the  trees  and  to  the  canoe 
made  therefrom.] 

RoDM.\x.  J.  1.  The  plaintiff  had  a  right  to  cut  trees  for  the 
necessarv  repairs  of  the  farm  buildings,  but  none  to  cut  trees  for 
building  a  boat  to  be  used  for  fishing.    When  the  trees  were  felled. 


Sec.    8.]  COXCERXIXG    REAL    ESTATE.  193 

the  property  in  tliem  vested  at  once  in  the  reversioners,  who  could 
have  maintained  trover,  or,  by  our  statute,  replevin,  for  the  tim- 
ber; and  could  have  recovered  for  so  much  as  the  plaintitf  could 
not  show  that  he  had  applied,  or  was  about  to  apply,  to  a  lawful 
purpose,  such  as  the  repair  of  the  buildings,  etc.  These  proposi- 
tions were  resolved  in  Bowles'  case,  11  Rep.  79,  and  have  been  rec- 
ognized as  law  ever  since. 

2.  It  does  not  follow,  however,  that  the  reversioner  could  main- 
tain trover  or  replevin  for  the  canoe  which  was  made  from  the 
trees. 

It  is  not  necessary  to  decide  this  question  at  this  time ;  but  it  is 
proper  to  do  so.  because,  as  under  our  opinion,  there  must  be  a  new 
trial,  and  the  plaintiff,  on  the  present  state  of  facts  is  entitled  to 
recover,  the  question  as  to  the  measure  of  damages  will  then  nec- 
essarily arise.  On  the  question  stated,  there  is  a  discord  between 
the  authorities  that  caunot  be  reconciled.  The  most  important  of 
them  will  be  found  in  2  Kent.  Com.  361 ;  Sedgwick  on  Dam.  483, 
and  in  the  vers-  recent  case  of  Heard  v.  James,  49  Miss.  236.  It  is 
unnecessary  further  to  refer  to  them.  AVe  are  not  aware  of  any 
decision  in  this  .state  directly  in  point. 

It  seems  to  be  generally  agreed  that  if  the  person  who  bestows 
his  labor  on  the  property  of  another,  thereby  changes  it  into  an- 
other species  of  article,  as  if  corn  be  made  into  whiskey,  or  silver 
coin  into  a  cup,  or  timber  into  a  house,  the  property  is  changed, 
and  the  owner  of  the  original  material  cannot  recover  the  article 
in  its  altered  condition,  but  must  content  himself  with  the  value  of 
the  article  in  the  shape  in  which  it  was  taken  from  him.  In  the 
civil  law  it  is  said  that  the  property  [title]  is  changed  whenever  the 
species  is  so  far  changed  that  it  cannot  be  reduced  to  its  former 
rude  materials — examples  of  which  are  when  timber  is  made  into 
a  bench,  or  chest,  or  ship.  The  common  hiw  differed  from  this,  and 
it  was  hekl  that  so  long  as  the  owner  of  the  original  materials  could 
identify  them,  he  could  follow  them  into  the  manufactured  arti- 
cle— as  if  h'ather  be  made  into  shoes,  or  cloth  into  a  coat,  or  a  tree 
be  squared  into  timber. 

In  some  of  the  decided  cases  much  weight  seems  to  be  given  to 
the  fact  whether  the  manufacturer  was  a  conscious  and  wilful 
trespasser,  or  took  pos.session  of  the  raw  material  in  good  faith  and 
under  an  honest  mistake  as  to  the  title. 

Sometimes  the  decision  as  to  the  mensure  of  damages  is  made  to 
turn  f»n  tlie  form  of  the  action,  as  whether  in  trespass  for  entei-ing 
on  plaintiff's  land  and  cutting  and  carrying  away  timber,  which 
defendant  afterwards  manufactured:  or  in  trover  for  the  conver- 
sion of  the  Tuanufaetured  aitiele.  oi-  in  replevin  foj-  its  possession 
in  s|)ecie.  as  in  the  ease  cited  from  .Mississippi. 

We  thiid\  that  iriost  of  the  ,\mei-icaii  cases  hold  llial  when  the 
rdteration  of  the  timber  taken  by  a  trespasser  lui.s  gone  no  farther 
than  its  chaiure  into  boards,  or  shingles,  or  staves,  the  owner  of  the 
timber  may  follow  his  property  into  llie  manufactured  article,  and 
recover  its  value  in  tliat  shai)e.  Iiul  \\c  have  fuuiid  tio  case  where 
the  change  of  species  was  greater  tlian  that  Sui-h  we  think  was 
Remedips — 13. 


li)4  CONCERNING    KEAl.    KSTATK.  [Cll.    .?. 

the  I'lirront  of  Aiucrican  decisions  luioi-  to  1851.  when  the  ejise  of 
iH'iiiiolt  V.  Thompson.  :>.')  N.  ('.  1  Ki.  whidi  will  iicreafter  be  no- 
tit'i'tl.  was  iloi-iiliHl. 

In  this  conflict  of  opinions,  wliicli  when  unili'd  we  are  accus- 
tomed to  considci-  aiithoiMty.  we  can  only  a(h)pl  tliat  I'ulc  which 
jiccms  most  rcas(MiahIc.  In  oni-  o|)inioii  th(^  ciiuitahle  rule  is  that 
stated  from  tlie  civil  law.  The  i)ropeity  is  chantred  by  a  chanfje 
made  in  its  species  or  substantial  form,  if  made  by  one  who  was 
actinvr  in  jrood  faith  and  under  an  honest  belief  that  the  title  was 
in  him. 

This  doctrine  is  not  based  on  the  idea  that  a  trosi)asser,  althouprli 
he  may  act  under  an  honest  but  mistaken  belief  in  his  own  title, 
can  lawfully  transfer  the  property  in  timber  from  the  owner  to 
himself  by  ehanfrinf;  it  into  some  more  valuable  species:  but  on  the 
idea  that  the  trespasser  by  so  doin<;  desti'oys  the  original  article,  as 
if  he  had  burned  it,  and  is  responsible  to  the  owner  as  if  he  had 
burned  it;  and  on  the  idea  that  the  principle  adopted  is  more  likely 
to  do  justice  to  the  parties  concerned  than  any  other. 

By  this  rule  the  owner  of  the  original  material  will  recover  the 
value  of  his  material  Avhich  is  the  extent  of  his  lo.ss.  with  such  ad- 
ditions as  a  juiy  may  think  proper  to  make  if  the  taking  or  con- 
vei-sion  was  wilful,  or  attended  by  circumstances  of  aggravation, 
"Whereas,  if  the  owner  of  the  materials  could  always  follow  them, 
however  much  their  value  might  have  been  enhanced  by  the  labor 
of  the  manufacturer  it  would  lead  to  results  unjust  and  even  ab- 
surd. For  example,  if  the  owner  of  tlie  trees  can  recover  the  staves 
made  from  them,  why  not  the  casks  made  from  the  staves;  and  if 
in  replevin  he  can  recover  the  planks,  why  not  the  ship  built  with 
the  planks,  etc. 

This  principle  of  equity  is  supported  by  the  analog\^  of  the  rule 
established  in  this  state  by  the  decisions,  which  hold  that  a  vendee 
of  land  by  a  parol  contract  of  sale  who  takes  possession  and  makes 
improvements,  and  is  afterwards  ejected  by  the  vendor,  may  re- 
cover the  value  of  his  improvements.  Albea  v.  Griffin,  22  N.  C.  9. 
So  if  one  who  has  purchased  land  from  another  not  having  title, 
enters  and  improves,  believing  his  title  good,  and  is  ejected  by  the 
rightful  owner,  he  is  entitled  to  compensation. 

In  both  these  cases,  one  Avho  is  morally  innocent  has  confused 
his  property  with  that  of  another,  and  he  is  held  entitled  to  sepa- 
rate it  in  the  only  way  it  can  be  done,  viz :  by  being  allowed  the 
value  of  his  improvements  in  the  raw  material.  The  case  of  Ben- 
nett V.  Thompson,  ubi  supra,  was  an  action  of  trespass  for  entering 
on  plaintiff's  land  and  felling  timber  which  was  afterwards  con- 
verted into  boards  and  shingles.  This  court  held  that  the  measure; 
of  damages  was  the  value  of  the  trees  when  felled,  and  not  the 
value  of  the  manufactured  article.  This  case  does  not  profess  to  go 
upon  the  form  of  the  action.  There  is  no  reason  except  technical 
ones,  why  greater  damages  should  be  allowed  in  trover  than  tres- 
pass. The  in.jurv^  is  the  same  whatever  may  be  the  form  of  action, 
and  it  would  seem  to  have  been  the  opinion  of  the  court,  that  the 


Sec.   8.]  COXCERNIXG   REAL    ESTATE.  195 

plaintiff  could  not  follow  the  material  in  its  manufactured  con- 
dition. 

Upon  the  principle  stated,  we  are  of  opinion  that  although  the 
defendant  luight  have  maintained  trover  for  the  conversion  of  the 
trees,  he  had  no  property  in  the  canoe,  and  was  not  entitled  to 
maintain  replevin  or  its  substitute,  process  of  claim  and  delivery, 
for  it.  Our  opinion  on  this  point,  however,  will  only  affect  the 
question  of  damages  on  a  future  trial.     .     .     . 

4.  We  concur  with  the  .judge  below,  that  there  was  no  evidence 
to  warrant  the  jurv^  in  giving  vindictive  damages.  The  damages 
to  which  the  plaintiff'  is  entitled  are  the  injuiy  to  his  land,  which 
seems  to  have  been  only  nominal,  and  the  value  of  the  canoe,  from 
which  the  defendant  is  entitled  to  deduct  or  recoup,  by  way  of 
counterclaim,  the  value  of  the  timber  which  was  manufactured  into 
Ihe  canoe,  just  after  it  Avas  felled  and  converted  into  a  chattel. 
Judgment  reversed. 

See  Dorsey  v.  :Moore,  100  X.  C  41,  6  S.  E.  270;  54  N.  W.  596,  19  L.  R. 
A.  653,  and  notes;  1  Cyc.  222  et  seq.  See  "Replevin,"  Century  Dig.  §  17; 
Decennial  and  Am.  Dig.  Key  No.  Series,  §  4. 


PEIRCE  V.  GODDARD,  22  Pickering   (Mass.),  559.     1839. 
House  Removed  from  One  Man's  Land  and  Affixed  to  the  Land  of  Another. 

[Trover.  The  writ  contained  two  counts,  one  for  the  conversion  of  a 
dwelling  house:  the  other  for  the  conversion  of  the  materials  of  a  dwell- 
ing house.  Case  submitted  to  the  court  upon  an  agreed  statement  of 
facts.  Plaintiff  nonsuited.  The  facts  appear  in  the  beginning  of  the 
opinion.! 

"Wilde.  J.  This  ar-tion  is  submitted  on  an  agreed  statement  of 
facts,  by  which  it  appears,  that  one  Davenport,  being  the  owner 
of  a  lot  of  land  with  a  dwelling  house  thereon,  mortgaged  the  same 
to  the  plaintiff:  that  afterwards  he  took  down  the  house,  and  with 
the  matei'ials  partly,  and  j^artly  with  new  materials,  built  a  new 
house  on  anotln-r  lot  of  his  at  some  distance;  and  that  aftei-  the  new 
house  was  completed  he.  for  a  valuable  consideration,  sold  the  last 
mentioned  lot  and  house  to  the  defendant. 

There  ari'  two  connts  in  the  doolaratio?L  one.  for  the  convorsion 
of  Ihf  newly  oror-tod  lionse.  and  the  othor.  for  the  conversion  of  th(^ 
materials  witli  whidi  it  was  built,  belonging  to  the  old  house. 

Tim  plaintiff's  oonnsol  insist,  that  the  old  house  was  the  property 
of  thf  plaintiff,  aiul  lliat  Davciipoi't  had  no  right  to  tako  it  down, 
and  f'fMild  not.  thi'i'cforc  acquire^  any  ju'operty  in  tlio  materials  by 
snr-h  a  wrongful  act ;  that  the  new  house,  being  built  with  the  ma- 
torials  from  tlio  ohl  hou.se  in  part,  became  the  property  of  the 
plaintiff,  although  now  matorials  wore  added,  by  right  of  acces- 
sion; and  that  DaxiMiport.  iiaving  no  property  in  the  house,  as 
against  the  plaintiff,  could  convey  no  title  to  it  to  the  defendant. 


l:»(i  C()N('KK.\'IN(}    REAL    KSTATE.  [CIl.    3. 

That  l)avcii|>(irt  is  ivsi»onsibl('  for  lakiiifj;  down  and  roinovin<]t 
the  old  lionso.  rannot  admit  ol'  a  doubt  ;  Imt  it  docs  not  follow,  that 
llu'  pi-opcrty  in  tlu'  now  lionsc  vostod  in  tln'  plaint  ilV. 

Tlio  rulos  of  law.  by  which  the  riiihl  of  proi)crt\  may  be  ae- 
(iniitnl  by  accession  or  adjunction,  wei-e  pi'incipall\  (ici-ived  from 
the  civil  law;  bnt  have  been  lon<r  sanctioned  l)y  the  courts  of  Kng- 
land  and  of  this  country  as  establishcil  principles  of  law. 

Tile  irenei'al  ruU'  is.  that  the  owner  of  |)ro])erty.  whether  the 
property  be  movable  or  iinmovablc.  has  the  i-ijzht  to  that  which  is 
united  to  it  by  accession  or  adjunction.  Hut  by  the  law  of  I'iU^- 
land  as  w»dl  as  by  the  civil  law.  a  tri'spa.sser.  who  wilfully  takes  the 
l)roiierty  of  another,  can  accpiire  no  rijiht  in  it  on  the  principle  of 
accession,  but  the  owner  may  I'eclaim  it.  whatever  alteration  of 
form  it  may  have  under<;one.  unless  it  be  chanj^ed  into  a  ditfci'cnt 
sjieeies  and  be  ineai)able  of  being  restored  to  its  former  state;  and 
even  then  the  trespassei-.  by  the  civil  law.  could  acquire  no  right 
by  the  accession,  unless  the  materials  had  been  taken  away  in  ig- 
norance of  their  being  the  property  of  another.  2  Kent,  Com.  3G2 : 
Betts  V.  Lee,  5  Johns.  348.  But  there  are  exceptions  to  the  general 
rule. 

It  is  laid  down  by  IMolloy  as  a  settled  princijile  of  law.  that  if  a 
man  cuts  down  the  trees  of  another,  oi-  takes  timber  or  plank  pre- 
pared for  the  erecting  or  repairing  of  a  dwelling  house,  nay. 
though  some  of  them  are  for  shipping,  and  builds  a  ship,  the  prop- 
erty follows  not  the  owners  but  the  builders.  Mol.  de  Jure  ]\Iar. 
lib."  2,  c,  ].  s.  7. 

Another  similar  exception  is  laid  down  by  Chancellor  Kent  in 
bis  Commentaries,  which  is  directly  in  point  in  the  present  case. 
If.  he  says,  A  builds  a  house  on  his  own  land  with  the  materials  of 
another,  the  property  in  the  land  vests  the  property  in  the  build- 
ing by  right  of  accession,  and  the  owner  of  the  land  would  only  be 
obliged  to  answer  to  the  owner  of  the  materials  for  the  value  of 
them.  2  Kent,  Com.  360,  361.  This  principle  is  fully  sustained  by 
the  authorities.  In  Bro.  tit.  Property,  pi.  23,  it  is  said,  that  if 
timber  be  taken  and  made  into  a  house,  it  cannot  be  reclaimed  by 
the  owner;  for  the  nature  of  it  is  changed,  and  it  has  become  a 
part  of  the  freehold.  In  Moore,  20.  it  was  held,  that  if  a  man 
takes  trees  of  another  and  makes  them  into  boards,  still  the  owner 
may  retake  them,  but  that  if  a  house  be  made  with  the  timber  it 
is  otherwise.     .     .     . 

In  the  present  ca.se  it  cannot  be  rpiestioned.  that  the  newly 
erected  dwelling  house  was  a  part  of  the  freehold,  and  was  the 
property  of  Davenport.  The  materials  used  in  its  constniction 
ceased  to  be  personal  property,  and  the  owner's  property  in  them 
was  divested  as  effectually  as  though  they  had  been  destroyed.  It 
is  clear,  therefore,  that  the  plaintiff  ooidd  not  maintain  an  action 
even  against  Davenport,  for  the  conversion  of  the  new  house.  And 
it  is  e^iually  clear,  that  he  cannot  maintain  the  present  action  for 
the  conversion  of  the  materials  taken  from  the  old  house.  The 
taking  down  of  that  house  and  using  the  materials  in  the  construe- 


Sec.   8.]  CONCERNING   RE.VL   ESTATE.  197 

lion  of  tlie  new  building-,  wa.s  the  tortious  act  of  Davenport,  for 
which  he  alone  is  responsible.      Plaintiff  nonsuit. 

See  ch.  4,  sec.  3,  b;  ch.  7,  sec.  1.  Trespass  on  the  ease  lies  for  remov- 
ing timber,  etc.,  from  mortgaged  land  to  the  injury  of  the  mortgagee. 
Van  Pelt  v.  McGraw,  4  X.  Y.  110,  inserted  at  ch.  4,  sec.  3,  b.  See  'Trover 
and  Conversion,"  Century  Dig.  §  13;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §  2;  "Fixtures,"  Century  Dig.  §  69;  Decenial  and  Am.  Dig.  Key 
Xo.  Series,  §  5. 


MICH.  MUT.  LIFE  IXS.  CO.  v  CROXK,  93  Mich.  49,  52  X.  W.  103.5.     1892. 
House  Removed  from  One  Man's  Land  and  Fixed  to  Land  of  Another. 

[Replevin  for  a  house.  Verdict  and  judgment  against  defendant,  and 
he  appealed.     Affirmed. 

Cronk  contracted  in  writing  to  purchase  a  parcel  of  land  from  W.  L. 
.lenks,  and,  by  the  terms  of  the  contract,  agreed  not  to  commit  or  suffer 
any  waste  of  the  land.  Cronk  built  a  house  on  the  land  and  lived  in  it 
two  years.  Jenks  assigned  the  contract  with  Cronk  to  the  plaintiff  insur- 
ance company.  Cronk  removed  the  house  from  the  lot  on  vhich  it  was 
built  to  another  lot,  across  the  street,  owned  by  him;  and  it  was  occupied 
by  him  and  his  family  as  a  homestead,  at  the  time  this  action  was  com- 
menced. The  plaintiff  brought  this  action  of  replevin  to  recover  the 
house.    Cronk's  wife  was  not  made  a  party  to  the  action.] 

^MoNTGO.MERY.  J.  .  .  .  Two  quostious  only  are  presented  in 
appellant's  brief.  It  is  first  claimed  that  reple\nn  will  not  lie,  be- 
cause the  house  had  become  a  fixture  upon  the  land  to  which  it  was 
moved,  and  was  therefore  real  estate;  second,  that,  as  the  house 
was  occupied  as  a  homestead  by  the  defendant  and  his  family,  the 
wife  was  a  necessary  party.  AVe  think  that  \\hen  this  house  was 
erected  upon  the  land  held  under  contract  it  became  a  part  of  the 
realty,  and  as  such  the  property  of  the  o^^^le^  of  the  land,  subject 
only  to  the  rijrhts  of  the  purchaser  therein.  Kingsley  v.  j\IcFar- 
land  (Me.).  19  Atl.  442;  :\rilton  v.  Colby.  5  Mete.  (Mass.)  78; 
Iron  Co.  V.  Black.  70  'Sle.  473 ;  Tyler.  Fixt.  78.  It  being  severed 
from  the  land,  it  became  personal  property,  and  replevin  would  lie 
unless  it  became  affixed  to  the  realty  by  the  tortious  act  of  the  de- 
fendant in  removing  it  and  placing  it  upon  other  lands.  But  we 
think  no  .such  legal  effect  can  be  given  to  the  defendant's  wrong. 
The  hou.se  was  moved  upon  land  of  a  third  party.  There  was  no 
privity  of  title  between  the  o^^Tlership  of  the  house  and  the  owner- 
ship of  the  land  to  which  it  was  removed.  The  cases  cited  by  de- 
fendant of  :Morrison  v.  Berry.  42  Mich.  389.  4  N.  W.  731,  and 
Wagar  v.  Briscoe,  38  Mich.  587,  do  not  apply.  The  liouse  remain- 
ing personal  property  in  tlic  wrongful  po-sscssion  of  defeTidaiil.  it 
follows  that  no  homestead  right,  which  consists  in  an  interest  in 
lands,  attached. 

The  judgment  is  atfirmed.  with  costs.  Tlie  other  jnstices  con- 
curred. 

"Whore  a  building  i.s  personalty  as  between  the  parties  clainiing  to  own 
It,  and  it  Is  not  actually  attached  to  the  soil,  replevin  will  lie  for  its  re- 


^.)^  coNCKKMNc;   in:.\L   kstate.  [Ch.  3. 

covery.  Fitzgerald  v.  Anderson,  SI  Wis.  341,  f)!  X.  W.  554.  See  ch.  7, 
sec.  1.  See  '  F'^xtures,"  Century  Dig  §  (Hi;  Decennial  and  Am.  Dig.  Key 
No.  Scries.  §  31;  "Kcidcvin."  Ccntiiiy  Dig.  §  22;  Doiennial  and  Am.  Dig. 
Key  \o.  Series,  §  4. 


EISENHAUER  v.  QUINN,  31)  Wont.  3t!S,  93  Pac.  38,  14  L.  R.  A.   (N.  S.) 

435.     1907. 

C\aim  and  Delivery  for  a  House  Permanently  Attached  to  Land. 

[Action  by  Eisenhauer  to  restrain  Quinn,  the  sheriff,  from  removing  a 
house  under  execution  issued  in  an  action  of  claim  and  delivery.  Gerarci, 
the  plaintiff  in  the  action  of  claim  and  delivery,  intervened.  Judgment 
against  Quinn  and  Gerarci  granting  the  injunction,  and  appeal  by  them. 
Reversed. 

Gerarci  purchased  a  house  "separate  from  the  ground  upon  which  it 
stood,  and  he  immediately  started  to  remove  it  to  another  location." 
While  the  house  was  in  transit  it  was  wrongfully  seized  by  one  Smith 
who  attached  it  by  a  stone  foundation  partly  upon  ground  owned  by  one 
Cannon  and  partly  on  his  own  ground.  "In  July,  1902,  Gerarci  com- 
menced an  action  of  claim  and  delivery  against  Smith  and  others  to  re- 
cover possession  of  the  house  or  its  value."  While  this  action  was  pend- 
ing, Eisenhauer  bought  from  Smith  and  Cannon  the  ground  upon  which 
the  house  then  stood — Smith  assuming  to  sell  him  the  house  also.  In 
1904  Gerarci  recovered  judgment  in  his  action  of  claim  and  delivery  for 
the  house  or  its  value.  Immediately  upon  such  recovery  Gerarci  had 
execution  issued  and  placed  in  the  hands  of  the  sheriff,  Quinn.  When  the 
sheriff  undertook  to  seize  and  remove  the  house,  Eisenhauer  brought 
this  action  for  an  injunction.  Only  so  much  of  the  opinion  as  bears  upon 
the  right  to  recover  possession  of  the  house  in  specie,  is  here  inserted.! 

Hollow  AY,  J.  .  .  .  These  questions  only  need  to  be  deter- 
mined: (1)  Where  Smith  tortioiisly  attaches  Gerarci 's  house, 
which  was  then  a  chattel,  to  land  belonging  to  Smith  and  Cannon, 
by  placing  it  upon  a  stone  foundation,  does  the  house,  thereby  be- 
come a  part  of  the  real  estate,  as  between  Gerarci  and  Eisenhauer, 
so  that,  by  deed  of  land  with  its  appurtenances  and  improvements, 
Smith  and  Cannon  could  convey  to  Eisenhauer  a  title  to  the  house 
sufficient  to  defeat  Gerard's  claim  to  the  house  itself  ?  (2)  Is  the 
defense  that  he  was  a  bona  fide  purchaser  for  value,  without  no- 
tice, available  to  Eisenhauer  as  against  Gerarci,  the  holder  of  the 
legal  title  to  the  house  in  question?  (3)  Is  the  defense  of  an  es- 
toppel available  to  Eisenhauer?  And  (4)  does  the  complaint  state 
facts  sufficient  to  entitle  plaintiff  to  an  injunction? 

1.  Upon  the  first  proposition,  many  decisions  are  cited  by  coun- 
sel for  the  respective  parties,  all  bearing  somewhat  upon  the  gen- 
eral proposition,  but.  with  a  single  exception,  presenting  facts  so 
different  from  those  in  the  case  now  under  consideration  that  they 
do  not  render  any  aid  in  reaching  a  solution  of  the  question  before 
us.  The  exception  noted  is  the  case  of  Shoemaker  v.  Simpson,  16 
Kan.  43.  which  is  somewhat  analogous  to  the  case  before  us.  Shoe- 
maker. Miller  &  Co.  owned  certain  bars  of  railroad  iron,  or  rails, 
near  "Wyandotte,  Kansas.  Simpson  owned  certain  city  lots  in  Law- 
rence. The  Kansas  Pacific  Railway  Co.  wrongfully  took  Shoe- 
maker. Miller  &  Co. 's  rails,  hauled  them  to  Lawrence,  and  with 


Sec.    8.]  CONCERNING    REAL    ESTATE.  199 

them  and  cross-ties  laid  a  track  over  Simpson's  lots  for  the  pur- 
pose of  hauling  sand.    The  rails  were  taken  without  the  knowledge 
or  consent  of  Shoemaker.  ^Miller  &  Co..  and  placed  on  Simpson's 
land  without  his  consent.     Shoemaker.  ^Miller  &  Co.  brought  an 
action  of  replevin  against  Simpson  to  recover  the  rails.     Simpson 
defended  upon  the  theory  that,  when  the  rails  were  fixed  to  the 
cross-ties  imbedded  in  his  land,  they  thereby  became  a  part  of  his 
real  estate.     The  trial  court  foimd  for  the  defendant,  but,  on  ap- 
peal, the  judgment  was  reversed,  the  supreme  court  saying,  among 
other  things :  ' '  We  know  of  no  way  by  which  an  innocent  person 
can  be  permanently  and  legally  deprived  of  his  property'  against 
his  will  by  the  wrongs  and  trespasses  of  others,  so  long  as  it  re- 
mains within  the  power  of  such  innocent  person  to  reclaim  his 
property  without  committing  any  serious  or  substantial  injury  to 
the  person  or  i)roperty  of  any  other  person."     And  again:  "But 
we  do  not  think  that  any  innocent  person  can  be  deprived  of  the 
title  to  his  personal  property  against  his  consent  by  having  it  at- 
tached without  his  consent  to  the  real  estate  of  another  by  a  third 
person,  where  such  personal  property  can  be  removed  without  any 
great  inconvenience,  and  without  any  substantial  injury  to  the 
real  estate."    The  question.  "When  does  a  chattel  become  a  part  of 
realty  so  that  it  passes  as  a  part  of  such  realty?  is  one  most  diffi- 
cult of  solution.    It  depends  upon  such  a  variety  of  considerations 
that  ever}-  ease  must  necassarily  depend  upon  its  own  state  of 
facts.    There  is  no  universal  test  whereby  the  character  of  what  is 
claimed  to  be  a  fixture  can  be  determined  in  the  abstract.    But  one 
of  the  elementary  rules  of  the  law  of  fixtures  is  that  a  chattel,  to 
become  an  irremovable  fixtui-e.  must  have  been  annexed  to  the 
realty  by  the  owner  of  the  fixture,  or  with  his  consent.    Bronson, 
Fixtures.  73:  13  Am.  &  Eng.  Enc.  Law  (2d  ed.),  604;  Adams  v. 
Lee,  31  Mich.  440;  Cochran  v.  Flint.  57  X.  H.  514:  Lansing  Iron  & 
Engine  Works  v.  Wilbur.  Ill  Mich.  413.  69  N.  W.  669;  General 
Electric  Co.  v.  Transit  Equipment  Co.,  57  N.  J.  Eq.  460,  42  Atl. 
U»l.    With  the  exception  of  property  taken  by  judicial  process,  no 
one  can  be  deprived  of  property  to  which  he  has  the  legal  title 
without  his  foiisent.  unless  he  has  estopjied  himself  to  assert  his 
title.    And  where  A  attaches  B's  chattels  to  A's  realty  wrongfully, 
and  without  the  knowledge  or  consent  of  B.  B  may  maintain  reple- 
vin, or  claim  and  delivery,  to  recover  the  same,  if  the  chattels  can 
be  identified.    Bron.son.  Fixtures.  351  :  13  Am.  &  Eng.  Enc.  Law 
(2d  ed.l  681  :  ^Af.-Daiiiel  v.  Lipp.  41  Xeb.  713.  60  N.  W.  81.    There 
is  no  question  but  what  the  property  in  this  instance  was  suffi- 
ciently identified  by  Gerarci,  even  though  certain  changes  had  been 
n-ade  in  if  after  it  left  his  possession.    Tnder  tlie  facts  diselosed  by 
this  record,  tlien.  we  lioUl  tliat  Oernrci  did  not  lose  title  to  his  prop- 
erty bv  reason   of  the  tor1if»iis  acts  of  Smith:  aixl    tliis  is  true 
whether  Eisenhaner  had  knowledge  of  derarci's  elaim  at  the  time 
he  purchased  the  property  or  not. 

2.  I'.nt  partienlar  stn-ss  is  laid  liv  respondent  upon  the  proposi- 
tion that  he  was  an  irmoccht  |iiin-haser  for  value,  without  notice 
of   rierarei's    clriirn.      This   <f»ritention.    however,    cannot    prevail. 


200  CONCERXINU    KKAL    ESTATE.  [CIl.    3. 

Oorari'i  luul  the  lejjMl  title  to  the  hmise.  Smilli  had  not  any  title  at 
all.  It  is  a  iri'iiei-al  rule  in  this  eouiitry  that,  in  the  ahseiiee  of 
statute,  the  tli'feuse  of  puivhase  for  value  anil  without  notice  is  not 
available  airainst  tin-  hoUlci-  of  the  leiial  title.  Gaines  v.  New  Or- 
leans. G  AVall.  (i4'J.  IS  Law.  Kd.  \)')0:  Stout  v,  Hyatt.  1:^  Kan.  '2:V2; 
-'■^  Am.  t^  Kng  Hue.  Law  (2(1  ed.).  4<S2,  and  cases  cited;  24  Ibid. 
1  U)9 ;  10  Cyc.  1052.  liut  sueh  a  defense  may  be  interjjosed  a.s 
against  the  holder  of  an  e(iuitable  title.  19  Cyc.  supra.  .  .  . 
Judgment  reversed. 

See  the  note  to  tlie  principal  case  in  14  L.  R.  A.  (N.  S.)  435,  and  the 
note  to  Scott  v.  Elliott.  61  N.  C.  104,  inserted  at  ch.  7,  sec.  1,  post.  See 
Decennial  and  Am.  Dig.  Key  No.  Series,  vol.  3,  "Estoppel,"  §  110;  "Execu- 
tion," §  172;    "Fixtures,"  §§  3,  21,  35. 


TURNER  V.  MEBANE,  110  N.  C.  413,  14  S.  E.  974.     1892. 

House  Removed  from   One  Man's   Land   to   Another's   Land,   But   Not 

Affixed  Thereto. 

Clark,  J.  The  defendant  mortgagor  moved  the  house  from  the 
mortgaged  premises  across  the  road  to  another  tract,  also  belong- 
ing to  him.  but  not  covered  by  the  mortgage.  This  certainly  coukl 
not  impair  the  mortgage  lien  upon  the  house.  If  it  could  in  these 
days,  when  house-moving  machinery  has  been  so  greatly  perfected, 
there  would  be  a  serious  impairment  of  the  security  of  all  mort- 
gages on  improved  real  estate.  The  court  decreed  a  sale  of  the 
house  in  its  new  situs,  imder  the  mortgage,  with  leave  to  the  pur- 
cha.ser  to  remove  or  roll  the  building  off  again.  We  can  perceive 
no  grounds,  legal  or  equitable,  upon  which  the  defendant  can  ob- 
ject to  this.  The  plaintiff  does  not  ask  for  more,  and  the  rights  of 
third  parties  are  not  involved.  It  does  not  appear  that  the  build- 
ing was  attached  to  the  freehold,  and  it  is  unnecessary  to  discuss 
the  effect  of  such  attachment  in  this  ease,  if  any     No  error. 

See  "Mortgages,"  Century  Dig.  §  302;  Decennial  and  Am.  Dig.  Key  No 
Series,  §  148. 


STEVENS  V.  SMATHERS,  124  N.  C.  571,  32  S.  E.  959.     1899. 

House  Torn  Down  and  Removed  from  One  Man's  Land,  and  Rebuilt  on 

Another's  Land. 

[Action  for  the  value  of  a  house  removed  from  land.  Verdict  and  judg- 
ment  against  defendant,  and   he  appealed.     Affirmed. 

Action  by  mortgagee  to  recover  the  value  of  a  house  torn  down  and 
removed  from  the  mortgaged  land  and  rebuilt  on  defendant's  land.  De- 
fendant had  notice  of  the  facts  connected  with  the  placing  of  the  house 
on  his  land.  There  was  a  balance  due  on  the  mortgage  when  this  action 
was  brought.  .Judgment  against  the  defendant  for  the  value  of  the 
house  as  fixed  by  the  verdict.  There  was  a  greater  sum  due  on  the 
mortgage  than  tlie  value  of  the  house.  1 


Sec.    9.]  CONCERNING    REAL   ESTATE.  201 

Clark.  J.  The  plaintiff  had  a  mortgage  on  a  house  and  lot,  to 
secure  a  debt  due  by  J.  AYiLey  Shook.  The  latter  tore  down  the 
house,  removed  it  and  re-erected  it  upon  the  land  of  the  defendant, 
Smathers.  The  jury  foiuid  that  the  house  when  torn  down  was 
worth  $150,  and  that  the  mortgaged  property  was  impaired  that 
much  in  value  by  its  removal.  The  court  charged  the  jury  (there 
being  evidence  to  sustain  the  charge)  that  if  the  removal  of  the 
house  to  the  land  of  defendant  Smathers,  was  with  his  knowledge 
and  as.sent.  and  he  knew  before  it  was  rebuilt  on  his  land  that  it 
had  been  taken  from  the  land  covered  by  the  plaintitf's  mortgage, 
his  acquiescence  therein  made  Smathers  responsible  for  the  value 
of  the  building.  In  this  there  was  no  error.  Ilorton  v.  Hensley, 
23  X.  C.  163.  We  were  treated  to  an  argument  whether  the  lien  of 
plaintiff's  mortgage  was  not  destroyed  by.  tearing  down  the  house 
and  rebuilding  it  upon  Smathers'  land.  But  this  is  not  a  case 
where  the  lien  is  sought  to  be  enforced  against  the  removed  build- 
ing—as in  Turner  v.  :\[ebane.  110  X.  C.  413.  14  S.  E.  974.  where 
the  house  was  bodily  rolled  across  the  road  upon  another  tract. 
Here  no  lien  is  sought  to  be  enforced  against  the  building,  but  the 
mortgagee  asks  a  personal  judgment  against  Smathers,  who  acqui- 
esced in  the  removed  building  beina-  rebuilt  upon  his  own  land  with 
knowledge  that  it  had  been  taken  from  premises  covered  by  plain- 
tiff's mortgage.  The  court  upon  the  verdict  properly  rendered 
judgment  against  Shook  for  the  balance  due  on  the  mortgage  debt, 
and  against  Smathers  for  $150.  the  value  of  the  removed  house, 
and  by  whose  removal  the  plaintiff' 's  security  had  been  impaired  to 
that  amount,  payment  of  said  $150  to  be  credited  on  the  mortgage 
debt.    X'o  error. 

See  '•>rortgages,"  Century  Dig.   §   553;    Decennial  and  Am.   Dig.  Key 
Xo.  Series,  §  207. 


Sec.  9.     Waste. 

STEVENS  V.  ROSE,  69  Mich.  259,  269,  270,  37  N.  W.  205.     1888. 
Waste  in  Laic.    Equitable  Waste.    Ancient  and  Modern  Remedies. 


Long.  J.  .  .  .  The  action  of  waste  under  the  old  English 
practice  was  a  remedy  given  for  injuiy  to  lands,  houses,  woods, 
etc..  by  a  tenant  thereof  for  life  or  years,  to  the  injury  or  preju- 
difc  of  the  heir,  or  of  him  in  the  reversion  or  remainder.  It  was 
either  voluntary  or  permissive. — the  one  by  actual  design :  the 
other  arisintr  from  mei-c  negligence,  and  want  of  sul'fieient  care. 
The  action  was  partly  founded  upon  the  connnon  law.  and  partly 
founded  upon  the  statute  of  Gloueester,  and  was  a  mi.xed  action; 
real  so  far  as  it  rffovfred  tho  realty  injured,  and  i>ersonal  so  far  as 
it  covered  tlu-  damages  for  IIk-  injury.  Originally,  and  undtM*  the 
old  practif*'.  \ho  notion  was  brought  for  both  of  these  specifie  pur- 
poses, and.  if  waste  was  proved  on  the  trial,  tlie  plaintiff  reeovered, 
not  only  the  prenn'ses  injured,  bul  also  tli(^  damages  lie  had  sus- 
tained liy  reason  nf  tlie  injury.   The  .iclioii  foi-  tliis  double  purjiose, 


•_>()'_'  CONCKKNlNCi     ICK.M.    ESTATE.  [(7).    ,5. 

haviiiii  talk'ii  into  disuso.  was  linally  alx.lisluHl  in  Knjrland  by  the 
statnto  of.  ;?  (S:  I  William  1\',  c.  L'T.  In  this  cuinilry.  alllionj^li 
adopted  iu  some  of  tiir  slali-s,  it  has  birn  hnt  little  nscd;  luiving 
been,  in  i>raetiee.  vii-fiiaily  snperst.'ded  by  the  action  on  the  case,  in 
the  nature  of  waste  for  tlie  iveoveiy  of  damages,  merely,  or  by  bill 
in  equity.  In  onr  own  state  this  aetion  on  the  case  is  authorized  by 
chapter  "JTl.  How.  St..  above  cited.  These  provisions  of  our  stat- 
ute on  this  subjirt  are  in  aeeordance  Avith  the  legal  practice  which 
has  been  adopted,  and  long  since  fnlly  established,  in  Hngland  and 
in  this  country.  [  Etiuitabic  ^Vaste.]  Teiumts  for  life,  not  made 
nnimpeachal^le  for  waste  by  the  jx'i-son  granting  the  estate,  are 
liable  for  both  commissive  and  iH'riiiissive  waste.  The  real  inten- 
tion, however,  of  the  clause,  "without  impeaclunent  for  waste,"  is 
to  enable  the  tenant  to  do  many  things,  such  as  cutting  wood,  open- 
ing new  mines,  etc..  which  would  otherwise  at  the  common  law 
amount  to  waste:  but  these  words  do  not  operate  as  a  license  to  the 
tenant  to  destroy  the  estate,  or  to  commit  malicious  waste,  such  as 
cutting  down  fruit-bearing  trees,  or  trees  which  serve  for  shade  or 
ornament.  If  he  is  tenant  "without  im])eachment  for  waste,"  he 
has  the  same  right  to  cut  timber,  work  mines,  etc.,  for  his  o\mi  use. 
as  the  owner  of  the  inheritance:  but  those  words  do  not  .iustify  him 
in  demolishing  the  buildings,  or  doing  that  which  operates  as  de- 
structive or  malicious  waste.  Wood.  Landl.  &  Ten.  p.  711,  §  426; 
Leeds  v.  Anherst.  14  Sim.  357:  Aston  v.  Aston.  1  Ves.  Sr.  265; 
Yane  v.  Lord  Barnard.  2  Vern.  738.  The  Avords  are  not  to  be 
treated  as  importing  a  license  to  destroy  or  injure  the  estate,  but 
to  do  all  reasonable  acts,  consistent  with  the  preservation  of  the  es- 
tate, which  otherwise  might  in  law  be  waste. 

Estrepement.— "Estrepement  is  an  old  French  word,  signifying 
the  same  as  waste  or  extirpation :  and  the  writ  of  estrepement  lay 
at  the  common  laAv.  after  judgment  obtained  in  any  action  real, 
and  before  possession  was  delivered  by  the  sheriff,  to  stop  ariy 
waste  which  the  vanquished  party  might  be  tempted  to  commit  in 
lands,  which  were  determined  to  be  no  longer  his.  But  as  in  some 
cases  the  demandant  may  be  justly  apprehensive,  that  the  tenant 
mav  make  waste  or  estrepement  pending  the  suit.  Avell  knowing 
the  weakness  of  his  title,  therefore  the  statute  of  Gloucester  gave 
another  writ  of  estrepement  pendente  placito.  commanding  the 
sheriff  firmly  to  inhibit  the  tenant  ne  facial  vastum  vel  estrepe- 
meutum  pendente  placito  dicto  indiseusso.  And.  by  virtue  of 
either  of  these  writs  the  sheriff  may  resist  them  that  do.  or  offer  to 
do,  waste:  and  if  otherwise  he  cannot  prevent  them,  he  may  law- 
fully imprison  the  wasters,  or  make.a  warrant  to  others  to  imprison 
them :  or.  if  necessity  require,  he  may  take  the  posse  comitatus  to 
his  assistance.  So  odious  in  the  sight  of  the  law  is  wa.ste  and  de- 
struction." 3  Blk.  Com.  *225.  The  old  writ  of  waste  being  obso- 
lete, the  writs  of  estrepement  have  passed  away  also.  Injunctions 
and  restraining  orders  now  supply  the  place  of  estrepement.  See 
Miller  v.  Washbum.  38  N.  C.  at  p.  166,  inserted  in  ch.  11,  s.  5,  post. 

See  "Waste,"  Century  Dig.  §§  16-18;   Decennial  and  Am.  Dig.  Key  No. 
Series,  §  15. 


Sec.   9.]  CONCERNING   REAL   ESTATE.  203 


SOUTHERLAXD  v.  JOXES,  51  X.  C.  321,  323.     1859. 
Ancient  Action  of  Waste.    Writ  and  Declaration.  Strict  Rules  of  Practice. 

[Action  of  waste.     Verdict  for  plaintiff.     Verdict  set  aside  and  judg- 
ment of  nonsuit  against  plaintiff,  and  he  appealed.    AflSrmed. 

The  writ  in  this  case  was  as  follows: 

•'State  of  Xorth  Carolina.     To  the  sheriff  of  Duplin  county — Greeting: 
You  are  hereby  commanded  to  take  the  bodies  of  Robert  D.  Jones  and 
Mary  Jones,  his  wife,  if  to  be  found  in  your  bailiwick,  tenants  of  the 
following  described  tract  of  land,  situate  in  the  county  of  Duplin,  viz., 
beginning  at  etc.   (description),  and  them  safely  keep,  so  that  you  have 
them,  etc.,  then  and  there  to  answer  David  J.  Southerland  and  his  wife, 
Caroline    (and  others,  naming  them),  in  whom  the  right  of  the  afore- 
said lands,  of  which  the  aforesaid  Robert  D.  Jones  and  wife,  Mary,  are 
tenants  for  life,  by  virtue  of  a  certain  devise  to  said  Mary,  remainder  in 
fee  to  the  said  Caroline,  etc.,  contained  in  the  last  will  and  testament  of 
Thomas  Sheppard,  of  a  plea  wherefore,  seeing  that  the  said  Robert  D. 
Jones  and  wife,  Mary,  have  committed  waste  of  the  aforesaid  lands  and 
tenements,  the  said  David  J.  Southerland  and  wife,  etc.,  shall  not  have 
judgment,  as  well  for  the  damages  for  the  said  waste,  so  committed,  as 
the  recovery  of  the  lands  and   tenements  so  wasted,  according  to  the 
force  and  effect  of  the  statute,  wherein  it  is  provided  that  in  all  cases 
of  waste,  an  action  shall  lie  at  the  instance  of  him,  in  whom  the  right 
is,  against  all  persons  committing  the  same,  as  well  tenants  for  term  of 
life,  as  tenants  for  term  of  years,  as  guardian.     "Witness,  etc."     The  dec- 
laration was  in  conformity  with  the  writ. 

The  declaration  alleged  that  the  defendants  were  tenants  for  life  and 
plaintiffs  were  owners  of  the  remainder  in  fee  after  the  expiration  of 
such  life  estate;  but  the  proof  was  that  the  plaintiffs  owned  a  reversion 
in  fee  after  such  life  estate.  The  judge  below  held  this  to  be  a  fatal 
variance.] 

Battle.  J.  .  .  .  The  question  remains,  whether  the  misde- 
scription of  the  title  of  the  plaintiffs,  in  the  action  of  waste,  is  fatal 
to  their  right  of  recovery.  Upon  that  question  we  concur  with  his 
Honor,  as  we  find  that  his  opinion  is  well  sustained  by  authority. 

The  action  of  waste  has  become  nearly  obsolete,  both  in  England 
and  in  this  state,  and  is  almost  entirely  superseded  by  the  action  on 
the  case  in  the  nature  of  waste.  The  reason  of  this  is.  that  the  lat- 
ter form  of  actiou  is  much  more  convenient,  and  applicable  to  a 
much  greater  number  of  circumstances  than  the  former,  as  is 
shown  in  the  recent  case  of  Dupre  v.  Dupre.  40  N.  C.  387.  and  by 
the  authorities  therein  referred  to.  The  old  writ  of  waste  may, 
however,  still  be  used,  as  it  is  certainly  in  force  in  this  state; 
Hrown  v.  Blick.  7  N.  C.  511  :  1  Rev.  Stat.  eh.  110;  Rev.  Code,  ch. 
116.  "When  brought,  it  must  be  governed  by  the  rules  established 
for  it  in  l^ngland.  whence  we  obtained  it. 

Tn  Serjeant  AViiJiams'  note  2.  to  2  Saunders.  Rep.  235,  it  is  dis- 
tinctly stated  that  "The  declaration  in  waste  must  show  how  the 
l»laintifT  is  entitled  to  the  inheritance,"  in  illustration  of  which,  he 
gives  several  instances.  Tf  it  be  necessary  to  state  the  plaintiff's 
title  correctly,  it  follows,  thai  i1  iinisf  be  proved  as  laid.  Tn  the 
present  case,  the  title  of  the  plaintiffs  is  set  forth  in  their  declara- 
tion, as  a  devise  of  a  remninfhr  in  fee.  while  their  proof  shows  it 
to  be  the  descent  of  a  mvrsinn  in  ft'e.  subject  In  n  power  of  sale. 
The  variance  is  faf;il,     Judgiiicnf  affirmed. 


2m  C()N("KRNI.\ti    KKAl,    KSTATE.  [CIt. 


o. 


See  "Pleading."  Century  Dig.  §  1321;  Decennial  and  Am.  Dig.  Key  No. 
Series.  §  393;  "Waste,"  Cenliny  Dig.  §  32;  Deit'iinia!  and  Am.  Dig.  Key 
-No.  Series,  §  20. 


DUPREE  V.   DUPREE,  49  N.   C   387,   390.     1857. 

Action  of  Waste  and  Modern  Attioii  of  Tre.siiass  on  the  Case  in  the  Nature 
of  Waste  Distinijitished.    Privity. 

I  Trespass  on  the  Case  in  tlie  nature  of  waste.  Verdict  and  judgment 
against  tiie  defendant,  and  she  appealed.     Affirmed. 

Plaintiff  owned  the  reversion  after  defendant's  dower.  The  defendant 
committed  waste;  but  before  this  action  was  brought,  she  conveyed  her 
dower  right  to  the  plaintiff.  Defendant's  counsel  argued  that  plaintiff 
could  not  recover  for  the  waste;  because  of  his  purchase  of  the  life  estate 
after  the  waste  was  committed.  The  judge  ruled  otherwise.  Only  that 
part  of  the  opinion  which  bears  upon  this  point  is  inserted  here.] 

Battle.  J  .  .  .  The  .second  objection  is  founded  upon  the 
idea  that  there  must  exist  a  particular  estate,  and  a  reversion  at 
the  time  when  the  action  is  brought,  as  well  as  when  the  waste  was 
committed.  In  support  of  this,  the  counsel  for  the  defendant  re- 
lies upon  the  authority  of  Co.  Lit.  53b,  where  it  is  said:  "Note, 
after  waste  done,  there  is  a  special  regard  to  be  had  to  the  contin- 
uance of  the  reversion  in  the  same  .state  that  it  was  at  the  time  of 
the  waste  done ;  for.  if  after  the  waste,  he  granteth  it  over,  though 
he  taketh  back  the  whole  estate  again,  yet  is  the  waste  dispunish- 
able ;  so  if  he  grant  the  reversion  to  the  use  of  himself  and  his  wife, 
and  of  his  heirs,  yet  the  waste  is  dispuni.shable,  and  so  of  the  like; 
because  the  estate  of  the  reversion  continueth  not,  but  is  altered, 
and  consequently  the  action  of  waste  for  waste  done  before  (which 
consists  in  privity)  is  gone."  The  counsel  referred  also  to  the 
case  of  Bacon  v.  Smith.  41  E.  C.  L.  Rep.  571,  where  Patteson, 
Judge,  in  remarking  upon  this  passage,  said  "it  had  immediate 
reference  to  the  old  form  of  action,  but  the  rule  equally  applies  to 
an  action  on  the  case  in  the  nature  of  waste."  It  is  unnecessary 
for  us  to  inquire  whether  if  the  plaintiff,  in  the  present  case,  had 
granted  away  his  reversion,  lie  could  have  maintained  his  action. 
If  he  could  not.  it  would  not  be  for  the  want  of  privity,  simply  be- 
cause privity  is  not  now  necessary  to  the  action  on  the  case  in  the 
nature  of  waste.  Instead  of  being  confined,  as  the  old  action  of 
waste  was.  to  the  owner  of  the  inheritance  against  his  immediate 
tenant  for  life,  or  years,  it  may  be  brought  by  a  person  in  remain- 
der or  reversion  for  life,  or  years,  as  well  as  in  fee,  or  in  tail,  and 
against  a  stranger  a.s  well  as  against  a  tenant.  2  Saund.  Rep.  252. 
note  7;  Williams  v.  Lanier.  44  N.  C.  30;  Dozier  v.  Gregory,  46 
N.  C.  ]00.  It  may  be  brought  also  in  the  tenuit  again.st  a  tenant, 
after  the  term  for  life,  or  years,  has  expired.  Kinlyside  v.  Thorn- 
ton. 2  Bl.  Rep.  ini.  Privity,  then,  not  being  essential  to  the 
maintonaiir-f'  of  the  action,  we  are  not  aware  of  any  principle  Avhich 
forbids  a  suit  by  a  remainderman  or  reversioner  after  the  purchase 
by  him  of  a  partifular  estate,  for  waste  done  before. 

The  counsel  contends  that  the  right  to  damages  is  incident  to  the 


SVc.    9.]  CONCERNING    REAL    ESTATE.  205 

tenure,  and  that  when  the  plaintiff  has,  hy  his  own  act,  put  an  end 
to  the  tenure,  the  incident  must  be  extinguished  with  it.  But  we 
have  seen  that  the  right  to  damages  for  the  waste  does  not  depend 
on  the  tenure,  and.  of  course,  the  inference  that  it  must  cease  with 
it,  cannot  be  legitimately  drawn.  There  is  no  error  in  the  judg- 
ment, and  it  must  be  affirmed. 

That  an  "action  on  the  case  in  the  nature  of  waste"  could  be  main- 
tained even  against  a  stranger  by  a  remainderman  or  reversioner,  see 
Williams  v.  Lanier,  44  N.  C.  at  p.  31,  quoted  in  a  note  to  Dills  v.  Hampton, 
92  X.  C.  565,  inserted  at  sec.  12  post.  See  "Waste,"  Century  Dig.  §  19; 
Decennial  and  Am.  Dig.  Key  No.  Series  §  11. 


GORDON  v.  LOWTHER,  75  N.  C.  193.     1S76. 
Who  Can  Sue  for  Waste.     Contingent  Remainder-man,  etc. 

[Action  to  recover  damages  for  waste,  and  to  enjoin  future  waste. 
Demurrer  overruled  and  judgment  against  defendant,  from  which  he  ap- 
pealed.    Affirmed. 

The  question  presented  is:  What  remedy,  if  any,  has  the  owner  of  an 
executory  or  contingent  interest,  for  waste?  The  facts  appear  in  the 
opinion.  The  ground  of  demurrer  was,  that  it  appeared  ui)on  the  com- 
plaint that  plaintiff  did  not  have  an  "immediate  estate  of  inheritance"  in 
the  locus  in  quo,  and,  therefore,  could  not  maintain  this  action.] 

Settle.  J.  The  testator  "lends"  to  his  daughter,  Martha  (now 
!Mrs.  Lowther),  certain  lands  described  in  his  statement  [testa- 
ment?!, and  adds:  "Should  my  said  daughter  have  no  child  or 
children  to  live  to  be  twenty-one  years  old.  my  will  and  desire  is 
that  my  grandson.  John  Gordon,  son  of  George  B.  Gordon,  shall 
have  it  after  her  death ;  if  she  should  have  child  or  childi'cn  to  ar- 
rive at  the  above  age.  my  desire  is.  that  they  shall  have  it  after  her 
death."  This  makes  the  defendant.  I\Iartha  Lowther,  a  tenant  for 
life,  with  a  contingent  remainder  in  fee  to  such  child  or  children 
as  she  may  have,  who  live  to  the  age  of  twenty-one  years,  with  an 
executory  devise  over  to  the  plaintiff  in  the  event  that  no  child  of 
Martha  Lowlhei-  lives  to  the  age  of  twenty-one  years. 

The  allegations  of  the  complaint  are  that  the  defendants,  at  vari- 
ous times  from  1863  to  1875,  have  sold  timber  trees  from  the  land 
and  have  toni  down  buildings.  ;ind  have  jillowed  the  farm  to  go  to 
ruin,  tliei'f'by  romniilliiuj  I'ol u tihirii  and  (illoicinfi  permissive 
wa.ste.  jind  tlnit  the  defendants  are  now.  at  tlie  time  of  commencing 
this  action,  still  eoiinnitting  waste  by  selling  limber  trees  from  the 
land,  and  tinit  the  injury  to  the  estate  (if  inheritance  is  e(|nal  to  the 
value  fif  the  life  estatr-.     And  therefore  jilaintill'  brings  this  action* 

First,  to  restrain  wa.ste;  second,  to  recover  damages  for  the 
waste  already  conunitted.     The  defendants  demuc. 

AV'hile  owners  of  executftry  b(M|uests  and  oth<'i'  contingent  inter- 
ests rainuit  rrcovf  r  (l(im(i<)< s  [or  icastf  nlr(0(hf  comniHh d,  they  are 
entitled  to  have  their  interests  protected  from  fhrrnfrnrfl  \raste  or 
dcttriirlidii  In/  IhJkik  lire  relief.     Tliis  is  clc;!!-  bolli  njion  pi'incipl& 


-<><'  CONCKRNINC     UE.U.    ESTATE.  [('/,,    3, 

Jiiitl  aulliDrity.      Hniswoll  v.  iMoivhcad.  45  N.  C.  26;  Doiithit  v. 
BDai'iihaiiior.  T)?  N.  ('.  444;  ^Vats()n  v.  ^Vatson.  50  N.  C.  400. 

luasiiuu-h  as  .Mary  Lowtli.M-  is  now  lil'ty-two  years  old,  has  boeu 
married  twelve  years  aii.l  has  ncwr  had  a.  child,  and  atliiiits  by  the 
demurrer  the  waste  eharij:ed  in  the  eoinplaint.  this  would  seeiu  to 
be  a  very  projxM-  eas(>  I'or  such  relief.  The  judgmeut  of  the  supe- 
rior court  is  afllriiied. 

See  "Waste,"  Century  Dig.  §  23;  Decennial  ami  Am.  Dig.  Kev  No 
Series,  §  12. 


MORRISON  V.  MORRISOX,  122  N.  C.  598,  29  S.  E.  901.     1898. 
Remedies  of  Cotenants  Arjainst  Each  Other  for  Waste. 

[Civil  action  to  restrain  waste,  lieard  ui)on  defendant's  motion  to  dis- 
solve a  restraining  order  theretofore  issued.  Motion  allowed,  and  i)!ain- 
tiff  appealed.  Reversed.  The  facts  appear  in  the  beginning  of  the 
opinion.  The  question  presented  is:  What  remedy,  if  anv,  has  one  co- 
tenant  against  another  for  waste?] 

Faircloth.  C.  J.  This  is  an  action  to  restrain  the  defendants 
from  committino;  waste  on  the  land  described  in  the  pleadings. 
The  plaintiffs  claim  as  remaindermen  in  said  property.  The  de- 
fendant claims  as  a  tenant  for  life  under  a  will,  and  as  the  owner 
in  fee  of  1-48  interest  by  descent  from  one  of  the  common  ancestors. 
The  court  held  that  the  defcnidant  was  a  tenant  in  conmion  with 
the  plaintiffs,  to  the  extent  of  said  interest. by  descent,  and  could 
not  be  enjoined  as  prayed  for  by  his  cotenants,  and  di.ssolved  the 
restraining  order,  from  which  plaintiffs  appealed.  Other  questions 
relating  to  the  law  of  wa.ste  and  the  lights  of  parties  therein  were 
discussed ;  but  the  holding  of  his  honor,  as  above  stated,  disposes  of 
this  appeal.  It  is  quite  useless  to  enter  into  the  field  of  leaniing  on 
this  subject  at  common  law  in  England,  or  as  it  was  applied  by  our 
ancestors  to  the  conditions  which  they  found  in  this  country. 
Those  considerations  evoked  much  learning,  and  led  to  many  intri- 
cate and  embarrassing  distinctions.  One  of  the  settled  rules  was 
that  one  tenant  in  common  could  not  sue  his  cotenant.  except  for 
partition  ;  and  our  legislature,  feeling  the  practical  difficulties  at  an 
early  date,  enacted  that  one  tenant  in  common  might  maintain  an 
action  for  waste  against  his  cotenant  or  joint  tenant.  Rev.  St. 
c.  119;  Code.  ^  627.  The  right  to  sue  for  the  waste  includes  the 
right  to  restrain  its  commission.  The  same  question,  upon  a  simi- 
lar state  of  facts,  was  presented  in  Hinson  v.  TTinson.  120  N.  C.  400, 
27  S.  E.  80.  and  the  right  to  sue  was  sustained.  This  conclusion 
allows  the  parties  to  try  the  case  upon  its  merits,  if  they  so  desire. 
His  honor's  ruling  was  erroneous.    Error. 

See  "Tenancy  in  Common,"  Century  Dig.  §  69;  Decennial  and  Am.  Dig. 
Key  No.  Series  §  26. 


Sec.    9.]  CONCERN  1X(;    REAL    ESTATE.  207 


JESUS  COLLEGE  v.  BLOO.M,  Ambler,  54.     1745. 
Jurisdiction  in  Equity  in  Matters  of  Waste. 

[This  bill  was  brought  by  the  Master  and  Fellows  of  Jesus  College,  in 
Oxford,  for  an  account  of  timber  cut  on  the  premises  by  them  let  to  the 
defendant,  and  for  an  account  of  some  stones  which  he  had  carried  off 
the  land.  | 

Lord  Chancellor  [Hardwicke].  This  is  the  iiio.st  extraordi- 
nary bill  that  ever  was  brought  in  this  court,  and  I  hope  never  to 
see  one  of  the  like  nature  again. 

On  this  bill  there  arise  two  questions:  1st,  AVhether  bills  are  to 
be  maintained  in  this  court  merely  for  timber  cut  down  after  the 
term  is  gone  out  of  the  tenant  by  assignment?  or  2nd.  Whether 
such  bills  can  only  be  brought  for  an  account  of  such  waste  done, 
without  at  the  same  time  praying  for  an  injunction  ?  And  I  am  of 
opinion  that  they  cannot.  AVaste  is  a  loss  for  which  there  is  a 
proper  remedj'  by  action.  In  a  court  of  law  the  party  is  not  ne- 
cessitated to  bring  an  action  of  waste,  but  he  may  bring  trover; 
those  are  the  remedies,  and  therefore  there  is  no  ground  of  equity 
to  come  into  this  court,  for  the  satisfaction  of  damages  is  not  the 
proper  ground  for  this  court  to  admit  of  bills  of  this  sort,  but  the 
staying  of  waste ;  because  the  court  presumes,  when  a  man  has  done 
waste  he  may  commit  the  same  again,  and  therefore  will  suffer  the 
lessor  or  reversioner,  when  he  brings  his  bill  for  an  injunction  to 
stay  waste,  to  pray  at  the  same  time  an  account  of  the  waste  done ; 
for  though  a  court  of  law  may  give  damages,  yet  it  cannot  prevent 
further  waste :  and  it  is  upon  this  ground,  to  prevent  multiplicity 
of  suits,  that  this  court  will  decree  an  account  of  waste  done  at  the 
same  time  with  an  injunction ;  just  like  the  case  of  a  bill  brought 
for  discovery  of  assets,  an  account  may  be  prayed  at  the  same 
time;  and  though  originally  the  bill  was  only  brought  for  a  dis- 
covery of  assets,  yet,  to  pi  event  nudtiplicity  of  suits,  the  court  will 
direct  an  account  to  be  taken. 

If  the  court  were  to  allow  of  these  sort  of  bills,  it  would  create 
infinite  vexation  :  there  is  not  one  precedent  to  warrant  it.  The 
ca.scs  cited  rlo  not  come  up  to  the  present.  "Whitfield  v.  Bewick,  3 
AYms.  2Cu.  Tf  does  not  appear  in  that  case,  that  an  injunction  to 
stay  waste  generally  was  not  prayed  ;  if  it  was,  that  brings  it  within 
Iho  common  case.  As  to  the  case  of  the  Bishop  of  Winchester  v. 
Knight.  1  Wms.  40G.  I  am  at  a  loss  to  know  upon  what  gi'ounds  the 
coui-t'went.  The  l)ook  says.  beeaiLse  it  was  a  demand  against  an 
executor;  but  T  doubt  greatly  as  to  this,  for  it  is  far  from  being  a 
general  nilo  of  this  fourt  to  entertain  a  bill  against  an  oxecutor 
for  a  tort  coMimittod  by  his  testator.  The  more  ])robal)l(!  reason 
5or  decreeiiig  an  afcount  in  that  case  seem  to  be,  because  it  was  the 
case  of  mines,  and  llie  luiirl  always  distinguishes  between  digging 
of  mines  anrl  enltititr  of  tinibei-.  Ix'Ciiuse  the  digging  nf  mines  is  a 
sort  of  tra(le;  and  there  are  many  cases  where  this  court  will  re- 
lieve and  decree  an  account  oP  ore  taken,  when  in  anv  other  tort  or 


2(»S  CONCKKNlNci    KKAl,    KSl'Al'K.  \<'h.    3. 

wronsr  it  has  refused  relief.  If  this  be  the  reason  of  the  determina- 
tion  iu  that  ease,  as  I  re;illy  think  it  is,  it  stands  quilt'  ditlVrent 
lioni  the  present;  1  am  1  lii'ifl'dre  (tf  the  opinion,  upon  tliis  first 
liead.  tlial  tliis  hill  iiroimlil  li\-  Jesus  CoUefj;!",  to  li;i\-e  satisfaetion 
for  timber  cut  down  alter  an  assiu:ninent  of  a  lease,  when  the 
proper  remedy  is  at  hiw,  ouixht  to  be  dismissed.     .     ,     . 

The  principal  case  is  approved  by  Chancellor  Kent,  in  Watson  v. 
Hunter.  ")  .lohns.  Ch.  109,  where  it  is  said  that  the  carrying  away  of 
timber  already  cut  will  not  be  restrained  in  equity  except  in  extraor- 
dinary cases,  such  as  the  insolvency  of  the  person  committing  the  waste, 
etc.  See  "Waste,"  Century  Dig.  §§  Ki,  38-42;  Decennial  and  Am.  Dig. 
Key  No.  Series,  §§  15,  17. 


OBRIEN  V.  OBRIEN,  Ambler,  107.     17.'31. 
Equitable  Waste.    Remedy  in  Equity. 

[Certain  realty  was  conveyed  to  trustees  to  the  use  of  Henry  Obrien 
for  life,  xcitliout  impeachmeut  of  waste,  remainder  to  Donatus  Obrien 
for  life,  etc.  Henry  Obrien,  the  first  tenant  for  life,  conveyed  his  life 
estate  to  Sir  Edward  Obrien,  who  threatened  to  cut  down  all  the  trees 
and  timber  growing  on  the  locus  in  quo.  Thereupon  Donatus  Obrien, 
the  tenant  for  life  in  remainder,  filed  this  bill  in  chancery,  praying  an 
injunction  to  stay  waste — stating,  among  other  things:] 

"That  a  great  part  of  the  timber  trees  growing  on  the  said  es- 
tates were  standing  and  growing  in  a  walled-in  park  ealled  Blath- 
erwieke  Park,  and  stood  near  the  capital  seat  of  the  family,  and 
other  houses  upon  the  estate,  and  either  served  for  the  shelter 
thereof,  or  were  set  in  rows,  wallas,  vistoes,  avenues,  or  clumps,  and 
were  great  oranments  thereto;  great  part  whereof  were  of  a  late 
groAvth,  being  planted  about  twenty-t^ve  years  before,  and  many 
thousands  of  them  were  young  saplings,  greatly  beneficial  to  the 
estate,  but  of  vers'-  small  value  if  cut  down,  not  being  worth  above 
2s.  6d.  apiece,  one  Avith  another." 

Upon  an  affidavit  of  the  above  fat'ts.  iNIr.  Solicitor  General,  Mr. 
AVilbraham.  and  ]\lr.  AValler.  this  day  moved,  that  an  injunction 
might  be  awarded  to  stop  the  defendants  from  committing  any 
wa.ste  or  spoil  of  the  premises. 

His  Lordship  ordered  that  an  injunction  should  be  awarded  to 
stay  the  defendants,  etc.,  from  cutting  dowti  any  timber  trees,  or 
other  trees  growing  on  the  said  estate  which  were  planted  or  grow- 
ing there  for  ornament  or  shelter  of  the  inansion  house,  of"  that 
grew  in  vistoes.  planted  walks,  or  lines  for  the  ornament  of  the 
park,  part  of  the  premises  in  fpiestion  ;  and  also  from  cutting  down 
any  saplings  growing  on  any  other  part  of  the  estate  in  question, 
not  proper  to  be  felled,  until  answer,  and  other  order  to  the  con- 
trary. 

See  "Waste,"  Century  Dig.  §§  38-42;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §  17. 


Sec.    9.]  CONCERNING    REAL    ESTATE.  209 


VANE  V.  LORD  BARNARD,  2  Vernon,  738.     1716. 
Equitable  Waste.     Mandatory  Injunction. 

The  defendant  on  the  marriage  of  the  plaintiff,  his  eldest  son, 
with  the  daughter  of  ^Morgan  Randyll.  and  10,000  pounds  portion, 
settled,  inter  alia,  Raby  Castle  on  himself  for  life,  without  im- 
peachment of  ivaste,  remainder  to  his  son  for  life,  and  to  his  first 
and  other  sons  in  tail  male. 

[In  August,  171-4]  The  defendant,  the  Lord  Barnard,  having 
taken  some  displeasure  against  his  son,  got  two  hundred  workmen 
together,  and  of  a  sudden,  in  a  few  days,  stript  the  castle  of  the 
lead,  iron,  glass-doors,  and  boards,  etc.,  to  the  value  of  3,000 
pounds. 

The  court  upon  filing  the  bill,  granted  an  injunction  to  stay  com- 
mitting of  waste,  in  pulling  down  the  castle;  and  now,  upon  the 
hearing  of  the  cause,  decreed,  not  only  the  injunction  to  continue, 
but  that  the  castle  should  be  repaired,  and  put  into  the  same  condi- 
tion it  was  in,  in  August,  1714,  and  for  that  purpose  a  commission 
was  to  issue  to  ascertain  what  ought  to  be  repaired,  and  a  master 
to  see  it  done  at  the  expense  and  charge  of  the  defendant,  the  Lord 
Barnard ;  and  decreed  the  plaintiff  his  costs. 

In  Turner  v.  Wright,  2  DeGex,  Fish,  and  Jones  (Eng.  Ch.),  234, 
Finch's  Cases,  391,  it  is  said:  "Tenant  in  fee  simple  subject  to  an  execu- 
tory devise  over,  of  a  mansion  house  surrounded  by  timber  for  shelter 
and  ornament,  cannot  say  that  the  property  is  his  own,  so  that,  out  of 
spite  to  the  devisee  over,  he  may  blow  up  the  mansion  house  with  gun- 
powder and  make  a  bonfire  of  the  timber.  The  famous  Raby  Castle  case. 
Vane  v.  Lord  Barnard,  shows  that  such  things  may  not  be  done  by  tenant 
for  life  sails  xcaste.  and  tenant  in  fee  witli  an  e.recutory  devise  over, 
actuated  by  malice,  would  not  have  greater  liberty  to  destroy.  .  .  . 
Equitable  waste  is  that  which  a  prudent  man  would  not  do  in  the  manage- 
ment of  his  own  property." 

"In  the  case  of  Gordon  v.  Lowther,  75  N.  C.  193  [inserted  supra  in  this 
section  1  the  court  said  in  effect,  that  while  persons  holding  a  vested 
estate  for  life,  coupled  with  contingent  interests,  are  not  liable  in  an  ac- 
tion of  waste,  thry  and  their  tenants  may  be  restrained  from  further 
despoiling  and  injuring  the  inheritance,  where  it  appears  that  they  have 
been  removing  from  the  land  timber  trees  not  cut  down  in  the  course  of 
prudent  husbandry."  Farabow  v.  Green,  108  N.  C.  mid.  p.  343,  12  S.  E. 
1005.  See  also  Stevens  v.  Rose,  69  Mich.  259,  37  N.  W.  205,  inserted,  supra, 
in  this  section. 

In  In  re  I^nnon.  166  U.  S.  at  p.  556.  17  Sup.  Ct.  661,  it  is  said  that  a 
mandatory  injunction  is  "clearly  not  beyond  the  power  of  a  court  of 
equity,  which  is  not  always  limited  to  the  restraint  of  a  contemplated  or 
threatened  action;  but  may  even  require  affirmative  action  where  the  cir- 
cumstances of  the  case  demand  it.  Robinson  v.  Ld.  Byron,  1  Bro.  C.  C. 
588;  Herspy  v.  Smith.  1  Kay  &  .Tohns.  3S9;  Beadel  v.  Perry.  L.  R.  3 
Eq.  46.";  Wbitofar  v.  Mlchenor,  37  N.  .1.  Eq.  6;  Broome  v.  Telephone  Co., 
42  N.  .1.  Eq.  141." 

See  "Waste,"  Century  Dig.  §  6;  Decennial  and  Am.  Dig.  Key  No. 
Serle.s.  §  4. 

Remediefi — 14. 


L'ltl  roNCKKMNt;     U'K.M,    KSTATK.  \  (  '  li .    S. 


Skc.   10.      F(»«C"iHLE  Entry   and   Dkiainku. 

BOXLEV  AMI  oTiiKKs  V.  COLLINS.  4  Blackford,  o20,  3L'L     1837. 

L')iloicfuI  Detainer. 

I  Proceedings  by  Collins  against  Boxloy  and  others  for  Forcible  De- 
tainer of  real  estate,  carried  by  appeal  from  a  jnstice's  court  to  the 
circuit  court.  In  the  latter  court  there  was  a  verdict  and  judgment 
against  Boxley  and  others,  anil  they  a|)pealed.     Reversed. 

The  verdict  was;  "We.  the  jnrois,  etc.,  find  that  |the  locus  in  quo] 
.  .  .  was  in  the  lawful  and  rightful  i)ossession  of  Collins;  and  that 
Boxley  and  others  .  .  .  being  lawfully  upon  the  same,  did  iiiilawfidly 
detain  the  possession  from  said  Collins,  and  still  continue  unlawfully 
to  detain  the  possession  from  him.  Wherefore  the  jury  .  .  .  find  that 
said  Collins  ought  to  have  restitution  thereof  without  delay.") 

Hlackford.  J.  .  .  .  Thifi  verdiet  is  defective,  because  it 
does  uot  state  that  the  possession  of  the  premises  was  detained  hy 
force.  The  mere  unlawful  detainer  of  lands,  furnishes  no  ground 
for  a  prosecution  under  the  statute  against  forcible  entries  and  de- 
tainers. This  siunniar>'  and  extraordinary  proceeding  to  obtain 
possession  of  ival  estate,  by  the  interference  of  justices  of  the 
peace,  is  founded  upon  statute,  both  in  England  and  in  this  coun- 
try, and  is  only  authorized  where  the  entry  or  detainer  is,  in  its 
nature,  forcible  and  violent.  In  ordinary  cases — those  of  entries 
or  detainers  peaceable  but  unlawful — the  injured  party  is  left  to 
the  action  of  ejectment,  etc.  A  distinguished  writer  uses  the  fol- 
lowing language  on  the  subject:  "To  constitute  a  forcible  entry, 
or  a  forcible  detainer,  mere  force  in  law.  as  it  is  technically  termed, 
being  a  simple  trespass,  is  not  sufficient :  there  must  ))e  some  actual 
violence,  or  some  proceeding,  as  a  large  assembly  of  persons,  cal- 
culated to  create  alarm,  if  not  terror,  in  ordinary  minds,  though 
tt  is  not  necessary  that  there  should  be  any  assault  or  battery." 
2  Chit.  Gen.  Prac.  234.     ... 

See  "Forcible  Entry  and  Detainer,"  Century  Dig.  §§  24,  159;  Decennial 
and  Am.  Dig.  Key  No.  Series  §§  5,  36. 


PULLEX  V.  BONEY,  4  N.  J.  L.  14.5,  150-152.     1818. 
Forcible  Detainer  Distinguished  from  Forcible  Entry  and  Detainer. 

[Proceedings  by  Sarah  Boney  against  Elijah  Pullen,  in  Forcible  Entry 
and  Detainer.  Verdict  and  judgment  against  Pullen,  who  carried  the 
case  to  the  supreme  court  by  writ  of  error.     Affirmed. 

After  the  plaintiff,  Boney,  had  closed  her  evidence,  Pullen  moved  to 
nonsuit  her  upon  the  ground  that  it  appeared  that  he,  Pullen,  was  put 
into  peaceable  possession  of  the  locus  in  quo  by  Boney,  under  a  valid 
lease  made  by  her  to  him.  Motion  refused.  Pullen  requested  the  court 
to  charge  the  jury  that  the  plaintiff,  Boney,  must  show  force  in  the  orig- 
inal entry  by  Pullen  in  order  to  sustain  the  charge  of  forcible  entry  and 
detainer;  but  that  proof  of  force  in  keeping  possession  after  a  peaceable 
entry  would  not  establish  a  forcible  detainer.  This  charge  the  court  re- 
fused to  give.  In  this  was  no  error,  according  to  the  decision  of  the 
supreme  court;  but  a  part  of  the  dissenting  opinion  as  to  this  point  is 
inserted,  because  of  the  clearly  drawn  distinction  between  the  offenses 
of  Forcible  Entry  and  Detainer  and  a  simple  Forcible  Detainer.! 


Sec.   10.]  CONCERNING    REAL    ESTATE.  211 

Southard.  J.  (dissenting).  .  .  .  The  two  offenses  of  "for- 
cible entry  and  detainer"  and  "forcible  detainer"  are.  by  onr  stat- 
ute, and  have  always  been,  distinct  offenses,  and  I  take  the  dis- 
tinction to  consist  in  the  lawfulness  or  unlawfulness  of  the  entry. 
Whenever  the  entry  is  unlawful,  whether  forcible  or  not.  and  the 
subsequent  conduct  is  forcible  and  tortious,  the  offense  connnitted 
is  forcible  entry  and  detainei-.  But  Avherever  the  original  entiy  is 
lawful,  and  the  subsequent  holding  forcible  and  tortious,  then  the 
offense  is  an  unlawful  detainer  only.  By  our  o'\\ti  statute  it  is  de- 
clared: '*That  if  any  jierson  shall  enter  upon  or  into  any  lands, 
etc..  and  detain  or  hold  the  same  with  force  or  strong  hand  or  with 
weapons,  etc..  or  by  entering  peaceably  and  then  turning,  by  force 
or  frightening  by  threats  or  other  circuinstances  of  terror,  the 
party  out  of  possession,  in  such  case  every  pereon  so  offending  shall 
be  guilty  of  a  forcible  entry  and  detainer,  within  the  meaning  of 
this  act. "  It  is  here  to  be  remarked  that  in  the  commencement  of 
this  section  the  character  of  the  entry  is  not  at  all  described,  but 
the  offen.se  is  designated  by  the  subsequent  conduct,  and  by  the 
latter  clause  of  the  section  the  entry  may  be  peaceable.  But  in 
both  cases  the  entry  must  be  unlawful :  and  though  not  peaceable 
and  not  exhibiting  absolute  or  direct  force,  yet  the  subse(iueiit  con- 
duct gives  character  to  that  entry  and  makes  it  forcible.  It  is  a 
verj'  common  principle  that  in  many  ordinary  actions  of  trespass 
the  coming  into  the  possessions  of  another  was  quiet  and  not  tor- 
tious, considered  in  itself.  Yet  the  acts  committed  after  the  com- 
ing in,  being  unlawful,  had  relation  back  to  the  first  entry  and 
made  that  a  trespass,  which  would  well  sustain  the  suit.  So  here 
it  is  not  the  absolute  force,  but  the  unlawfulness  of  the  entiy. 
which  constitutes  the  offense  under  this  section.  Dalt.  c.  126; 
1  Hawk.  145;  Co.  Litt.  257.  The  words  "entering  peaceably"  and 
"turing  the  party  out  of  posses.sion"  confirm  strongly  the  idea  that 
the  character  of  the  forcible  entry  is  derived,  not  from  the  manner 
of  the  first  entry,  but  the  subsequent  conduct  of  the  party. 

But  there  ai'e  cases  where  the  entry  is  not  only  peaceable  but 
lawful,  where  the  party  had  legal  right  to  enter  and  yet  the  deten- 
tion is  of  the  same  tortious  and  forcible  character  Avhich  consti- 
tutes the  offense  under  the  second  section.  A  detainer  may  be 
forcible  wlu'ther  the  entry  were  forcible  or  not.  Hawk.  c.  64. 
Hence,  in  tile  third  section  of  our  act  we  are  told,  "that  no  peiNon 
who  shall  lawfully  or  peaceably  enter  upon  or  into  any  lands,  etc., 
shall  liold  or  kccj)  the  same  unlawfully  and  with  force,  etc.,  an<l  it 
is  hereby  declared  tliat  whatever  words  or  circumstances,  conduct 
or  action,  will  make  an  entry  forcibh^  undei'  this  act  shall  also  make 
a  detainer  forcible."  It  is  manifest  that  the  two  offenses  are  here 
considej-ed  and  described  as  distinct  and  separate,  and  the  latter  is 
distinguished  IVmim  lln-  ronner  l)y  llie  l;nv fulness  of  llie  eiilry  upon 
the  lands,  ele. 

This  distinct  ion  between  llie  Iwo  offenses  exists  not  only  in  the 
words  of  the  statute  and  the  lauguagi'  of  the  elementai-y  books  but 
in  the  acts  and  decisions  of  the  courts.  In  forcible  oitiy  and  de- 
tainer the  jury  are  to  firxl  all  or  none,  and  not  the  detainer  withoiit 


CONCKlJMNi,     ULAL     1>  I'A  TK.  \('ll. 


O. 


the  forcible  entry.  1  Veiiti'.  !'."».  At  coiMnioii  law  iliero  might  be  an 
uidietim'iit  for  a  foreibli-  ciitix .  but  it  imist.  on  the  face  of  it,  sliow 
sulheieut  force.  ',]  Hurr.  1702.  1732:  S  Term  Rep.  357.  An  indict- 
ment for  a  forcible  iJclaiiur  oiilii  ouirlit  to  sliow  that  the  cnlry  was 
pca<'cablc.    Cro.  Jae.  l')l. 

If,  then,  these  be  distinct  otVenses.  a  man  jruilty  of  one  cannot  be 
eonvieteil  of  the  otliei-  without  a  vi()latioii  of  correct  lefjal  proceed- 
ing. Tile  comjilaint  ought  to  show  of  which  the  defendant  is  ac- 
cused, and  tlie  verdict  of  the  jury  ought  to  correspond  with  the 
complaint. 

In  the  instances  now  nnder  consideration  the  defendant,  if 
guilty,  was  only  so  of  a  forcible  detainer.  He  entered  peaceably 
and  lairfnUii  into  the  pos.session  of  the  premises,  by  express  agree- 
ment of  the  plaintiff,  by  written  lease.  He  could  not  be' guilty  of  a 
forcible  ( )ifrii,  yet  he  has  been  convicted  of  one.  He  was  guilty,  if 
guilty  at  all.  of  a  forcible  detainer,  yet  he  has  been  convicted  of  a 
different  offense.  In  this  I  think  there  was  such  error  as  to  re- 
quire a  reversal.     .     .     . 

See  "Forcible  Entry  and  Detainer,"  Century  Dig.  §§  5-23;  Decennial 
and  Am.  Dig.  Key  No.  Series  §§  4,  5. 


BARON  SNIGGE  v.  SHIRTON,  Cro.  Jac.  199.     1610. 
Forcible  Betainer  by  Tenant  by  Sufferance. 

This  was  a  proceeding  in  the  Star  Chamber.  Shirton  being  ten- 
ant for  years.  Baron  Snigge  purchased  the  reversion,  and  he  paid 
to  him  rent  for  fifteen  years.  Before  the  end  of  the  term,  one 
Chambers  came  to  Shirton.  and  persuaded  him  that  Alexander 
Staples  had  title  to  the  land,  and  advised  him  to  take  a  lease  from 
him:  whereupon  he  fShii'ton]  took  a  lease  of  him  for  ten  years, 
rendering  seventy  pounds  per  annum,  and  the  land  was  worth  one 
hundred  and  forty  pounds  per  annum;  and  [Staples]  willed  him 
to  hold  the  possession  against  all  persons:  and  he  [Shirton]  at  the 
end  of  his  first  term,  kept  the  possession  with  drum,  guns,  and  hal- 
bert.s,  etc.  (The  drum  was  only  to  give  notice  if  any  came  to  enter, 
but  nobody  offered  to  enter.)  He  [Shirton]  was  censured  for  this, 
being  a  riot  and  forcible  detainer,  although  none  other  offered  to 
enter. 

For  it  w^as  held,  that  the  possession  of  the  termor  was  the  posses- 
sion of  the  lessor;  and  when  at  the  enel  of  ike  term,  he  kept  it 
against  him  to  whom  he  had  so  long  paid  his  rent,  it  was  a  fenxihle 
detainment.  And  wherea.s  the  statute  31  Eliz.  c.  11,  is.  that  where 
one  hath  had  possession  for  three  years  quietly,  he  might  hold  the 
passession  with  force,  that  is  to  be  intended  where  the  estate  is 
continued. 

And  for  this  offense  Shirton  was  fined  five  hundred  pounds;  and 
Chambers,  for  counselling  and  stirring  up  that  title,  was  fined 
three  hundred  pounds;  and  all  the  sers^ants  in  the  house,  which 


Sec.   10.]  CONCERNING   REAL   ESTATE,  213 

kept  it  with  weapons,  were  fined  ten  pounds  apiece.  But  Alexan- 
der Staples  was  not  censured ;  for  he  made  the  lease  only,  but  did 
not  command  him  to  keep  the  possession  with  force. 

It  is  fortunate  that  Shiiton  did  not  also  use  a  ugab  and  a  boomerang 
on  this  occasion.  If  he  had,  he  would  probably  have  found  himself  to 
be  "Shirtoff"  at  the  cart's  tail  before  the  Star  Chamber  got  through  with 
him. 


BARTON  V.  OSBORX,  6  Blackford,  145.     1842. 
What  Constitutes  a  Forcible  Detainer.     Tenant  by  Sufferance. 

[Proceedings  by  Osborn  against  Barton  for  a  Forcible  Detainer.  Judg- 
ment against  defendant.  Barton,  for  costs.  Barton  carried  the  case  to 
the  supreme  court  by  writ  of  error.     Reversed. 

The  complaint  alleged  that  Osborn  purchased  of  Barton  a  certain  parcel 
of  land — describing  it — and  that  Barton  was  to  give  possession  thereof 
to  Osborn  on  December  2.5;  but  that  "Barton  held  and  still  holds  the  pos- 
session by  force  and  strong  hand,  wrongfully  and  unjustly."  Barton 
moved  to  dismiss  the  proceedings  on  the  ground  that  the  complaint  was 
not  suflBcient.  ^Motion  overruled  and  judgment  entered  against  Barton. 
The  judgment  was  for  costs  only,  because  Barton  vacated  the  premises 
while  the  proceeding  was  pending.  The  evidence,  if  any,  as  to  the  force 
used  by  Barton  in  detaining  the  premises,  is  not  given  in  the  case  as 
reported.] 

Blackford,  J.  .  .  .  The  judgment  of  the  circuit  court  for 
tlie  plaintiff,  on  the  merits,  is  evidently  wrong,  as  there  is  not  the 
slightest  proof  that  the  least  force  to  detain  the  premises  had  ever 
boon  used  by  tbe  defendant.  The  suit  could  not  bo  sustained  with- 
out proof  that  the  detainer  was  not  only  unlawful  but  tliat  it  wa.s 
by  force  and  violence.    Boxley  v.  Collins,  4  Black.  320. 

We  think,  however,  that  the  motion  to  dismiss  the  suit  on  ac- 
count "of  the  insufficiency  of  the  complaint,  was  rightly  overruled. 
The  complaint  shows  that  the  plaintiff  bought  the  land  of  the  de- 
fendant ;  that  the  latter,  by  agreement  with  the  plaintiff,  continued 
in  possession  until  a  certain  day,  and  held  over  after  that  day  by 
force  and  strong  hand.  The  defendant,  under  these  cii-cumstances, 
stood  in  the  situation  of  a  tenant  for  years,  forcibly  holding  posses- 
sion after  the  expiration  of  his  term.  And  it  is  decided  that  if  a 
tenant  for  years,  after  his  term  is  expired,  hold  by  force  against 
the  les.sor.  it  is  a  forcible  detainment,  the  possession  of  the  termor 
being  that  of  the  les.sor.  Snigge  v.  Shirton,  Cro.  Jac.  190.  It  was 
also  held  that  a  mortgagor,  after  forfeiture  of  the  mortgage,  may 
be  guiltv  of  a  forcible  detainer  bv  maiTitaining  possession  by  force. 
3  riiit.  r'rim.  Law.  1121  ;  2  Thit!  Con.  Prn.  238.  These  are  strong 
authorities  in  favor  of  the  validity  of  the  complaint  filed  in  this 
cause.  Tt  ?nay  be  remarked,  too.  that  the  English  law  requires  the 
defenrhiiit  's  entry  to  be  considered  as  unlawful.  The  King  v.  Oak- 
ley. 4  Barn.  &  .Adol.  307:  which  is  not  the  case  under  niir  statute. 
Rev.  Stat.  1S38,  p.  307.     Judgment  revei-sed. 

For  further  disruaslon  of  Forcible  Entry  and  Detainrr.  see  Wilson  v. 
Campbell.  88  Par.  .'548.  8  L.  R.  A.  fN.  S.)  42fi;  Whitney  v.  Brown.  00  Pac. 
277.   11    T.    R.    A.    fX.  F?)    408:    TTowe   v.   Frith.  OH   Par.   f.n3.   17   T..   R.   A. 


•_']  I  CONCERNINC    UI'.Al.    1  STATE.  [Cll.    3. 

(N.  S.)  G72.  aiul  nolo;  ;]  Wail's  Act.  &  IWi.  uH.");  i;5  Am.  &  lOng.  Enr.  L. 
744.  T4r>;  19  Cyc.  1112  et  seq.;  Mosoller  v.  Deaver,  KiG  X.  V.  4!)4  (inserted 
at  oh.  2,  s.  3.  ante).  11  S.  K.  :>2\K  8  I..  R.  A.  r.:i7.  and  nolo;  IVll's  llevisal, 
sees.  :Ui70.  ;UiSr>.  ;U)SS.  see  •Fonihle  Kntry  and  Detainer."  Century  Dig. 
§§  23.  21;   Deeennial  and  Am.  Dig.  Key  No.  Series,  §  5. 


Sec.  11.    Nuisance. 

POWELL  V.  B.  &  G.  FURNITURE  CO.,  34  W.  Va.  804,  12  L.  R.  A.  53,  12 

S.  E.  10S5.     1891. 

y'uisance  Defined.    Public  and  Prii'atc.    Remrdies  at  Law  and  in  Equity. 

[Suit  in  equity  to  enjoin  an  alleged  nuisance.  Decree  against  defend- 
ant, and  he  appealed.     Reversed. 

Bill  in  equity  hy  i)]aintiff  to  perpetually  enjoin  the  defendant  from 
the  use  of  a  furniture  factory  as  a  nuisance  to  the  plaintiff  in  the  enjoy- 
ment of  his  dwelling.  Demurrer.  Demurrer  overruled.  Answer.  Reply. 
Decree,  on  Aug.  12,  1890,  i)eri)etually  enjoining  the  use  of  the  factory, 
engines,  etc.,  in  such  manner  as  to  !)roduce  loud,  disagreeable,  etc.,  noises 
that  would  interfere  with  the  ordinary  use,  physical  comfort,  etc.,  of  the 
plaintiff,  his  family,  and  other  occupants  of  his  house,  lot  and  premises. 

The  bill  was  filed  in  1888.  In  1889  the  plaintiff  sued  the  defendant  in 
trespass  on  the  case  for  damages  claimed  by  reason  of  the  same  nuisance 
sought  to  be  enjoined  by  the  bill  in  equity,  which  action  at  law  was  still 
pending  when  the  decree  in  the  equity  case  was  rendered.] 

Holt,  J.  .  .  .  History  of  comnion-laAv  nuisance:  The  com- 
mon-law doctrine  of  nuisance  is  as  old  as  the  common  law  itself. 
Our  oldest  law-writers  treat  of  the  sub.iect.  See  citations  from 
Glanvill  and  Bracton  in  Bigelow.  Lead.  Gas.  Torts,  462. 

Its  foundation :  It  is  founded  on  what  we  call  the  absolute 
I'ights  of  liberty  and  property.  Each  man  has  the  ri»ht  to  that 
which  he  has  made  his  own,  and  without  control  or  diminution, 
save  by  the  laws  of  the  land.  If  each  has  it.  all  have  it ;  so  that  it 
follows  from  this  that  each  one  must  so  use  his  property  and  rights 
as  not  to  injure  those  of  others.  Each  has  his  right  for  himself, 
and  owes  a  corresponding  duty  to  the  other. 

Definition  :  Some  difinitions  are  too  broad  to  be  useful ;  some 
too  narrow  to  be  true.  The  violation  of  this  duty  is  the  best  gen- 
eral description  of  a  nuisance. 

Common  nuisance :  A  common  nuisance  affects  the  people  at 
large,  and  is  an  offense  againts  the  state,  but  an  action  may  be 
brought  in  his  own  name  by  any  one  who  suffers  damage  peculiar 
in  kind  or  degree  beyond  what  is  common  to  him  and  to  others. 

Private  nuisance :  A  private  nuisance  affects  one  or  more  as  pri- 
vate citizens,  and  not  as  a  part  of  the  public,  and  is  ground  for  a 
civil  suit  only. 

Subject-matter:  Generally  it  affects  the  use  or  enjoyment  of  real 
property,  and,  as  we  see  by  the  old  definitions,  was  confined  to 
this;  but  modern  law  takes  a  wider  range.  It  is  closely  related  to 
the  law  of  servitudes. 

The    old    common-law    remdies   bv    action.     These    were    two: 


Sec.    11.]  CONCERNING    REAL    ESTATE.  215 

(1)  Quod  permitfat  prostenicrc.  This  \va>s  in  the  nature  of  a  writ 
of  right,  and  therefore  subject  to  great  delays.  It  commanded  the 
defendant  to  permit  the  phiintift'  to  abate  the  nuisance,  or  show 
cause  against  the  same ;  and  plaintiff  could  have  judgment  to  abate 
the  nuisance,  and  for  damages  against  the  defendant.  (2)  An  as- 
size of  nuisance,  in  whieh  the  sheritf  was  commanded  to  summon  a 
jurj"  to  view  the  premises,  and.  if  they  found  for  the  plaintiff,  he 
had  judgment  to  have  the  nuisance  abated,  and  for  damages.  It 
is  to  be  noticed  that  the  jury  were  to  view  the  premises.  Both  had 
long  been  out  of  use  in  Blackst one's  day;  with  us  they  were  never 
in  u-se,  as  far  as  I  know.  The  assize  of  nuisance  lay  only  against 
the  wrongdoer  himself,  but  not  against  the  alienee  of  the  tenement 
wherein  the  nuisance  was  situated.  This  was  the  immediate  reason 
for  making  that  equitable  provision  in  St.  Westm.  2.  13  Edw.  I. 
c.  24.  Thi^s  was  in  the  year  1285  (3  Bl.  Comm.  pp.  216,  222),  and 
has  been  the  occasion  of  our  modern  changes  in  common-law  plead- 
ing. TVe  see  that  in  the  assize  of  nuisance  the  jurs^  were  to  view 
the  premises;  this  may  be  done  now  in  the  case  at  law.  at  the  re- 
quest of  either  party.    Section  30.  c.  116.  p.  760.  Code  AY.  Va. 

Modem  remedies.  The  right  to  abate :  This  is  treated  of  by 
Bracton.  who  wrote  628  j'ears  ago.  and  the  remedy  survives  to  the 
present  time;  but  a  party  shoiUd  not  be  advised  to  take  the  law 
into  his  own  hands  except  in  a  case  of  great  urgency,  for  he  does  so 
at  his  own  risk,  and  a  great  hazard,  should  he  be  in  the  wrong,  or 
go  too  far. 

Things  to  be  considered  in  determining  what  is  a  nuisance : 
Even-  man,  as  we  have  seen,  has  the  exclusive  dominion  and  the 
j'ight  to  the  full  and  exclusive  enjoyment  of  his  own  property,  to  do 
with  it  as  he  pleases.  His  neighbor  has  the  same  right  over  his  own 
property.  Hence  it  follows,  as  the  duty  of  each  to  so  use  his  oa^ti 
as  not  to  injure  that  of  the  other,  each  one's  duty  qualifies  his  own 
right,  and  creates  a  corresponding  right  in  the  other. 

Harm  without  legal  injury :  But  this  duty  nuist  be  taken  with 
qualifications,  for.  in  the  nature  of  things  and  of  society,  it  is  not 
reasonable  that  everv  annoyance  should  constitute  an  injury  such 
as  the  law  will  remedy  or  prevent.  One  may  therefore  make  a 
rea.sonable  use  of  liis  right,  though  it  may  create  some  annoyance 
or  inconvenience  to  his  neighbdr.  But.  even  in  such  case,  an  an- 
noyance lawful  in  itself  may  become  unlawful  when  done  mali- 
ciously. 

I'seful  or  necessary  trades:  So.  also,  public  policy  and  general 
convenience  require  that  on  this  head  something  more  shall  be  con- 
ceded to  useful  and  beneficial  work  than  to  useless  and  idl^  ajnuse- 
ments.  but  where  this  line  of  difference  is  to  be  drawn  can  only  be 
•  letermined  by  the  facts  of  each  particular  case. 

Homes  and  factories:  According  to  our  settled  notions  and  hab- 
its, there  are  convenient  places. — one  for  the  lioine.  one  for  the 
factory;  luil.  as  often  happens,  the  two  must  be  so  near  each 
other  as  to  can.se  some  inconvenience.  The  law  cannot  take  notice 
of  such  inconvenience,  if  slight  or  reasonable,  all  things  con- 
sidered,  but   a|)itlies  the  common-sense  doctriin'  that    the   parties 


L'lti  COXCERXIXG    KKAl,    ESTATE.  [67/ . 


o. 


jiiiist  give  and  take,  live  and  let  live;  for  here  extreme  rights  are 
uot  enforeeable  rights, — at  any  rate,  not  by  injnnetiou.  See  Bish. 
Nou-Cont.  \ji\\\,  §  418.  and  eases  cited. 

Convenient  plaee:  lUit  the  term  "eonvenient  place"  does  not 
mean  the  one  best  i'or  the  proiit  and  convenience  of  the  owner  of 
the  otTensive  factory,  but  the  one  where  it  shall  cause  no  action- 
able injury  to  others.  One  nuisance  does  not  justify  another; 
still  it  may  be  taken  as  one  of  the  surrounding  circumstances  to 
be  considered  in  determining  whether  or  uot  the  other  be  a 
nuisance. 

Idiosyncracies  of  the  person  annoyed :  In  fixing  the  standard 
by  which  to  measure  what  shall  be  deemed  a  nuisance  in  the  given 
case,  the  nature  of  the  man  oll'ended,  as  well  as  the  nature  of  the 
thing  offending,  must  be  considered.  Daniel  Boone,  Kentucky's 
famous  pioneer,  represented  the  county  of  Kanawha  in  the  Vir- 
ginia legislature  about  100  years  ago,  and  soon  after  left  the 
county,  in  part,  it  is  said,  because  the  throng  of  incomers  had  be- 
come annoying.  Some  families,  it  is  said,  think  of  re-establishing 
their  old  homes  on  lower  Broadway.  Leaving  these  matters  for 
local  history,  past  and  to  come,  to  look  after,  we  know  that  our 
people,  in  a  steadily  increasing  ratio,  are  crowding  into  the  cen- 
ters of  population,  seeking  the  conveniences,  comforts,  and  ameni- 
ties of  town  life,  notwithstanding  its  noise  and  bustle  and  other 
annoyances.  For  such  standard  it  will  not  do  to  take  the  man 
who,  by  reason  of  his  sensitive  nature,  inborn  or  acquired,  or  by 
reason  of  his  habits  or  mode  of  living,  is  supersensitive  to  the 
annoyance  complained  of;  nor,  on  the  othei-  hand,  are  we  to  take 
one  who.  by  nature  or  habit,  is  abnormally  insensible  to  such 
things.  The  idiosyncracies  or  peculiar  habits  or  modes  of  living 
of  neither  class  furnish  the  proper  test ;  and  this,  not  because  the 
oversensitive  man  or  man  in  ill  health  has  less  right,  but  because 
it  is  impossible  in  practice  for  the  law  to  extend  to  him  exceptional 
immunity  or  protection.  Therefore  we  must  take  as  our  standard 
the  normal  man ;  the  one  of  ordinary  sensibility ;  of  ordinary 
habits  of  living;  the  plain,  well-to-do  people,  who  make  up  the 
great  mass  of  our  busy  world.  If  this  should  lead  to  hardship  in 
particular  eases,  such  as  sickness,  practical  convenience  makes  it 
impossible  to  have  any  other  criterion.  In  such  cases  we  must 
appeal  to  the  humanity  and  good-will  of  our  neighbor,  rather 
than  to  any  suppo.sed  enforceable  right  of  our  own. 

So  far  the  subject  has  been  discussed  on  grounds  common  to  a 
suit  at  law  for  damages,  and  a  suit  in  equity  to  forbid,  abate  or 
restrain.  But  these  remedies  differ  not  less  in  the  mode  of  relief 
than  in  effectiveness  and  in  other  important  particulars.  In  the 
suit  at  law  for  damages,  if  the  case  is  made  out.  damages,  accord- 
ing to  the  injury  proven,  are  awarded  as  matter  of  right,  and 
not  of  discretion.  But  often  this  is  only  a  half-way  remedy,  lead- 
ing sometimes  to  endless  litigation  and  to  irreparable  mischief. 
So  that  the  remedy  by  injunction  is  sometimes  the  only  one  at 
all  effective  or  complete,  forbidding,  preventing,  stopping,  abat- 
ing the  nuisance,  exercising  such  restraint,  and  no  more,  as  the 


HeC.   11.]  COXCERNIJsG   REAL   ESTATE.  217 

exigencies  of  the  particular  ease  demand.  And  now.  since  the 
power  of  man  over  the  elements  and  forces  of  nature  have  be- 
come and  are  becoming  so  great  and  so  far-reaching,  this  remedy 
grows  in  frequency  and  indispensability.  Yet  by  reason  in  part 
of  its  very  completeness  and  effectiveness,  it  is  exercised,  espe- 
cially in  cases  like  this,  with  great  caution,  and  only  after  the 
fact  of  nuisance  has  been  put  bej'ond  all  ground  for  fair  ques- 
tioning. For  although  a  court  of  equity  in  such  cases  follows 
precedent,  and  goes  by  rule,  as  far  as  it  can,  yet  it  follows  its 
own  rules. — and  among  them  is  the  one  that  to  abate  or  restrain 
in  case  of  nuisance  is  not  a  nuitter  of  strict  right,  but  of  orderly 
and  reasonable  discretion,  according  to  the  right  of  the  particular 
case, — and  hence  will  refuse  relief,  and  send  the  party  to  a  court 
of  law.  when  damages  would  be  a  fairer  approximation  to  com- 
mon justice,  because  to  silence  a  useful  and  costly  factory  is 
often  a  matter  of  serious  moment  to  the  state  and  town,  as  well 
as  to  the  owner.  The  matter  here  complained  of  as  a  nuisance 
is  the  noise  of  a  furniture  factory  at  the  corner  of  Sixth  and 
Ann  streets,  causing  personal  annoyance  to  plaintiff  and  his  fam- 
ily at  his  home  opposite,  across  Ann  street,  80  feet  from  the 
factor^',  and  thus  indirectly  impairing  the  value  of  his  property. 
In  such  cases  the  question  is.  in  its  very  nature,  one  of  degree,  and 
the  evidence  by  which  to  determine  it  is  matter  of  opinion,  based 
on  experience  and  observation  of  the  thing  itself.  The  rule  to 
guide  us  in  such  cases  is  that  the  noise  must  be  such  as  materially 
to  interfere  with  and  impair  the  ordinary  comfort  of  existence 
on  the  part  of  ordinary  people.  Snvder  v".  Cabell.  20  "\V.  Va.  48, 
1  S.  E.  Rep.  241 ;  Baltimore  &  P.  R.'  Co.  v.  Fifth  Baptist  Church, 
108  U.  S.  317.  2  Sup.  Ct.  Rep.  710.  See,  also.  Smelting  Co. 
V.  Tipping,  n  H.  L.  Ca.s.  642;  Walter  v.  Selfe.  4  De  Gex  &  S. 
315;  Crump  v.  Lambert.  L.  R.  3  Eq.  400;  Gaunt  v.  Fynney,  L.  R. 
8  Ch.  8;  and  the  recent  cases.  Bohan  v.  Gas-Light  Co.  (N.  Y.), 
25  N.  E.  Rep.  246;  and  on  public  nuisance.  People  v.  Lead- 
Works  r:\rich.).  46  X.  W.  Rep.  735;  Wiley  v.  Elwood  (III),  25 
X.  E.  Rep.  570;  and  notes  in  0  La\\y.  Rep.  Ann..  Jan.  13.  1801. 
p.  711  (Bohan  v.  Gas-Light  Co.)  .  .  .  [The  evidence  covered 
six  hundred  pages,  and  was  veiy  voluminous  and  contradictory. 
The  court  did  not  go  into  the  ex-idence.  but  say  it  was  a  proper 
case  for  tbe  chancellor  to  direct  an  issue  to  be  tried  by  a  jury; 
and  as  there  was  an  action  at  law  already  pending  lietween  the 
parties,  involving  this  very  is.sue  of  nuisance  or  no  nuisance,  the 
court  revr^rsf^rl  the  decree  in  equity  and  remanded  the  cause  to 
abide  the  determination  of  the  issue  in  tlie  aetion  nt  law.] 

Private  niiisanfe  as  affprtod  by  Ipgislative  authority,  1  L.  R.  A.  (K.  S.) 
49,  and  notp;  20  lb.  10.^)0.  and  note.  Spp  "Nuisance,"  Century  Dig:.  §§  56, 
.57;    Dpppnnial  and  Am.  Dig.  Key  No.  Series,  §  23. 


21S  CONCUWNIXt;     KKAl,    I:STATE.  \('h. 


UISTRICT  ATTORNEY  v.  L.  &  U.  l{.  U.  CO.,  U;  Gray,  242.  245.     1860. 
I'uhlif  \itisainc.     Information  hi/  Alhunii/Oeucral. 

I  lut'orination  in  equity,  by  the  distiirt  attorney  on  the  relation  of  the 
olfu-ials  of  tile  town  of  Saiigus,  to  restrain  the  laying  of  a  railrooad  track 
within  tile  limits  of  tlie  town,  Tiie  case  was  reserved  for  the  decision 
of  the  whole  court.    The  information  was  dismissed  without  prejudice. 

Only  that  part  of  the  case  is  inserted  which  relates  to  the  practice  of 
proceeding  against  nuisances  by  information  of  the  attorney-general  or 
other   prosecuting  officer. 

The  information  alleged  that  the  defendant  was  about  to  lay  a  track 
in  the  town,  and  that  the  digging  up  of  the  street,  etc..  in  laying  the 
track,  and  the  track  itself  when  constructed,  would  be  a  public  nuisance.] 

BiGEi.ow.  C.  J.     Tlie  antliorily  of  llic  attorney-general,  or  other 
law  otilieer  einpowei-ed  to  represent  the  goveninient,  to  tile  an  in- 
formation in   e(iuity   to   restrain   and   prevent   a  pnblie  nnisance 
seems  to  be  well  established  in  England.     It  may  be  done  by  him, 
either  ex  officio,  or  iqioii  the  relation  of  persons  who  have  an 
interest  in  the  subject  matter  of  the  bill  and  whose  private  rights 
may  be  protected  by  the  decree  which  is  sought  mainly  on  the 
ground  of  a  public  injury.     1    Dan.   Ch.    i'lac    11  ;   'i  Dan.  Ch. 
Prac.  1858;  2  Story,  Eq.  Jur.  ss.  921,  926;  Kerrison  v.  Sparrow, 
Coop.  305:  Attorney-Gen.  v,  Johnson.  2  Wils.  Ch.  87;  Atty.-Gen. 
v.  Forbes,  2  ]Myl.  &  Cr.  129.  183.     Although  in  some  of  the  earlier 
cases  this  jurisdiction  was  sparingly  exercised,  yet  in  recent  prac- 
tice it  seems  to  have  been  more  frequently  resorted  to  as  affording 
a  convenient  and  speedy  remedy.     Nor  are  we  able  to  see  that 
any  serious  objection  exists  to  this  method  of  reaching  and  re- 
straining a  public  nuisance.    By  it  a  nuisance  which  is  threatened 
or  in  progress  can  be  arrested,  which  cannot  be  done  by  proceed- 
ing's at  law;  an  injunction  is  more  complete  in  its  operation,  be- 
cause it  prevents  future  acts  as  well  as  restrains  present  nuisances; 
and  it  affords  a  more  promjit  and  innnediafe  relief  than  could  be 
obtained  by   other  process.     It  is  therefore  a   salutary  power  if 
exercised  with  discretion  and  confined  within  reasonable  limits. 
Those  limits  are  well  defined.    A  court  of  equity  will  not  interfere 
by  injunction  to  restrain  a  public  nuisance  unless  the  existence  of 
the  nuisance  is  clearly  established  upon  full  and  satisfactory  evi- 
dence.    If  the  proof  is  conflicting  and  the  injury  to  the  public 
uncertain  or  doubtful,  the  court  will  withhold  its  interposition. 
Ripon  v.  Ilobart.  Coop.  tcm]i.  l^rougham.  33:5.  and  3  My].  &   K. 
169;  Attv.-Gen.  v.  Sheffield  Gas  Consumers'  Co..  3  De  Gex.  Macn. 
&  Gord.  639:  2  St(.ry.  E(|.  Jur.  s.  924  a.     .     .     . 

See  "Nuisance,"  Century  Dig.  §  19.^;   Decennial  and  Am.  Dig.  Key  No 
Series  §  82. 


Sif.    11. \  CONCERNING    RE^U.    ESTATE.  219 


ATTORNEY-GENERAL   ex   rel.   CITIZENS   of   RALEIGH   v.    HUNTER, 

16  N.  C.  12.     1826. 

Public  Xuisance.    Bill  in  Equity  by  Attorney-General.    Practice. 

LBill  in  equity  filed  by  the  attorney-general  upon  the  relation  of  sundry 
citizens  of  Raleigh,  for  a  perpetual  injunction  of  an  alleged  public  nui- 
sance.    Injunction  ordered.     Case  tried  in  supreme  court. 

The  bill  charged  that  the  defendant's  milldam  near  the  city  of  Raleigh 
"had  rendered  the  inhabitants  unhealthy,  and  prayed  a  perpetual  injunc- 
tion." The  defendant  denied  that  the  millpond  had  any  pernicious  ef- 
fect upon  the  health  of  the  inhabitants,  and  pleaded  that  he  had  been  in- 
dicted for  maintaining  a  nuisance  because  of  the  millpond  in  question^ 
which  indictment  was  still  pending.] 

Henderson.  J.  AVe  are  satisfied  beyond  a  reasonable  doubt, 
that  the  flowing  back  of  the  water  as  contemplated  by  the  defend- 
ant, according:  to  his  own  admissions,  will  create  a  public  nuisance, 
and  that  of  the  worst  kind,  beinw  one  destructive  to  the  health 
and  comfort  of  tlie  citizens  of  Raleigh.  And  we  are  called  on  to 
send  the  question  of  nuisance  or  no  nuisance  to  a  court  of  law; 
for  what  ?  To  inform  our  consciences  ?  They  are  already  in- 
formed. And  were  a  juiy  to  find  that  it  Avas  not  a  nuisance,  in 
a  case  of  this  kind,  we  should  feel  oui-selves  bound  to  disregard 
their  verdict ;  for  a  jurv  would  require  the  most  satisfactory'  evi- 
dence of  the  fact,  at  least  they  would  require  a  preponderance 
of  evidence,  to  convict:  with  us.  under  all  the  circumstances  of 
the  case,  a  probability  is  sufficient.  In  the  first  i)lace,  the  injury 
is  irreparable,  the  place,  the  seat  of  government,  where  its  officers 
are  compelled  to  reside.  These  things  make  a  difference  between 
this  case  and  that  of  a  conuiion  nuisance.  It  is  true  it  is  a  ques- 
tion of  the  most  delicate  kind,  an  interference  with  private  rights, 
from  which  all  departments  of  government  should  ab.stain,  except 
in  eases  of  necessity.  It  is,  however,  a  sound  political  maxim,  and 
one  sanctioned  by  the  courts  of  justice  of  this  country,  that  indi- 
vidual interests  nuist  yield  to  that  of  the  many;  and  this  is  some- 
thing like  the  interest  of  the  many,  for  every  individual  is,  in 
some  way  or  other,  interested  in  the  welfare  of  the  capital.  We 
refer  to  the  decision  of  licll  v.  iJlount.  11  X.  C.  884.  as  an  author 
ity  to  show  the  jurisdii-tion  of  the  court.  Where  the  right  in- 
fringed is  of  a  doubtful  character,  as  the  right  of  view  over 
another's  ground,  there  a  court  of  equity  will  order  the  right  to 
be  established  at  law.  before  it  will  grant  an  injunction,  in  the 
meantime,  staying  the  dwner  of  the  land  from  closing  up  the 
view;  but  here  the  rights  infringed  upon,  are  of  a  character  not 
in  the  least  doubtful,  the  health  and  comfort  of  the  relators,  and 
(tthers  for  whom  they  ;iet.     Iiijuuetioji  per]ietuated. 

See  19  L.  R.  A.  (N.  S.)  117^,,  21  lb.  826,  2:5  lb.  691.  and  notes.  See 
"Injunction."  Century  Dig.  §§  X2  S.".;  Decennial  and  Am.  Dig.  Key  No. 
Series.  8§  ?.6.  ?,1;  "Nuisance,"  Cent.  Dig.  §  192;  Dec.  and  Am.  Dig.  Key 
No.  Series  §  80. 


220  roxcF.RNixn  T?F,Ar,  kstate.  [Ch.  3. 


IVESOX  V.  MOORE.  1  Salkeld.  ir>.     1700. 
Public   Xiiisaucc.     Private   Injury.      Special   Damage. 

Case,  antl  (.IocIjuimI  ili.it  lie  \\;is  possessed  of  a  colliery,  and  that 
there  was  a  hitrhwny  near,  hy  which  he  used  to  carry  coals,  and 
that  he  had  a  certain  quantity  of  coals  due;  ready  for  sale,  and 
that  defendant  dnir  a  colliery  near  his,  and,  intending  to  draw 
away  his  customers  and  deprive  him  of  the  profit  of  his  colliery, 
stopped  up  the  said  way,  so  as  carts  and  carriages  could  not 
eome  to  his  colliery.  .  .  .  All  the  court  aj^reed,  that  where 
an  action  arises  from  a  public  nuisance,  there  must  be  a  special 
damage,  for  he  that  did  the  nuisance  is  punishable  at  the  suit  of 
the  public;  and  to  allow  all  private  persons  their  actions,  without 
special  damage,  would  create  an  infinite  and  endless  nniltiplicity 
of  suits.  .  .  .  The  court  being  evenly  divided  on  whether  or 
not  the  plaintiff  had  shown  any  special  damage  within  the  legal 
significance  of  that  term,  the  plaintiff  failed  to  recover. 

For  other  cases  of  special  injury,  see  9  L.  R.  A.  (N.  S.)  496,  13  Ibid. 
253.  and  notes  (obstructing  higliway);  19  Ibid.  517,  20  Ibid.  646-769 
(liability  of  a  city  for  permitting  obstructions  in  street);  20  Ibid.  146. 
21  Ibid.  735,  and  notes  (power  of  a  city  to  compel  removal  of  signs  and 
other  obstructions  in  streets);  21  Ibid.  209  (liability  of  counties  for  nui- 
sance); 3  Ibid.  759  (exploding  bombs  in  highway);  12  Ibid.  389  (blast- 
ing on  one's  own  premises);  5  Ibid.  1028  (maintaining  a  pest  hospital, 
etc.);  3  Ibid.  1119  (punitive  damages  in  actions  for  nuisance,  when  al- 
lowed); diverting  or  obstructing  running  water,  6  Ibid.  136,  and  note, 
141  N.  C.  108,  144  X.  C.  04,  448.  See  "Nuisance,"  Century  Dig.  §§  164- 
169;  Decennial  and  Am.  Dig.  Key  No.  Series,  §  72.  See  note  to  Simpson 
v.  Justice,  43  N.  C.  115,  post,  in  this  section. 


MANUFACTURING  CO.  v.  RAILROAD,  117  N.  C.  579,  23  S.  E.  43.     1895. 
Public  ISltiisance.     Private  Injury.     Special  Damage. 

[Action  for  damages  for  obstruction  of  plaintiff's  boat  by  defendant's 
bridge  across  Tar  river.  Verdict  and  judgment  against  defendant.  De- 
fendant appealed.  Affirmed  as  to  all  rulings  except  that  relating  to  the 
proper  measure  of  damages,  as  to  which  a  new  trial  was  ordered.  The 
verdict  and  judgment  were  left  undisturbed  as  to  all  other  issues  except 
that  of  damages. 

Plaintiff  alleged  that  the  defendant  obstructed  the  navigation  of  Tar 
river  by  constructing  a  bridge,  without  a  draw,  across  the  river;  that 
such  obstruction  was  a  nuisance;  that  plaintiff's  boat  was  obstructed  in 
transporting  freight;  that  on  one  occasion  the  boat  was  detained  for  five 
days,  and  at  another  time  for  ten  days — the  boat  being  loaded  with  freight 
on  both  occasions;  and  that  the  owners  were  damaged  to  the  extent  of 
five  hundred  dollars  by  such  delays. 

The  answer  denied  that  plaintiff's  boat  was  licensed  to  navigate  Tar 
river,  and  that  the  bridge  in  question  was  a  nuisance,  etc.  There  was 
evidence  to  the  effect  that  plaintiff's  boat  was  delayed  as  alleged  in  the 
complaint  and  that  plaintiff's  expenses  in  operating  the  boat  were  ten 
dollars  per  day  and  the  estimated  profit  of  operating  the  boat  five  dollars 
per  day.  There  was  also  evidence  of  various  other  losses  suffered  by 
plaintiff  by  reason  of  the  obstruction  and  delays  complained  of. 

Defendant  moved  to  dismiss  the  action  on  the  ground  that  while  the 


Sec.   11.]  CONCERNING   REAL   ESTATE.  221 

complaint  showed  that  the  obstruction  complained  of  \Yas  a  public  nui- 
sance, it  failed  to  allege  that  the  damage  claimed  by  plaintiff  was  special 
and  particular  to  the  plaintiff's  boat.  This  motion  was  denied,  and  de- 
fendant excepted.  There  were  other  errors  assigned,  but  onlj'  so  much 
of  the  opinion  as  relates  to  this  exception  is  here  inserted.] 

Avery.  J.  The  most  interesting  question  presented  by  this  ap- 
peal is  whether  the  phiintiff,  in  any  aspect  of  the  evidence,  has 
shown  such  special  damage  as  would  entitle  him  to  redress  by  civil 
action  for  a  public  nuisance.  The  law  provides  an  adequate 
remedy  for  the  wi-ong  to  the  public,  and  thereby  prevents  a  mul- 
tiplicity of  vexatious  ])rivate  actions.  But.  in  order  to  the  main- 
tenance of  a  civil  action  by  an  individual,  in  addition  to  the 
indictment  by  the  state,  it  is  not  made  incumbent  on  him  to  show 
an  injury  from  which  he  is  the  sole,  or  even  a  peculiar,  sufiferer. 
The  damage  recoverable  in  a  civil  action  founded  upon  the  ob- 
struction of  a  public  highway  must,  however,  be  such  as  is  not 
common  to  every  one  who  actually  does  pass  or  may  travel  over 
the  highway.  It  must  be  unusual  or  extraordinary,  but  not  neces- 
sarily singulai'.  "^liile  the  wrong  nmst  be  special,  as  contradis- 
tinguished from  a  grievance  common  to  the  whole  public,  who 
have  the  right  to  use  the  highway,  it  may  nevertheless  be  the  com- 
mon misfortune  of  a  number,  or  even  a  class  of  persons,  and  give 
to  each  a  right  of  redress.  The  amounts  of  damage  recoverable 
by  them  may  vary  according  to  the  extent  of  the  loss  shown  in  each 
case,  but  every  one  of  them  may  maintain  his  status  in  court  by 
alleging  and  pl■o^^ng  precisely  the  same  sort  of  wrong  caused  by 
the  same  obstniction.  For  instance,  in  the  familiar  case  of  the 
plaintiff  who  was  injured  by  falling  into  a  ditch  dug  by  another 
across  the  public  hiErhway.  referred  to  by  the  elementary  writers 
and  the  courts  to  illustrate  the  principle  upon  which  civil  actions 
are  maintainable  in  such  cases,  it  would  not  have  impaired  the 
right  of  the  first  man  who  suffered  from  falling  into  it  if  a  dozen 
of  his  neighbors  had  tumbled  into  it  afterwards  on  the  same  day, 
and  had  received  more  serious  injury  than  he.  So  in  Downs  v. 
City  of  TTigh  Point.  115  N.  C.  1S2.  20  S.  E.  885.  where  the  mu- 
nicipality created  a  public  nusiance  by  negligence  in  allowing  a 
sewerage  ditcli  to  discharge  its  contents  in  a  place  where  the 
nauseous  smell  annoyed  the  whole  public,  but  gave  to  the  plaintiff 
a  right  of  action  because  of  his  sickness  and  that  of  members  of 
his  family,  due  solely  to  the  disagreeable  odors,  it  would  have 
been  none  tln'  less  competent  for  him  to  claim  1li(>  right  to  show 
special  damage,  or  such  as  was  not  common  to  llie  whole  public, 
because  it  appeared  that  other  families  in  the  vicinity  and  on  all 
sides  of  the  defective  ditch  had  suffered  in  a  similar  way.  and 
claimed  like  redress  in  the  courts.  Piishf)p.  in  his  \voil<  (ui  Xdu- 
contract  T^aw  fsectif»n  424).  by  way  of  illustrating  Die  principle 
we  are  discussing,  says:  "So.  likewise",  it  is  a  nuisance  to  ob- 
struct a  navigable  strejim.  Tliei-crnre.  if  (me  is  by  such  obstruc- 
tion prevented  from  t'uKilling  his  cdntrail.  he  can  maintain  a 
civil  suit  against  the  ohst rueter. '"  Tlir  tiist  aullioi'ity  cited  to 
sustain   tlu-  author's  view  was   Dudlix    \.   Kniiicdy,  (i.'J  Me.  4()5, 


'_*"_'■_'  CONl'KKMNt,     U1:AI.     ISTA'l'K.  \<'li.    o. 

wlu'iv  tlio  t'ai'ts  were  lluil  the  |)l;iintilV.  who  hail  engagod  to 
Ininsport  rocks  ami  gra\el  in  l)oals  oii  the  Konnohoe  river,  wliich 
is  a  navigahle  stream,  was  pri'\ ciileil  from  carrying  out  his  con- 
tract by  a  boom  placed  across  the  river  between  tlie  point  at 
which  the  rock  and  gi-avel  wvw  procuriHl  and  the  point  oil  de- 
li\i'ry.  and  the  court  held  ihat  tlie  defendant  was  liable  in  a  civil 
action  for  special  ilamage.  Though  few  of  them  are  so  directly 
in  point  as  the  ease  just  citi'il,  there  is  no  dearth  of  authorities  in 
which  the  genei-al  pi-incipK'.  as  we  have  formulated  it,  is  so  fully 
sustained  as  to  make  its  api)lication  to  the  case  at  bar  obvious  and 
the  deiluction  inevitable.  CJuesley  v.  Codling,  2  liing.  (9  E.  C. 
L.)  407:  Chichester  v.  I.ithoridge.  Nile's  Jiep.  (C.  P.)  70,  74; 
Hughes  V.  Jleisi'r,  2  Am.  Dec.  45!),  Hinney.  4G3 ;  Rose  v.  JMiles, 
2  M.  &  S.  101  ;  Burroughs  v.  Pixley,  1  Am.  Dec.  56  (1  Root,  362). 

It  is  not  material  whether  this  particular  boat  was  licensed  or 
whether  other  individuals  owned  boats  that  were  engaged  in  navi- 
gating the  river,  if  the  i)laintiti:  suffered  damage  common  to  a 
class  whose  business  required  the  transportation  of  material  for 
manufacturing  purposes  from  a  point  below  the  obstruction  to 
a  i)laut  bleated  ;d)ove  it.  l)ut  not  common  to  the  whole  public, 
liis  right  is  not  imi)aired  by  the  fact  that  the  boat  was  doing 
business  as  a  common  carrier  as  well  as  for  the  manufacturers 
who  owned  it.     .     .     . 

We  conclude,  therefore,  that  there  was  error  in  tlie  instruction 
given  as  to  the  proi)er  measure  of  damages,  while  there  was  no 
error  in  the  other  rulings  complained  of.  and  a  new  trial  will 
be  awarded  only  upon  the  question  of  the  amount  of  damage 
which  the  plaintifif  is  entitled  to  recover.  Tillett  v.  R.  R.  11.")  N. 
C.  662.  20  S.  E.  480.     New  trial  as  to  damages. 

See  'Navigable  Waters,"  Century  Dig.  §  88;    Decennial  and  Am.  Dig. 
Key  No.  Series  §  20. 


McMANUS  V.  RAILROAD  CO.,  150  N.  C.  655,  64  S.  E.  766.     1909. 

Public  or  Mixed  Xiiifsance.     Private  Injury.     Special  Damage.     Liability 
of  Landlord  for  Nuisance  Caused  by  Tenant. 

[Action  for  damages,  etc.,  for  maintaining  a  nuisance.  Upon  the  ver- 
dict a  judgment  was  rendered  against  defendant,  and  he  appealed. 
Judgment  set  aside  and  cause  remanded  for  trial  on  fuller  issues. 

Plaintiff  alleged  that  he  owned  a  dwelling-house  and  other  houses  near 
to  a  rock  quarry  opened  by  defendant,  hut  by  it  demised  to  the  city  of 
Charlotte;  that  the  defendant  unlawfully  permitted  and  tolerated  a  nui- 
sance to  be  kept  by  the  city  of  Charlotte  on  the  demised  premises  by 
dumping  into  the  excavation  caused  by  quarrying,  street  cleanings,  dead 
animals,  etc.,  and  by  permitting  a  great  quantity  of  stagnant  water  to 
accumulate  and  remain  therein;  that  the  odors  emitted  from  the  quarry 
lendered  plaintiff's  adjacent  property  almost  uninhabitable,  caused  sick- 
ness, caused  the  tenants  to  leave,  and  greatly  reduced  the  rental  value 
of  plaintiff's  property,  etc;  that  defendant  unlawfully  and  wrongfully 
maintained,  permitted  and  allowed  such  nuisance  ui)on  its  land,  on  ac- 
count of  which  the  plaintiff  had  suffered,  and  continued  to  suffer,  special 
and  peculiar  damage  to  his  health,  and  to  his  i)roperty  which  adjoined 
the  quarry,  to  the  extent  of  $2,000. 


Sec.    11.]  CONCERNING    REAL    ESTATE.  223 

The  answer  denied  the  material  allegations  of  the  complaint.  The 
following  issues  were  submitted  without  objection  by  either  party,  and 
were  answered  by  the  jury  as  indicated: 

"1.  Did  the  defendant  maintain,  or  permit  to  be  maintained,  on  the 
premises,  a  public  nuisance?    Ans.  Yes. 

"2.  What  special  damages,  if  any,  has  the  plaintiff  suffered  on  account 
of  said  nuisance?    Ans.  Nothing. 

Upon  the  verdict,  judgment  was  rendered  aganst  the  defendant,  order- 
ing it  to  abate  the  nuisance  within  ten  months.     Defendant  excepted.] 


Hoke.  J.  It  is  very  generally  held,  uniformly  so  far  as  we  have 
examined,  both  here  and  elsewhere,  that  in  order  for  a  private 
citizen  to  sustain  an  action,  by  reason  of  a  public  nuisance,  he 
must  establi.sli  some  damage  or  injury  special  and  peculiar  to  him- 
self, and  differing  in  kind  and  degree  from  that  suffered  in  com- 
mon with  the  general  public.  Pedriek  v.  Rv.,  143  X.  C.  485.  53 
S.  E.  877.  10  L.  R.  A.  (N.  S.)  554.  This  limitation  on  a  right 
of  action,  so  expressed  in  many  well-considered  decisions,  must 
be  understood  to  apjily  in  strictness  where  the  wrong  complained 
of  consists  in  the  unlawful  interference  with  some  public  right,  a 
right  held  by  a  plaintiff  in  connnon  with  all  members  of  a  com- 
munity, and  does  not  obtain  when  a  public  nuisance  involves  also 
the  invasion  of  the  private  right  of  tlie  litigant.  In  these  cases 
a  person  who  is  injured  in  some  substantial  right  of  person  or 
property  is  not  deprived  of  his  action  because  the  wrong  done  is 
so  extensive,  and  of  such  a  character  and  placing,  that  it  amounts 
to  an  indictable  offense.  This  apparent  exception  may  perhaps 
be  referred  to  the  more  general  rule,  at  first  stated,  by  considering 
that  any  and  all  persons,  who  come  within  the  sphere  and  in- 
fluence of  a  nuisance  to  an  extent  that  subjects  them  to  an  injury 
of  the  kind  statcnl.  suffer  the  special  or  peculiar  damage  required 
to  the  maintenance  of  an  action  by  the  individual.  ]Mr.  "Wood,  in 
his  work  on  Nuisances,  so  treats  the  question  (AYood  on  Nui- 
sances. 2d  ed.  s.  16),  referring  cases  coming  within  the  exception 
to  the  head  of  mixed  nuisances;  public  "in  that  the.v  produce 
injury  to  many  persons,  or  all  the  public,  and  private  because 
at  the  same  time  they  produce  a  special  and  particular  injury  to 
l)rivat('  rights,  which  subjects  the  wrongdoer  to  indictment  by  the 
public,  and  also  t(»  damag(^s  at  the  suit  of  the  person  injured." 

Till*  distinction  to  which  we  were  adverting  is  very  well  ])rought 
out  in  the  case  of  Wesson  v.  AVashburn.  05  Mass.  05.  00  Am.  Dec. 
181.  in  wiiich  it  was  held:  "Private  .\c1i(tii  for  Nuisance  Gen- 
eral in  its  Oix'i-af  ion. — Ad  ion  will  lie  against  owners  of  a  mill 
for  injurinir  plaint itt"s  dwelling  by  shaking  and  jarring  the  same, 
and  surrounding  it  with  noisome  odoi's  and  vajiors.  although  all 
the  (itlier  residents  (»f  that  locality  have  sulTered  like  injury.  The 
rule  that,  wlieic  the  right  invaded  oi-  impaired  is  a  common  and 
I)ul)lie  OIK',  which  ever.\'  subject  of  the  state  may  use  and  enjoy, 
an  individual  a<-tion  does  not  li<'.  does  not  api)ly  to  cases  wher(> 
the  alleged  wrong  is  done  tn  priviite  prnpcrty.  ur  the  health  of 
individuals  is  injured,  ov  theii-  ennii'ort  disli-oyed.  l)y  the  cai-rying 
on  (»f  (ilTeiisive  tiades.  or  the  iTe;itinn  ot"  noisome  smells  (H*  dis- 
turbing noises.  iKi  matter  Imw  exti-nsixc  or  numerous  uia\'  he  the 


2'J4  CONCKKM.NH    KKAL    ESTATE.  [Ck.    3. 

instances  of  ilisooinfort  or  injury  to  p('i*soiis  or  property  tliereby 
oi'oasionod."  Ami  in  tho  opinion  ('liicf  Justico  Bigei.ow.  speak- 
iiitr  to  this  tpu'stioii,  said:  "^Vlu'n•  ;i  public  ri<>:lit  or  pi-ivilege 
common  to  every  ]>eison  in  the  eommunily  is  interrupted  or  inter- 
fered witli.  a  nuisance  is  created,  by  the  V(>ry  act  of  interruption 
or  interference,  which  subjects  the  i>arty  tliroufjh  Avhose  ag:ency  it 
is  done  to  a  ]uiblic  prosecution,  althouj;h  no  actual  injury  or 
damage  may  be  thereby  caused  to  any  one.  If,  for  example,  a 
public  way  is  obstructed,  the  existence  of  the  obstruction  is  a  nui- 
sance, and  juniisbable  a.s  such,  even  if  no  inconvenience  or  delay 
to  public  travel  actually  takes  place.  It  would  not  be  necessary, 
in  a  prosecution  for  such  a  nuisance,  to  show  that  any  one  had 
been  delayed  or  turned  aside.  The  offense  would  be  complete, 
although  during  the  continuance  of  the  obstruction  no  one  had 
occasion  to  pass  over  the  way.  Tlie  wrong  consists  in  doing  an  act 
inconsistent  with,  and  in  derogation  of,  the  public  or  eonunon 
right.  It  is  in  eases  of  this  character  that  the  law  does  not  permit 
l)rivate  actions  to  be  maintained  on  proof  merely  of  a  disturbance 
in  the  enjoyment  of  the  eonunon  right,  unless  special  damage  is 
also  shown,  distinct  not  only  in  degree,  but  in  kind,  from  that 
which  is  done  to  the  whole  public  by  the  nuisance.  But  there  is 
another  class  of  cases  in  which  the  essence  of  the  wrong  consists 
in  the  invasion  of  private  right,  and  in  which  the  public  offense 
is  committed,  not  merely  by  doing  an  act  which  causes  injury, 
annoyance  and  discomfort  to  one  or  several  persons  who  may 
come  within  the  sphere  of  its  operation  or  influence,  but  by  doing 
it  in  such  place,  and  in  such  manner,  that  the  aggregation  of 
private  injuries  becomes  so  great  and  extensive  as  to  constitute 
a  public  annoyance  and  inconvenience,  and  a  wrong  against  the 
community,  which  may  be  properly  the  subject  of  a  public  prose- 
cution. But  it  has  never  iDeen  held,  so  far  as  we  know\  that  in 
cases  of  this  character  the  injury  to  private  property,  or  to  the 
health  and  comfort  of  individuals,  becomes  merged  in  the  public 
wrong  so  as  to  take  away  from  the  persons  injured  the  right 
Avhich  they  Avould  otherwise  have  to  maintain  actions  to  recover 
damages  which  each  may  have  sustained  in  his  person  or  estate 
from  the  wrongful  act.  .  .  .  The  real  distinction  would  seem 
to  be  this:  That  when  the  wrongfrd  act  is  of  itself  a  disturbance  or 
obstruction  only  to  the  exercise  of  a  common  and  public  right, 
the  sole  remedy  is  by  prosecution,  unless  special  damage  is  caused 
to  individuals.  In  such  case  the  act  of  itself  does  no  wrong  to 
individuals  distinct  from  that  done  to  the  whole  community.  But 
when  the  alleged  nuisance  would  constitute  a  private  wrong  by 
injuring  property  or  health,  or  creating  personal  inconvenience  or 
annoyance,  for  Avhich  an  action  might  be  maintained  in  favor  of 
a  person  injured,  it  is  none  the  less  actionable  because  the  wrong 
is  committed  in  a  manner  and  under  circumstances  which  Avould 
render  the  guilty  party  liable  to  indictment  for  a  common  nui- 
sance." i^ee  :\ranufacturing  Co.  v.  Eailwav,  117  N.  C.  579,  23 
i^.  E.  43. 

The  nuisance  established  by  the  verdict  on  the  first  issue  is  of 


S'tf.    11.]  CONCERNING    REAL   ESTATE.  225 

the  kind  considered  in  the  opinion  just  quoted,  and  would  give  a 
right  of  action  to  any  and  all  persons  who  come  within  its  in- 
fluence and  effect,  to  the  extent  of  suffering  injuiy  to  their  private 
rights,  either  of  person  or  property;  hut  the  plaintiff  is  not  en- 
titled to  the  judgment  given  him  hij  reason  of  the  verdict  on  the 
second  issue,  to  the  effect  that  no  special  damages  have  been  suf- 
fered by  plaintiff  on  account  of  the  nuisance,  and  for  the  lack  of 
any  finding  or  fact  established  in  the  record  showing  that  plaintiff 
ha.s  suffered  either  injury  or  damage  of  any  kind  done  or  threat- 
ened. There  is  evidence  on  the  part  of  plaintiff  tending  to  show 
both,  but  neither  has  been  authoritatively  established,  and  the 
court  is  not  at  liberty  to  infer  or  act  upon  it  till  this  is  done. 

"Where  a  nuisance  has  been  established,  working  harm  to  the 
rights  of  an  individual  citizen,  the  law  of  our  state  is  searching 
and  adequate  to  afford  an  injured  person   ample  redress,  both 
by  remeciial  and  preventive  remedies,  as  will  be  readily  seen  by 
reference  to  numerous  decisions  of  the  court  on  the  subject.     Re- 
visal.  s.  825:  Cherry  v.  Williams.  147  X.  C.  452.  61  S.  E.  267j 
Pedrick  v.  Railwav.  supra;  R<^yburn  v.  Sawyer.  135  N.  C.  328, 
47  S.  E.  761.  65  L."  R.  A.  930.  102  Am.  St.  Rep.  555;  Manufactur- 
ing Co.  V.  Railwav.  supra;  City  of  Raleigh  v.  Hunter.  16  N.  C. 
12:  Tarboro  v.  Blount.  11  N.  C.  384.  15  Am.  Dec.  526;  Railway 
V.  Fifth  Baptist  Church.  108  U.  S.  317.  2  Sup.  Ct.  719.  27  L.  Ed. 
739.    But  in  wrongs  of  the  kind  presented  here,  not  involving  any 
physical  interference  with  the  personal  or  proprietary  rights  of 
another,  a  recovery  cannot  be  had,  even  for  nominal  damages,  by 
simply  showing  that  a  nuisance  has  been  created  or  maintained; 
but  plaintiff  must  go  further,  and  show  that  it  has  injuriously 
affected  him  in  some  substantial  right,  or  there  is  imminent  dan- 
ger that  it  will  do  so.     Where  the  assential  or  issuable  facts  are 
referred  to  a  jury  for  decision,  and  there  are  no  additional  facts 
admitted  in  the  pleadings,  or  otherwise,  and  none  of  the  kind  of 
which  a  court  takes  judicial  notice,  the  judgment  must  follow  as  a 
ccmclusion  of  law  upon  the  verdict.     In  the  case  before  us  the 
defendant  in  its  pleadings  has  denied  that  plaintiff  is  the  owner 
of  any  property  adjacent  to  this  alleged  nui.sance.  or  that  any 
l)roperty  of  his  is  injuriously  affected  thereby,  and.  while  a  pe- 
rusal of  the  evidence  discloses  that  no  debate  was  made  on  that 
point  in  the  trial  below,  the  court,  as  stated,  is  not  at  liberty,  in  a 
case  of  this  kind,  to  act  upon  the  evidence,  but  can  only  award  or 
refuse  relief  npon  facts  established  in  some  authorised  way.  and, 
so  far  as  appears,  there  are  no  facts  so  established   which  show 
that  plaint itV's  property  comes  within  the  influence  and  operation 
of  the  alleged  nuisance,  and  no  damages,  special  or  otherwise,  have 
been  .shown  which  in  any  way  affect  him. 

Xor  do  we  think  that  (b'fendant  is  entitled  to  judgment  on  the 
verdict  as  rendered,  foi-  the  reason  that  the  issues  are  not  fully 
responsive  to  the  pleadings.  ;\s  we  h;ivr  lieretofore  endeavored 
to  show,  the  ntiisajice  alleged  in  the  com|)laint.  and  established 
by  the  verdict  on  the  first  issue,  is  of  a  kind  and  chara<'ter  which 
involves  the  invasion  of  the  rights  of  all  owners,  or  lawful  occu- 
Remedies — ir». 


2l>(;  C0NCKKN1N(5    REAL    KSTATK.  [Cll.    3. 

piuits  ol"  juljaoont  property,  wliose  iiulividiuil  riirlils  ;nv  injuri- 
ously atVoctod;  aiul  a  fii^lit  ol'  at'tion  on  any  one  ol"  tluMii  is  in  no 
way  impaired  because  the  injury  done  him  is  the  same,  or  simihu* 
in  kind,  to  tluit  of  all  otliers  iu  like  circumstanees,  however  nu- 
merous. SuL'h  owner  is  not  required  to  establish  the  existence  of 
damage  or  injiuy  special  and  peculiar  in  reference  to  the  injury 
irenerallv  sutiered  l)v  other  adjacent  owners  wlio  are  similai-ly 
situated.  As  to  them,  therefore,  or  any  one  of  them,  the  second 
issue  imposes  a  greater  burden  than  is  required  to  establish  an  ac- 
tionable wrong  against  the  defendant;  and  in  view  of  the  kind  of 
nuisance  alleged  and  established,  we  are  of  opinion  that  the  ver- 
dict is  not  suftieiently  full  and  responsive  to  entitle  either  plain- 
tilf  or  defendant  to  judgment,  iu  that  it  does  not  determine  all 
the  issuable  facts  embraced  in  the  pleadings,  and  the  cause  should 
be  referred  to  another  jury.  Biyant  v.  Ins.  Co.,  147  N.  C.  181. 
60  S.  E.  983. 

For  the  error  indicated,  the  judgment  in  favor  of  the  plaintiff 
will  be  set  aside,  and  the  cause  remanded  that  a  trial  may  be  had 
on  issues  determinative  of  the  rights  of  the  parties  involved  in  the 
action. 

Brown.  J.,  dissenting:  I  feel  constrained  to  disssnt  from  the 
opinion  of  the  court  because  I  am  convinced  that  upon  the  issues 
as  answered  by  the  jury  the  action  should  be  dismissed.  One 
question  only  is  presented:  Can  the  plaintiff  maintain  this  action 
on  the  complaint,  answer,  and  verdict?  In  his  complaint  the 
plaintiff  alleges,  in  substance,  that  the  defendant  is  maintaining 
a  public  nuisance  in  respect  to  a  large  al)andoned  rock  quarry, 
in  permitting  the  city  of  Charlotte  to  throw  filth  and  refuse  into 
it.  whereby  the  plaintiff  is  damaged.  Why  plaintiff  does  not  sue 
the  cit}'  of  Charlotte  is  not  stated.  I'pon  the  trial  the  issues  were 
submitted  by  consent,  without  exception  or  objection,  as  being 
the  only  issues  raist^I  by  the  pleadings.  .  .  .  [After  quot- 
ing the  issues  and  verdict  thereon  the  opinion  proceeds:]  The 
defendant  moved  for  judgment  dismissing  the  action.  The  coui't 
denied  the  motion,  and  defendant  appeals,  assigning  such  refusal 
as  error.     There  is  no  other  question  presented  upon  this  appeal. 

A  plaintiff'  cannot  have  judgment  abating  a  public  nuisance 
when  the  jury  have  found  that  he  has  suffered  no  special  damage. 
The  remedy  is  by  indictment.  Pedrick  v.  Railroad.  143  N.  C.  496, 
55  S.  E.  877.  Special  damage  is  such  damage  as  is  not  common 
to  the  public.  Pedrick  v.  R.  R.,  supra.  .  .  .  Not  only  do  the 
averments  of  the  complaint  state  facts  which  constitute  a  public 
nuisance,  but  plaintiff'  admits  it  by  consenting  to  the  form  of  the 
first  issue.  That  being  so,  and  the  juiy  having  found  that  plaintiff 
suffered  no  .special  damage,  it  would  seem  that  ordinarily  the 
action  would  be  dismis.sod  without  much  controvensy. 

Although  the  plaintiff  has  not  excepted  or  appealed,  the  court 
orders  a  new  trial  of  the  whole  case  because  the  issues  submitted, 
it  is  said,  are  not  determinative  of  the  issues  raised  by  the  plead- 
ings.    And  this   is  done  ex  mero  motu  by  the  court,   although 


Sec.    11.]  COXCERXING   REAL   ESTATE.  227 

neither  appellant  iior  appellee  asks  for  it.  and  notwithstanding 
that  the  cause  is  before  us  solely  upon  the  motion  of  defendant 
for  judgment  upon  the  issuas  [verdict] .  If  the  defendant  is 
not  entitled  to  it.  then  the  judgment,  it  seems  to  me.  necessarily 
stands  affirmed.  There  are  two  answers  to  the  position  of  the 
court  which  appear  to  me  to  be  conclusive.  The  first  is,  that  the 
form  of  the  issues  was  agreed  upon,  and  if  they  are  not  full 
enough,  or  if  they  are  not  pi-operly  worded,  it  is  plaintiff's  fault. 
lie  should  have  excepted  and  tendered  others.  This  has  been  de- 
cided repeatedly.     Clark's  Code.  s.  395. 

.  .  .  There  are  two  questions  or  issues  raised  by  the  plead- 
ings; one  is  the  nuisance,  and  the  other  is  the  damage,  and  both 
were  submitted  to  the  jury.  The  court  has  not  pointed  out  any 
other  issues  raised  by  the  pleadings  than  those  I  have  named.  But 
the  court  says,  in  effect,  that  the  damages  are  not  to  be  confined 
to  special  damages,  and  that  the  plaintiff'  may  recover  judgment  if 
he  "has  suffered  either  injury  or  damage  of  any  kind  done  or 
threatened."  While  this  proposition.  I  submit,  is  ag^ainst  all  of 
our  own  precedents  (Pedrick's  case,  supra),  yet,  admitting  it,  the 
fact  remains  that  an  issue  in  respect  to  damages  was  submitted, 
and  the  form  of  it  wa.s  approved  by  plaintiff'.  If  it  was  confined 
erroneously  to  special  damages,  it  was  plaintiff's  own  fault,  and 
if  he  does  not  complain,  why  should  this  court  find  fault?  Surely 
two  issues  as  to  damages  should  not  have  been  submitted,  but  if 
an  additional  i.ssue  in  respect  to  some  other  kind  of  damage  was 
proper,  it  was  incumbent  on  plaintiff  to  tender  it. 

It  is  perfectly  evident  that  the  learned  and  astute  lawyers  for 
the  plaintiff  framed  the  damage  issue  in  its  present  form  because 
their  complaint  specifies  with  care  and  particularizes  the  elements 
of  damage,  and  eacli  item  thereof,  and  they  constitute  special 
damages  only  peculiar  to  this  plaintiff  within  every  known  and 
accepted  definition  of  that  term.  Pedrick  v.  Railroad,  supra: 
^Ifg.  Co.  V.  Railroad,  supra.     .     .     . 

Tlie  learned  judge  below  and  the  12  jurors  had  better  oppor- 
tunity to  judge  of  the  value  of  plaintiff' 's  evidence  than  we  have, 
and  if  the  "12"  erred  in  finding  the  second  issue,  the  plaintiff 
seeks  not  to  correct  it  by  excejiling  and  appealing,  and  why 
should  this  court  undertake  to  do  so?  In  no  event,  I  submit,  is 
the  court  justified  in  setting  aside  the  findings  already  made  and 
ordering  a  n<MV  trial.  They  should  be  permitted  to  stand,  as  no 
error  has  been  assigned  hy  cillu'i-  side  aUVcling  them. 
But  in  as  much  as  every  allegation  of  the  pleadings  and  every 
word  of  tlie  evidence  are  directly  pertinent  to  the  issues  sub- 
mitted. I  fail  to  .see  the  ncfcssity  for  any  further  findings.  To 
my  mind  it  is  plain  that  the  jin-y  have  ali-eady  passcMl  upon  the 
entire  ca.se,  and  under  such  circumstances  for  the  court  of  its  own 
motion  to  order  a  new  trial  appears  to  me,  with  entire  deference 
for  Jiiy  Brethren,  to  be  at  variajiee  with  the  lU'aetjcc  of  the  court. 
(The  dissenting  opinion  ejte.s  and  quotes  from  many  authorilies. 
but  only  so  uuich  of  that  opinion  is  hei-e  inserted  as  points  out  the 
nrtnnxh  of  the  dissent.] 


•JJ8 


CONCKKMMi    KKAl-    KSTATK.  [Cll.    3. 


For  injuries  to  the  health  of  an  indivdiial  caused  by  a  pubic  nuisance, 
see  tftorv  v.  llaiuiuond,  4  Ohio.  ;;T(!,  iusortod  at  ih.  5,  sec.  (i.  post.  See 
••Nuisance."  Century  Dig.  §§  103  IGit;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §§71.  72. 


SIMPSON  V.  .irSTlCE.  r.\  X.  C.    11.-..  120.  121.     1851. 
Jurisdiction  and  Practice  in  Equity  in  Cases  of  Private  Nuisance. 

[Bill  for  a  perpetual  injunction  against  the  erection  and  operating  of 
a  turpentine  distillery  near  to  the  plaintiff's  residence.  Answer  filed. 
Case  transferred  to  the  supreme  court  for  hearing.  Decree  dismissing 
the  bill. 

The  bill  was  filed  in  .luly.  1S47,  but  no  motion  was  made  for  an  injunc- 
tion until  live  years  thereafter.  In  the  meantime  the  defendant  had 
built  the  distillery  and  had  been  operating  it  for  several  years. 

The  bill  alleged  that  plaintiff  owned  and  occupied  a  comfortable  resi- 
dence in  Newbern;  that  defendants  were  about  to  erect  a  distillery  so 
near  the  plaintiffs  dwelling  as  to  be  a  nuisance  in  two  ways.— one  by 
leason  of  the  great  danger  from  fire,  the  other  from  smoke  and  soot. 
The  answer  denied  that  the  distillery  would  endanger  plaintiff's  dwell- 
ing or  injure  it.  and  set  out  facts  that  would  tend  to  show  that  plaintiff's 
tears  and  apprehensions  were  groundless.] 

Pe.\rson,  J.  .  .  .  The  bill  is  sworn  to,  but  no  application 
for  an  injunction  was  made,  and  the  defendants  erected  the  dis- 
tillery, and  have  since  been  carrying  on  the  operation. 

The  erection  of  the  distillery  is  complained  of  a.s  a  private  nui- 
sance. There  is  no  allegation  that  it  would  be  injurious  to  the 
iow-Ji.  or  any  considerable  part  of  it.  It  is  true,  the  plaintiff 
alleges,  that  many  of  his  neighbors  will  be  subjected  to  a  like  in- 
convenience; but  they  do  not  join  with  him  in  making  the  com- 
plaint, and  there  is  no  proof  in  regard  to  them.  "We  are,  there- 
fore, to  consider  of  it  in  the  light  of  a  private  nuisance.  As  to 
a  nuisance  of  this  kind,  the  jurisdiction  of  courts  of  equity  to 
interfere  by  injunction,  is  of  recent  origin,  and  is  always  exer- 
cised sparingly  and  with  great  caution ;  because  if.  in  fact,  there 
be  a  nuisance  there  is  an  adequate  remedy  at  law,  by  successive 
actions  on  the  ca.se.  Atty.-Gen.  v.  Nichols.  1  Ves.  338 ;  an  anony- 
mous case  before  Lord  Tih^rlow.  1  Vesey,  Jr.  ]40. 

There  is  an  obvious  difference  between  a  thing  which  is  a  nui- 
sance of  itself,  and  one  which  may  or  may  not  be  a  nuisance, 
according  to  the  manner  in  which  it  is  used.  The  present  case 
comes  under  the  latter  head.  From  the  proof  it  seems,  that  if  the 
fire  is  kept  up  by  burning  "scrapings,"  the  "smoke,  black  and 
soot"  will  be  carried  to  the  lot  of  the  plainiff,  when  the  wind 
is  north  of  east ;  if  pine  wood  be  used,  this  result  may  also  fol- 
low, but  in  a  verj^  slight  degree;  and  if  ash  wood  be  used,  the 
the  plaintiff  will  not  be  at  all  affected,  without  reference  to  the 
wind.  So  the  annoyance  to  the  plaintiff  must  be  looked  upon  as 
contingent.  Tt  depends  on  the  wind,  and  on  the  kind  of  fuel 
which  may  be  iLsed.  In  such  cases,  it  is  settled,  that  this  court 
will  not  interfere  until  the  fact  of  "nuisance"  has  been  estab- 
lishel  bv  an  action  at  law.  Earl  of  Ripon  v.  TTobait,  8  E.  C. 
L.  R.  336. 


Sic.   11.]  CONCERNING   REAL   ESTATE.  229 

Again:  This  bill  was  tiled  July.  1847.  The  plaiiitift'  did  not 
then  move  for  an  injunction  (possibly  because  of  an  unwilling- 
ness to  give  the  bond).  In  the  meantime,  the  defendants  have 
gone  on,  as  they  had  a  right  to  do.  and  erected  the  distillery,  and 
have  kept  it  in  constant  operation  for  near  Hve  years.  It  is  a 
clear  principle  of  equity — so  clear  as  to  strike  every  one  at  the 
first  blush — that,  where  a  party,  instead  of  taking  an  injunction 
in  the  first  instance,  stands  by  and  allows  the  other  to  make  an 
outlay  of  his  money,  in  erecting  buildings  and  other  fixtures ;  if, 
at  the  hearing,  he  prays  for  a  perpetual  injunction,  he  must  do 
so  on  the  ground,  that,  in  the  meantime,  the  fact  of  "nuisance  has 
been  established  bj-  an  action  at  law ;  or  at  all  events  he  must 
support  his  application  by  strong  and  unanswerable  proof  of  nui- 
sance." If  this  principle  needs  any  authority  for  its  support,  it 
will  be  found  in  the  case  last  above  cited.  .  .  .  Bill  dis- 
missed with  costs. 

For  an  excellent  summary  of  the  jurisdiction  and  practice  of  courts 
of  equity  in  cases  of  private  nuisance,  see  the  brief  of  plaintiff's  counsel 
in  the  principal  case. 

The  jurisdiction  in  equity  to  restrain  the  erection  or  continuance  of 
nuisances,  either  public  or  private,  which  are  likely  to  produce  irrepar- 
able injury,  is  well  established.  It  is  equally  well  settled  that  injury  to 
the  health  of  the  inhabitants  of  a  town,  or  to  the  health  of  an  individual 
and  his  family,  is  an  irreparable  injury.  The  court  will  act  with  more 
caution  in  restraining  a  public  enterprise  because  it  may  be  a  nuisance 
to  an  individual  than  where  it  is  a  nuisance  to  the  public.  Clark  v. 
Lawrence,  59  X.  C.  83.  By  reading  the  principal  case  and  the  opinion 
in  State  v.  Suttle,  11.5  X.  C.  784,  20  S.  E.  72.5,  it  will  be  seen  that  it  is 
iinwise  to  act  too  precipitately  or  to  delay  too  long  in  applying  for  an 
injunction  to  prevent  or  abate  a  nuisance;  see  also  on  the  same  subject, 
Burrall  v.  Tel.  Co.,  79  X.  E.  705,  8  L.  R.  A.  (X.  S.)  1091,  and  note.  For 
the  liability  of  a  citj'  for  defective  streets  and  obstructions  therein,  for 
failure  to  prevent  improper  conduct  in,  or  use  of,  its  streets — such  as 
fireworks,  coasting  and  bicycles,  and  dogs,  cows,  and  other  animals  run- 
ning at  large,  etc.  see  19  lb.  507,  20  lb.  513,  21  lb.  614,  23  lb.  636,  and 
elaborate  notes;  the  keeping  of  barking  dogs  may  be  enjoined,  7  lb. 
349,  and  note;  the  storing  of  explosives,  16  lb.  691,  and  note;  blasting, 
6  lb.  570,  and  note;  obstructing  highways  by  gates  etc.,  7  Ibid.  49,  and 
elaborate  note;  obstructing  highways  some  distance  from  plaii. tiff's  land, 
8  lb.  227,  and  note,  compare  21  lb.  75  and  note;  maintaining  a  pest  hos- 
pital, 5  lb.  1028,  and  note;  driving  foul  air  against  windows,  9  lb.  695, 
and  note;  keeping  brothel.s  and  pool  rooms,  11  lb.  1060,  21  lb.  836,  and 
notes;  pollution  of  streams  by  city,  20  lb.  1050,  and  note,  see  also  1  lb. 
at  p.  124,  1  lb.  952;  obstructing  and  diverting  natural  stream,  6  lb.  136, 
141  N.  C.  108,  144  N.  C.  64,  448;  Spite  fence,  151  N.  C.  433.  That  the 
courts  act  with  caution  in  granting  injunctions  to  prevent  or  abate 
alleged  nuisances,  see  Cherry  v.  Williams.  147  X.  C.  452.  61  S.  E.  267; 
Hyatt  V.  Myers,  73  X.  C.  232;  Dorsey  v.  Allen,  85  N.  C.  358;  29  Cyc.  1219 
et  seq.  See  note  to  Tveson  v.  Moore,  ante,  in  this  section.  See  "Nui- 
sance," Centurv  Dig.  §§  49,  58;  Decennial  and  Am.  Dig.  Key  No.  Series, 
58  18,  23. 


230  CONCERN  I  NCi    KKAL    ESTATE.  [Oil.    3. 

ANOXYMOl  S.   1  Vesey.  Jr.   140.     1700. 
Itijunition  lirforv  Aiistccr.     rrclimuiaiii  MamUitotii  I njinxtiou.     Practice. 

[Motion  lor  ;\n  injunction  on  bill  liled  ni)on  tlie  -Ith  of  May.  The 
object  of  the  motion  was  to  oonipol  the  party  to  put  every  thing  in  the 
same  state  in  which  it  was  before,  by  filling  up  a  ditch  he  had  made,  as 
well  as  to  prevent  digging  farther. 

Solicitor  General,  for  the  motion,  said  a  similar  motion  had  been 
granted  in  Lord  Byron's  case,  on  account  of  the  irreparable  mischief  he 
might  have  done.] 

Lord  Chancellor  (Tlmrlow).  I  will  not  order  him  to  fill  up 
this  ditch  hoforo  nnswor.  That  would  he  n  gi'cat  deal  too  much 
to  do.  Here  is  a  transaction  upon  the  15th  of  March,  and  you 
come  on  the  4th  of  May,  and  file  a  hill  for  an  injunction;  and 
probably  have  served  no  process:  the  consequence  is,  the  party 
bears  of  the  injunction  before  he  hears  of  the  bill.  I  do  not  like 
granting  these  injunctions  on  motion.  This  ditch  may  be  a  mile 
long.  Take  an  order  that  he  shall  do  nothing  more  till  answer, 
or  farther  order. 

See  "Nuisance,"  Centurj-  Dig.  §§  72-76;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  31. 


BAILEY    V.    SCHNITZIUS,    45    N.    .7.    Eq.    178,    182-184,    185,    16    Atl. 

680.     1886. 
Preliminary  Mandatory  Injunction.     Practice. 

[Bill  for  an  injunction  to  restrain  defendants  from  filling  up  or  ob- 
structing a  watercourse,  and  to  command  them  to  remove  obstructions 
theretofore  placed  therein  by  them.  Decree  for  injunctions  as  prayed 
for.     Appeal  by  defendants.     Reversed. 

The  decree  was  made  before  the  final  hearing  but  on  bill,  answer,  affi- 
davits, rule  to  show  cause,  and  oral  evidence  taken  before  the  chancellor. 
Bv  the  decree  the  defendants  were  not  only  restrained  from  further  acts 
tending  to  obstruct  the  stream;  but  a  mandatory  injunction  to  remove 
the  obstructions  already  made,  was  ordered.] 

ScuDDER,  J.  .  .  .  Such  is  the  true  position  of  the  case 
that  it  is  here  to  be  examined  on  the  affidavits  taken  in  proceed- 
ings for  a  preliminary  injunction,  and  not  on  appeal  from  a 
final  decree. 

The  gravamen  of  the  defendant's  appeal  is  that,  by  this  course 
of  proceeding,  the  court  has  been  induced  to  grant  a  mandatory 
order  to  remove  alleged  obstructions  which  have  boon  put  up  for 
the  improvomonts  of  his  property,  under  claim  of  right  to  do 
so.  and  with  donial  of  tho  right  of  the  complainant  to  overflow 
his  lands.  This  right  of  overflow  has  never  been  adjudged  at 
law.  nor  according  to  the  established  practice  in  equity,  on  a 
final  hearing.  Tho  practice  of  those  courts  in  ordering  manda- 
tory injunctions  on  a  preliminary  or  intorlooutorv^  motion  was 
thoroughlv  examined  by  rhancollor  Zabriskie  in  Locomotive 
Works  V.  Railroad  Co..  20  X.  J.  Eq.  379,  willi  tlic  conclusion  that 


Sec.    11.]  CONCERNING   REAL    ESTATE.  231 

a  mandatory  injimctiou.  or  one  which  coniinands  the  defendant 
to  do  some  jiositive  act.  will  not  be  ordered,  except  on  final  hear- 
ing, and  then  only  to  execute  the  decree  or  judgment  of  the 
court,  and  never  on  a  preliminary  or  interlocutory  motion,  except 
in  cases  of  obstruction  to  easement  or  rights  of  like  nature,  in 
which  a  strm-ture  erected  and  kept  as  the  means  of  preventing 
such  enjoyment  will  be  ordered  to  be  removed  as  part  of  the 
means  of  restraining  the  defendant  from  intermpting  the  enjoy- 
ment of  the  right.  There  is.  however,  a  qualification  to  be  added 
to  this  statement  of  the  principle  established  in  that  case  which 
has  been  subseiiuently  appi'oved  and  followed  in  our  courts.  It 
is  applicable  to  the  present  case,  and  is  found  in  Durell  v.  Pritch- 
ard,  L.  R.  1  Ch.  App.  244.  which  decides  that  there  is  no  rule 
which  prevents  the  court  from  granting  a  mandatory  injunction, 
where  the  injury  sought  to  be  restrained  has  been  completed  be- 
fore the  filing  of  the  bill,  and  there  is  no  difference  in  this  re- 
spect between  injury  to  easements  and  to  other  rights.  But  the 
court  will  only  grant  such  an  injunction  to  prevent  extreme  or 
very  serious  damage.  That  was  a  case  on  final  hearing  where  the 
complaint  was  made  that  there  was  a  substantial  obstruction  both 
to  the  right  of  way  and  to  the  light  and  air  by  the  erection  of  a 
building  near  to  that  occupied  by  the  complainant.  The  court 
said  that  as  to  none  of  these  groimds  was  there  any  such  extreme 
or  serious  damage  as  to  justify  the  mandatory  injunction  which 
was  asked.  As  to  the  right  of  way,  it  was  not  wholly  stopped, 
and  the  question  was  one  of  comparative  convenience  of  the  right 
of  way  as  it  formerly  existed,  and  as  it  now  exists,  and  that  the 
diminution  of  light  and  air  was  not  such  as  would  warrant  the 
court  in  granting  the  relief  which  was  asked  by  the  removal  of 
the  building.  The  court  doubted  also  whether  the  complainant 
had.  at  the  time  of  filing  his  bill,  any  case  entitling  him  to  relief 
in  equity.  Hart  v.  Leonard.  42  N.  J.  Eq.  416.  7  Atl.  Rep.  865, 
considers  the  cases  wherein  a  substantial  dispute  over  a  private 
legal  right  in  land  is  cognizable  in  a  court  of  equity.  We  have 
decided  this  case  on  other  grounds.  In  Lord's  Ex'rs  v.  Iron  Co., 
38  N.  J.  Eq.  458,  Vice-Chancellor  Van  Fleet  has  stated  what  is 
now  the  settled  law  in  our  courts,  that,  as  this  form  of  injunction 
to  accomplish  its  purpose  must  command  or  coerce  the  defend- 
ants to  do  certain  affirmative  acts,  not  merely  to  remain  inactive 
or  refrain,  it  is  rarely  granted  before  final  hearing,  or  before  the 
parties  have  had  a  full  oppf>rtunity  to  present  all  the  facts  in 
such  mnnner  as  will  enable  the  court  to  see  and  judge  what  the 
truth  may  be.  It  is  always  granted  cautiously,  and  is  strictly 
confined  to  cases  where  the  remedy  at  law  is  plainly  inadequate. 
A  preliminary  mandatoiy  injunction  will  be  ordered  only  in  case 
of  extrome  ner-fssitv.  Railroad  Co.  v.  Rtock-Yai'd  Co..  43  N.  J. 
Eq.  77.  nor,.  10  Atl.'  Jlvp.  602.  12  Atl.  Rop.  374.  and  13  Atl.  Rep. 
615;  Herbert  v.  Railroad  Co..  43  N.  J.  Eq.  21.  10  Atl.  Rep.  872; 
Wliitef>ar  v.  Miflienor.  37  \.  J.  Eq.  14:  Railroad  T'o.  v.  Baker. 
27  \.  J.  En.  166:  1  TliLdi.  Tnj.  ?  2:  2  Story.  Ef|.  Jur.  $  9201.. 

Thf  r'x;iinin;itinn  of  the   fnnts  in  this  casf  do  not  show  that  ex- 


•"•■'■'  CONCERNING    REM.    ESTATE,  \('ll.    3. 


—  •I. 


titMiii"  or  viTv  scriiHis  (l.iiiiaiic  iit  Ifiist.  will  cnsui'  IVom  williliold- 
ing  the  relief  given  l»y  tliis  miuidatory  order;  nor  does  it  elearly 
appear  that  the  eomplainant  is  entitled  to  it.  .  .  .  It  is  a  case 
ot"  ineonvcnit'iu'e.  ratluM-  than  one  of  extreme  neeessity ;  and  the 
relief  songht  by  mandatory  injnuetion,  before  the  facts  are  fully 
lieard  and  settled  on  final  liearing,  is  not  according  to  the  practice 
of  a  court  of  equity.  The  injunction  ord(>r  will  be  reversed. 
I'uauiniously  revereed. 

See    -Waters  and   Water  Courses."  Century  Dig.  §§   130,  260-264;    De- 
ceuuial  and  Am.  Dig.  Key  No.  Series  §  177. 


SHOOTING  CLUB  v.  THOMAS,  120  N.  C.  334,  26  S.  E.  1007.     1897. 
Enforcing  Obedience  to  Mandatory  Injunction. 

[Judgment  committing  defendant  to  prison  until  he  should  comply 
with  a  mandatory  injunction  which  he  had  failed  to  obey.  Defendant 
appealed.    Affirmed.] 

Faircloth,  C.  J.  At  spring  term,  1896,  it  was  ordered  and 
adjudged  that  the  defendant  remove  a  certain  brick  building  from 
Winston  avenue  on  or  before  September  1,  1896.  Failing  to  obey 
said  order,  an  affidavit  was  filed  on  September  8,  1896,  and  notice 
given  to  defendant  to  show  cause  why  he  should  not  be  attached 
for  contempt.  The  return  admitted  noncompliance,  and  the  re- 
spondent averred  by  atifidavit  that  he  was  unable  to  obey  the  order. 
His  honor  heard  proofs  by  affidavit  from  both  parties,  and  found 
( 1  )  that  defendant  had  neglectinl  and  refused  to  remove  said 
building  as  he  was  ordered  to  do;  (2)  that  said  defendant  has 
been  since  said  judgment,  and  still  is,  able  to  comply  with  the 
same,  and  is  in  contempt  of  court.  It  was  thereupon  ordered  that 
the  defendant  be  imprisoned  in  the  county  jail  until  he  complies 
with  the  judgment  rendered  at  sj^ring  term,  1896.  AVe  can  see  no 
reason  why  the  judgment,  committing  the  defendant  to  prison, 
should  not  be  affirmed.  That  part  of  the  order  directing  the 
sheriff  to  remove  the  building  at  plaintiff's  cost  is  not  appealed 
from,  and  we  express  no  opinion  about  it.  Millhiser  v.  RaLsley. 
106  N.  C.  433,  11  S.  E.  314;  Baker  v.  Cordon,  86  N.  C.  116.  Af- 
firmed. 

For  contempt  proceedings,  to  enforce  obedience  to  an  injunction,  see 
Davis  V.  Fibre  Co.,  1.50  N.  C.  84,  63  S.  E.  178.  See  "Injunction."  Centurv 
Dig.  §§  445-483;    Decennial  and  Am.  Dig.  Key  No.  Series,  §  222-227. 


CARRUTHERS  v.  TILLMAN,  2  N.  C.  501.     1797. 
Private  'Nuisance.     Successive  Actions  for  Damages. 

[This  was  an  action  on  the  case  for  a  nuisance  and  overflowing  the 
lands  of  the  plaintiff,  by  erecting  a  milldam;  and  evidence  was  given  of 
overflowing  about  thirty  or  forty  acres  of  low  land,  which  before  the 
erection  was  usually  overflowed  at  high  water.] 


^<gC^    21]  CONCERNING   RE.VL   ESTATE.  233 

Per  Curiam.     Williams  and  Haywood.  Justices.     This  action 
lies  for  any  overflowing  of  the  plaintitf's  laud,  the  maxim  being, 
you  must  so  use  your  own.  as  not  to  prejudice  another's  property ; 
but  the  action  may  be  continued  from  time  to  time,  till  the  de- 
fendant is  compelled  to  abate  the  nuisance;  every  continuance 
thereof  after  a  preceding  action  being  considered_as  a  new  erec- 
tion—the first  action  is  regarded  as  a  trial  of  the  question,  whether 
a  nuisance  or  not — therefore  it  is  not  proper,  in  the  first  instance, 
to  give  exemplary  damages,  but  such  only  as  will  compensate  for 
actual  loss,  as  killing  the  timber  or  overflowing  a  field,  so  as  to 
prevent  a  crop  being  made  upon  it,  and  the  like.    But  where  the 
abating  the  nuisance  will  restore  the  lands  to  the  same  value  and 
use  as  before  the  nuisance,  and  no  real  loss  has  been  as  yet  sus- 
tained, the  damages  should  be  small ;  but  if  after  this  the  nuisance 
should  be  continued,  and  a  new  action  brought,  then  the  damages 
should  be  so  exemplary  as  to  compel  an  abatement  of  the  nuisance. 
There  was  a  verdict  for  the  plaintiff,  and  six-pence  damages. 

See  "Waters  and  Water  Courses,"  Centurj-  Dig.  §  254;    Decennial  and 
Am.  Dig.  Key  No.  Series  §  178 


BRADLEY  v.  AMIS,  3  N.  C  399.     1806. 
Private  Nuisance.    Successive  Actions  for  Damages. 

[This  was  an  action  for  a  nuisance,  by  overflowing  the  plaintiff's  land; 
a  former  action  had  been  brought  and  damages  assessed  at  three  pounds, 
and  a  judgment  given  against  the  defendant. 

Taylor.  J.  If  the  .jury  are  satisfied  that  the  defendant  has 
caused  the  nuisance  as  stated  by  the  plaintiff,  they  should  assess 
damages  for  the  time  elapsed  since  the  commencement  of  the 
former  action  to  the  commencement  of  the  present  one;  but  the 
damages  are  usually  light,  because  the  action  may  be  repeated  for 
ever}'  continuance  of  the  nuisance  after  a  former  action. 

I  cannot  think  the  directions  concerning  the  damages  correct,  be- 
cause if  the  keeping  up  of  the  nuisance  will  afford  more  profit 
to  the  wrongdoer  than  the  small  damages  a.ssessed  by  the  jury, 
he  will  kerp  it  up  forever,  and  thus  one  individual  will  be  enabled 
to  take  from  anoth<'r  his  property  against  his  consent,  and  detain 
it  from  him  as  long  as  he  pleases.  The  damages  ought  not  to  be 
for  what  the  incommoded  ]M-oi)ei-ty  is  worth.  b>it  competent  to  the 
jHirpose  in  view;  that  is.  a  demolition  of  the  erection  that  occasions 
the  nuisan«;e.  SomHiiiics  the  profits  of  such  ereetions  as  merchant 
mills  for  instance,  are  of  mueh  greater  value  in  one  year,  than  the 
fee  simple  of  the  annoyed  property.  Tn  such  cases  the  objeet  of 
the  law  cannot  be  obtained  but  by  damages  e<mivalent  ,to  the 
profits  gained  by  the  erection,  or  by  rlaiiiages  to  .such  an  amount 
as  will  render  those  profits  not  witrth  pursuing. 

See   "Xuisance."   Century   Dig.    §5    100.   118;    Decennial   and    Am.   Dig. 
Key  No.  Series  55  41,  -'lO. 


234  CONCEKiN'lNG    KE.VI^    ESTATE.  [CIl. 


lUDLKV  V.  RAILROAD,  118  M.  C.  W6,  UyT-ltHU,  lUOU,  2-i  S.  E.  730.     1896. 
Privutc  yiiisiDur.     Wlicii   tsuvccssive  Actions  not  Alloiccd. 

[Aotiou  lor  iUunai;os  rosulUng  froni  aii  allcgod  luiisante.  Verdict  and 
judgnu'iit  against  defendant.     Defendant  appealed.    Reversed. 

Tlie  plaint  ill"  sued  lor  alleged  damages  to  liis  crops  and  land  caused 
by  overllow  rosulting  I'roni  the  ponding  of  water  by  the  roadbed  and 
bridge  of  defendant.  The  defendant  tendered  the  following  issues,  which 
the  judge  refused  to  submit  to  the  jury:  "Are  the  bridge  and  embank- 
ment of  defendant  permanent  structures?"  "Is  the  damage  of  plaintiff's 
land  permanent  in  its  character?"  These  issues  aiose  upon  defenses 
duly  set  up  in  the  answer.     Only  part  of  the  opinion  is  here  inserted.) 

Avery.  J.  Ordiiuirily,  ^\•llOl•e  a  trespass  results  in  a  iiuisaiiee, 
not  only  is  the  original  wrong  actionable,  but  siieces-sive  suits  may 
be  brought  for  its  continuance,  in  each  of  which  the  damages,  if 
apportiouable.  can  be  estimated  only  up  to  the  time  when  it  was 
brought,  in  some  of  the  states,  but  in  this  state  up  to  tlie  time  of 
trial.  5  Am.  &  Eng.  Enc.  Law,  17 ;  JMunt  v.  .McCormick,  :i  Denio, 
283;  Bare  v.  llotfman,  7!)  Pa.  St.  71;  Russell  v.  Brown,  63  Me.  203. 
In  ordinary  transactions  between  individuals,  where  the  trespass 
consists  in  the  erection  of  mere  temporary  structures  that  prove 
to  be  nuisances,  the  law  presumes  that  the  tort  fea.sor  will  desist 
from  keeping  it  up  after  being  once  nmlcted  in  damages;  but, 
where  he  persists  in  the  wrong,  permits  continued  actions  to  be 
maintained  against  him.  as  an  inducement  to  its  removal.  Battis- 
hill  V.  Reed,  18  C.  B.  696;  Bare  v.  Iloft'man.  supra;  5  Am.  &  Eng. 
Enc.  Law,  p.  17,  note  1.  Where  the  building  of  a  railroad  is 
authorized  by  law,  and  is  done  with  reasonable  care  and  skill,  it 
is  not  a  nuisance,  and  the  company  is  not  answerable,  after  paying 
the  sum  assessed  or  agreed  upon  by  the  owner  for  taking  the  land 
occupied  for  the  public  use,  in  any  additional  damage  resulting 
from  the  original  construction.  Adams  v.  Railroad  Co.,  110  N. 
C.  325.  14  S.  E.  857 ;  5  Am.  &  Eng.  Enc.  Law.  p.  20.  But  even 
where  the  injury  complained  of.  either  by  the  servient  owner  or  an 
adjacent  proprietor,  is  due  to  the  negligent  construction  of  such 
public  works  as  railways,  which  it  is  the  policy  of  the  law  to  en- 
courage, if  the  injury  is  permanent,  and  affects  the  value  of  the 
estate,  a  recoverv  may  be  had  at  law  of  the  entire  damages  in  one 
action.  Smith  v.  Railroad  Co..  23  AV.  Va.  453;  Town  of  Troy  v. 
Cheshire  R.  Co.,  3  Fost.  (N.  H.)  83;  Railroad  Co.  v.  Maher,  91 
111.  312:  Bizer  v.  Power  Co..  70  Iowa.  146.  30  N.  W.  172;  Fowle 
v.  Railroad  Co..  112  Mass.  334.  338;  Id..  107  Mass.  352;  Railroad 
Co.  v.  Esterle.  13  Bush.  667;  Railroad  Co.  v.  Combs,  10  Bush,  382, 
303;  Stodghill  v.  Railroad  Co..  53  Iowa.  341,  5  N.  W.  495;  Cadle 
v.  Railroad  Co..  44  Iowa.  11.  The  right  to  recover  prospective  as 
well  as  exi.sting  damages  in  an  action  depends  usually  upon  the 
answer  to  the  test  question  whether  the  whole  injury  results  from 
the  original  tortious  act  or  "from  the  Avrongful  continuance  of  the 
state  of  facts  produced  by  those  acts."  Town  of  Troy  v.  Cheshire 
R.  Co..  supra.  In  this  case,  which  has  been  cited  as  authority  by 
text-writers  and  manv  of  the  courts  of  the  .states,  the  action  was 


Sec.    11.]  CONCERNING    REAL    ESTATE.  235 

brought  for  damages  for  the  occupation  of  a  street  aud  town 
bridge  by  a  railway  company,  and  it  was  conceded  that  in  the 
sense  that  the  high^Aay  was  obstructed  the  company  had  created  a 
nuisance.  .  .  .  "Injuries  caused  by  permanent  structures  in- 
fringing upon  the  plaintiff's  rights  in  his  land,  such  as  railroad 
embankments,  culverts,  bridges,  permanent  dams,  and  permanent 
pollutions  of  water,"  says  Gould  in  his  work  on  Waters  (section 
■116),  fall  within  the  class  where  "the  plaintiff  is  required  to  re- 
cover his  entire  damage,  present  and  prospective."  Id.^  §  582; 
Duncan,  v.  Sylvester,  24  Me.  482.  .  .  .  "Where  a  railroad 
company  duly  authorized  by  law  to  construct  a  railway  built  an 
embankment  partly  on  the  bed  of  a  river,  and  thereby  changed 
the  current  of  the  stream  from  its  proper  course,  and  caused  it  to 
wash  away  adjacent  land,  it  was  held  by  the  supreme  court  of 
Massachusetts  in  Fowle  v.  Kailroad  Co.,  107  Mass.  354,  that  a  sec- 
ond action,  brought  to  recover  damage  for  the  wrongful  washing 
away  of  more  of  plaintiff's  laud,  due  to  the  same  diversion  of  the 
water  course,  was  barred  by  the  judgment  in  the  former  action 
instituted  for  the  same  purpose,  though  several  acres  of  land  had 
been  washed  away  after  the  judgment  in  the  first  and  before  the 
bringing  of  the  last  action.  Gray.  J.,  for  the  court,  said:  .  .  . 
"This  case  is  not  like  one  of  illegally  flowing  land  by  means  of  a 
milldam.  when  the  change  is  not  caused  by  the  mere  existence  of 
the  dam  itself,  but  by  the  height  at  which  the  Avater  is  retained  by 
it.  .  .  .  Nor  is  it  the  case  of  an  action  against  a  grantee  who, 
after  notice  to  remove  it,  maintains  a  nuisance  erected  by  his 
grantor."  When  the  same  case  came  up  on  appeal  again  (112 
Mass.  334.  338).  the  court  said:  "As  a  general  rule,  a  new  action 
cannot  be  brought  unless  there  be  a  new  unlawful  act.  and  fresh 
damage.  There  is  an  exception  to  this  rule  in  cases  of  nuisance, 
where  damages  after  action  brought  are  held  to  be  recoverable  be- 
cause every  continuance  of  a  nuisance  is  a  new  injury,  and  not 
merely  a  new  damage.  The  case  at  bar  is  not  to  be  treated  strictly, 
in  this  respect,  as  an  action  for  an  abatable  nuisance.  More  accu- 
rately it  is  an  action  against  the  defendant  for  the  construction  oC 
a  public  work  under  its  charter  in  such  a  manner  as  to  cause  un- 
necessary damage  by  want  of  reasonable  care  and  skill  in  its  con- 
struction. For  such  an  injury  the  remedy  is  at  common  law.  And 
if  it  results  from  a  cause  which  is  either  permanent  in  its  character, 
or  which  is  treated  as  p<M'manent  by  the  parties,  it  is  pro])er  that 
f-ntire  da?nages  should  be  assessed  with  reference  to  past  and  prob- 
able future  injury." 

Upon  a  careful  consideration  of  the  authorities  already  cited  and 
those  that  will  be  added,  and  the  reasons  on  which  they  rest,  we 
deduce  tho  followinL'  prirK-iplcs  as  decisive  of  the  questions  in- 
volved in  this  appeal : 

1.  A  railway  company  that  has  constructed  its  road  under  law- 
ful authority  creates  neither  an  abatable  public  nuisance  nor  a 
continuintr  private  nuisance  by  failing  to  leave  suffieient  space  be- 
tween eriib;inknien1s.  or  by  mejins  of  culverts  for  the  passage  of 
the  water  of  running  streams,  in  case  of  any  rise  in  the  streams 


*28li  CONCERNING    KKAl,    KSTATE,  [Ch.    3. 

that  luifxht  roasoiiably  W  cxpoftt'd ;  aiul  Ihr  iiijui-y  due  to  that 
oauso  may  he  coinptMisatrd  foe  hy  the  assossnu'iit  of  present  and 
prospective  danuiiies  in  a  sinfj;U>  action. 

2.  It  is  the  K^^al  ri<>ht  of  eithtn-  phiintitV  or  (h'fendant  to  elect 
to  liave  iHM'inanent  daiuasjes  assessed  in  sueli  an  action  upon  de- 
mand made  in  the  pleatlinjrs.  and  wlien  eitlicr  makes  tlie  demand 
the  jndiiment  may  l)e  pU'ailed  in  bar  of  any  snhse(inent  action.  The 
del'endant  is  reipiired  to  set  up  this  or  any  other  equity  upon  which 
it  relies,  as  well  as  to  ju'ove  the  averment  on  the  trial.  Hut  where 
a  phiintitT  is  alhiwed.  without  olijection,  to  liave  such  damage  ap- 
portioned, the  judgnunit  is  not  a  bar,  and  either  party  to  a  subse- 
quent suit  involving  the  same  question  may  demand  that  ])oth 
present  and  prospective  damages  be  assessed,  and  upon  proof  of  a 
previous  partial  assessment  the  jury  may  consider  that  fact  in 
diminution  of  the  permanent  damage.     .     .     . 

Having  set  up  in  its  answer  that  the  damage  was  permanent,  and 
excepted  on  the  trial  to  the  refusal  of  the  court  to  submit  an  issue 
involving  that  question,  the  defendant  is  entitled  to  a  new  trial. 


Revisal,  1905,  sec.  825,  provides:  "Injuries  remediable  by  the  old  writ 
of  nuisance  are  subjects  of  action  as  other  injuries;  and  in  sucli  ac- 
tion there  may  be  judgment  for  damages,  or  for  removal  of  the  nuisance, 
or  for  both."  For  abatement  of  nuisance  by  the  act  of  the  individual, 
without  resort  to  the  courts,  see  ch.  1,  sec.  4,  ante.  See  "Nuisance," 
Century  Dig.  §  125;  Decennial  and  Am.  Dig.  Key  No.  Series,  §  50; 
"Waters  and  Water  Courses,"  Century  Dig.  §  238;  Decennial  and  Am. 
Dig.  Key  No.  Series,  §  176. 


Sec.  12.    Trespass  Quare  Clausum  Fregit. 
dougherty  v.  stepp,  18  n.  c.  371.    1835. 

What  Constitutes  a  Trespass.    Entry  Under  Claim  of  Right. 

[Action  of  trespass  quare  clausum  fregit.  Verdict  and  judgment 
against  plaintiff,  and  he  appealed.     Reversed. 

The  proof  offered  to  establish  a  trespass  was,  that  defendant  went  upon 
the  locus  in  quo,  with  a  surveyor  and  chain  carriers,  and  surveyed  a  part 
of  it,  claiming  it  as  his  own.  No  trees  were  marked  or  bushes  cut.  The 
judge  held  that  these  acts  did  not  constitute  a  trespass.] 

RuFFiN,  C.  J.  In  the  opinion  of  the  court,  there  is  error  in  the 
instructions  given  to  the  jury.  The  amount  of  damages  may  de- 
pend on  the  acts  done  on  the  land,  and  the  extent  of  the  injury  to 
it  therefrom :  but  it  is  an  elementary  principle,  that  every  unau- 
thorized, and  therefore  unlawful  entry,  into  the  close  of  another,  is 
a  trespass.  From  eveiy  such  entry  against  the  will  of  the  possessor, 
the  law  infers  some  damage;  if  nothing  more,  the  treading  down 
the  grass  or  the  herbage,  or.  as  here,  the  shrubbery.  Had  the  locus 
in  quo  been  under  cultivation  or  enclosed,  there  would  have  been  no 
doubt  of  the  plaintiff's  right  to  recover.  Now  our  courts  have  for 
a  long  time  past  held,  that  if  there  be  no  adverse  possession,  the 


Sec.    12.]  CONCERNIXG   REAL   ESTATE.  237 

title  makes  the  land  the  owner's  close.  Making  the  survey  and 
marking  trees,  or  making  it  without  marking  them,  differ  only  in 
the  degree,  and  not  in  the  nature  of  the  injury.  It  is  the  entry  that 
constitutes  the  trespass.  There  is  no  statute,  nor  rule  of  reason, 
that  will  make  a  wilful  entry  into  the  land  of  another,  upon  an  un- 
founded claim  of  right,  innocent,  which  one.  who  set  up  no  title  ta 
the  land,  could  not  justify  or  excuse.  On  the  contrary,  the  pre- 
tended ownership  aggravates  the  wrong.  Let  the  judgment  be  re- 
versed, and  a  new  trial  be  granted. 


&' 


See  "'Trespass,"  Century  Dig.  §  15;    Decennial  and  Am.  Dig.  Key  No. 
Series  §  14. 


RASOR  V.  QUALLS,  4  Blackford,  286.     1837. 

What  Constitutes  a  Trespass.    License  from  the  True  Owner.    Matter  of 

Aggravation. 

[Trespass  quare  clausum  fregit.  Verdict  and  judgment  against  plain- 
tiff, and  he  appealed.     Affirmed. 

There  are  two  counts  in  the  declaration.  The  first,  for  breaking  plain- 
tiff's close  and  taking  off  some  of  his  grain.  Defendant  pleaded  specially 
to  this  count  that  the  locus  in  quo  belonged  to  a  third  person  by  whose 
permission  the  defendant  entered  and  did  the  acts  complained  of.  De- 
murrer to  this  plea.  Demurrer  overruled.  Exception.  Only  that  part 
of  the  opinion  that  discusses  this  exception  is  inserted.] 

Blackford.  J.  .  .  .  The  first  cjuestion  submitted  by  the  par- 
ties is — "SVas  the  special  plea  to  the  first  coimt  valid  ? 

That  quf^tion  we  decide  in  the  affirmative.  The  ground  of  action 
contained  in  the  first  count,  is  the  bi-eaking  and  entering  the  plain- 
tiff's close.  The  taking  away  the  grain  mentioned  in  that  count, 
belongs  to  the  description  of  the  trespass,  and  is  only  laid  by  way 
of  aggravation.  Tt  wa.s  not  necessary  that  the  plea  should  notice 
this  matter  of  aggravation,  as  appears  by  the  following  cases:  In 
trespass  for  breaking  and  entering  the  plaintiff's  house,  debauch- 
ing his  daughter  and  getting  her  with  child,  per  quod  servitium 
aniisit.  if  the  defendant  can  justify  the  entei-ing  of  the  house,  he 
defeats  the  action.  Hennett  v.  Aleott.  2  T.  R.  IfiG.  So,  in  trespass 
for  breaking  and  entering  the  plaintiff's  house,  and  expelling  him 
therefrom,  a  justification  of  the  breaking  and  entering  the  house 
is  a  bar  to  the  suit.  Taylor  v.  Cde.  3  T.  H.  202.  It  is  therefore 
settled,  that  all  the  defendant  had  to  show,  in  answer  to  the  first 
count,  was.  that  he  had  a  right  to  enter  on  the  premises;  and  we  are 
next  to  in()uire.  whether  that  riglit  is  shown  by  the  plea.  It  is  de- 
cided, that  a  persf)n  having  the  freehold  }in<l  a  right  to  tli(>  j^osses- 
sion.  may  enter  on  the  elose  even  by  Force,  without  snbjeeting  him- 
self to  ;in  action  of  trespess  bv  the  y^artv  in  pos.session.  Tannton  v. 
Costar.  7  T.  R.  427 ;  Hnfelier  v.  Unteher.  7  Barn.  &  Cres.  399.  And 
any  7)erson.  by  virtue  of  an  aiilhorily  froiri  such  owner,  may  do  the 
same.  There  is.  indeed,  a  decision  in  point  to  show,  that  proof  that 
the  freehold  was  in  a  tliird  f)ersoii.  and  llial  the  (lefendanl  entered 
under  his  authority,  is  a  good  defense  to  ;i  diarge  of  breaking  the 


2o8  CONCKRNINi;    KKAl,    KSTATK.  |('^.    3. 

close.  DiiM-sly  ami  Xt'v.'l's  i-asc.  1  Lcouard's  IJcp.  'W\.  This  case 
in  Leonard  is  cittvl  in  (lilliert's  KvidiMice,  p.  255,  and  is  ai)]iroved 
by  Jnstioe  liawriMU'c  in  Ar^vnt  v.  Dnrrant,  8  T.  II.  405.  Tliese  au- 
thorities prove,  that  the  facts  contained  in  this  special  plea,  are  an 
answer  to  the  charge  in  the  liist  count  of  breakinf?  the  plaintiflf's 
close;  and  they  must  eons(>(|ui'nt ly  be  considered  a  sufficient  answer 
to  that  count.  The  defendant  had  his  choice  to  plead  these  facts 
specially,  or  to  j^ive  them  in  evidence  under  the  general  issue. 
1  Chit.  PI.  538,  541.     .     .     . 

As  to  uulawful  acts  done  on  the  premises  after  entry,  the  entry  being 
lawful,  see  Newell  v.  Whitcher,  US  Am.  Rep.  703,  inserted  at  ch.  5,  sec.  4, 
post,  6  L.  R.  A.  73G.  See  "Trespass,"  Century  Dig.  §§  62,  104;  Decennial 
and  Am.  Dig.  Key  No.  Series,  §§  27,  43. 


BRAME  V.  CLARK,  148  N.  C.  3G4,  62  S.  E.  418.     1908. 
Measure  of  Damages.    Elements  of  Damage. 

[Action  of  trespass.  Judgment  against  defendant,  and  he  appealed. 
Affirmed. 

The  complaint  alleged  that  the  defendant  unlawfully,  forcibly,  mali- 
ciously, and  wickedly  entered  upon  a  parcel  of  land  on  which  plaintiff 
resided:  that  such  entry  was  made  with  the  wicked  intent  to  seduce 
plaintiff's  wife;  and  that  the  defendant  did  then  and  there  attempt  to 
seduce  plaintiff's  wife.  The  defendant  demurred  upon  the  ground  that 
no  special  damage  to  plaintiff  is  alleged;  that  no  actionable  wrong  is  set 
out;  that  only  an  attempt  to  seduce  is  alleged,  which  "is  not  actionable." 
Demurrer  overruled,  and  defendant  allowed  sixty  days  within  which  to 
answer.     Defendant  excepted.] 

Connor,  J.  There  can  l)e  no  doubt  that  the  plaintiflP  has  aHcged 
an  actionable  wrong — a  trespass  upon  his  possession  of  real  estate. 
It  is  elementary  that  "eveiy  unauthorized,  and  therefore  unlawful, 
entry  into  the  close  of  another  is  a  trespass.  From  every  such  en- 
try, against  the  will  of  the  possessor,  the  law  infers  some  damage ;  if 
nothing  more,  the  treading  down  the  grass,  or  the  herbage."  Kuf- 
fin,  C.  J.,  in  Dougherty  v.  Stepp,  18  N.  C.  371.  His  honor's  judg- 
ment was  clearly  correct.  Both  parties,  however,  discussed,  al- 
though from  different  points  of  view,  the  question  of  damages, 
which,  upon  the  admissions  made  by  the  demurrer,  plaintiff  was  en- 
titled to  recover.  The  defendant  argued  the  case  upon  the  theory 
that  two  causes  of  action  are  stated — one  for  trespass  on  realty ;  the 
other  for  injury,  etc.,  inflicted  upon  the  wife.  His  learned  counsel 
strongly  contends  that  the  conduct  of  the  defendant  was  not  an 
actionable  wrong  to  the  plaintiff.  However  this  may  be,  and  with- 
out intimating  any  opinion  upon  it.  we  do  not  so  construe  the  com- 
plaint. The  plaintiff  alleges  a  malicious,  unlawful,  and  forcible 
trespass,  setting  out  that  it  was  made  witli  the  malicious  intent  to 
and  did  in  truth  then  and  there  wilfully,  wickedly,  maliciously, 
etc.,  insult  and  attempt  to  seduce  and  carnally  know  plaintiff's 
wife.  This  matter  is  .stated  as  the  foundation  for  a  claim  of  actual 
and   vindictive  damages;  the  cause  of  action   being  the  trespass. 


Sec.   12.]  CONCERNING   REAL   ESTATE.  239 

"We  are  asked  to  pass  upon  the  question  whether,  in  the  assessment 
of  damages,  these  matters  may  be  considered  by  the  jury  in  aggra- 
vation. 

In  Duncan  v.  Stalcup.  18  N.  C.  440,  Daniel  J.,  says  "In  looking 
into  the  books  we  tind  the  rule  in  this  action  to  be  that  the  .jury  are 
not  restricted  in  their  assessment  of  damages  to  the  amount  of  the 
mere  pecuniary  loss  sustained  by  the  plaintiff,  but  may  award  dam- 
ages in  respect  to  the  malicious  conduct  of  the  defendant,  and  the 
degree  of  insult  with  which  the  trespass  was  committed.  The  plain- 
tiff is  at  libert}^  to  give  in  evidence  the  circumstances  which  accom- 
pany and  give  character  to  the  trespass."  In  this  case  vindictive 
damages  were  awarded.  In  Day  v.  AVoodworth,  54  V .  S.  363.  14  L. 
Ed.  181,  Grier.  J.,  said:  "In  actions  of  ti-espass,  when  the  injury 
lias  been  wanton  and  malicious,  or  gross  and  outrageous,  courts  per- 
mit juries  to  add  to  the  measured  compensation  of  the  plaintiff, 
which  he  would  have  been  entitled  to  recover,  had  the  injury  been 
inflicted  without  design  or  intention,  something  further  by  way  of 
punishment  or  example,  which  has  sometimes  been  called  'smart 
money.'  "  This  was  an  action  quare  clausum  fregit.  In  Mitchell 
v.  Billingsley.  17  Ala.  306,  it  was  shown  that  defendant,  in  the 
commission  of  the  trespass,  used  indecorous  and  insulting  language, 
and  that  one  of  the  defendants  had  a  pistol.  Exemplary  and  puni- 
tive damages  were  awarded.  In  ]\[erest  v.  Harvey.  5  Taunt.  442, 
Heath.  J.,  says:  "I  remember  a  case  where  a  jury  gave  £500  dam- 
ages for  merely  knocking  a  man's  hat  off;  and  the  court  refused  a 
new  trial.  ...  It  goes  to  prevent  the  practice  of  dueling,  if 
juries  are  permitted  to  punish  insult  by  exemplary  damages." 
Gibbs.  C.  J.,  said:  "I  wish  to  know,  in  a  case  whei-e  a  man  disre- 
gards every  principle  which  actuates  the  conduct  of  a  gentleman, 
what  is  to  restrain  him,  except  large  damages.  ...  I  do  not 
know  upon  what  principle  we  can  grant  a  rule  in  this  case,  unless 
we  were  to  lay  it  down  tlint  the  jury  are  not  justified  in  giving  more 
than  the  absolute  pecuniaiy  damage  that  the  jilaintift'  may  sus- 
tain." In  this  case  for  a  tre.spass  £500  was  given.  In  discussing 
the  question  whether  for  injuries  sustained  by  a  plaintiff  in  respect 
to  his  mai'ital  rights  his  action  was  foi-  trespass  or  case.  ]Mr.  Street 
says:  "Clearly  we  are  here  coufi'outed  with  a  class  of  wrongs  which 
historically  have  their  roots  in  the  law  of  trespass,  but  which,  nev- 
ertheless, in  maturity  lie  altogether  beyond  the  field  of  trespass,  and 
belong  to  that  body  of  legal  injuries  in  which  harm  is  conceived  as 
being  done,  not  to  pei-sons  oi-  pro^ierty,  ])ut  to  rights  incident  to 
them."     Foundations  of  Legal  Liability,  264. 

It  is  suggosted  that,  while  it  is  true  that  exemplary  damages  may 
be  recoverfd  for  malicious  trespass  upon  property  and  for  insulting 
language  to  tlie  owner,  the  wife  alone  can  sue  for  damages  sustained 
by  her  on  account  of  indecent  and  insulting  language  and  conduct. 
Vor  the  puriiose  of  sup|)orting  this  view  the  recent  changes  made 
l)y  the  constitution  and  statutes  in  iv^spccf  to  the  ]ii-op(M'ty  and  ]mm'- 
■onal  rights  of  married  women  are  relied  UTion,  AVe  eaiuiot  tliink 
that  because  the  property  rights  of  llie  wife  have  been  enlarged, 
and  her  j-itrht  to  sue  alone  for  injuries  to  Ini-  [iiTson  and  property 


V 


J-IU  LXt-NLEKMNci     KKAI.     1  S  T  \  Tl-:.  \('lt.    3. 

are  coiiforrt'i].  tlu'  riirht  ;iinl  duty  of  llic  Imsbaiul  to  bo  tlir  liciul  of 
the  family,  to  proti't-t  tlie  lionor  and  virtue  of  his  wife,  or  to  n'cover 
lor  injuries  sustained  by  interfereiu-e  with  his  marital  i-ip^hts  have 
been  destroyeil.  It  is  ti'uc  that,  as  held  by  thiseourt,  while  he  may 
be  redueed  to  a  mrrc  steward  oi-  overseer  of  his  wife's  propertx',  lie 
is  no  less  her  husband,  with  all  of  the  risjhts  and  duties  incident  to 
tliat  relation.  That  whieh  dej;rades  or  destroys  lier  honor  nuist  af- 
fect his.  It  cannot  be  that  if,  by  i)ermi.ssion  of  the  wife,  he  is  living 
on  her  land  as  his  liomc.  tlu^  law  will  not  afford  him  protection 
against  and  damage  for  a  malicious  wrong  done  to  him  through  his 
wife.  The  law  woidd  but  mock  him  if,  when  his  home  is  invaded, 
his  wife  insulted,  ami  her  virtue  a.ssaulled,  it  gave  him,  for  such  in- 
.juries,  but  a  penny,  permitting  the  offender  to  go  "scot  free."  If 
in  the  bitterness  of  his  wounded  spirit  he  .sought  redress  by  viola- 
tion of  the  criminal  law,  subjecting  himself  to  infamous  punish- 
ment, the  .sympathy  of  his  fellow  men  would  be  but  little  comfort 
to  him.  No  man  can  long  retain  the  respect  of  his  wife  and  children 
if  he  does  not  .seek  redress  for  a  malicious  trespass  ui)on  his  home 
and  attempt  to  seduce  his  wife.  The  ancient  law  declared:  "A  pa- 
triarch is  lord  in  his  own  house  and  family,  and  no  person  has  a 
right  to  interfere  with  him;  not  even  the  village  elder  or  the  im- 
perial judge.''  Again  it  is  said:  "The  house  father  w-as  responsi- 
ble for  the  due  performance  of  his  vacra  and  for  the  purity  of  his 
ritual."  States  grow  in  virtue  and  strength,  citizens  are  loyal  and 
liome-loving,  in  proportion  as  the  unity  of  the  family  is  preserved. 
The  husband  and  father  is  recognized  as  the  head  of  the  family ;  the 
wife  living  under  his  protection  and  looking  to  him  to  guard  her 
person  and  honor  from  all  haiin.  The  husband  must  have  redress 
for  wrongs  done  him  by  awarding  such  actual  and  exemplary  dam- 
ages as  a  jur^'  may  find  to  be  proper,  rather  than  by  violating  the 
criminal  law. 

The  judgment  of  his  honor  was  correct,  and  must  be  affirmed. 

See  Newell  v.  Whitrher,  38  Am.  Rep.  70,3.  inserted  at  ch.  5,  sec.  4 
post;  see  also  23  N.  E.  78,  6  L.  R.  A.  736,  for  a  case  in  every  way  similar 
to  the  principal  case,  though  the  decision  is  somewhat  different.  See 
"Trespass,"  Century  Dig.  §§  134,  142;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §§  50,  54. 


ALLEN  V.  CROFOOT,  5  Wendell   (N.  Y.),  506,  509.     1830. 
Doctrine  of  Trespass  Ab  Initio. 

[Crofoot  sued  Allen,  in  trespass,  for  entering  Crofoot's  house  in  his  ab- 
sence and  taking  copies  of  certain  papers.  Allen  pleaded  the  general  is- 
sue and  license  to  enter  the  house.  Verdict  and  judgment  against  Allen, 
and  he  carried  the  case  to  the  supreme  court  by  writ  of  error.     Reversed. 

Allen  was  anxious  to  obtain  copies  of  some  papers  which  he  had  left 
with  Crofoot.  Allen  was  an  attorney  at  law  and  ha<l  surrendered  the 
papers  to  Crofoot  in  settling  a  matter  with  him  for  a  client.  Afterwards 
Allen  doubted  the  propriety  of  his  surrendering  the  papers  and  went  to 
Crofoot's  house  to  get  copies  of  them.  Crofoot  was  not  at  the  house,  but 
Allen  knocked  at  the  door  and  was  admitted.  He  told  a  plausible  false- 
hood to  Mrs.  Crofoot  and  her  brother,  who  were  in  the  house,  and  thereby 


Sec.    12.]  CONCERNING    REAL    ESTATE.  241 

got  access  to  the  papers,  and  copied  them.  It  was  sworn  in  evidence  that 
Allen  had  admitted  that  he  could  not  have  obtained  copies  of  the  papers 
if  he  had  not  deceived  Mrs.  Crofoot  and  her  brother.  The  judge  charged 
that  Allen  was  liable  in  trespass  if  he  obtained  the  papers  fraudulentl}% 
even  if  he  had  leave  to  enter  the  house;  but  if  he  acted  correctly  and 
openly  in  obtaining  the  copies,  and  had  leave  to  enter,  he  was  not  liable. 
Defendant  excepted  to  this  charge.  From  the  argument  it  seems  to  be 
immaterial  whether  the  permission  to  enter  the  house  was,  or  was  not, 
obtained  by  the  fraud  of  Allen.] 

Savage,  C.  J.  .  .  .  It  is  urged  by  Ww  i)laintift'  in  error  that 
the  court  below  erred  in  charging  the  jury  that  the  action  was  sus- 
tainable if  they  should  find  that  the  defendant  entered  the  plain- 
tiff's house  fraudulently,  to  obtain  improperly  copies  of  papers  in 
the  absence  of  the  plaintiff.  It  was  decided  in  The  Six  Carpenters' 
case,  4  Co.  290.  that  where  an  authority  to  enter  upon  the  premises 
of  another  is  given  h\j  law,  and  it  is  subsequently  abused,  the  party 
becomes  a  trespasser  ab  initio;  but  where  such  authority  or  license 
is  given  hjj  the  parhj  and  it  is  subse(|uently  abused,  the  party 
guilty  of  the  abu.se  may  be  punished,  but  he  is  not  a  trespasser;  and 
the  reason  of  the  difference  is  said  to  be  that  in  case  of  a  license  hy 
law  the  subsefiuent  tortious  act  shows  (|uo  animo  he  ent(n-ed ;  and 
having  entered  with  intent  to  abuse  the  authority  given  by  law,  the 
entrA'  is  unlawful :  but  where  the  authority  or  license  is  given  by 
fhc  partif.  he  eainiot  punish  for  that  which  was  done  by  his  own 
authority.  \Vhether  this  is  not  a  distinction  without  a  difference 
of  principle,  it  is  not  necessary  to  inquire.  A  bi^ttei-  i-eason  is  given 
for  it  in  Bac.  Abr.  tit.  Trespass.  B.  "Where  the  law  has  given  an  au- 
thoi-ity,  it  is  reasonable  that  it  should  make  void  everything  done 
by  the  al)use  of  that  authority,  and  leave  the  abuser  as  if  he  had 
done  everything  without  authoi-ity.  But  whei-e  a  man  who  was  un- 
der no  necessity  to  give  an  authority  does  so,  and  the  person  receiv- 
ing the  authority  abtises  it,  there  is  no  reason  why  the  law  should 
interpo.se  to  make  void  everything  done  by  such  abuse;  because  it 
was  the  man  's  folly  to  trust  anothei'  with  an  authority  who  was  not 
fit  to  be  trusted  therewith.  Tt  is  contended  that  the  lieens(\  ])eing 
obtained  by  fraud,  was  void.  The  defendant  knocked  at  the  door 
and  was  told  to  walk  in;  he  was  found  copying  certain  papers:  ])ut 
how  he  obtained  them,  on  what  representation.  (H'  i'l'om  whom,  the 
evidence  does  imt  disclose.  One  witness  does  indeed  testify  that  be 
said  he  would  not  have  got  the  copies,  if  he  had  not  practiced  a  de- 
ception on  the  wife  ami  brother-in-law  of  the  plaintiff.  Tf  this 
flecbiration  should  be  considered  evidence  of  his  having  mad(>  im- 
proper representations  to  obtain  the  jiapers.  then  the  (juestion 
arises:  Does  h<'  thereby  Ix'cojne  a  trespasser  ab  initio? 

Tt  has  })een  decided  that  to  enter  a  dwelling  house  without  license 
is  in  law  a  trespass.  12  Johns.  408;  inid  that  possession  of  propejiy 
obtained  fraudulently  confers  no  title.  Cndi'r  sueli  eireumstances, 
no  chamre  of  nror>erty  takes  r)lace.  15  Johns.  18(i;  and  it  is  argued 
tliat.  as  fraud  vitiates  everything  into  which  it  en1ei"s.  a  license  to 
entei'  the  bouse  fraudulently  oblaimd  is  void,  and  is  no  Ii<'ens(V 
The  principle  of  relation  has  never  b-en  aiqilied  Pi  sueli  a  ease,  nor 
is  it  necessary  fr)r  Ihe  purpose  of  justice  to  extend  it  fui'tber  than 
Remedies — 10. 


2V2  CONCKKNINC    K-i:.\I.    KSl'A  I'K.  \  (' ll .    o. 

to  eases  whore  tin*  person  iMitei-s  uiulcr  a  license  (jiiu  ii  hint  hii  law. 
In  sueh  eases,  as  the  i)ai'ty  in.jnred  /((/(/  iiol  the  poicir  to  pn  V(  iil  the 
iiijitrii,  it  seems  i-easonahle  that  he  shouKl  be  restoreil  to  all  his  I'eni- 
edies.    Judirnient  reversed. 

In  till'   Lawyers'   Ktlitiou  of  tlio  New    York  Com.   Law    K<ii.    Hool\    10,  |i. 
il30,  there  is  a  note  Riving  a  great  numl)er  of  cases,  in  l']ngland  and  Amer- 
ica, wiiieli  are  said  to  supi)ort  tlie  principal  case.     In  Winder  v.  Blake,  49 
N.  C.  at  p.  ;'.;;.■■>,  ll  is  ^^aid  b.v   I'carson,  .J.,  tiiat   the  law  gives  a  license  to 
llie  customers  of  innkeepers,  shopkeei)ers,  and  the  like,  who  undertake  to 
serve  the  public';  and,  as  the  law  gives  the  license,  it  makes  the  customer 
who  abuses  it  a  tresi)asser  ab  initio.     For  which  he  cites  The  Six  Car- 
penters" case.  S  Rep.     in  •_*:'.  N.  E.  7S,  f.  L.  R.  A.  736,  is  an  Indiana  case 
which  approves  what  is  said  in  Rjisor  v.  Quails,  inserted  ante  to  the  effect 
that  if  a  licensee  debauch  licenser's  daughter  after  a  lawful  entry  under 
the  license,  no  recovery  can  be  had  in  an  action  of  trespass  q.  c.  f.,  and  de- 
cides that  an  attempt  to  seduce  licensor's  wife  will  not  sustain  an  action 
of  trespass  q.  c.  f.,  because  the  entry  iva^s  lawful,  and  the  doctrine  of  tres- 
pass ab  initio  has  no  application  except  to  those  cases  in  which  the  entry 
is  by  authority  or  license  given  by  the  laic,     if  the  entry  is  by  license, 
acts  done  after  such  entry  are  to  be  redressed  by  some  other  remedy 
approiiriate  to  the  injiuy,  but  not  by  trespass  q.  c.  f.     In  Whitfield  v.  Bo- 
(lenhammer,  iU  N.  C.  at  p.  364,  it  is  said  by  Pearson,  C.  .1.:  "If  one  enters 
into  the  house  or  upon  the  land  of  another  by  his  permission,  and  after- 
wards does  an  act  inconsistent  with  the  agreement  or  license  under  which 
he  entered,  he  cannot  be  treated  as  a  trespasser  ab  initio.    That  fiction  is 
confined  to  cases  in  whii'h  the  entry  is  allowed  by  law,  as  upon  an  entry 
into  a  tavern  or  store.     Six  Carpenters'  case,  Coke's  Rep."     Battle,  J., 
says,  in  Parish  v.  Wilhelm,  63  N.  C  at  p.  '^2:  "The  principle  was  fully  dis- 
cussed and  settled  in  the  celebrated  Six  Carpenters'  case,  that  if  a  man 
abuse  an  authority  given  him  by  the  law,  he  becomes  a  trespasser  ab 
initio."     After  quoting  from  that  case  the  rule  and  the  reason  given  for 
the  rule,  he  adds:  "A  better  reason  was,  we  think,  given  in  State  v.  Moore, 
12  N.  H.  42,  to  wit,  that  it  was  the  policy  of  the  law  for  ])reventing  its 
authority  being  turned  into  an  instrument  of  oppression  and  injustice." 
But  in  State  v.  Conder,  126  N.  C.  985,  35  S.  E.  249,  where  the  landlord  en- 
tered the  demised  premises  by  Ms  tenant's  permission  and  afterw'ards 
retained  possession  manu  forti,  it  is  said  by  Douglas,  .T.,  at  p.  988:   "The 
defendants  seek  to  justify  their  conduct  on  the  ground  that  they  were 
originally  admitted  into  peaceable  possession:   but  if,  as  claimed  by  the 
prosecutor,  they  were  admitted  as  a  matter  of  favor  under  the  false  as- 
surance that  they  would  remain  only  a  few  days,  and  then  sought  to  re- 
tain the  qualified  possession  thus  obtained  through  artifice,  to  the  exclu- 
sion of  the  prosecutor,  they  would  thus  make  themselves  trespassers  ab 
initio."    See  further,  upon  the  subject  of  trespassers  ab  initio,  Bish.  Non- 
Cont.  Law,  §  391.    See  "Trespass,"  Century  Dig.  §  11;  Decennial  and  Am. 
Dig.  Key  No.  Series,  §  13. 


KENNEDY  v.  WHEATLEY,  3  N.  C.  402.     1806. 
What  Title  Will  Fivppnrt  Trespass  q.  e.  f. 

T.wi.oR.  T.  Tliis  is  an  action  of  trespass,  for  hroakinff  the  plain- 
tiff's close,  enterinfr  upon  his  lands,  etc..  and  the  defendant's  conn- 
sel  relying  upon  the  English  law.  insists  that  an  acfual  possession  in 
ihr  plaintiff  ai  the  time  of  ihc  trespass  committed,  is  necessary  to 
he  proved,  to  support  the  action.  Tn  Enfrland  all  their  lands  are 
occupied,  and  a  trespass  cannot  he  committed  hnt  npon  the  posses- 
sion of  some  one.  and  it  must  be  proved  who  was  the  actual  occu- 


Sec.    13.]  CONCERNING    REAL   ESTATE.  243 

paut.  for  the  purpose  of  ascertainiDg  the  person  who  is  entitled  to 
the  action.  Here  a  great  part  of  our  hinds  are  not  occupied  by  any 
actual  possession ;  and  if  we  were  to  require  the  same  proof  that  is 
required  by  the  English  law,  we  should  expose  the  unoccupied  lands 
of  every  person  to  be  trespassed  upon,  and  the  timber  to  be  cut 
down  and  destroyed  to  whatever  extent  those  who  were  in  the 
neighborhood  thought  proper,  and  the  owner  could  have  no  remedy. 

For  title  that  will  and  will  not  support  the  action,  see  23  L.  R.  A.  (N. 
S.)  270.  In  Cahoon  v.  Simmons,  29  N.  C.  189,  it  is  said  by  Ruffin,  C.  J.: 
"From  the  necessity  of  the  case,  it  has  long  been  held  in  this  country, 
not  that  the  action  "will  lie  without  possession,  but  that  it  will  lie  upon 
that  possession  which  the  law  implies  to  be  in  the  owner  of  land,  when  no 
other  person  is,  in  point  of  fact,  on  it.  Therefore,  in  order  to  entitle 
one  to  maintain  trespass  q.  c.  f.,  when  he  has  no  occupation  of  any  part 
of  the  premises,  he  must  show  a  title  in  himself  from  which  the  law  can 
deduce  that  constructivelv  he  has  the  possession."  In  Moore  v.  Angel, 
116  N.  C.  at  p.  845,  21  S.  E.  699,  Avery,  J.,  says:  "In  order  to  support  an 
action  for  simple  trespass  a  plaintiff  must  show  actual  jiossesslon  uhere 
any  person  is  holding  adversely;  but,  in  the  absence  of  adverse  occupa- 
tion, the  constructive  possession,  which  proof  of  title  draivs  to  him,  is 
sufficient."  See  "Trespass,"  Century  Dig.  §§  32-37;  Decennial  and  Am. 
Dig.  Key  No.  Series,  §  20. 


MYRICK  V.  BISHOP,  8  X.  C.  485.     1821. 
What  Title  Will  Suport  Trespass  q.  c.  f.    Constructive  Possession. 

[Action  of  trespass  quare  clausum  f regit.  Judgment  against  defendant, 
and  he  appealed.    Affirmed. 

The  plaintiff  proved  that  he  was  in  possession  of  part  of  a  large  Tract 
of  land,  within  the  boundary  of  which  teas  the  locus  in  quo:  but  he  was 
not  in  the  actual  possession  of  the  locus  in  quo  at  the  time  of  the  alleged 
tres|)ass.  The  defendant  showed  no  title,  but  he  resisted  the  plaintiff's 
action  on  the  ground  that  the  locus  in  quo  was  vacant  land.  The  judge 
charged  that  if  the  locus  in  quo  was  part  of  a  tract  granted  to  the  plain- 
tiff, plaintiff's  possession  of  a  part  of  the  tract  would  be  such  possession 
of  the  whole  as  would  enable  him  to  support  this  action  of  q.  c.  f.  against 
a  wrongdoer.! 

Taylor.  C.  J.  The  plaintiff,  havijig  a  dood  covering  the  land 
whore  the  trespass  was  connuitted.  and  being  in  possession  of  part 
within  the  bountlarics  of  Ww  deed,  was  in  actual  ])o.ssession  of  the 
whole.  The  deed  ascertained  the  extent  n\'  \hr  posses.sion.  Who- 
ever is  in  po.ssession.  may  maintain  an  action  of  trespass  against  a 
wroncrdoor  to  his  possession,  because  it  is  a  ]iossessory  remedy. 
f()un<lc<l  inr-rcly  on  the  possession,  and  it  is  not  necessary  that  the 
right  shfMild  ei.uio  in  question.  3  Burr.  1503;  1  East.  24n.  The 
judgiiient  must   lie  ;irni-iiic(l. 

IIendrhson'.  J.  Pos!^e.<i.<f{on  alone  is  sufficient  to  maintain  trespass 
against  a  urnnqdorr.  1  East.  244.  Graham  v  Peat,  and  tlie  cases 
there  cited,  to  wit.  3  P.urr.  ir)f.3:  2  Stra.  123S:  AVilles.  221.  .\nd  it 
is  consistent  with  first  principles,  and  in  fad  would  be  strange  if  it 
were  not  so;  for  wretelied  would  be  the  poliey  which  required  tlie 


244  roNcKKNiNi;  kk.m.  Ksiwri:.  \('li.  ■'!. 

title  to  bo  sliowii  in  every  iiist;iiicc  wlieie  the  pe.-irenhle  possession 
was  (listurlx'd  hv  ;m  iiiti'iulcr  who  Ii;h1  no  lii^lit.  It  would  lend  to 
broils  and  t|u:iiTels.  and  the  possessm-  would  resoi't  to  Tofee  to  de- 
fend his  j)ossessit»n.  it'  the  law  alVorded  him  no  redress,  it  eaniiot, 
therefore,  for  a  moment  be  doubted,  that  the  law  is  as  stated  above; 
and  for  myself.  1  would  ij:o  farther,  althoutih  by  bi-etbren  do  not 
deem  it  neeessar\-  to  exjucss  an  opinion  on  the  i)oint,  that  posses- 
sion is  prima  facie  eviilenee  of  title,  and  until  the  contrary  shall 
appear,  sutlieient  to  maintain  an  action  on  the  title  ajjjainst  a  wrong- 
doer, ex  f^r.  an  action  of  ejectment.  This  of  course  has  refei-ence  to 
a  ease  wbere  the  title  is  shown  to  be  out  of  the  state.  I  do  not  deem 
it  neces.sary  to  say  anything  on  const riictive  possession,  for  in  the 
ease  before  us.  the  plaintilT's  pos.session  was  an  actual  one;  posses- 
sion of  ani)  pari  o)  a  tract  of  land,  there  being  no  conjiirfing  occu- 
paiioii,  is  an  actual,  and  not  a  constructive  possession,  of  the  whole 
tract.  If  any  part  is  atlversely  occupied  under  an  inferior  title., 
tbe  possession  under  tlie  good  title  extends  lo  the  actual  adverse 
occupation.  Here  there  was  no  adverse  oceui)ation.  and  the  actual 
pos.session  of  the  idaintiff  was  coextensive  with  his  deed.  A  con- 
structive po.ssession  is  where  a  person  has  title,  but  no  i)ossession, 
and  there  is  no  one  in  possession,  it  being  vacant,  there  the  title 
draws  to  it  the  possession  in  law.  or  by  construction  of  law.  I 
think  the  I'ule  for  a  new  trial  sbotild  be  discharged,  and  judgment 
entered  for  the  plaintiff. 

See  "Trespass,"  Century  Dig.  §§  38-42;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §  20. 


TREDWELL  v.  REDDICK,  23  N.  C.  56.     1840. 
What  Constitutes  such  Possession  as  Will  Stistain  Trespass  q.  c.  f. 

[Trespass  q.  o.  f.  for  cutting  timber  in  a  cypress  swamp.  Judgment  of 
nonsuit  against  plaintiff,  and  lie  appealed.     Affirmed. 

Plaintiff  showed  a  deed  to  the  locus  in  quo,  but  defendants  showed  that 
they  had  used  the  land  by  cutting  timber  on  it,  erecting  tents  for  their 
hands,  etc.,  before  the  date  of  plaintiff's  deed  and  up  to  the  trial;  the  locus 
in  quo  was  not  fit  for  occupancy,  and  could  be  used  in  no  way  except  that 
adopted  by  the  defendants.  The  plaintiff  showed  that  his  deed  covered 
a  large  body  of  land,  the  boundaries  whereof  included  the  locus  in  quo; 
and  that  plaintiff  had  been,  for  sometime  previous  to  the  commencement 
of  this  action,  in  possession  of  a  part  of  the  tract  embraced  in  his  deed. 

It  was  shown  that  the  plaintiff  had  never  been  in  actual  possession  of 
the  locus  in  quo;  but  that  defendants  had  been  in  adverse  possession 
thereof  during  the  whole  of  plaintiff's  alleged  possession — that  is,  if  the 
defendants'  acts  of  dominion  as  stated  above  amounted,  in  law,  to  posses- 
sion. The  judge  was  of  opinion  that  the  defendants  were  in  possession, 
and  that  while  a  possession  of  a  part  gave  possession  of  the  whole  to  him 
who  had  title,  still  that  rule  was  subject  to  the  exception  that  if  another 
was  in  the  actual  adverse  possession  of  part  of  the  premises,  the  owner's 
constructive  possession  would  not  include  the  part  so  held  adversely  by 
another.  In  deference  to  this  opinion,  the  plaintiff  sulmiitted  to  a  non- 
suit and  appealed.! 

Gaston.  J.  The  opinion  expressed  by  his  Honor,  on  the  trial  of 
the  cause,  seems  to  us  entirely  correct.  Upon  the  evidence,  it  can- 
not be  questioned,  we  think,  but  that  the  defendant  was  in  actual 


Sec.    12.]  CONCERNING    REAL   ESTATE.  245 

possession  of  the  lociis  in  quo  before,  at.  and  after,  the  date  of  the 
plaintiff's  deed,  down  to  the  institution  of  this  action.  It  was  a 
possession  as  decided  and  notorious  as  the  nature  of  the  land  would 
permit — affording  unequivocal  indication  to  all  persons  that  he  was 
exercising  thereon  the  dominion  of  owner.  Doe  on  deni.  Burton  v. 
Caruth.  18  N.  C.  2 ;  Simpson  v.  Blount.  14  N.  C.  34.  The  actual 
occupation  of  the  plaintiffs  has  never  approached  within  less  than 
a  mile  and  a  half  of  the  part  of  the  swamp  thus  held  by  the  de- 
fendant. TIic  const rucf ice  possession,  arising  fro)n  title,  cannot  he 
extended  to  that  part  whereof  there  is  an  cbctual  opposing  posses- 
sion, ichether  with  or  without  a  paper  title.  Graham  v.  Houston, 
15  N.  C.  232.  And.  without  possession,  the  action  of  trespass  can- 
not be  maintained.     The  judgment  of  nonsuit  is  affirmed. 

See  "Adverse  Possession,'  Century  Dig.  §§  113,  591;  Decennial  and  Am. 
Dig.  Key  No.  Series,  §§  23,  103;  "Trespass,"  Century  Dig.  §  40;  Decennial 
and  Am.  Dig.  Key  Xo.  Series,  §  20. 


HORTON  V.  HEXSLEY,  23  N.  C.  163.     1840. 

What   Possession    Will   Systaiyi    Trespass   q.   c.   f.   Against   a  Mere   Tort 

Feasor.     Aiders,  Abettors,  etc. 

(Trespass  q.  c.  f.  for  tearing  down  a  dam.  Verdict  and  judgment 
against  defendants  and  they  ap])ealed.     Affirmed. 

There  was  evidence  tending  to  show  that  plaintiff  liad  been  in  posses- 
sion of  the  locus  in  quo  for  some  years;  that  the  defendants  came  to  his 
house,  claimed  to  have  authority  to  lay  off  a  slope  in  the  dam,  and  asked 
his  permission  to  lay  off  the  slope;  that  plaintiff  denied  their  authority 
and  cautioned  them  that  whatever  they  should  do  would  be  at  their  peril; 
that  all  the  defendants  went  to  the  dam,  and  some  participated  in  tearing 
it  out,  while  others  remained  on  the  bank  taking  no  active  part  in  demol- 
ishing the  dam,  but  evidently  countenancing  it  and  assenting  to  what  w'as 
done. 

The  court  charged  that,  if  plaintiff  was  in  possession  at  the  time  the 
dam  wa.s  destroyed,  he  was  entitled  to  recover  damages  from  all  of  the 
defendants  who  had  aided,  abetted,  counseled  or  commanded  the  trespass, 
or  who  had  assented  thereto  after  it  was  done.  The  defendants  offered 
no  evidenre  of  title  in  themselves.  The  plaintiff  showed  that  he  had  a 
dam  and  a  mill-house  on  the  land,  and  cultivated  the  land  adjacent 
thereto;  that  he  used  the  mill-house;  and  had  repaired  the  dam  only  a 
few  days  before  the  acts  of  the  defendants.  The  judge  instructed  the 
jury  that  if  this  were  true,  the  plaintiff  had  such  possession  as  would  en- 
title him  to  recover  of  these  defendants.) 

Gastox.  J.  We  see  no  ground  on  uiiicli  llu'  jiKlgiiicnt  can  be  iiii- 
peaehcd.  It  is  not  to  be  (|uestioned  l)ut  tbal  possession  alone  is 
sufjiritnl  Id  maintain  an  action  of  trespass  against  m(r(  tort  fea- 
sors. The-  evidence  to  show  possession  in  the  phiintilT  was  perti- 
nent, direct  iind  uncon1nidictc<l.  .Xnd  in  trespass,  all  jtrocurers. 
aiders  and  abettors — nay.  those  who  are  not  even  j)rivy  to  the  coni- 
missioti  of  a  trespass  for  their  u.sc  and  b'-uefit.  but  w]i(»  afli  rwards 
nss(  nl  to  if-  nrc  in  judgment  of  law  principals.  Com.  Dig.  Tres. 
r.  1  ;  1  Inst.  :'.17.     Tbe  judgment  is  nfTu-nied. 


L'4(l  COM'EKNl>;ti    UEAL    ESTATE,  [C7(.    o. 

See  further  on  the  subjeet  of  what  title  will  support  trespass  q.  c.  f. 
against  a  mere  wrongiloer,  Stokes  v.  l'"raUy,  r>U  N.  C.  :>77.  inserteil  post,  in 
this  section.  See  •Trespass,"  Century  Dig.  §  38;  Decennial  and  Am.  Dig. 
Key  Xo.  Series,  §  L'O. 


PAIIK1<]R  V.  STANILAND,  11  East,  362,  366.     1809. 

Trespass  y.  c.  /.     Lessees  and  Purchasers  of  Fructus  Industriales  and 

N  at  u  rales. 

I  This  was  an  action  to  recover  the  price  of  certain  potatoes  which 
plaintiff  hail  sold  to  defendant.  The  potatoes  were  matured  but  unsev- 
ered  at  the  time  of  the  sale.  Defendant  bought  them  in  the  ground  and 
was  to  dig  them  himself.  The  defense  was,  that  the  potatoes  being  un- 
severed  when  the  sale  was  made,  the  contract  was  within  the  statute  of 
frauds  and  void  because  not  in  writing.  In  the  course  of  the  opinion  of 
Lord  Ellenborough,  C.  J.,  it  is  said:] 

.  .  .  The  lessee  primae  vesturae  may  maintain  trespass  qiiare 
claiistnn  fregit,  or  ejectment  for  injuries  to  his  possessory  rijs^ht : 
but  this  defendant  could  not  have  maintained  either,  for  he  had  no 
right  to  the  possession  of  the  close — he  had  only  an  easement 
[license],  a  right  to  come  upon  the  land  for  the  purpose  of  taking 
up  and  carrying  away  the  potatoes;  but  that  gave  him  no  interest 
in  the  soil.  I  am  not  disposed  to  extend  the  case  of  Crosby  v.  Wads- 
worth,  6  East,  602,  further,  so  as  to  bring  such  contract  as  tliis 
within  the  statute  of  frauds,  as  passing  an  interests  in  land. 

In  Stewart  v.  Doughty,  9  Johns.  (N.  Y.)  108,  it  is  held  that  the  pur- 
chaser of  a  growing  crop,  at  execution  sale,  may  maintain  trespass  q.  c.  f. 
against  one  who  forcibly  interferes  with  his  cultivation  and  harvesting 
of  the  crop.  Crosby  v.  Wadsworth,  6  East,  602,  Co.  Litt.  4,  b,  Com.  Dig. 
tit.  Trespass,  B,  1,  and  1  Chit.  Plead.  176,  177,  are  cited  as  authority. 
At  the  end  of  the  opinion  it  is  said:  "The  general  language  of  the  author- 
ities is  to  the  effect  that  the  grantee  vesturae  terrae  or  herbagii  terrae 
may  maintain  trespass,  though  he  has  not  the  soil."  See  "Trespass," 
Century  Dig.  §  2.G;   Decennial  and  Am.  Dig.  Key  No.  Series,  §  19. 


BAER  V.  MARTIN,  8  Blackford,  317.     1846. 
Trespass  q.  c.  f.  by  Owner  of  an  Easement. 

[Per  Curiam.]  A  right  granted  by  one  man  to  another  to  con- 
vey water  through  the  land  of  the  grantor,  by  means  of  a  race,  to 
the  mill  of  the  grantee,  is  nn  incorpnronl  hereditament.  Angell  on 
Water-courses,  57.  59. 

And  for  an  injury  to  such  a  right,  an  action  of  trespass  quare 
clausum  fregit  will  not  lie.  Conner  v.  The  Pres.  and  Trust,  of  New 
Albany.  1  Plackf.  88;  1  Chit.  PI.  162. 

See  "Trespass,"  Century  Dig.  §  9;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §  11. 


Sec.    12. \  CONCERNING    REAL    ESTATE.  247 


CONNER  V.  NEW  ALBANY,  1  Blacklord,  ST.  88.     1820. 
Trespass  q.  c.  f.  by  a  City  or  Town  for  Injury  to  Streets. 

[The  authorities  of  the  town  of  New  Albany  brought  trespass  q.  c.  f. 
against  Conner.  Verdict  and  judgment  against  Conner,  and  he  carried 
the  case  to  the  Supreme  Court  bj'  writ  of  error.     Reversed. 

The  facts  appear  in  the  opening  of  the  opinion.  The  question  presented 
is:  Has  a  town  such  a  possessory  right  in  the  streets  as  will  sustain  tres- 
pass q.  c.  f.  brought  by  the  town  against  a  trespasser?] 

Iloi-.MAN.  J.  AVe  leain  from  the  record  in  thi.s  ease,  that  the 
presick'iil.  and  trustees  of  New  Albany  oonniieneed  an  action  of 
trespass  in  the  Circuit  Court  against  Conner,  in  which  issue  was 
joined  on  the  plea  of  not  guilty,  and  a  verdict  and  judgment  were 
rendered  for  the  plaintiffs.  The  only  evidence  of  trespass  was  that 
of  digging  up  the  soil,  so  as  to  form  a  road  across  one  of  the  streets 
in  said  town.  On  this  evidence  the  Circuit  Court  instructed  the 
jury,  that  the  president  and  trustees  of  the  town  of  New  Albany 
had  a  riglit  to  maintain  the  action  by  virtue  of  the  qualified  posses- 
sion, which.  \>y  law,  they  had  in  the  streets  of  the  town.  To  which 
opinion  of  the  court  Conner  excepted;  and  which  opinion  is  the 
only  error  complained  of  in  the  case.  A  slight  attention  to  the  na- 
ture of  a  public  stn^et.  and  an  examination  of  tlie  powers  of  a  town 
corporate,  will  enable  us  to  determine  this  question.  A  street  in  a 
town  is  a  public  highway.  It  is  a  subject  of  common  use,  and  not 
of  exclusive  possession ;  an  incorporeal  hereditament,  in  which  all 
persons  pos.sess  equal  right,  the  right  of  passing  over  it;  and  is,  in 
its  nature,  incapahlc  of  hcing  reduced  into  possession.  But  it  is  a 
subject  of  government ;  and  the  government  of  it  is,  by  the  act  reg- 
ulating the  incorporation  of  towns,  placed  in  the  hands  of  the  cor- 
poration. They  have  the  power  to  keep  it  in  repair,  to  remove 
nuisances,  etc.:  but  this  power  is  no  more  than  a  supervisor  pos- 
sesses over  a  common  highway,  and  is  certainly  of  a  very  different 
nature  from  possession,  either  absolute  or  qualified.  Consequently, 
?io  possessoi'v  right  exists  in  the  corporation,  by  which  the  action 
•■an  b(.'  sui)ported.  See  Conner  v.  The  Pres.  and  Trust,  of  New  Al- 
bany. 1  Blackf.  43.  Works  of  use  or  ornament,  erected  in  the 
streets  by  the  corporation,  are  of  a  different  nature,  and  depend  on 
ijifferent  principles:  and.  coTiscquently.  pi'esent  no  argument  which 
i-an  affect  Ibis  case.  It  follows,  of  course,  that  the  opinion  of  the 
circuit  coufi   is  incorrect.     Judgment  reversed. 

See  "Trespass,"  Century  Dig.  §  39;  Decennial  and  Am.  Dig.  Key  No. 
Series,   §   20. 


12-IS  CONCKKiNMN!.;    KKAI,    KSTA  I'K.  \  (' li . 


SIR  JOHN  l^DE  V.  SUKI'Hl'mn,  2  Strange.  1004.     1735. 
Trespass  q.  c.  /.  hi/  Oioicr  of  thr  Fee  rorered  hii  a  SStreet. 

I'pon  trial  of  ;m  iictiDii  of  trespass  a  casi'  was  made,  that  llu'  place 
where  the  supposed  trespass  was  eommilted  was  roiMiierly  the  prop- 
erty o(  the  plaintiir.  who  some  years  since  hiiilt  a  street  iijx)!!  it, 
wliieh  has  evei-  sinee  been  used  as  a  hi«rliway.  The  defendant  had 
land  eoiitii^uous.  parted  only  by  a  diteh.  and  that  he  laid  a  bridge 
over  tlie  diteh.  the  t>nd  whereof  rested  on  the  liiti'liway.  And  it  was 
insisted  for  the  defendant,  that  l)y  the  plaintiff's  niakinj^c  it  a  street, 
it  was  a  dedication  of  it  to  the  ])ublie;  and  therefore  however  he 
niisiht  be  liable  to  an  indictment  for  a  nuisance,  yet  the  plainiifj 
cuidd  noi  sue  Jiini  as  for  a  frrsi)nss  on  his  priratc  property.  Sed 
per  Curiam. —  It  is  eertaiidy  a  dedication  to  the  jiublic,  so  far  as 
the  publie  lias  occasion  foi-  it,  which  is  only  foi-  a  ri<;ht  of  passage. 
Hut  it  never  was  understood  to  be  a  transfer  of  the  absohitc  prop- 
erty in  the  soil.    So  the  plaintiff  had  judfjment. 

See  •Trespass."  Century  Dig.  §  39;  Decennial  and  Am.  Dig.  Kej^  No. 
Series  §  20. 


MAYOR  OF  NORWICH  v.  SWAN,  2  Wm.  Blackstone.  Rep.  1116.     1777. 

Trespass  q.  c.  f.   by  a  Toivn  Against  an  Invader  of  the  Market  House 

Owned  in  Fee  by  the  Town. 

Trespass  for  breaking  and  entering  their  close  called  the  Lower 
Market-place  and  placing  thereon  divers  tables,  stools,  baskets, 
pots,  pans,  and  other  utensils.  The  defendant  pleads.  1st.  Not 
guilty.  2ud.  Justification,  for  that  the  place  where  is  an  open  mar- 
ket, and  that  he  placed  the  tables,  etc.,  there  in  order  to  expose 
them  to  sale.  The  plaintiffs  reply,  that  the  place  where,  etc..  Is 
their  freehold  and  inheritance,  and  that  the  defendant,  of  his  own 
wrong,  and  without  license,  placed  his  goods  thereon.  To  this  the 
defendant  dennirred  generally,  and  the  plaintiffs  joined  in  demur- 
rer.    .     .     . 

De  Grey,  Chief  Justice,  stopped  Wilson  for  the  plaintiff,  because 
the  ca.se  was  too  plain  for  argument.  I^iglit  of  mnrkrt  and  right  of 
soil  are  things  foi  all  ij  distinct.  Men  may  have  a  right  to  go  to  mar- 
ket, but  not  to  meddle  witli  or  encumber  the  soil.  Toll  cannot  be 
due  for  setting  forth  these  tables  and  stools,  with  their  furniture, 
l)ecause  that  must  be  ])i-esci-il)ed  for.  Piekage  it  cannot  l)e,  because 
the  ground  not  broken.  Rut  it  is  settled  in  the  Xorthampton  case, 
that  no  man  can  erect  stalls  in  a  marlcet,  witlionl  leave  nf  llif  owner 
of  the  soil.  The  court  cannot  criticise  and  distinguish  between  a 
table  and  a  .^tall.  As  to  the  case  in  Tjord  Kavmond.  I  sliall  say  noth- 
ing to  it.  only  that  this  is  not  that  ca.se.     Judgment  for  the  plaintifT. 

See  "Trespass."  Century  Dig.  §  9;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §  11. 


Sec.    12.]  CONCERNING    REAL    ESTATE.  2-49 


GANLEY  V.  LOOXEY.  14  Allen    (Mass.),  40.     1867. 

Trespass  q.  c.  /.  hy  Oicner  of  Servient  Estate  Against  Owner  of  an  Ease- 
ment. 

I  Action  of  tort  (in  the  nature  of  trespass  q.  c.  f . )  by  Ganley,  owner  in 
fee  of  a  servient  estate,  against  Looney,  who  owned  an  easement  appur- 
tenant to  a  dominant  estate,  for  an  injury  to  the  servient  estate.  Ver- 
dict and  judgment  against  defendant,  and  he  appealed.     Affirmed. 

Ganley  owned  a  lot  in  fee  and  granted  to  Looney,  as  appurtenant  to  a 
house  and  lot  conveyed  to  him  by  Ganley,  "the  use  in  common  with  the 
owner  and  occupants"  (of  grantor's  dwelling  house)  of  the  locus  in  quo 
and  of  a  well  of  water  thereon.  Looney  located  a  pig-pen  over  the  well 
and  dug  a  large  hole  in  the  locus  in  quo.  The  judge  instructed  the  jury- 
that  Looney  had  onl.v  an  easement  in  the  lot;  that  such  easement  was  to 
be  exercised  reasonably:  and  if  the  acts  of  Looney  were  tmreasonable  and 
not  within  the  easement  granted,  they  were  trespasses  for  n-}iich  plaintiff 
could  recover  in  tn>s  form  of  action.     Exception  by  defendant.] 

Gray.  J.  The  plaintiff  was  the  ov'ner  in  fee  of  the  close  upon 
which  the  alleged  trespass  was  committed.  The  defendant  had  only 
an  easement  in  this  close,  to  use  it  in  common  with  the  plaintiff  as 
owner  of  the  land  adjoining.  The  defendant  had  no  title  in  fee, 
and  although  he  had  a  right,  by  virtue  of  his  easement,  to  enter 
upon  the  close,  yet  if  he  used  the  close  for  a  purpose  not  within  the 
terms  of  the  easement,  he  thereby  exceeded  his  license,  was  luilaw- 
fully  upon  the  land,  and  liable  to  an  action  by  the  plaintiff  as  owner 
of  the  fee  for  such  trespass.  Davenport  v.  Lamson,  21  Pick.  72; 
0 'Linda  v.  Lothrop,  ib.  207:  Appleton  v.  FuUerton,  1  Gray.  192, 
194.  Tn  Eames  v.  Prentice.  8  Cush.  337,  and  :\rerriam  v.  AVillis,  10 
Allen.  119.  cited  for  the  defendant,  in  which  it  was  held  that  an  ac- 
tion of  trespass  for  breaking  and  entering  the  plaintiff's  close  could 
not  be  supported  by  proof  of  taking  and  carrying  away  goods  only, 
n<»  luilawful  use  of  the  land  itself  was  proved. 

The  defendant  has  no  just  cause  of  exception  to  the  manner  in 
which  the  case  was  left  1<>  the  jury.  The  defendant's  right  of  use 
was  well  defined  by  the  presiding  judge  as  one  which  wa.s  to  be  ex- 
ercised reasonably  and  in  such  mode  as  to  be  consistent  with  the 
sirjiilar  use  by  tlic  ])laintift';  and  the  question  whether  the  acts 
provf'd  cann^  witliiii  lliis  definition  was  rightly  submitted  to  the 
jnr>-  as  a  fjuestion  of  fact.  We  may  add  that  if  the  question  were 
one  to  be  decided  by  the  court,  we  should  have  no  doubt  that  build- 
ing a  j)ig-p<'n  ovfr  the  well  and  digging  a  lai-gc  hole  in  the  gi'ouud 
were  acts  inconsistent  with  the  couuiion  use  of  the  close  by  the  par- 
ties, and  thiTcfore.  even  if  there  were  any  doubt  of  the  propriety 
of  submitting  the  question  to  a  j\iry.  it  has  been  rightly  deeided_, 
and  the  defendant  has  sustained  no  injuiy.  TJieker  v.  rutter,  S 
'^Jray.  24H.    Kxeeptions  overruled. 

In  Hays  v.  Askew,  ',2  X.  C.  272,  it  is  held  that  trespass  q.  c.  f.  lies  by 
the  owner  of  the  servient  estate  apralnst  the  owner  of  an  easement  for  an 
abuse  of  the  rights  conferred  by  the  grant  of  the  ciisciiieiU.  See  GrifUn 
V.  R.  R.,  I.'.fl  N.  r.  :',12,  r>\  S.  K.  Ifi.  for  remedy  of  :m  abutling  owner  where 
a  street  Is  used  for  purrioses  not  Ipgitlmnte  to  the  use  of  a  street  as  a 
hiehwav.  See  7  I...  R.  A.  (S.  R.)  r.or,.  and  note.  See  "Easements."  Cen- 
turv  Dig.  55  10!).  132;    Decennial  and  Am.  Dig.  Key  No.  Series.  §§  51,  64. 


'2bO  CU-NC'KKMNci     UKAl,    KS'PATl-:.  ^  ^  7( .    3. 

IIATCHELL  V.  KlMUHOli;!  1,    lit  N.  C.  11)3.     ISoll. 
T»Ts/J<i,s'.v   </.   c.   /'.    ^1/    Tciunit   Aaaiiist   Ins    LanilloiiL 

[Trespass  q.  v.  f.  by  l<]lizal)<.'th  llatcljell,  lessee,  against  William  Kim- 
hrougli,  owiuT  in  U'v,  ;ui(l  landliud  ot'  plaint  ilT.  Vciiiici  and  jndgnient 
against  di'Tcndanl,  and  lu>  aiipealod.     Alliiined. 

The  plaintiff  was  in  possession  nnder  a  demise  troni  del'endant.  The 
demise  was  for  a  year;  npon  the  terms  that  plaintiff  should  i)ay,  as  rent, 
one  hall"  the  crops,  and  defendant  should  furnish  a  horse  for  jjlalntlff 
to  use  in  making  the  erop.  The  defendant  caused  his  slaves  to  tear  the 
roof  off  the  house  on  the  deniisetl  land.  This  was  done  (luring  jihiintiff's 
term  and  during  a  snow.  Plaintiff  lost  one  of  her  eyes  from  disease 
caused  by  exposure,  etc.,  incident  to  defendant's  having  the  roof  torn  off. 
The  judge  charged  that  the  action  was  properly  brought  and  that  plain- 
tiff could  recover  if  the  evidence  established  the  above  facts.] 

Pearson.  J.  1.  The  action  was  \vell  brought.  The  i)laiiitilit' was 
in  possession  as  lessee  for  years.  The  cireiuiistance  tliat  tlie  de- 
fendant, who  was  the  lessor,  furnished  the  plaintiff  with  a  horse, 
had  no  other  etfeet  than  to  entitle  him  to  a  larger  i)art  of  the  rv(>\) 
as  rent.  It  did  not  alter  the  relation  of  landlord  and  tenant,  or  u\ 
any  way  at^'eet  the  right  of  the  ])Iaintilf  to  the  exclusive  possession. 
The  doctrine  in  regard  to  a  cropper  has  no  api)lication.  lloss  v. 
Swearingen.  31  N.  C.  481. 

2.  If  the  plaintiff  was  not  entitled  to  recover  in  this  action  for 
the  loss  of  her  eye.  in  aggravanon  of  damages,  she  could  not  re- 
cover for  it  at  all.  The  defendant  committed  but  one  wrongful 
act,  i.  e.,  breaking  the  plaintiff's  close  and  carrying  off  the  roof  of 
the  house.  Of  course  the  plaintiff  eonld  bring  but  one  action. 
Fetter  v.  Beale.  1  Ld.  Ravmond.  339.  692.  1  Salk.  11  ;  Tlodsoll  v. 
Stallebrass,  9  Car.  and  Pa.  63  (38  E.  C.  L.  R.  35).  and  other  cases 
cited  in  Moore  v.  Love,  48  N.  C.  215.  where  the  matter  is  fully  dis- 
cussed. 

As  the  less  of  the  plaintiff's  eye  is  fonnd  by  the  .iury  to  have  been 
the  "direct  and  immediate  consequence  of  the  exposure  to  which 
she  was  subjected  by  having  the  roof  of  her  house  taken  off, ' '  it  was 
clearly  proper  that  it  should  be  considered  in  aggravation  of  dam- 
ages. Welch  V.  Piercy,  29  N.  C.  365.  "Every  one  is  presumed,  m 
law,  to  intend  any  consequence  which  naturally  flows  from  an  un- 
lawful act.  and  is  answerable  for  the  injury."  Accordingly  it  is 
there  held,  that  in  trespass  q.  c.  f..  for  letting  down  the  plaintiff's 
fence,  he  could  aggravate  the  damages  by  proof  that  his  hogs  got 
out  and  were  lost.  So.  in  an  action  of  this  kind,  the  plaintiff  may. 
in  aggravation,  .show  that  the  defendant  debauched  his  daughter. 
All  injuries  of  the  sort  are  included  under  Avords  alia  enormia. 
Judgment  affirmed. 

See  "Landlord  and  Tenant,"  Century  Dig.  §  1355;  Decennial  and  Am. 
Dig.  Key  No.  Series,  §  323. 


SILLOWAY  V.  BROWN,  12  Allen   (Mass.),  30,  37.     1866. 
Trespass  q.  c.  f.  by  one  Cotenant  Against  Another  Cotenant. 

fTort  for  breaking  and   entering  plaintiff's  close.     Judgment   against 
plaintiff,  and  he  appealed.     Reversed. 


Sec.    12.]  CONCERNING    REAL   ESTATE.  251 

Plaintiff  and  defendant  were  tenants  in  common  of  the  locus  in  quo. 
The  defendant  took  possession  and  refused  to  allow  plaintiff  to  enter. 
"The  plaintiff  then  attempted  to  enter  and  get  into  possession,  but  was 
resisted  by  the  defendant  and  prevented  from  occupying  or  getting  ef- 
fective possession  of  the  place,  and  this  was  the  trespass  complained  of 
in  the  first  action."  There  were  two  actions  tried  at  the  same  time.  The 
first  was  trespass  q.  c.  f. — the  second  was  replevin  for  hay.  Only  that 
part  of  the  opinion  which  treats  of  the  right  of  one  tenant  in  common  to 
maintain  trespass  q.  c.  f.  against  his  cotenant,  is  here  inserted.] 

Gray.  J.     .     .     .     The  general  rule  is  well  settled  that  one  ten- 
cint  in  connnon  cannot  maintain  an  action  of  trespass  against  an- 
other for  breaking  and  entering  the  close  owned  in  connnon,  and 
taking  the  crops;  because  each  has  an  equal  right  of  entry,  occupa- 
tion and  enjoyment,  and  the  possession  of  one  is  prestimed  to  be 
the  possession  of  all.    Litt.  s.  323.    Keay  v.  Goodwin,  3  6  ]\Iass.  4. 
But  if  one  does  an  act  which  puts  an  end  to  the  tenancy  in  common, 
either  by  destroying  the  common  estate,  or  />.)/  ousting  liis  coienant 
therefrom,  the  latter  may  maintain  trespass  cpiare  clausum  f regit 
against  him.  for  otherwise  he  Avould  have  no  adequate  remedy. 
Lord  Coke  cites  cases  from  the  year  books  which  show  that  one  ten- 
ant in  connnon  of  a  dove  house  may  maintain  such  action  against 
his  cotenant  for  destroying  the  tiight  of  doves,  or  one  tenant   in 
common  of  a  park  for  destroying  all  the  deer,  or  one  tenant  in  com- 
mon of  land  for  destrojnng  mete  stones  thereon.     Co.  Litt.  200. 
So  in  a  well  considered  case  in  Elaine  it  was  held  that  one  tenant  in 
connnon  of  a  mill  and  land  might  maintain  such  an  action  against 
his  cotenant   for  dcsiroijing   the   mill.     .Maddox  v.   Goddard,   15 
Maine,  221.    The  rule  is  the  same  if  the  wrongdoer,  instead  of  de- 
slroyinfi  the  common  property,  ousts  liis  cotenant  and  vliollii  pre- 
vents ]iis  enjoyment  of  it.    Littleton  and  Coke  say  that  in  such  case 
the  one  ousted  might  have  a  writ  of  ejectment,  and  Coke  adds  that 
he  might  recover  damages  for  the  entry.    Litt.  ss.  322.  323  :  Co.  Litt. 
199b.     And  in  Goodtitle  v.  Tombs.  3  AVils.  118.  it  was  held  after 
recovering  judgment  in  ejectment  he  might  have  an  action  for 
mesne  profits,  in  which  Lord  Chief  Justice  AVilmot  and  iMr.  Justice 
Gould  agreed  that  the  damages  would  not  be  limited  to  the  mere 
rent  of  the  lu-emiscs.     Tt  is  now  well  settled  in  Kngland  that  tres- 
pass quare  chiusum  fregit  may  be  maintained  by  one  tenant  in  eom- 
mon  against  another  for  an  actual  expulsion  or  ouster  from  I  lie 
premises,    ^furrav  v.  TIall.  7  C.  B.  441,  overruling  the  dictum  of 
Littleflale.  J.,  in  Cubitt  v.  Porter,  8  B.  &  C.  269;  St(Mlman  v.  Sinilh. 
8  LI.  &  Bl.  fi.  7.    The  same  doctrine  has  been  adjudged  in  New  York 
and  l*ennsylv;inia.  and  recognized  in  Xew  ITanipshire.  and  repeat- 
edly by  Ibis  court,     i:r\vin  v.  Olmsted.  7  Cow.  129;  :\IeGi]l  v.  .\sb. 
7  Barr.  397;  Odiorne  v.  Lyford.  9  N.  Tf.  511  :  M\uii-oe  v.  Tiuke.  1 
Met.  4(i7,  472;  Bennett  v.  Clemenee.  G  Allen.   18.  19.     There  is  no 
rca.son  why  a  tenant  in  eomnion.  ratliei*  tlian  aii_\  other  person  p\it 
r»r  kept  out  of  pos.session  oi'  his  estate,  sliould  br  (b'uied  tlie  election 
of  suing  in  trespass,  and  limited  to  a  writ   oC  entiy.  in  wliieli  be 
could  recover  no  dnmatres  for  the  injury  to  him  l)y  tlie  expulsion  or 
ouster.     Wcjire  therefoj-e  satisfied  llial  upon  principle.  ;md  accord- 
ing to  the  weiglit  of  authority  (notwithstanding  llie  ;il>l<'  opinion  nf 


L'.')!.'  CONCKKM.Nt;     IvKAl,     KsrA'l'K.  [('//.    o. 

the  sui)ivuK' couit  (>r  W-niKiiil  in  W.iil  w  Iiicli.-inlsdii.  '.V.\  \'l.  l!H), 
to  the  eonti'iiry  t.  he  iiiay.  luulei-  such  ciri'imisliiiiees,  iiiaiiiljiiii  tres- 
pass qiuire  ehiusuiii  rrej^il.  Tln'  tli'leiulant  "s  ii'sistaiiee  lo  the  plaiii- 
tiir's  attempt  to  eiitei-.  pi-eveiitin^'  him  frem  occnipyiiij?  or  getting 
etfeetive  possession  o[  tlir  laml.  amounted  lo  an  actual  ouster.  Co. 
Litt.  7i)})l);  Dot"  V.  l'ro.ss»'r.  C\)\v[).  21S;  (.Joidoii  v.  Tearson.  I  Mass. 
323;  .Marcy  v.  Man-y.  ti  .Mel.  371.  Tlie  aileycd  consent  oi'  the  mort- 
gagee gave  llu*  dcfcmlant  no  riglit  to  the  i)ossession  of  tlie  premises 
as  against  tlic  phnntilV.  owning  the  ccpiity  ol"  ivik'uiption,  before 
any  actual  entry  had  been  made  or  suit  lor  po.ssession  biought  by 
the  mortgagee.  Mayo  v.  Fletcher.  14  Pick.  531,  532.  The  plainliff 
was  tlierefore  entitled  to  maintain  his  action  of  tort  in  the  nature  of 
trespass  against  the  defendant  for  keeping  him  out  of  possessiou, 
and  ill  the  first  of  these  eases  the  exception  must  l)e  sustained. 

But  one  tenant  in  common  cannot  maintain  trespass  or  rei)leviu 
for  taking  the  crops  against  liis  eotenant,  wlio  has  an  ecpial  light 
with  him  to  the  possession  and  enjoyment  of  the  land.  The  plain- 
tiff's remedy  for  this,  if  aii\ .  was  by  an  aetion  of  contraet  for  his 
share  of  the  [n'oceeds,  which  has  taken  the  plaee  in  this  commou- 
weaith  of  the  aetion  of  account  given  in  England  by  the  St.  of  4  & 
5  Anne,  e.  16,  s.  27.  Bigelow  v.  Jones,  10  Pick.  Ibl  ;  Barnes  v. 
Bartlett,  15  Pick.  75;  Badger  v.  Holmes,  6  Gray,  118,  119,  and  eases 
eited.  In  the  secon-d  case,  therefore,  the  exceptions  must  be  over- 
ruled.    .     .     . 

See  "Tenancy  in  Common,"  Century  Dig.  §  103;  Decennial  and  Am.  Dig. 
Key  No.  Series,  §  38. 


DILLS  V.   HAMPTON.  92  N.  C.  565.     1885. 

Trespass  q.  c.  f.  by  Lessee  for  Years.    Remedy  of  Reversioner  for  Injuiy 

to  the  Land. 

[Action  for  damages  for  injury  to  real  estate.  Verdict  and  judgment 
against  defendant,  and  tie  appealed.     Affirmed. 

Plaintiff  owned  the  reversion  in  fee  and  Bumgarner  was  in  possession 
under  a  lease  for  three  years  from  plaintiff  lo  Iiiinan — which  term  Inman 
had  assigned  to  Bumgarner.  Hampton  removed  a  fence  on  the  locus  in 
quo.  The  removal  was  under  license  from  Bumgarner.  Plaintiff  sued 
Hampton  for  the  damage  resulting  from  the  injury  done  to  the  land  by 
his  removing  the  fence.  The  defendant  requested  the  judge  to  charge, 
that  plaintiff  could  not  recover,  because  he  was  not  in  actual  possession 
of  the  land  when  the  injury  was  done.  The  judge  declined  to  give  such 
instruction,  and  defendant  excepted.  The  question  presented  is:  If  land 
be  let  for  a  term  of  years,  who  can  sue  for  an  injury  done  by  a  third 
person  to  such  land,  and  what  form  of  action  must  be  brought?! 

Ashe.  J.  The  instructions  a.sked  by  the  defendant  are  predi- 
cated upon  the  idea  that  this  is  an  aetion  in  the  nature  of  trespass 
fpiare  elausum  f regit.  If  so.  there  would  be  error  in  the  refusal  of 
his  Honor  to  give  the  instructions  prayed  for  by  tlie  defendant. 
But  the  defendant  ha.s  misconceived  the  plaintiff's  cause  of  action. 
Upon  the  facts  stated.  iJw  nature  of  the  aetion  is  trespass  ejn  the 
case,  and  the  instnietious  asked  are  not  a[)[)licable  to  such  an  ac- 


Sec.    12.]  CONCERNING    REAL    ESTATE.  253 

tioii.  and  we.  therefore,  hold  there  was  no  error  in  the  refusal  of  his 
Honor  to  give  them.  AYhen  the  facts  of  a  case  are  stated  in  a 
"plain  and  concise  statement  of  the  cause  of  action,"  the  plaintiff 
is  entitled  to  any  relief  justified  hy  the  facts  proved,  and  not  incon- 
sistent with  the  pleadings.  ]\Ioore  v.  Ilohhs,  77  X.  ('.  65;  Knight  v. 
Houghtalling.  85  N.  C.  17. 

The  gravamen  of  the  plaintiflP's  action  is  a  permanent  injuiy  to 
the  freehold.  When  there  is  such  an  injury  done  to  land,  and  at 
the  time  there  is  a  lease  upon  it.  tlie  /r.s\s7T  may  sustain  an  action  of 
irespass  quare  clmisum  fregit,  and  ot  the  same  time  the  reversioner 
inaif  have  an  action  against  the  trcsi:)asscr  for  iJir  liijurii  to  his  re- 
vrrsiouar'i  interest  in  the  freehold. 

Here  the  plaintiff  claimed  title  to  the  land  he  had  leased  to 
Inman  for  three  years  who  had  assigned  the  lease  to  Bumgamer, 
and  the  lease  had  not  expired  when  the  trespass  complained  of  was 
( (mnnitted.  Humgarner  might  have  sustained  an  action  for  the 
trespass,  if  he  had  not  given  his  consent  to  it;  and  the  plaintiff 
clearly  had  a  right  of  action  for  the  trespass,  if  he  had  the  title 
and  the  trespa.ss  worked  a  permanent  injury  to  the  freehold  affect- 
ing his  reversion.  Williams  v.  Lanier.  4-1  N.  C.  80.  These  are  prin- 
ciples too  well  settled  to  require  the  citation  of  authorities  to  sup- 
port them.  If  Bumgarner  had  committed  the  acts  complained  of 
hy  the  plaintiff,  he  would  have  been  liable  to  the  plaintiff  in  an  ac- 
tion of  trespass  on  the  ca.se  in  the  nature  of  waste  under  the  former 
system  of  pleading.     .     .     .     Af'lirmed. 

For  difference  in  measure  of  damages  for  destruction  of  fructus  natur- 
ales  and  fructus  industriales,  see  23  L.  R.  A.   (N.  S. )   310,  and  note. 

"If  a  stranger  breaks  the  close  of  one  having  the  particular  estate  and 
besides  injuring  such  tenant  by  treading  down  his  grass,  taking  away 
his  crops,  etc.,  also  commits  an  injury  to  the  inheritance,  by  cutting  tim- 
ber trees,  tearing  down  houses,  etc.,  the  particular  tenant  may  have  tres- 
pas.s  q.  c.  f.  for  the  injury  done  immediately  to  him;  and  the  remainder- 
vian  or  reversioner  may  have  an  action  on  the  case,  in  the  nature  of 
waste,  for  the  injury  to  the  inheritance.  This  doctrine  is  discussed  and 
settled  by  Williams  v.  Lanier,  44  X.  C.  30.  In  the  case  of  a  tenant  at  will, 
there  are  many  authorities  for  the  i)Osition  that  although  his  action  must 
be  tresi)ass  q.  c.  f.,  still  the  action  of  his  lessor  [the  action  of  the  rever- 
sioner! may  also  be  trespass  q.  c.  f.;    provided  an  injury  is  done  to  the 

land,  as  by  tearing  down  Jiouses,  'subverting  the  soil,"  etc but  it 

is  distinctly  confined  to  'ases  where  damage  is  done  to  the  land,  and  not 
merely  to  the  possession,  as  by  treading  down  grass,  etc.  On  the  con- 
trary, there  are  many  authorities  foi-  the  i)osition  that  even  in  a  case  of  a 
tenancy  at  will,  the  lessor  can  under  no  circumslances  maintain  an  ac- 
tion of  trespass  q.  c.  f.,  be<-ause  tlie  giavamen  of  that  foi  ni  of  action  is  an 
Injury  to  the  jiossession,  and  that  'case'  is  the  only  action  which  the 
lessor  can  maintain.  ...  It  is  not  necessary  for  us  to  take  sides  in 
this  controversy."  Pearson,  .1..  in  Smith  v.  Fortescue.  4S  N.  C.  fi.'i.  As  it 
is  i)ecullar  that  a  reversioner  should  be  allowed  to  maintain  an  action 
for  nastr.  or  rrcn  one  in  tlie  nature  of  waste,  af/aiiist  a  slritnam-  the 
explanation  of  that  doctrine  by  Pearson,  .7.,  is  here  coi)ie(l  from  Williams 
V.  Lanier,  44  N.  C.  30,  31:  "A  reversioner  or  remainderman  could  not 
bring  a  writ  of  wa.fte  against  a  stranger,  because  i)rivity  of  estate  was 
necessary  to  Kupi)ort  the  a<tir)]i.  Hence,  anciently,  if  a  stranger  broke 
the  close  of  one  having  the  iiarliciijar  estate,  and  besides  injuring  biin  by 
'treading  down  his  grass'  taking  away  his  crops,  etc.,  also  coniinitled  an 
Injury  to  the  inheri'anre,  by  cutting  timber  trees,  tearing  down  houses, 


etc.,  the  revcrnioiwr  or  rcmaindi'iman  was  allowed  to  bring  a  writ  of 
waste  aj^ainst  the  particular  tenant;  and  he.  in  trespass  quare  clausum, 
besides  dania.nes  lor  tiie  in\nieiiiate  injury,  was  allowed  to  recover  dam- 
apes  by  way  of  reiniliursenuMit  lor  liis  lialiilily  on  accouni  of  the  injury 
to  the  inheritance,  'i'his  was  found,  in  many  cases,  to  bear  hard  on  the 
particular  tenant,  and  the  remedy  was  frequently  an  inadequate  one  for 
the  reversioner  or  remainderman.  For  these  reasons,  it  has  been  set- 
tled for  \ipwards  of  a  century,  that  the  latter  may  biing  crt.s-c  in  the  na- 
ture of  irastr.  for  tln>  injury  to  tlif  inhci'ilance:  and  lli(>  former,  trespass 
quare  clausum,  for  the  injury  done  imnicdialely  to  him.  1  Chit.  PI.  50, 
71;  2  Saund.  Rep.  Jo'J.  li,  n.  7."  See  "Landlord  and  Tenant,"  Centuiy  Dig. 
§  509;  Decennial  and  \u\.  Dig.  Key  No.  Series,  §  142;  "Tres|)ass,'"  Cen- 
tury Dig.  §  ?A\. 


PAGE  V.   HOLLINGSWORTH,  7   Ind.  317.     1855. 
T)-espa.ss  q.  c.  f.  Against  llic  Oicner  of  Trespassi7ig  Anivials. 

[Trespass  q.  c.  f.  to  recover  damages  caused  by  cattle  breaking  into 
plaintiffs  field  and  eating  his  corn.  Verdict  and  judgment  against  plain- 
tiff, and  he  appealed.     Reversed. 

Holllngsworth  owned  over  three  hundred  cattle  which  he  confined  in 
pastures.  He  hired  men  to  watch  them  and  look  after  the  fences  around 
the  pastures.  In  fact,  he  exercised  reasonable  precautions  to  prevent  the 
cattle  breaking  out.  Rut  they  did  get  out  and  l)reak  into  Page's  field 
and  destroy  his  corn.  The  corn  field  was  properly  fenced.  The  judge 
charged  that  the  defendant  was  not  liable  if  he  exercised  proper  care  in 
confining  his  cattle  and  was  guilty  of  no  i)Ositive  wrong  in  the  matter  of 
the  trespass  complained  of.     Exception  by  plaintiff.! 

Davison.  J.  .  .  .  Tf  tlic  trespass  in  this  case  had  been  com- 
mitted against  the  person  or  personal  propcrtii  of  the  ]")laintiffs.  and 
fiot  against  their  real  estate,  the  instrnctions  would  have  been 
clearly  right,  because  cattle,  such  as  those  charged  with  having 
broken  and  entered  the  jjlaintifF's  close,  viz.,  cows.  oxen,  steers,  and 
the  like,  are  regarded  mansuetae  naturae,  not  naturally  inclined  to 
commit  mischief.  And  the  owner,  for  such  trespa.ss  merely  against 
the  person  or  personal  pro])erty.  would  not  be  held  liable,  unless  it 
coidd  be  shown  that  he  pi'civiously  had  notice  of  their  viciousness. 
or  that  the  injury  was  attril)utal)]e  to  some  neglect  on  his  part.  1 
Chit.  PI.  82.  S;3:  IJac  Abr.  tit.  Trespass.  1  ;  Vrooman  v.  Lawyer.  13 
Johns.  339;  Lyke  v.  Yuu  Lcuven.  4  Denio.  127. 

Tint  this  rule  does  not  apply  to  the  case  before  us.  Here  a  close 
vas  hrol'en  and  entered  hif  such  animals:  and  though  their  owner 
Jiiay  not  know  when  they  are  inclined  to  connnit  mischief,  still  it  is 
said  "they  have  a  natural  and  notorious  propensity  to  rove,"  which 
he  is  always  presumed  to  know.  TTence,  he  is  bound,  at  his  peril,  to 
confine  them  on  his  own  land  ;  tor  if  they  escape  and  connnit  a  tres- 
pass on  the  land  of  another,  itnlrss  Uirouqh  the.  defect  of  fences 
vhich  the  latter  oiiffht  to  repair,  the  l;iw  dcciiis  the  owner  himself  a 
ti-espa.sser.  and  holds  him  liable  in  trespass  qtuire  clausum  fregit. 
though  he  had  no  notice  in  fact  of  such  propensitv.  3  l^lk.  Com. 
211  ;  f)  Mass.  !)0;  4  :\r('t.  380;  S  Ibid.  284;  1  Chit.  PI.  83.  This  is 
the  common-law  rule  on  the  subject,  and  we  have  heretofore  decided 
that,  as  a  general  i-ule.  it  prcv;iils  in  Tiidian;!.    "Williams  v.  New  Al- 


Sec.    12.]  CONCERNING    REAL    ESTATE.  255 

baiiv  R.  R.  Co.,  5  lud.  Ill ;  The  Lafayette  R.  R.  Co.  v.  Shriuer,  6 
Ind'  141. 

If  the  principles  above  stated  are  sound,  as  we  think  they  are,  the 
ruling  of  the  common  pleas  cannot  be  sustained.  Against  the 
plaintitfs  no  delinquency  was  shown.  The  fence  through  which  the 
cattle  broke  and  entered  the  corn  field,  was  considered  by  the  par- 
ties sufficient  and  in  good  repair,  and  the  authorities  we  have  cited 
establish  the  principle,  that  the  owner  of  such  cattle  cannot,  in  de- 
fense of  a  suit  like  the  present,  set  up  the  care  and  diligence  which 
he  may  have  exercised  in  an  unavailing  effort  to  confine  them  on  his 
own  land.  Indeed  the  defendant  in  this  case  may  have  been  en- 
tirely innocent ;  yet  his  cattle  having  broken  and  entered  the  close, 
and  therein  destroyed  corn,  the  plaintiffs  not  being  at  fault,  the 
law  holds  him  responsible  for  the  trespass.  The  jury,  in  our  opin- 
ion, were  improperly  instructed.    Judgment  reversed. 

See  Malonv  v.  Bishop,  105  X.  W.  407,  2  L.  R.  A.  (X.  S.)  1188,  and  note 
(chickens);  Wood  v.  Snider,  79  X.  E.  858,  12  L.  R.  A.  (X.  S.)  912,  and 
note  (cattle  driven  along  highway).  See  "Animals,"  Century  Dig.  §  338; 
Decennial  and  Am.  Dig.  Key  Xo.  Series,  §  97. 


C    H.  and  D.  R.  R.  CO.  v.  WATERSOX  and  KIRK,  4  Ohio  St.  425,  432. 

1854. 
Euglish  and  American  Late  as  to  Cattle  Roaming  at  Large. 

[Action  on  the  case  to  recover  damages  for  the  killing  of  two  horses  by 
the  railroad  company.  Judgment  against  the  railroad  company.  The 
company  carried  the  case  to  the  Supreme  Court  by  writ  of  error.  Af- 
firmed. 

In  the  course  of  the  opinion,  after  calling  attention  to  a  local  statute, 

Ranney,  .1.,  says:  1 

T  will,  however,  take  this  occasion  to  say.  that,  in  my 
judgment,  the  owner  of  domestic  animals,  in  suffering  thetn  to  run 
at  large  under  the  limitations  expressed  in  the  statute,  is  in  no 
fault:  and  that  there  is.  therefore,  no  room  for  the  application  of 
the  doctrine  which  determines  when  a  party  in  the  wrong,  may, 
neverthf'less.  recover  for  injuries  arising  from  the  negligence  of  an- 
other. In  otiier  words,  the  owner  has  a  perfect  right  to  suffer  his 
animals  to  go  at  large,  without  incui-ring  any  responsibility  to  the 
owners  of  uninclosed  grounds,  upon  which  they  may  wander.  I  am 
aware,  that  lliis  is  flatly  opposed  to  the  common-law  doctrine  upon 
the  subject,  and  if  that  rule  of  the  conunon  law  was  in  force  in  this 
state,  would  be  entirely  inadmissible.  But  it  is  not  in  force;  and  it 
is  not  in  force  because,  in  addition  to  being  utterly  inconsistent 
with  our  legislation,  it  lacks  all  the  es.sential  requisites  that  give 
vitality  here  to  any  principle  of  the  common  law.  and  is  opposed  to 
the  (-..mmon  understanding,  habits,  and  rvm  necessities,  of  the  peo- 
ple of  the  state. 

Tndf-ed.  with  the  strict  enforcement  of  such  a  rule,  the  state  never 
could  have  been  settled.     Tlir  ];iiids  w.ir  all  lirjivily  timbered,  and 


•2M)  coNrKUMNc    uv.w.    KSTAi'i;.  |rA.   ,?. 

tl\i'  intrtHliiflioii  of  donirstic  ;niiiii;ils,  I'nuii  tlic  sc'ircity  of  hcrbaji;*'. 
it'tiuiriiiir  a  wide  raiiirt'  Tor  lln'ir  support.  Ix'canu'  iii(lis|)i'iisal)k'  be- 
fore the  forests  could  be  removed.  If  would  liave  been  a  novel 
proposition  to  a  liardy  pioneei".  wbeti  lie  lislenei)  in  the  iiioi'iiin^  for 
the  bell  that  indicated  w  lieic  the  oxen  that  hauled  tofjether  his  logs 
for  buniinLT.  miirht  be  found,  lo  have  told  him  that  his  cattle  were 
trespa.ssers  on  every  other  man's  uninelosed  land  upon  which  they 
miirlit  have  fed  duriuti'  the  niirht  :  or  that  he  could  plant  corn  with- 
out inclosintr  the  prronnd.  and  sue  his  neitjrhbor  whose  cattle  had 
eaten  it  uji.  Xobody,  tutlier  lawyei"  or  layman,  ever  thoui^ht  of  s\ieh 
a  tliin<r.  The  practice  of  lettinir  cattle  <ro  at  lai'f^e  was  consitlei'ed  as 
a  riirht.  ti'cated  as  a  right,  and  regulated  by  numerous  statutes  as  a 
i-ight.     .     .     . 

As  to  the  liability  of  the  owner  of  cattle  tor  injuries  committed  by  them 
on  the  lands  of  another;  the  law  of  England  and  that  of  America  with 
regard  to  the  duty  of  cattle  owners  in  the  matter  of  keeping  them  up;  the 
dutv  of  landowners  to  fence  their  lands,  etc.,  see  Jones  v.  Witherspoon, 
52  N.  C.  555;  Shipman.  Com.  Law  PI.  52;  3  Blk.  *2n;  Bish.  Non-Coni. 
Law,  ss.  824,  825;  (>  Wait.  Act.  and  Def.  71;  Revisal.  vol.  1,  ch.  35.  See 
•Animals,"  Century  Dig.  §§  143,  144,  335;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §§  48,  93. 


STOKES  v.  FRALEY,  50  N.  C.  377.     1858. 
Judgment  in  Trespass  q.  c.  f.  how  iar  an  Estoppel. 

[Action  of  ejectment  by  Doe  on  the  demise  of  Stokes.  Submitted  on 
case  agreed.     Judgment  against  defendant,  and  he  appealed.    Reversed. 

In  1856  Stokes  sued  Fraley  in  trespass  q.  c.  f.  for  an  alleged  trespass 
upon  the  same  land  sued  for  in  the  present  action  of  ejectment  by  him 
against  the  same  defendant.  Fraley  pleaded  the  general  issue  and  libe- 
rum  tenementum  in  the  action  of  trespass  q.  c.  f.,  and  the  title  of  botli 
parties  was  fitUy  gone  into  in  the  trial  of  that  action,  which  trial  re- 
sulted in  judgment  for  damages  against  the  defendant.  That  judgment 
was  reli^d  on  by  the  plaintiff  as  an  estop])el  upon  the  defendant  to  dis- 
pute the  plaintiff's  title  to  the  locus  in  quo  in  this  action.  The  judge 
ruled  with  the  i)]aintiff  on  that  point.] 

Pearson.  J.  In  the  action  of  trespass  q.  c.  f..  the  defendant 
pleaded  the  "general  issue."  and  also  pleaded  specially  "liberum 
tenementum :"  to  this  plea  the  jjlaintiff'  rei)lied.  by  way  of  traverse, 
to  wit.  that  the  locns  in  f|no  was  not  the  freehold  of  the  defendant. 
Tpon  this  issue,  the  rpiestion  of  title  was  fully  gone  into,  and  both 
i.ssues  were  found  in  favor  of  the  lessor  of  the  plaintiflP.  The  ques- 
tion is  :  does  this  establish  his  title  by  force  of  an  estoppel  ^ 

The  effect  of  the  finding  on  the  general  issue  was.  that  the  plain- 
tiff wa.s  in  posses.sion.  and  was  entitled  to  recover  against  a  wrong- 
doer; and  further,  that  the  defendant  had  committed  the  trespass 
complained  of.  and  Avas  liable  to  the  plaintiff's  action,  unless  he 
(the  defendant)  had  title  to  the  land. 

The  effect  of  the  finding  on  the  issue  joined  on  the  special  plea 
was.  that  the  (Jcfnxchwt  had  not  iillc  to  the  land  ;  hnt  nan  constat, 
that  the  Ipsnor  of  th(  )>laiiitilf  had  tItJr  :  it  may  well  be  that  neither 


Sec.    12.]  CONCERNING    REAL    ESTATE.  257 

had  title ;  aud  although  the  possession  of  he  lessor  of  the  plaintiff 
was  sufficient  to  enable  him  to  recover  in  the  action  of  trespass  q.  c 
f..  against  the  defendant,  who  wa.s  a  wrongdoer,  that  will  not  en- 
able him  to  recover  in  the  action  of  ejectment,  because,  in  that  ac- 
tion, he  nuist  recover  upon  the  strength  of  his  own  title,  and  not  the 
weakness  of  his  adversary 's.  He  can  derive  no  aid  from  the  record 
of  recovery  in  the  former  action,  either  by  estoppel  or  otherwise, 
for  this  title  was  not  put  in  issue;  the  title  of  the  defendant  was 
alone  put  in  issue. 

In  Rogers  v.  Ratelitf.  48  X.  C.  225.  the  finding  was  for  the  de- 
fendant, and  if  he  had  relied  on  his  special  pleas,  there  would  have 
been  an  estoppel  in  respect  to  his  title.  The  decision  in  that  case 
does  not  conflict  with  our  opinion  in  this ;  and  both  tend  to  a  proper 
explication  of  the  doctrine  of  estoppel.  There  is  error.  Judgment 
reversed,  and  a  judgment  for  the  defendant  on  the  ease  agreed. 

In  Rogers  v.  Ratcliff,  48  N.  C.  225,  cited  in  the  principal  case,  practi- 
cally the  same  question  was  raised  as  that  embraced  in  the  principal  case. 
Botii  the  "general  issue"'  and  "liberum  tenementum"  were  pleaded  in  an 
action  of  trespass  q.  c.  f.,  and  the  verdict  was  for  the  defendant.  That 
record  was  relied  upon  as  an  estoppel.  "The  broad  question  is,  when  a 
verdict  is  in  favor  of  the  defendant,  both  upon  the  general  issue  and 
upon  an  issue  taken  in  a  special  plea,  can  the  finding  upon  the  latter  issue 
be  afterwards  used  as  an  estoppel  against  the  plaintiff?  .  .  .  Our  re- 
flections have  brought  us  to  the  conclusion  that  a  finding  for  a  defendant 
upon  a  fact  in  issue  by  a  special  plea,  is  not  conclusive,  when  there  is, 
by  the  same  verdict,  a  finding  for  the  defendant  upon  the  general  issue. 
.  .  .  A  finding  in  favor  of  the  defendant  upon  the  general  issue,  fixes 
the  fact  that  the  plaintiff  has  no  cause  of  action;  consequently,  it  is  un- 
necessary to  investigate  the  matter  alleged  by  the  special  plea."  See 
"Judgment,"  Century  Dig.  §  1054;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §  554. 


LI'MBER  CO.  V.  LUMEBR  CO.,  135  N.  C.  742,  47  S.  E.  757.     1904. 
Trespass  q.  c.  f.  Under  the  Code  Practice.     Title  How  Put  in  Issue. 

[Action  for  a  trespass.  Plaintiff  alleged  that  it  owned  the  locus  in  quo, 
and  that  defendant  trespassed  thereon.  Verdict  that  plaintiff  owned  part 
of  the  locus  in  quo,  but  that  defendant  had  not  trespassed  on  that  part. 
Judgment  was  entered  which,  inter  alia,  adjudged  that  plaintiff  was  the 
owner  of  a  part  of  the  locus  in  quo,  which  part  was  described  in  the  judg- 
ment. Defendant  appealed.  Judgment  modified  so  as  to  strike  out  the 
adjudication  as  to  the  plaintiff's  title.] 

DorGLAS.  J.  .  .  .  Tlie  plaintiff  brought  a  civil  action  in  the 
na1un>  of  trespass,  alleging  its  own<'rship  of  the  land  in  question, 
and  llie  defendant's  trespass  thereon.  The  jury  found,  in  sub- 
stance, tbat  llie  phiintiff  owned  a  part  of  the  lands  described  in  the 
coniphiiiil.  but  tli;it  tlir  ilcrcii.biul  ]i:i<l  not  trespassed  upon  those 
l)arti<'ubii-  biiuls.  This  was  \]\r  pradical  i-esult  of  the  verdict,  and 
its  leiral  <'fT<'ct  was  l.i  eiitilb-  tlie  defendant  to  a  .iudgiiienl  that  it 
go  without  day.  and  recover  its  costs  incurred  in  the  action.  We 
do  not  thinl<  that  any  judgiiHnt  sbouM  have  been  given,  deciding 
the  title  to  file  land.  ;is  tliat  was  not  the  csscTitial  ((uestion  involved 
Rcnuvlics — 1  7. 


258  CONCKRN'INt;    ICKAl,    lOSTATK.  [('//.    .V. 

ill  till'  iu-tioii.  'I'l-i'spass  is  I'sscntially  an  oIlVuso  aj>aiiist  tlic  pi)sses- 
sion.  aiul  an  ai'tiou  tlu'ivfor  cun  be  niaintainod  by  one  not  holding 
the  fee.  On  the  eontrary.  it  niiikes  no  dill'erence  wlio  owns  the  fee, 
it"  the  defendant  has  t'onniiit ted  no  ti'espass  tlu'i'eon.  If  liotli  issues 
had  been  i\»und  in  favoi'  of  the  plaint  ill',  it  may  be  that  he  would 
have  been  entitled  to  a  jiidj^nieiit  on  his  title,  as  a  necessary  requi- 
site to  his  reeovery ;  but,  as  he  is  not  entitled  to  a  recovery,  a  sim- 
ple judj^iiit'iit  for  the  dffendant  should  have  been  entered. 

The  juilijriiient  of  tlu'  court  below  will  be  inoditied  by  sti'ikin^  out 
that  pai-t  deereeing  tlu'  plaintitf  to  be  the  owner  of  the  lands  tlierein 
described,  and  then  aflirnicd.     Modified  and  al'lii'med. 

The  action  of  trespass  q.  c.  f.  is  used  in  some  jurisdictions  to  try  the 
Ntlc  to  real  estate.  See  (i  Wait,  Act.  &  Def.  00;  28  Am,  &  En^.  Fa\c.  Law. 
627.  In  Williams  v.  Shaw,  4  N.  C.  630,  it  was  said  by  Taylor,  C.  .1.,  in 
1816,  that  trespass  q.  c.  f.  was  "a  common  and  convenient  mode  of  trying 
the  title  to  land  of  whicli  there  is  no  actual  possession."  in  Moore  v.  An- 
gel, 116  N.  C.  843,  21  S.  E.  609,  it  is  decided  that  where  the  plaintiff  sues 
in  trespass  q.  c.  f.  and  alleges  that  he  is  the  owner  of  the  loi'us  in  quo,  and 
defendant  denies  such  ownership  by  plaintiff,  the  plaintiff  is  entitled  to  a 
judgment  declaring  his  title  if  the  jury  find  in  his  favor  on  the  issue  of 
ownership.  The  defendant  "must  submit  to  a  judgment  declaratory  of  the 
right  of  his  adversary  to  the  land  as  to  which  the  i)laintiff  has  been  com- 
pelled to  show  the  title  and  prove  the  trespass.  Cowles  v.  Ferguson,  90 
N.  C.  308;  Harris  v.  Sneeden,  104  N.  C.  369,  10  S.  E.  477;  Murray  v. 
Spencer,  92  N.  C.  264."  See  "Trespass,"  Century  Dig.  §  157;  Decennial  and 
Am.  Dg.  Key  No.  Series,  §  72. 


Sec.  13.    Action  on  the  Case  for  Injury  to  Real  Estate, 
smith  v.  fortiscue,  48  n.  c.  65.    1855. 

Case  in  the  Nature  of  Waste. 

[Trespass  q.  c.  f.  Verdict  and  judgment  against  defendant,  and  he  ap- 
pealed.    Reversed. 

Plaintiff  was  the  owner  in  fee.  Sawyer  was  his  tenant  at  will  and  in 
possession.  Fortiscue  entered  the  close  and  carried  off  some  lumber 
which  belonged  to  neither  the  plaintiff  nor  Sawyer.  No  injury  was  done 
to  the  land.  The  judge  charged  that  |)laintiff  could  maintain  this  action 
of  trespass  q.  c.  f.  notwithstanding  the  fact  that  the  possession  of  the 
locus  in  quo  was,  at  the  time  of  the  trespass,  in  the  tenant  at  will.l 

Pearson.  J.  If  a  stranger  breaks  the  close  of  one  having  the 
particular  estate,  and  besides  injuring  him  by  treading  down  his 
gra.ss.  taking  away  his  crops,  etc..  also  commits  an  injury  to  the 
inheritance,  by  cutting  timber  trees,  tearing  down  houses,  etc.,  the 
particular  tenant  may  have  frcspasft  qnare  clausum  fregit  for  the 
injury  done  immediately  to  him.  and  the  remainderman,  or  rever- 
sioncr.  may  have  an  action  of  //v.sprrs,'?  on  the  cane,  in  the  nature  of 
waste,  for  the  injury  to  the  inheritance.  This  doctrine  is  discussed 
and  settled  by  Williams  v.  Lanier.  44  N.  C.  30.     .     .     . 

See  extract  from  Williams  v.  Lanier,  44  N.  C.  30,  quoted  in  note  to  Dills 
V.  Hampton,  92  N.  C  565,  inserted  at  ch.  3,  §  12,  ante,  for  history  of  the 
action  on  the  case  in  the  nature  of  waste.  See  "Trespass,"  Century  Dig. 
§  36;   Decennial  and  Am.  Dig.  Key  No.  Series.  §  20. 


Sec.    13.]  COXCERXIXG    REAL    ESTATE.  259 


LIXDEMAX  V.  LIXDSEY,  69  Penn.  St.  93,  8  Am.  Rep.  219.  1871. 

Action  on  the  Case  Against  the  Owner  of  an  Easement  for  Exceeding  his 

Powers. 

lAction  on  the  Case  by  Liudsey  against  Lindeman.  Verdict  and  judg- 
ment against  Lindeman,  and  he  carried  the  case  to  the  Supreme  Court  by 
writ  of  error. 

In  1820,  John  Whisler  owned  land  on  one  side  of  a  creeiv  and  Jonas 
Rupp  owned  land  on  ihe  opposite  side.  They  executed  a  deed  whereby 
they  mutually  agreed,  for  themselves,  their  heirs,  personal  representa-. 
tives  and  assigns,  that  Rupp  should  build  a  dam  across  the  creek,  and 
Whisler,  his  heirs,  etc.,  could  use  one  half  of  the  water  in  the  pond. 
This  right  to  use  one  half  of  the  water  was  conferred  by  a  clause  in  the 
agreement,  which  clause  was  in  the  form  of  a  grant  of  such  right.  By 
mesne  conveyances  the  respective  lands  and  rights  of  Whisler  and  Rupp 
passed  to  Lindsey  and  Lindeman,  respectively.  Lindsey  claimed  that 
Lindeman  injured  him  by  consuming  more  than  half  the  water  in  the 
pond,  and  brought  this  action  of  trespass  on  the  case  to  obtain  redress  for 
such  injury.  Lindeman  made  the  point  that  Lindsey's  rights  grew  out  of 
the  agreement  originally  made  by  and  between  Whisler  and  Rupp;  that 
the  clause  with  regard  to  the  use  of  one  half  of  the  water  amounted  to  a 
covenant;  and  that,  such  l>eing  the  case,  Lindsey  could  not  maintain  this 
action  of  trespass  on  the  vase,  but  could  only  maintain  an  action  of  cove- 
nant for  the  injury  complained  of.  The  judge  ruled  that  this  action  was 
properly  brought.  The  question  presented  is:  If  the  owner  of  an  easement 
exceed  or  abuse  the  rights  conferred  upon  him,  can  he  be  sued  in  trespass 
on  the  case  for  the  damage  consequent  upon  such  misconduct?] 


Sharswood,  J.  .  .  .  The  remaining  errors  relate  to  the 
form  of  action.  It  is  contended  that  it  should  have  been  covenant 
on  the  agreement  of  1820.  ...  No  one  has  ever  supposed  be- 
fore, that  upon  a  grant  by  deed  of  an  easement,  or  privilege  upon 
land  or  land  covered  with  water,  by  one  man  to  another,  the  remedy 
for  a  disturbance  of  such  easement  or  privilege  was  an  action  of 
covenant  ui)(>n  the  deed.  Take  a  common  case  of  the  grant  or  the 
reservation  of  a  right  of  way.  Sur(;ly,  an  action  on  the  case  may  be 
maintaint'il  by  llic  grautoi'  for  the  obstruction  of  it  [i.  e.  the  right 
reserved)  as  well  against  the  grantee  and  tho.se  claiming  luidei'  liiiu 
as  against  strangers.  The  books  are  full  of  such  cases  in  which  no 
such  j)oiiit  was  made.  "Watson  v.  Hioren.  1  S.  &  R.  227  ;  Kirkham  v. 
Sharp.  1  \\\\nv\.  :\X\-  Jamison  v.  McCredy,  5  Watts  &  Serg.  129; 
Van  Meter  v.  Ilankinson.  fJ  Whart.  307;  Ebrier  v.  Stichter,  7  liar. 
19.  But,  contends  the  eouii.sel  for  the  plaintin'  in  error,  with  great 
ingenuity,  the  grant  lo  Whisler.  of  one  jiall"  of  tiic  watei-.  is  an  im- 
plied covenant  tliat  llie  giaiitor  will  not  lake  the  othei-  hall'.  Ti'ue, 
it  is  S(».  in  popular  language.  l)ul  that  does  not  constitute  a  tech- 
iiieal  covenant.  In  the  grant  of  a  iMght  of  way  or  common  in  the 
grantor's  land,  there  is  the  .same  implied  covenant  by  the  grantor 
that  he  will  not  disturb  its  enjoyment,  liut  tluit.  as  W(!  liavo  seen, 
does  not  prevent  the  plaintiff  from  resorting  to  an  action  on  the 
case  to  recover  damages  for  its  disturbance.    Judgment  affirmed. 

If  the  owner  of  the  easement  "Increase  the  servitude."  the  owner  of  the 
fee  or  sprvienf  estate  "may  maiiitnin  a  common  law  action  for  dnniaKes, 
to  be  a.ssPSKed  up  to  the  time  of  trial,  or,  it  seems,  he  may  sue  for  the  per- 
manent damage,  if  any.  which  has  been  inflicted  upon  his  properly."  and 


260  cx)NcM';KNi.\(i   in:AL   KsTAiii.  [Ch.  3. 

by  so  doing  cont'tT  uiiou  tlu>  (kl'i'inlant  ;i  liglit  to  tlu>  iiirroased  servitude. 
If  the  dolendaut  lio  lU'ting  iiiulfi-  tlu'  rigiil  of  i-iiiiiu'iit  (ioiiiaiii,  lu'  laii  pur- 
sue eitlier  the  statutory  remedy,  if  any  be  iirovidoil,  oi'  tlie  conimonlavv 
remedies  here  iiointed  out.  If  a  street  be  dtnlicated  or  condonnuHl,  the 
owner  of  the  fee  nu\y  recover  it'  tlie  servitude  l)e  increased  by  i)uilding  a 
steam  railroad  iu  tlie  street.  Wliilt-  v.  R.  R.,  li:'.  N.  C.  tild,  t;22.  1S  S.  E. 
:!30;  Staton  v.  R.  R..  117  N.  C.  ll'S,  Gl  S.  E.  -ISf).  As  to  wliat  additional 
burdens  can  be  rightfully  placed  upon  property  condemned,  etc.,  for 
streets,  see  Smith  v.  Uoldsboro.  121  N.  C.  3r)0.  L'S  S.  E.  IT'.l.  See  further 
as  to  the  apiuopriate  remedy  for  injuries  resulting  from  increasing  I  he 
servitude  in  case  of  streets,  (Jritlin  v.  R.  R..  1,")0  N.  C.  312.  ()4  S.  E.  1(].  See 
■■Actions, ■■  Century  Dig.  §  2;M;  Decennial  and  Am.  Dig.  Key  No.  Series, 
§  30;  "Action  on  the  Case,"  Cent.  Dig.  §§  7,  36;  Dec.  and  Am.  Dig.  Key  No. 
Series,  §  1. 


HOGWOOD  V.  EDWARDS,  61  N.  C.  350.     1869. 
Trespass  on  the  Case  and  Trespass  t'/  et  annis  for  Injuries  to  Real  Estate. 

[Trespass  vi  et  armis.     Verdict  and  judgment  against  defendant,  and 
he  appealed.     Reversed. 

A  boundary  ditch  separated  the  lands  of  Hogwood  from  those  of  Mrs. 
Patterson.  By  Mrs.  Patterson's  consent  Hogwood  placed  an  obstruction 
in  this  ditch.  Edwards  owned  land  on  both  sides  of  the  ditch  and  above 
the  obstruction  put  in  by  Hogwood.  By  permission  of  Mrs.  Patterson, 
Edwards  removed  part  of  the  obstruction,  thereby  causing  injury  to  Hog 
wood's  land.  In  what  he  did  Edwards  was  prompted  by  a  desire  to  bene- 
fit his  own  land,  and  had  no  intention  to  injure  Hogwood.  The  judge 
charged  that  the  plaintiff  could  recover  actual  damages  and,  if  there  were 
no  actual  damages  sustained,  then  he  could  recover  nominal  damages. 
The  verdict  was  for  sixpence  damages.] 

Battle.  J.  AVe  are  unable  to  perceive  any  ground  upon  whiclv 
the  action  of  trespas.s  vi  et  anuis  can  he  su.stained  upon  the  facts 
of  the  case.  The  defenchiiit.s  did  not  go  ni)on  the  land  of  the  plain- 
tiff, nor.  in  anv  wav.  wilfully  send  down  water  and  sand  ui^on  it. 
It  is  therefon' 'unlike  the  case  of  Kelly  v.  Lett.  35  N.  C.  50,  where 
the  defendant,  who  owned  a  mill  on  the  same  stream  and  above  one 
belontrinir  to  the  plaintiff,  wilfully,  and  with  intent  to  injure  plain- 
tiff. fre(iuently  .shut  down  his  gates,  so  as  to  aceunudate  a  large 
head  of  water",  and  then  raised  them,  whereby  an  immense  volume 
of  water  lan  with  great  force  against  the  plaintiff's  dam.  and 
wa.shed  it  away.  In  that  case,  it  was  projx'rly  held  Ihat  an  action 
of  trespass  vi  et  armis  was  the  proper  remedy,  but  in  the  present 
ca.se,  the  facts  are  that  the  defendants  neither  acted  wilfully  nor 
with  intent  to  injure  the  plaintiff;  and  if  any  damage  were  sus- 
tained by  him.  if  wan  aUofjeihrr  consrriuoilial  to  the  acts  of  the 
dffendaiits.  and  therefore,  the  action  of  trespa.ss  on  the  case  would 
have  been  the  proper  remedy. 

Under  the  Act  of  1858.  ch.  37,  the  plainliff  might  Imve  joined 
the  action  of  trespa.ss  on  the  ease  with  that  of  trvspass  vi  et  armis. 
but  he  ha.s  not  thought  i)roper  to  do  s<^) ;  and,  i£  he  had.  it  w(mld  not 
have  availed  him  in  this  particular  ca.se.  because  the  jury  did  not 
find  that  he  had  sustained  any  actual  damages.  The  nominal  dam.- 
ages  were  given  upon  the  mistaken  supposilion  of  the  judge  that 


Sec.   14. \  CONCERNING   RE.VL   ESTATE.  261 

there  was  a  trespass  with  force  and  arnis.     Tliere  was  eri-or.  and 
this  judgment  must  be  reversed. 

In  Reynolds  v.  Clark,  2  Ld.  Raymond,  1399,  plaintiff  brought  trespass 
vi  et  armis  for  an  injury  caused  by  the  defendant's  placing  a  spout  so  as 
to  discharge  rain  water  into  plaintiff's  back  yard.  Defendant  pleaded  a 
right,  derived  from  his  predecessors  in  the  ownership  of  the  premises 
adjoining  the  plaintiff's,  to  turn  the  rain  water  from  his  premises  into 
the  back  yard  of  the  plaintiff's  premises.  It  appeared  that  defeuiiant 
had  a  right  to  enter  upon  plaintiff's  premises  for  certain  purposes,  and  it 
also  appeared  that  the  spout  complained  of  was  upon  defendant's  premises 
although  the  water  discharged  thereby  ran  into  plaintiff's  back  yard. 
The  plaintiff  insisted  that  the  right  of  the  defendant  to  have  the  rain 
water  flow  from  his  premises  into  plaintiff's  premises  did  not  give  de- 
fendant the  right  to  collect  the  water  and  discharge  it  through  a  spout 
so  as  to  make  it  flow  in  a  large  body  into  plaintiff's  lot. 

Objection  was  made  to  the  form  of  the  action — it  being  insisted  that,  as 
there  was  no  unlawful  entry,  and  the  injury  was  not  the  immediate,  but 
merely  the  consequential,  result_  of  the.  acts  complained  of,  trespass  vi  et 
armis  would  not  lie.  This  objection  was  sustained.  The  opinion  says  on 
this  subject: 

"This  Trinity  term  1725,  upon  the  second  argument,  my  brothers  For- 
tescue  and  Reynolds  (Powys  being  absent)  and  myself  were  unanimous 
of  opinion,  that  the  plaintiff  could  not  maintain  an  action  of  trespass  vl 
et  armis  for  the  damage  he  sustained  by  the  rain  water  flowing  out  of 
this  spout,  but  ought  to  have  brought  an  action  on  the  case.  And  that  as 
to  the  entry  into  the  backside,  and  fixing  the  spout  that  was  sufflciently 
justified.  The  distinction  in  law  is,  ivhere  the  immediate  act  itself  occa- 
sions a  prejudice,  or  is  an  injury  to  the  plaintiff's  person,  house,  land, 
etc.,  and  where  the  act  itself  is  not  an  injury,  but  a  consequence  from 
that  act  is  prejudicial  to  the  plaintiff's  person,  house,  land,  etc.  In  the 
first  case  trespass  vi  et  armis  will  lie;  in  the  last,  it  will  not,  but  the 
plaintiff's  proper  remedv  is  by  an  action  on  the  case." 

In  .McKee  v.  D.  &  H.  C.  Co.,  12.5  N.  Y.  3.53,  26  X.  E.  305  (1891).  it  is 
held  that  where  one  discharges  water  upon  his  own  land  in  such  quanti- 
ties that  the  natural  drains  cannot  carry  it  off  before  injury  is  caused  to 
the  adjoining  land,  such  conduct  is  the  subject  of  an  action  for  damages 
and  for  injunctive  relief.  See  Davis  v.  Smith,  141  N.  C.  108;  Clark  v. 
Guano  Co.,  144  N.  C.  64;  Geenwood  v.  R.  R.,  lb.  448.  See  "Action,"  Cen- 
tury Dig.  §  244;  Decennial  and  Am.  Dig.  Key  No.  Series  §  30;  "Action  on 
the  Case,"  Centurv  Dig.  §  34;  Decennial  and  Am.  Dig.  Key  No.  Series 
§  1. 


S>EC.  14.    Remedy  in  Equity  to  Restrain  Trespasses. 

CHALK  v.  WYATT,  3  Merivale,  688.     1810. 
Irreparable  Injury.    Establishing  Right  at  Law.  : 

[Hall  moved,  upon  certificate  of  bill  filed,  and  affidavit,  for  an  injunc- 
tion to  restrain  the  defendant  from  digging  or  removing  any  earth, 
stoneB.  .shingles,  or  lieach,  from  or  immediately  under  a  bank  belonging 
to  the  plaintiff  which  protected  his  lands  from  the  inundations  and  irruj)- 
tions  of  the  sea.  The  land  was  situated  in  the  parish  of  Minster,  in  the 
Island  of  Sheppy.  It  appeared  that  tin'  defendant  had.  sometime  since, 
removed  some  land  or  stones  from  this  bank,  whereupon  the  plaintiff 
brought  an  action  of  trespass  against  him;  the  defendant  justified  in  the 
action,  as  lord  of  the  manor;  but  the  jury  found  a  verdict  with  damages 
for  the  i.laititlff.  The  afTidavIt  further  staled,  that  the  di'fendant.  never- 
thelesR.  had  again  begun  to  remove  earth  and  stones  from  the  bank;  and 


L't'L'  CONCERNINc;    HEAL    ESTATE.  [('/(.    o. 

thai  it"  ho  \va4s  poiuiittod  (o  conlinuo  so  to  do.  the  pluiutiff's  lauds  would 
be  exposed  to  inevitable  Inundation,  as  this  bank  foimeti  their  only  pro- 
tection lioni  the  sea  I 

The  liord  Chancellor:  Granted  the  application,  in  consideration 
of  tin  irr<  parablr  injitrii  the  iihiintifV  was  likely  to  snstain.  lie 
added,  that  he  would  not,  however,  have  granted  it,  if  tin;  plaintiff 
luul  not  previously  established  his  riyjht  at  law. 

"  Injunction  awarded  to  restrain  defendant,  his  agents,  servantiJ, 
and  workmen,  and  all  other  persons  employed  or  concerned  for,  or 
on  tlic  part  of  the  defendant,  from  removing,  etc.,  any  further 
quantities  of,  etc.,  from  off  the  said  j^remises,  or  any  part  thereof, 
until  answer  or  further  order."    Keg.  Lib.  A.  1869,  fo.  794. 

See  "Injunction,"  Century  Dig.  §  85;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §  37. 


ERHARDT  v.  BOARD,  113  U.  S.  537,  5  Sup.  Ct.  565.     1885. 
Irreparable  Injury.     Establishing  Right  at  Law. 

I  Bill  in  equity  to  enjoin  trespass  and  waste.  Decree  against  plaintiff 
dismissing  the  bill.     Plaintiff  appealed.     Reversed. 

The  plaintiff  having  brought  an  action  at  law  against  the  defendants 
to  recover  the  possession  of  certain  mineral  lands,  brought  this  bill  in 
equity  as  ancillary  to  that  action.  The  bill  set  forth  that  defendants  had 
intruded  upon  the  land,  ousted  the  plaintiff,  and  were  mining  and  carry- 
ing off  great  quantities  of  valuable  ore  from  the  locus  in  quo.  The  prayer 
was  for  an  injunction  against  further  acts  of  waste,  etc.,  until  the  final 
determination  of  the  action  at  law  pending  between  the  parties.  The 
court  granted  a  preliminary  injunction  but  dissolved  it  after  judgment 
had  been  rendered  against  plaintiff  in  the  action  at  law,  notwithstand- 
ing the  fact  that  plaintiff  had  carried  the  case  to  the  Supreme  Court  by 
writ  of  error.! 

Mr.  Ju.stice  Field.  ...  It  was  formerly  the  doctrine  of 
equity,  in  cases  of  alleged  trespass  on  land,  not  to  restrain  the 
u.se  and  enjoyment  of  the  premises  by  the  defendant  when  th*? 
title  wa.s  in  dispute,  but  to  leave  the  complaining  party  to  his 
remedy  at  law.  A  controversy  as  to  the  title  was  deemed  suffi- 
cient to  exclude  the  jurisdiction  of  the  court.  In  Pillsworth  v. 
Hopton.  6  Ves.  51,  which  was  before  Lord  Eluon  in  1801,  he  is  re- 
ported to  have  said  that  he  remeinbcred  being  told  in  early  life 
from  the  Itcnch  "that  if  the  j)laintifF  filed  a  ])ill  for  an  account  and 
an  injiniction  to  restrain  waste,  stating  that  the  defendant  claimed 
by  a  title  adverse  to  his,  he  stated  himself  out  of  court  as  to  the 
injunction."  This  doctrine  has  been  greatly  modified  in  modern 
times,  and  it  is  now^  a  common  practice  in  -cases  where  irremediable 
mischief  is  being  done  or  threatened,  going  to  the  destruction  of 
the  subsUmce  of  the  estate,  such  as  the  extracting  of  ores  from  a 
mine,  or  the  cutting  down  of  timber,  or  the  removal  of  coal,  to 
is.sue  an  injunction,  though  the  title  to  the  premises  be  in  litiga- 
tion. The  authority  of  the  court,  is  exerci.sed  in  such  ca.ses,  through 
its  preventive   writ,  to  preserve  the  property  from   destruction 


Sec.   14.]  CONCERNING   REAL   ESTATE.  263 

pending  legal  proceedings  for  the  determination  of  the  title. 
Jerome  v.  Ross.  7  Johns.  Ch.  315.  332;  LeRoy  v.  Wright.  4  Sawy. 
C.  C.  530.  535.  Fed.  Cas.  No.  8,273. 

As  the  judgment  in  the  action  at  law  in  favor  of  the  defendants 
has  been  revei^sed.  and  a  new  trial  ordered,  the  reason  which  orig- 
inally existed  for  the  injunction  continues.  The  decree  of  the 
court  below  must  therefore  be  reversed,  and  the  cause  remanded, 
with  directions  to  restore  the  injunction  until  the  final  determina- 
tion of  that  action ;  and  it  is  so  ordered. 

See  "Injunction,"  Century  Dig.  §§  82-84;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  36. 


COOPER  V.  HAMILTON,  8  Blackford,  377,  378.    1847. 
Ordinary  Trespass  Without  Irreparable  Injury. 

[Bill  in  chancery  for  an  injunction  and  for  an  account.  Decree  against 
the  plaintiff  dismissing  the  bill.     Plaintiff  appealed. 

The  bill  charged  that  Hamilton  had  removed  seven  hundred  rails  from 
a  fence  on  Cooper's  land  "and  was  persisting  in  a  determination  to  carry 
away  the  remainder"  of  the  rails  in  the  fence.  The  prayer  was  for  an 
injunction  against  removing  the  remainder  of  the  rails  and  that  de- 
fendant be  made  to  account  for  those  theretofore  removed.  ] 

Smith,  J.     .     .     .     The  interference  by  injmiction.  in  restraint 
of  waste,  was  originally  foimded  on   privity  of  title,   and   the 
courts  were  for  a  long  time  extremely  strict  in  confining  their  re- 
lief to  such  ca-ses.     The  rigour  of  this  rule  has  been  veiy  much 
relaxed,  and.  indeed,  it  is  now  held  that  an  injunction  will  lie 
for  a  mere  trespass,  but  onlv  in  cases  of  great  and  irreparable 
mischief.     6  Johns.  C'h.  46;  7  lb.  315.  332;  2  Story.  Eq.  207.     No 
[)reeise  rule  can  be  laid  down  as  to  the  eases  in  which  an  injunction 
will  be  granted  against  a  stranger,  to  prevent  the  commission  of 
a  trespass,  but  it  is  always  expected  that  a  strong  case  of  destnic- 
tion  or  irreparable  mischief  will  be  made  out — of  irreparable  mis- 
chief which  may  be  clfecled  before  any  trial  can  be  had  as  to  the 
controverted  right.     Eden  on  Inj.  233 ;  7  Ves.  308.     But  an  in- 
junction will  not  be  allowed,  in  order  to  prevent  the  repetition  of 
a  trespass,  where  the   plaintiff   has   an    adequate   remedy   at   law. 
1  Johns,  rii.  31 S.     AVc  do  not  think  the  fads  alleged  in  tlu!  bill  of 
complaint  in  this  cause,  admitting  them  to  be  true,  present  a  case 
which   calls   for  the   interposition   of  a  court  of  chancery.      The 
plaintiff  had  an  adequate  n-mcdy  at  law  and  the  bill  was  properly 
dismissed.     Decree  affirmed. 

Equity  courts  did  not  enjoin  a  mere  trespass  until  the  time  of  Lord 
Thiirlow.  because  tin  remedy  at  law  was  deemed  adequate.  That  it  is 
now  granted,  both  in  England  and  America,  where  irrei)ar:i])le  injury 
will  result  from  the  trespass,  is  settled.  See  note  to  i)riuciiial  case  in  8 
niarkf..  at  p.  379.  and  authoriticH  there  cited.  See  "Injunction."  Century 
Dig,  9  98;   Decennial  and   Am.  Dig    Key  No.  Series.  §  4fi. 


204  CONCERNING    KKM,    KSTATIO.  \('li.    /). 


siiAiti'K  V.  LOAN'io.  ii'4  N.  c.   1,  ;'.::  S.  l-I  :!1S.    1899. 
Ordinary   Trespass    Without    Irreparable   Injury. 

lArtion  to  restrain  trespass  and  cutting  timber.  Judgment  against 
plaintiff     i'laintiff  appealed.    Affirmed.    The  facts  appear  in  the  opinion.] 

F.viRCLOTii.  (".  J.  Tilt'  plaiiitift's  and  defendants  claiiii  to  be  the 
o\vnei*s  of  certain  lands  in  Hertford  county,  called  "Cow  Island." 
and  in  this  action  the  plaint itfs  ask  for  an  injunction  aprainst  the 
defendants  to  prevent  trespassing?  on  said  lands.  The  allegixl  ti"es- 
pass  consists  in  cnttinji:  tiiiiher  trees  and  removing  them  to  defend- 
ant's mill,  and  converting  them  into  lumber  for  marketable  pur- 
poses. It  is  conceded  that  defendants  are  solvent,  and  able  to 
respond  in  damages  for  any  injury  the  plaintiffs  may  sustain. 
After  reading  affidavits  and  hearing  the  arguments,  his  honor 
required  the  defendants  to  enter  into  sufficient  bond  to  protect 
the  plaintifit's.  and  to  render  and  file  a  statement  of  the  trees,  etc., 
removed,  with  the  clerk  at  stated  |)eriods.  and  dissolved  the  re- 
straining ordei-  tlicretofore  granted,  from  which  the  plaintiffs  ap- 
pealed. 

No  special  or  irreparable  damage  is  alleged. — only  such  as  above 
stated.  Will  a  court  of  etpiity  enjoin  an  ordinary  trespass?  The 
ride  has  ever  been  that  it  will  not.  unless  insolvency  is  shown,  or 
that  the  injury  will  be  irreparable  and  incapable  of  a  just  com- 
pensation in  money  value.  The  plaintiffs  admit  that  the  author- 
ities are  against  them,  and  cite  Gause  v.  Perkins.  56  N.  C.  177 ; 
Lumber  Co.  v.  Wallace.  9:3  N.  C.  22,  and  Lewis  v.  Lumber  Co., 
99  N.  C.  11,  5  S.  E.  19,  but  insist  that  the  principles  announced  in 
those  cases  are  unjust  and  ine([uitable.  They  cite  no  authority  in 
support  of  their  view,  and  the  argiunent  fails  to  satisfy  us  that 
their  proposition  is  true.  The  ca.se  of  Gause  v.  Perkins,  supra,  is 
an  exhaustive  review  of  the  subject,  referring  to  many  decided 
eases  prior  thereto,  and  the  decisions  since  have  simply  repeated 
the  principle  of  that  ca.se.  While  this  court  is  always  ready  to 
correct  any  error,  it  would  hesitate  to  overmle  a  long  and  uni- 
form list  of  decided  eases,  in  harmony  with  all  the  text  writers, 
unless  it  should  feel  a  strong  and  clear  conviction  that  an  unjust 
rule  had  prevailed.  The  present  case  fails  to  produce  such  a  con- 
viction.    Affirmed. 

Protection  of  cemetery  property  by  injunction,  see  Wormley  v.  Worm- 
ley,  69  X.  E.  865,  3  L.  R.  A.  (N.  S.)  481,  and  note:  i)rotec'tion  of  oyster 
beds  in  navigable  waters,  Cain  v.  Simonson,  39  So.  r)71.  3  L.  R.  A.  CN.  S.) 
205,  and  note.  "If  a  court  of  equity  interfered  to  prevent  an  alleged  tres- 
passer from  doing  ordinary  acts  of  ownership — such  as  cultivating  the 
land,  clearing  and  opening  new  fields,  etc.— a  bill  for  an  injunction  would 
accompany  a  declaration  in  ejectment  almost  as  a  mattei-  of  course,  caus- 
ing not  only  much  private  loss,  but  great  detriment  to  the  iiublic  Fields 
already  cleared  would  lie  idle;  woodland  that,  in  a  country  like  ours 
[then  wasl,  ought  to  be  cut  down  and  cultivated,  would  stand  wild  and 
unproductive:  and  the  valuable  products  of  our  forests  would  no  longer 
swell  the  tide  of  trade."  Pearson,  .T..  in  Gause  v.  Perkins,  56  N.  C.  177, 
cited  in  the  principal  case.  The  opinion  nroceeds  to  exnlain  and  illus- 
trate those  acts  of  trespass  and  waste  which  are  deemed  irreparable,  and 


Sec.    14.]  CONCERNING    REAL    ESTATE.  265 

hence  proper  to  be  enjoined  by  equity,  and  those  acts  which,  while  detri- 
mental are  not  irreparable,  and  hence  will  not  be  restrained.  See  also 
Friciv  V.  Stewart,  94  X.  C.  484,  where  it  is  ruled  that  a  general  allegation 
that  acts  complained  of  will  work  "irreparable  injury,"  will  not  do.  The 
facts  must  be  set  forth  in  the  complaint  or  affidavits,  that  the  eourt  may- 
judge  from  such  facts  whether  or  not  the  injury  is  such  as  equity  deems 
irreparable  and  proper  to  be  restrained.  See  "Injunction,"  Century  Dig. 
§  105;   Decennial  and  Am.  Dig.  Key  No.  Series,  §  52. 


ELLIS  V.  BLUE  MOUNTAIN  FOREST  ASSOCIATION,  69  N.  H.  385,  41 

Atl.  856,  42  L.  R.  A.  570.     1898. 

Continuous    and    Repeated    Trespasses.      Trespasses    by    Wild    Animals 

Owned  by  Hunting  Club. 

I  Plaintiff  sued  for  injunction  and  other  relief.  The  court  granted  the 
injunction  against  permittThg  the  wild  animals  in  defendant's  game  pre- 
serve to  roam  over  plaintiff's  premises.  The  facts  appear  in  the  opin- 
ion.] 

Wallace,  J.  .  .  .  The  plaintiff  asks  that  the  defendants 
be  compelled  to  keep  their  animals  upon  their  own  land,  and  be 
restrained  by  injunction  from  permitting  them  to  go  upon,  his 
land.  Although  e(iuity  will  not  interfere  in  the  case  of  a  trespass 
which  is  temporary  in  its  nature  and  effect,  and  for  which  a  legal 
remedy  of  an  action  at  law  is  adequate,  yet  if  the  trespass  is  a 
continuous  one,  or  if  repeated  acts  of  wrong  are  done  or  threat- 
ened, although  each  act  by  itself  ma}^  not  be  destructive  or  cause 
irreparable  injury,  and  for  which,  if  it  stood  alone,  an  action  at 
law  might  be  an  adequate  remedy,  the  entire  wrong  may  be  prei- 
vented  or  stopped  by  injunction  on  the  ground  of  preventing  a 
multiplicity  of  suits  and  the  inadequateness  of  the  legal  remedy. 
■■i  Pom.  Eq.  Jur.  s.  1357 ;  Beach,  Mod.  Eq.  Jur.  s.  721 ;  Story.  Eq. 
Jur.  s.  925;  Coe  v.  ^Vinnepisioge  Lake  Cotton  &  W.  Mfg.  Co., 
37  N.  H.  254.  261;  Burnham  v.  Kempton.  U  N.  ?I.  78.  95; 
Wheelock  v.  Xoonan.  1(18  X.  Y.  179,  15  N.  E.  67. 

[Fx\CTS.]  Tbe  plaintiff's  premises  being  wholly  surrounded 
by  the  defendants'  land,  they  have  enclosed  the  whole  tract  witb 
a  fence  10  feet  liigli.  and  luivc  i)ub]islie(l  a  notice  stating  that  they 
have  "purchased,  laid  out,  devoted  and  dedicated,  for  the  purpose 
of  maintaining  a  private  park  for  the  propagating  and  protecting 
of  fisii.  birds,  and  game,"  this  very  tract  of  land,  describing  it  1)\- 
metes  and  br)nnds.  Tbcy  have  placed  in  the  park  a  great  variety 
of  wild  animals  some  of  whom  at  times  are  dangerous,  and  suffered 
them  to  roam  at  will  over  the  whole  enclosure,  including  the  plain- 
tiff's land,  which  has  been  more  or  less  occupied  in  this  manner. 
The  dcrcndanls  hiwo.  in  this  way  had  the  actuiil  possession  of  tlie 
plaintiff's  jjind.  and  the  possession  is  of  su(Oi  a  eharaeter  that  he 
cannot  safely  avail  hiin.self  of  the  offer  of  tlu;  defendants  to  let 
him  at  any  time  pass  throtigli  their  gates,  and  go  ujion  his  land, 
and  recover  the  f)osse.ssion.  Tf.  by  takiiig  a  sufTieient  foj'ce  with 
him.  lie  should  go  there,  and  regain  the  possession,  hi;  could  not 
hold  it  except  by  a  continual  I'etention  of  a  force  tlierc  to  drive 


266  ci»iNCKRMN(;   i>i:ai.   KsrAri-:.  \('li,  ,?. 

off  tlu'si'  will!  beasts  as  tlu\v  slumld  afraiii  (•oiue  upon  his  land. 
Tlu'  iH-\  of  tile  ileleiulants  in  (iiu.s  appropriating;  tiie  use  of  the 
phiintin  "s  land  to  the  purposes  of  their  tjanie  preserve  is  a  trespass. 
Fn)ni  the  nature  of  thin«:s.  this  trespass  will  he  eontiinious  so 
h)nir  as  the  <lefen<lants  use  their  park  as  they  do  now;  and  the 
faetb  induale  tiiey  intend  to  continue  the  use  perniaucutly.  Re- 
peated aetiiMis  of  law  W(»uhl  liiinish  no  adecpuite  remedy  to  the 
plaiutilY.  In  an  aetion  of  trespass,  only  daniaj^es  to  its  date  could 
l)e  reeovered.  and  for  tiie  sul)se(|uent  continuance  of  tile  trespass 
lepeated  actions  wouUl  have  to  be  maintained.  The  defendants 
mi«rht  pay  the  danuiges.  and.  if  there  is  no  other  ade(inate  remedy, 
continue  the  occupation  permanently,  in  spite  of  their  wrong, 
making'  of  themselves,  in  ett'eet.  tejiants  who  could  not  be  dis- 
possessed. The  wronf;  is  the  continued  unlawful  occupation,  and 
any  remedy  that  does  not  end  it  is  inadequate  to  redress  the  injury 
or  restore  the  injured  party  to  his  rijihts.  To  refuse  the  injunction 
asked  foi"  would  allow  a  wronjrdoer  io  compel  an  iiniocent  pei'son 
to  pei-petmdly  lease  his  propi'ity  for  such  damages  as  he  might 
he  able  to  recover  in  repeated  actions  of  trespass,  and  deprive  him 
of  the  right  to  enjoy  his  estate  himself.  It  is  unnecessary  for  the 
plaintiff  to  establish  his  riarht  at  law.  as  the  defendants  admit  they 
have  no  right  in  his  land,  linrnham  v.  Kempton.  44  N.  II.  78.  95. 
An  injunction  will  issue  restraining  the  defendants  from  suffer- 
ing or  permitting  their  animals  to  go  upon  the  plaintiff's  land. 

For  injunciion  against  continued  and  repeated  trespasses,  see  De  Paux 
V.  Oxley,  100  X.  W.  1028.  13  L.  R.  A.  (N.  S.)  173,  and  note;  Cragg  v. 
Levinson.  87  N.  E.  121,  21  L.  R.  A.  (N.  S.)  417  and  note;  22  Cyc.  836  et. 
seq.  See  "Injunction,"  Century  Dig.  §  101;  Decennial  and  Am.  Dig.  Key 
No.  Series,  ?  48. 


Sec.  15.    Remedy  Against  Tresp.\sses  Committed  in  Exercise  ok 
Rights  Cl.mmed  Under  Eminent  Domain. 

PORTER  V.  RAILROAD,  148  X.  C  563,  62  S.  E.  741.     1908. 
Remedy  of  One  Whose  Land  is  Taken   Under  Eminent  Domain. 

[Action  for  damages  against  defendant  for  entering  and  occupying  land. 
.Judgment  against  plaintiff  dismissing  the  aetion.  Plaintiff  api)ealed.  Re- 
versed. 

It  appeared  on  the  trial  that  plaintiff  owned  certain  land  and  that  de- 
fendant entered  upon  it  and  occupied  it  in  the  exercise  of  its  right  of 
way;  that  after  such  entry  plaintiff,  .Tohn  Porter,  conveyed  the  locus  In 
quo  to  his  sons,  C.  B.  and  H.  B.  Porter — which  conveyance  was  made  be- 
fore this  action  was  brought;  that  the  sons  reronveyed  to  plaintiff  after 
this  action  was  brought.  The  sons  were  joined  as  co-plaintiffs,  but  they 
filed  no  complaint  and,  consequently,  the  action  was  dismissed  as  to 
them.l 

.  TIOKE.  J.  While  the  facts  are  not  fully  developed,  we  think 
from  a  perusal  of  the  pleadings  and  the  evidence  stated  in  the 
ca.se  on  appeal  it  appears  by  fair  intendment  that  in  1002  the 
defendant  company  entered  on  the  lands  in  question,  claiming  the 


Sec.    15.]  CONCERNING   RE.VL    ESTATE.  267 

right  to  do  so,  and  have  constructed  their  railroad,  and  are  operat- 
ing the  same,  under  and  b}'  virtue  of  a  legislative  charter,  and  on 
facts  substantially  similar  we  have  held  in  Beasley  v.  Railroad, 
147  N.  C.  362,  61  S.  E.  453,  that,  under  the  circumstances  indi- 
cated, a  railroad  company  cannot  be  ousted  from  the  land  by  action 
of  ejectment  on  the  part  of  the  owner,  nor  subjected  to  successive 
and  repeated  actions  of  trespass;  but  the  remedy  for  the  wrong,  if 
one  has  been  committed  by  the  entry  and  occupation  of  the  land,  is 
to  be  redressed  by  an  award  of  permanent  damages.    On  a  farmer 
appeal  in  ihat  same  cause,  reported  in  145  N.  C.  272,  278,  59  S.  E. 
60,  62,  Connor,  J.,  speaking  to  this  same  question,  delivered  the 
opinion  of  the  court  as  follows:  "The  plaintiff  is  entitled  to  re- 
cover of  defendant  a  fair  compensation  for  the  injury  done  his 
land  by  entering  upon  it  and  constructing  the  railroad.     When 
this  is  fixed  and  paid,  the  defendant  will  acquire  the  easement  to 
use  the  land  in  the  same  manner,  for  the  same  purpose,  and  to  the 
same  extent  as  if  it  had  ac<|uired  the  easement  by  condenniation. " 
It  was  formerly  held  as  indicated  in  lieasley's  second  appeal,  re- 
ported in  147  N.  C.  362,  61  S.  E.  453,  that  where  the  damages  suf- 
fered by  the  owner  would  be  included  under  an  assessment  in  con- 
demnation proceedings,  and  such  a  method  of  redress  was  provided 
by  tlii?  charter  or  the  general  law.  such  method  should  be  pursued. 
This  was  so  held  chieHy  for  the  reason  that  it  was  considered  un- 
wise and  improper  that  an  enterprise  of  this  character,  in  which 
the  public  as  well  as  the  stockholders  had  a  vital  interest,  should 
be  harassed  and  hindered,  and  have   its  success  jeopardized   by 
numerous  and  repeated  actions,  when  full  redress  could  be  afforded 
in  one  and  the  same  proceeding.     At  the  time  of  those  decisions, 
such  a  resnlt  could  only  be  reached  by  condcMvmntion  proceedings. 
j)rovided  usually  by  charter  or  the  general  law.    Since  the  same  re- 
sult  is  now  accomplished  by  contining  the  owner,   when  suit  is 
brought  for  the  injury  done  to  recovery  of  permanent  damages  for 
flic  entire  wrong,  there  is  no  longer  any  reason  wliy  cithci'  method 
of  redress  sli(mld  not  be  pursued.     The  intimaticms  to  the  contrary 
therefore  in  Beasley 's  second  appeal  may  be  considered  as  with- 
drawn.   Again,  it  was  held  in  l^easley's  second  appeal  tliat.  while 
the  term  "permanent  damages"  includes  damages  foi-  the  entire 
injurs-  done  the  pro{)erty,  present,  past,  and  prospective,  there  is 
no  good  reason  wliy  this  amount  should  not  be  ascertained  by  a 
verdict   on   different   issues,   when  occasion   re<|uires  that  such   a 
eourse  slionld  be  taken.     And  it  is  further  a  well-recognized  posi- 
tion with  us  that  wlieii  there  has  been  a  wrongful  enlry  and  tres- 
[»Hss  on  an  owner's  land,  and  such  owner  afterwards  conveys  the 
land  1o  ;inother.  the  riulit   to  recovei-  for  this  wrong  is  personal 
to  him  who  owned   the  land   when   Ihe  s;iine   w;is  eonnnilted.   and 
does  not   jtass  to  the  ','rjin1ee.     liiverman   v.    i^iilroad.   114  N.   C 
602.  10  S.  E.  64:  Drake  v.  ITowell.  133  \.  C.  168.  45  S.  E.  530. 

A  projxT  apy)]ie;itifm  of  these  principles  to  the  facts  presented 
requires  that  tlie  order  made  by  the  jud^re  below,  dismissing  the 
action  as  to  TT.  ^^.  and  C  V>  T'orter  for  want  of  a  eouiplaint.  and 
dismissing  the  action  of  John  Porter  as  on  judgmcnl   of  mmsuit. 


LH)8  n^NCKKNINi;    Ki:\L    KS'IWI'K.  I  ('A.    o. 

should  botli  l)f  r-i'\t'rstHl.  Tlic  (•(uii-l  liiiviuir  (Iccidcd  Hint  p«>nn;m(Uit 
damaires,  iucliidiuir  ivcovcrx'  tor  the  ctiliri'  wfouur.  past,  j^'csdili, 
aud  prosptH'tivr.  slioidd  he  had  in  one  actidii;  .-md  that  (Ui  payment 
of  such  rocovtM-y.  ati  casriiiciit  shoidd  i)ass  to  the  road  as  in  pi-o- 
ouediiiLTs  in  condiMimat ion.  all  wiio  liave  an  intci'cst  in  the  rt'coviuy, 
and  whose  pn'scnce  is  neei'ssary  to  protect  the  railroad  from  other 
and  further  iveoveries  for  the  same  eanse.  should  he  maih',  and 
retaint>d  as  parties.  John  Porter  lias  an  interest  in  sueh  a  I'e- 
eovery.  and  is  a  necessary  party,  holh  as  hein<i:  owner  and  in  pos- 
session at  the  time  of  the  orii^inal  and  wroniiful  entry  and  as 
present  holder  of  the  title,  and  II.  H.  and  C.  B.  Porter  are  entitled 
to  share  in  sueh  recovery  for  the  portion  of  the  injury  siitTered 
while  they  were  owners.  The  eonrt  will  not  rerpiire  them  to  file 
a  complaint  if  they  do  not  care  to  insist  on  their  claim,  hut  their 
presence  in  the  suit  is  necessary  to  protect  the  defendant  road  from 
other  and  further  litigation.  When  the  road  pays  the  permanent 
damaeres,  the  easement  should  pass,  and,  as  stated,  all  whose  pres- 
ence is  necessary  to  insure  this  result  and  protect  the  comiiany 
from  further  action  concerning  it  should  he  parties.  The  oi-der 
dismissing  the  action  as  to  C.  B.  and  H.  B.  Porter  is  reversed,  and 
the-se  persons  will  again  hecome  parties  of  record;  and  the  order 
dismissing  the  action  as  on  judgment  of  nonsuit  is  reversed,  and 
the  cause  will  be  proceeded  with  in  accordance  with  law.  Re- 
versed. 

In  Mclntire  v.  R.  R.,  67  N.  C.  273,  it  was  held  that  where  the  charter  of 
a  railroad  corporation  prescribed  the  remedy,  that  remedy  alone  must  be 
pursued;  because  the  charter  provision  takes  away,  by  implication,  the 
common-law  remedy  by  action  of  trespass  on  the  case.  In  .Jones  v.  Com- 
missioners, 130  N.  C.  at  p.  453,  42  S.  E.  145,  it  is  said:  "It  has  been  often 
held  by  this  court  that  in  cases  involving  the  right  of  eminent  domain, 
the  common-law  remedy  is  superseded  t>y  the  statutory  remedy,  and  that 
aggrieved  parties  must,  therefore,  seek  redress  under  the  statutory  rem- 
edy. Mclntire  v.  R.  R.,  67  N.  C.  278;  Gilliam  v.  Canady,  33  N.  C.  106; 
Oillett  V.  Jones,  18  N.  C.  339;  Dargan  v.  R.  R.,  131  N.  C.  623,  42  S.  E. 
979."  "When  a  railroad  corporation  has  entered  on  the  land  of  another 
and  constructed  its  road  and  is  operating  the  same,  and,  having  the 
power  of  eminent  domain,  has  not  exceeded  the  ultimate  rights  of  appro- 
priation contained  in  the  power,  nor  violated  the  restrictions  imposed 
upon  it  by  its  charter  or  the  general  law,  such  company  cannot  be  ousted 
from  the  land  by  action  of  ejectment  instituted  by  the  owner,  nor  sub- 
jected to  successive  and  repeated  actions  of  trespass  by  reason  of  the 
user  and  occupation  of  the  property."  [The  remedy  is  as  indicated  in 
the  principal  case.]  Beasley  v.  R.  R.,  147  N.  C.  bot.  p.  364,  61  S.  E.  453. 
See  also  15  Cyc.  980,  981,  and  notes;  Abernethy  v.  R.  R.,  150  N.  C.  97,  63 
S.  E.  180.  It  will  be  observed  that  the  later  cases  change  the  practice  in 
North  Carolina  from  that  established  by  the  older  cases.  See  "Eminent 
Domain,"  Centurv  Dig.  §§  694-705;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §§  266,  309. 


RAILROAD  v.  LUMBER  CO.,  116  N.  C.  924,  20  S.  E.  964.     1895. 
Injunction  in  Cases  of  Eminent  Domain. 

fThis  was  a  proceeding  by  the  j)laintiff  corporation  to  condemn  land  for 
a  right  of  way.  The  defendant  answered  and,  among  other  things,  asked 
for  an  injunction  against  plaintiff's  constructing  its  road  through  de- 
fendant's property.     The  injunction  was  issued  but  afterwards  dissolved 


Sec.    lo.]  CONCERNING    REAL    ESTATE.  269 

upon  plaintiff's  giving  bond  in  one  tliousand  dollars  to  pay  any  damages 
that  the  defendant  might  sustain.  The  defendant  appealed  from  the  order 
dissolving  the  injunction.  The  case  was  decided  against  the  defendant 
at  a  former  term,  see  114  N.  C.  690,  19  S.  E.  646,  and  defendant  filed  a  peti- 
tion to  rehear.] 

Avery.  J.  .  .  .  It  is  contrary  to  the  policy  of  the  law  to 
use  the  extraordinary  powers  of  the  conrt  to  arrest  the  develop- 
ment of  industrial  enterprises  or  the  progress  of  works  prosecuted 
apparently  for  the  ])iiblic  eood.  as  well  as  for  private  gain.  Lewis 
V.  Lumber  Co.,  99  N.  C.  fl.  5  S.  E.  li).  On  the  other  hand,  this 
court  has  given  its  sanction  to  the  practice  of  granting  restraining 
orders  till  the  hearing  against  a  party  who  by  force  was  impeding 
the  prosecution  of  such  enterprises,  on  the  ground  that  a  trespass 
was  being  committed  on  his  premises,  when  apparently  he  could 
be  compensated  in  damages  for  the  injury  of  which  he  complained. 
Navigation  Co.  v.  Emry,  108  N.  C.  130.  12  S.  P:.  900.  The  plain- 
tiff is  proceeding,  as  was  said  in  the  former  opinion  of  this  court, 
under  a  charter  authorizing  it  to  appropriate  land  for  its  use 
\ipon  just  compensation,  and  the  (luestion  of  the  necessity  for  tak- 
ing a  proper  right  of  way  is  not  before  us.  Pending  the  proceed- 
ing for  condemnation,  ample  provision  has  been  made  to  com- 
I)ensate  the  defendant  for  any  loss  sustained  by  a  Avrongful  entry 
on  the  part  of  plaintiff:  and  if  it  be  admitted  that  the  plaintiff 
is  not  authorized  to  enter  till  after  tlie  appraisal,  and  the  payment 
into  court,  in  accordance  with  the  i)rovisions  of  the  Code  (section 
1946)  "the  sum  appraised."  the  plaintiff  is  still,  in  the  worst 
aspect  of  its  conduct,  committing  a  trespass,  for  which  it  is  an- 
swerable in  damages,  the  ultimate  payment  of  which  is  secured  in 
advance  by  a  sufficient  bond.  The  defendant  has  not  only  failed 
to  show  that  he  has  or  will  sustain  but  even  that  he  may  suffer, 
irreparable  injury.     The  petition  is  dismissed. 

That  courts  act  with  very  great  caution  in  restraining  public  works  and 
alleged  trespasses  and  nuisances  incident  to  the  prosecution  of  such  en- 
terprises, see  Vickers  v.  Durham,  1:52  N.  C.  880,  44  S.  E.  685;  Griffin  v. 
R.  K.,  loO  N.  C.  312,  64  S.  E.  16.  See  "Eminent  Domain,"  Century  Dig. 
§  776;   Decennial  and  Am.  Dig.  Key  No.  Series,  §  270. 

For  practice  in  condemnation  proceedings,  see  State  v.  .Tones,  139  N.  C. 
613,  r.2  S.  E.  240,  2  L.  R.  A.  (N.  S.)  313,  and  note;  R.  R.  v.  Aubuchon,  97 
S.  W.  67,  9  L.  R.  A.  (N.  S.)  426,  and  note.  For  how  far  the  question  of 
necessity  Is  one  for  the  court,  see  Hayford  v.  Bangor,  66  Atl.  731,  11  L. 
R.  A.  (N.  S.)  940,  and  note.  For  damages  and  off-set  of  benefits,  see  Pe- 
oria T.  Co.  v.  Vace,  80  N.  E.  134,  9  L.  R.  A.  (N.  S. )  781  and  note;  Sargent 
V,  .Merrimac.  81  X.  E.  970.  11  L.  R.  A.  (X.  S. )  996.  and  note.  For  question 
of  public  or  i)rivate  use,  see  Walker  v.  S.  P.  Co.,  16(i  Fed.  8r.6,  19  L.  R.  A. 
(X.  S.)  72.')  and  note  (electric  power);  .Jacobs  v.  C.  W.  S.  Co..  69  Atl. 
870,  21  L.  R.  A.  (N.  S.)  416  and  note  (water  power  for  manufacturing); 
Wis.  Riv.  Co.  v.  Pier.  118  X.  W.  857,  21  L.  R.  A.  (X.  S.)  538.  and  note 
(mixed  public  and  |)riv;itc  use);  Sutler  Cx).  v.  Xicbols.  03  Pac.  872,  15 
L.  R.  A.  (X.  H. )  6U;,  and  note  (water  for  mining  operations);  Howard 
Mills  v.  S.  Lumber  Co.,  95  Pac.  559,  18  L.  R.  A.  (N.  S.)  356.  and  note 
(grist  inills).  For  exhaustive  treatment  of  Judicial  power  over  the  right 
of  eminent  domain,  see  22  I>.  R.  A.  (X.  S. )  1    171. 


270  CONCISRNINC    KKAl,    KSTATE.  \('li. 


!SeC.     1G.       IvKMEDV    Ol'    LlCKNSElC    WllO    IS    EVICTED. 

MiCREA  V.  MARSH,  12  Gray  211,  Finch's  Cases,  807.     1858. 
KT(.litsiou  anil  Kjcition  from   Theatres.  Markcf  Sfalls  mid  the  Like. 

I  Action  for  tort  for  forcibly  excluding  iilaintiff  from  a  theatre  in  Bos- 
ton. Plaintiff  siibniitted  to  a  verdict  against  himself,  in  deference  to  in- 
timations from  the  judge,  an*!  alleged  exceptions.    Exceptions  overruled. 

Plaintiff  was  a  colored  person.  He  was  refused  admittance  to  the  the- 
atre on  account  of  his  color,  although  he  had  duly  i)urchased  a  ticket. 
The  judge  ruled  that  the  refusal  to  admit  the  plaintiff  was  good  ground 
for  an  action  on  the  iuntract  created  by  the  sale  of  the  ticket,  but  was 
no  ground  for  an  action  in  toi't.] 

Metcai,f,  J.  It  was  correctly  niled  at  the  trial,  that  the  phiiii- 
tiff  eonld  not  tnaiiitain  this  action,  and  that  his  remedy,  if  any. 
was  by  an  action  of  eontract.  We  therefore  need  not  express  an 
opinion  ooncerninsr  any  of  the  other  rulings. 

Assuming  that  tlie  plaintiff,  by  purcliase  of  the  ticket  from  the 
defendant,  obtained  jiennission  to  enter  the  family  circle  in  the 
Howard  Athenaeinii.  in  his  own  person,  and  occupy  a  place  there 
during  the  exhibition,  yet  it  was  "only  an  executory  contract." 
It  was  a  license  legally'  revocable,  and  was  revoked  before  it  was 
in  any  part  executed.  After  it  was  revoked,  the  plaintiff's  at- 
tempts to  enter  were  unwarranted,  and  the  defendant  rightfully 
used  the  force  necessary  to  prevent  his  entry. 

According  to  the  decision  in  Wood  v.  Leadbitter.  13  M.  &  W. 
838,  even  if  the  plaintiff  had  been  permitted  to  enter  the  family 
circle,  the  defendant  might  have  ordered  him  to  leave  it.  at  any 
time  during  the  exhibition,  and,  upon  bis  refusal,  might  have  re- 
moved him.  using  no  uiniecessary  force.  The  doctrine  of  revocable 
licenses  was  there  thoroughly  discussed,  and  the  authorities  anal- 
yzed, by  Mr.  Baron  Alderson.  and  the  case  of  Taylor  v.  Waters,  7 
Taunt.  374.  and  2  ^larsh.  551.  was  overruled.  See  also  Adams  v. 
Andrews.  15  Ad.  &  El.  N.  R.  296 ;  Bridges  v.  Purcell.  18  N.  C.  •492: 
Foot  V.  New  Ilaven  &  Northam])ton  Co..  23  Conn.  214;  Jamie.son  v. 
Millemann.  3  Duer,  255;  Roffey  v.  Henderson.  17  Ad.  &  El.  574. 

The  plaintiff  is  doubtless  entitled  to  recover,  in  an  action  of  con- 
tract, the  money  i)aid  by  him  for  the  ticket,  and  all  legal  damages 
which  he  has  sustained  by  the  breacb  of  the  contract  implied  by 
the  sale  and  delivery  of  the  ticket.   Exceptions  overruled. 

For  right  of  innkeeper  to  change  guest's  room,  see  9  L.  R.  A.  (N.  S.) 
297.  "Where  a  guest  in  a  hotel,  a  passenger  on  a  railway  train,  or  a 
ticket  holder  at  a  theatre  creates  a  disturbance,  though  either  has  a  right 
under  his  contract  to  remain  so  long  as  he  acts  with  due  regard  to  the 
rights  of  others,  the  proprietor,  conductor  or  manager  or  their  agents  may 
use  the  amount  of  force  necessary  to  expel."  Hutchins  v.  Durham,  118 
N.  C.  at  p.  470,  24  S.  E.  727.  That  the  holder  of  a  stall  in  a  market  is  only 
a  licensee  and  an  occupant  at  the  pleasure  and  discretion  of  the  licensor, 
see  the  same  case  at  p.  4fi9,  and  cases  cited.  For  distinction  between  inn- 
keepers, carriers,  and  other  pul)lic  service  corporations,  and  those  en- 
gaged in  mere  private  business,  in  the  matter  of  refusing  to  accommodate 
those  who  apfdy  for  their  services,  etc.,  see  Bowlin  v.  Lyon,  56  Am.  Rep. 


Sec.    17.]  CONCERNING   RE^VL   ESTATE.  271 

355;  Faulkner  v.  Solazzi,  65  Atl.  947,  9  L.  R.  A.  (X.  S.)  601.  and  note; 
Buenzle  v.  N.  Amusement  Asso.,  68  Atl.  721,  14  L.  R.  A.  (X.  S.  i  1242.  and 
note.  For  the  form  of  action  against  carriers  of  passengers  in  such  cases, 
see  Hutch,  on  Car.  1403-1408;  6  Cyc.  588.  For  the  right  of  common  car- 
riers to  separate  passengers  on  account  of  race,  see  Chiles  v.  R.  R.,  101 
S.  W.  386,  11  L.  R.  A.  (X.  S.)  268,  and  note.  See  -Theatres  and  Shows," 
Century  Dig.  §  4;    Decennial  and  Am.  Dig.  Key  No.  Series.  §  4. 


Sec.  17.    Remedies  on  Covenants  for  Title 

ETHERIDGE  v.  VERXOY,  70  N.  C  713.     1874. 
Caveat  Emptor. 

[Action  to  recover  balance  due  on  a  bond  and  mortgage.  Defendant 
claimed  an  abatement  of  the  amount  contracted  to  be  paid  by  the  terms 
of  the  bond.  Judgment  against  the  plaintiff  allowing  the  abatement 
claimed,  and  plaintiff  appealed.    Reversed. 

Plaintiff  sued  on  a  bond  and  mortgage  made  by  the  defendant  to  L.  T. 
Bond  and  by  Bond  assigned  to  plaintiff,  bona  fide,  for  value,  etc.  The 
bond  was  given  in  payment  for  lands  sold  by  Bond  to  the  defendant,  and 
defendant  claimed  an  abatement  because  there  were  not  as  many  acres  in 
the  tracts  of  land  sold  to  him  as  was  represented  by  Bond.  There  was  a 
shortage,  but  it  was  admitted  that  no  fraud  was  intended  in  representing 
the  number  of  acres  to  be  greater  than  it  really  was.] 

liYXTM.  J.  In  cnntrac'ts  for  the  sale  of  land,  it  is  the  ditty  of 
])urchasers  to  guard  themselves  against  defects  of  title,  quantity, 
encumbrances  and  the  like ;  if  they  fail  to  do  so.  it  is  their  own 
folly,  for  the  law  will  not  afford  them  a  remedy  for  the  conse- 
quences of  their  own  negligence.  But  if  representations  are  made 
hy  the  bargainor,  which  may  reasonably  be  relied  on  by  the  pur- 
chaser, and  they  constitute  a  material  inducement  to  the  contract, 
and  are  false  within  the  knowledge  of  the  party  making  them, 
and  they  r-anse  damage  and  loss  to  the  party  relying  on  them,  and 
he  has  acted  with  ordinary  j^rudence  in  the  matter,  he  is  entitled 
to  relief.    Walsh  v.  Hall.  66  N.  C.  233. 

The  maxim  of  caveat  emptor  is  a  rule  of  the  connnon  law,  and 
applies  a.s  well  to  contracts  of  purchase  of  real  as  ]ie)Nona1  prop- 
erty, and  is  adhered  to  in  courts  of  ecjuity  as  well  as  of  law.  in  the 
absence  of  fraud.  The  purchaser's  only  right  of  relief  is  to  be 
fn\ind  In  the  covenants  in  his  deed  where  there  is  no  fraud.  Tvawle. 
4r)0  Tf  he  ha.s  taken  no  covenants  and  there  is  no  fraud  vitiating 
the  contract,  he  h-.is  no  relief  for  defects  in  <|uantity.  «iuality  or 
encumbrances,  for  it  was  his  own  folly  to  accept  such  a  deed  when 
he  eould.  and  it  was  his  duty  to.  i)rotect  himself  by  covenants. 
Til  T.ytle  v.  Hird.  48  X.  C.  222*.  it  was  held  that  an  action  of  deceit 
would  not  lie  for  a  fraudulent  representation  upon  the  sale  of  a 
tract  of  land,  as  to  where  certain  lines  ran.  and  as  to  particular 
lands  being  included  in  the  deed.  There  Nash.  ('.  J.,  says:  "Tf 
the  |.I;iintifT.  by  nsirig  reasonable  diligence,  could  have  ascertained 
the  truth,  it  was  his  own  folly  to  trust  to  the  re|)resentations  of 
the  vendor."    The  same  principle  is  announced  in  T-'agnn  v.  New- 


L'7-J 


I'OXCERNINC    K-KAI,    KSTATK.  [C]l.    3. 


som.  IL*  N.  r.  -JO.  nnd  iti  S.niii.lcrs  v.  1  Inttcnium.  24  N.  C.  82. 
AuothtM*  rase  in  point  is  Cicdlc  \,  Swiiulcll.  ()'\  N.  (\  l?()5.  wIrto  it 
was  lioUl  that  an  action  loi  (icccil  wdnM  not  lie  I'or  tin'  vondce 
against  tlic  vcnddi-  I'oi-  I'alsc  roprcscntalions  by  tlic  latter,  as  to  tlio 
<|uantity  of  land  sold.  There  he  falsely  asserted  tlie  tract  to  con- 
tain four  lunulird  and  ten  acres,  when  in  fact  tlierc  were  two 
luindred  and  eigliteen  acres  only.  In  delivering  the  opinion  of  tlie 
court.  Settle.  J.,  says:  "If  the  ])laintitT  has  snstained  loss,  it  is 
by  his  own  nc^irligenee ;  he  has  not  (>xej-eised  that  diligence  which 
the  law  exjH'cts  of  a  reasonable  and  carefnl  person,  but  was  wil- 
fully ignorant  of  that  whicli  he  onght  to  have  known.  He  might 
have  ascertained  the  fact  by  an  actual  survey  or  taken  a  covenant 
as  to  quantity.  \^igilantibns  non  dormientibus  jura  subveniunt." 
It  is  thus  seen  that  even  fraud  in  the  misrepresentation  will  not 
entitle  the  vendee  to  relief,  unless  that  fraud  is  such  that  the  plain- 
tiff could  not  have  reasonably  provided  against  it  under  the  maxim 
caveat  emptor. 

It  is  admitted  in  onr  case  that  no  fraud  was  intended  or  used, 
but  that  the  vendoi-  lnll\'  believed  his  statements  as  to  the  quantity 
of  land  to  be  true.  So,  according  to  the  entire  current  of  decisions 
in  our  state,  the  defendant  is  entitled  to  no  abatement  in  the  price 
for  a  dcticiencv  in  quantity.  There  must  be  fraud  and  damage. 
Adams.  Eq.  176;  2  Kent,  Com.  486,  487. 

Bond,  the  vendor  in  this  case,  at  the  time  the  contract  of  sale 
was  made,  stated  that  the  quantity  of  land  in  each  tract  was  a 
thousand  acres,  and  the  ti-ade  was  made  on  that  basis.  It  turned 
out,  according  to  the  finding  of  the  jury,  that  one  tract  contained 
]  124  acres,  and  the  other  714  acres,  and  the  two  tracts  together 
showed  a  deficiency  of  162  acres.  It  is  not  set  up  in  the  answer 
or  shown  by  any  evidence  that  quantity  was  the  material  or  any 
inducement  to  the  trade,  and  the  fact  that  the  defendant  occupied 
and  used  the  lands,  without  complaint  or  inquiry,  for  eight  years 
succeeding  his  purchase,  and  until  he  was  sued  for  the  purchase 
money,  affords  a  strong  presumption  that  the  quantity  was  not 
the  material  consideration  with  him.  As  we  hold  that  the  defend- 
ant is  not  entitled  to  the  abatement  and  sum  found  by  the  jury, 
it  is  unnecessary  to  consider  the  othei-  questions  presented  in  the 
exceptions.  The  judgment  is  reversed  and  judgment  rendered  here 
for  the  plaintiffs.     .     .     . 

For  a  full  rliscussion  of  caveat  emptor  and  of  the  rights  and  remedies 
of  one  who  buys  land  to  which  the  title  fails— when  such  defect  in  title  is 
a  defense  to  an  action  for  the  price,  etc.,  see  21  L.  R.  A.  (N.  S.)  363.  The 
principal  case  is  approved  in  Foy  v.  Haughton,  85  N.  C.  168,  where  it  is 
said:  "If  tiiere  he  on  the  part  of  the  vendor  any  actual  misrepresentation 
or  other  positive  fraud,  in  regard  to  a  material  matter  reasonably  relied 
on,  then  the  purchaser  will  be  afforded  relief:  otherwise,  the  maxim  ca- 
veat emptor  applies  in  all  courts,  whether  of  law  or  equity."  What  is  said 
in  the  principal  case  with  regard  to  the  application  of  the  doctrine  of 
caveat  emptor  to  sales  of  chattels,  must  ])e  taken  cum  grano  salis.  See 
Mcintosh  Cont.  559-560;  Benj.  on  Sales,  §  627;  Tiffany  on  Sales,  165-166; 
Mordecai's  L.  L.  784,  798;  Clavenger  v.  Lewis,  95  Pac.  230,  16  L.  R.  A. 
(N.  S.)  410,  and  note.  See  "Vendor  and  Purchaser,"  Cent\jry  Dig.  §  36; 
Decennial  and  Am.  Dig.  Key  Xo.  Series,  §  31. 


Sec.    17.]  CONCERNING    REAL    ESTATE.  273 

SLATER  et  al.  v.  RAWSON,  1  Metcalf  (Mass.),  450,  455.     1840. 
Acti07is  on  Covenants  of  Seizin,  Right  to  Convey,  and  Warranty. 

[Action  of  covenant  to  recover  damages  for  breach  of  covenants  of 
seizin,  right  to  convey,  and  warrant.v.  The  verdict  was  for  five  hundred 
dollars  against  the  defendant.  The  judgment,  by  arrangement  between 
the  parties,  was  to  be  in  favor  of  the  plaintiff  or  a  new  trial  was  to  be  or- 
dered, as  the  court  should  direct.     New  trial  ordered. 

Rawson  made  a  deed  of  conveyance  of  certain  lands  to  Tyson  et  al.,  who 
afterwards  conveyed  the  same  to  plaintiffs.  Elisha  Jacobs  ousted  plain- 
tiffs from  twenty-two  acres  of  the  land.  Plaintiffs  submitted  to  such 
ouster  because  Jacobs  showed  title  in  himself  as  assignee  under  mesne 
conveyances  from  William  Sears.  The  conveyance  by  Rawson  to  Tyson 
et  al.  contained  covenants  in  the  usual  form,  of  seizin,  right  to  convey, 
against  incumbrances,  and  warranty.  The  breach  alleged  was  that  Elisha 
Jacobs  ousted  plaintiffs  because  of  his  having  an  older  and  better  title. 
It  appeared  in  evidence  that,  at  the  time  Rawson  conveyed  the  lands  to 
Tyson  et  al.,  he  was  not  seized  of  the  twenty-two  acres  taken  from  the 
plaintiffs  by  Jacobs.  In  other  words,  Rawson,  having  no  title  and  no 
seizin,  made  a  deed  for  the  land,  which  deed  contained  the  covenants 
above  mentioned.  The  persons  to  whom  such  deed  was  made  conveyed  to 
plaintiffs,  and  they  sued  on  the  covenants.  The  questions  presented  are: 
(1 )  Can  the  plaintiffs  recover  on  the  covenants  of  seizin  and  right  to  con- 
vey— they  not  being  the  original  covenantpcs.  but  the  n.s.'iignees  of  such 
covenantees f  (2)  Can  plaintiffs  recover  on  the  covenant  of  warranty. 
being  only  assignees.'] 

Dewey.  J.  .  .  .  l^pon  the  argnment  before  us,  upon  the 
case  as  stated  by  the  parties,  the  defendant  insists,  that  as  he  was 
not  seized  of  the  land,  whieh  is  now  the  subject  of  eontroversy.  at 
the  time  he  executed  the  deed  to  Slater  and  Tyson,  and  so  nothing 
passed  by  his  deed  to  his  immediate  grantees,  and  they  therefore 
cfinld  pass  no  estate,  nor  any  covenants,  to  an  a.ssignee.  which 
would  authorize  an  action  in  his  own  name,  he  is  not  liable  to  the 
]»laintiffs.  to  any  extent,  on  his  covenants. 

The  distinction  as  to  the  legal  effect  of  the  different  covenants 
usually  iiitniduced  into  our  conveyances,  however  little  it  may 
have  been  understood  or  ivgai'ded  prior  to  the  cases  of  Marston 
v.  Ilobbs.  2  Mass.  433.  and  Hickford  v.  Page,  2  Mass.  455.  is  now 
very  well  settled.  The  covenants  of  .seizin  and  right  to  convc'U 
are  to  all  practical  purposes  synonymous  covenants;  the  same  fact, 
viz.  the  seizin  in  fact  of  the  grantor,  claiming  the  I'ight  to  the 
premises,  will  authorize  holli  covenants,  and  the  want  of  it  is  a 
breach  of  both.  Hut  ui)iin  these  coveiuuits  no  action  can  he  niain- 
tiiinrd  in  tlic  name  of  an  (issiqucc  oi-  subsecpienl  purchaser,  for 
it  hroUcn  at  all.  tln-y  jirc  necessarily  ])roken  at  the  nioinent  of  the 
execution  of  the  (lcc<l  :  and  not  ruiuiing  with  the  Innd.  they  do  not 
pass  hy  a  suI)sc(|Mcii1  roiiveyancc  of  the  land.  The  covenant  of 
irarniiil If,  on  Hit  ollnr  haii'l.  is  n  can  ikiiiI  nnnniifi  icilli  IIk  land, 
and  may  he  made  availahle  to  a  sul)s.'(|ii(  iit  i)ur<'ha.ser.  however 
remote,  if  the  conveyances  are  taken  with  iii-oi>er  words  to  i)ass 
the  covenant.  I5ul  to  supi»oi-l  an  iielion  hy  an  jissignee.  on  the 
eoven;nit  of  warriMity.  it  is  neeess-iry  that  the  ii-urni iilnr  should 
havi  Ih  I  II  stizid  of  Ihf  land:  for.  Iiy  a  rdnvcynnee  without  such 
seizin,  the  gr;inter  ;ie(|uires  no  est;itc.  :iii<i  h;is  im  piiwcr  1<i  transfer 
ReniPdicB — 18. 


27-1  coN'cr.KXiNc   i:i:.\i,   ks'i-atk.  \('Ii.  .1. 

ti)  ;i  sul)si'((Uiiii  purcliasi'i-  tlic  (•(•vfiiiiiils  in  hi.s  Arvil.  beeaust'.  as 
no  I'stali'  jiasscs.  Xhvvv  is  no  land  to  which  tlu"  covenants  can  at- 
tach. If.  tlicrcfoiv.  th(>  dcfcnthinf,  at  the  time  of  nialvint?  his  doo<l 
to  ShitiT  and  Tyson,  wa.s  not  seized,  tlien  the  covenant  of  war- 
ranty did  not  pass  to  tlie  phiintilTs  as  assiji:nees,  and  the  only  liabil- 
ity of  the  defendant  is  npon  his  covenant  of  seizin,  which  covenant, 
Un-  the  reasons  alread\-  stated,  is  wholly  unavailable  to  the  plain- 
t  ill's. 

It  is  to  be  taken  as  established  by  the  lindinp:  of  the  ,inry,  and 
is  also  in  accordance  with  the  pleadings  on  the  part  of  the  plain- 
titl',  that  the  defendant,  at  the  time  of  makinfij  his  conveyance, 
liad  no  lepil  title  to  the  twenty-two  acres  of  land,  which  the  plain- 
till'  has  yielded  np  to  the  claim  of  Jacobs;  but  that  the  title  to  the 
same  was  then,  and  had  been  for  a  hmg  period  previously,  in  Wil- 
liam Sears  and  thosi^  claiming:  under  him.  The  fui'ther  inquiry 
then  is.  whether  the  defendant  was  seized  in  fact  of  these  pi-em- 
ises,  elaiminfr  risjht  tlun-eto.  at  the  time  of  executing  the  deed  to 
Slater  and  Tyson. 

The  ease,  as  stated  by  the  parties,  in  the  report,  finds  that 
the  premises,  which  are  the  subject  of  this  controversy,  were  a 
part  of  a  large  tract  of  woodland  uninclosed  by  fences,  and  of 
which  there  had  been  no  actual  occupation  by  any  of  the  parties. 
Taking  these  facts  to  be  correctly  stated,  there  was  clearly  no 
seizin  in  fact  in  the  defendant,  acquired  by  an  entry  and  adverse 
possession.  The  rule  as  to  lands  that  are  vacant  and  unoccupied, 
that  the  legal  seizin  follows  the  title,  seems  to  be  a])plical)le  here; 
and  having  ascertained  in  whom  is  the  legal  title,  that  also  deter- 
mines in  whom  the  seizin  is.  But  the  plaintiffs  have  alleged  in 
their  declaration,  and  established  by  their  evidence,  the  fact  that 
the  legal  title  to  the  land  surrendered  w-as  not  in  the  defendant 
at  the  time  of  the  execution  of  the  deed  by  him,  but  was  in  those 
who  claim  under  AVilliam  Sears.  It  being  thus  shown  that  there 
was  no  seizin  in  fact,  nor  any  legal  title  to  the  premises,  in  the 
defendant,  it  necessarily  follows  that  the  covenants  of  seizin  and 
right  to  convey  were  broken,  and  that  nothing  passed  to  Slater 
and  Tyson,  which  they  could  transfer  to  the  plaintiffs  as  the 
foundation  of  an  action  in  their  own  name.  The  covenant  of 
seizin  was  broken  at  the  moment  of  the  execution  of  the  deed,  and 
became  a  mere  chose  in  action  not  transferable;  and  the  covenant 
of  warranty  is  wholly  ineffectual,  as  no  land  passed  to  which  it 
could  be  annexed ;  and  the  result,  therefore,  from  this  view  of  the 
cas'^.  is.  that  the  plaintifT  cannot  maintain  his  action. 

It  was  said  in  the  argument,  that  the  defendant  should  be 
estopped  to  deny  his  seizin,  and  thus  avoid  the  covenant  of  war- 
ranty, because  by  his  own  deed  he  has  affirmed  it.  and  that  should 
be  conclusive  against  him.  Without  deciding  whether  such 
estoppel  might  or  might  not.  under  any  circumstances,  he  inter- 
po.sed  where  there  arc  vai-ious  covenants  in  a  deed,  and  the  party 
be  thus  subjected,  at  the  election  of  the  covenantee,  to  damages  dif- 
ferent from  those  which  the  law  has  prescribed  for  the  covenant 
which  is  actuallv  broken:  or.  in  the  case  of  an  assignee,  to  allow 


Sec.    17.]  CONCERNING    REAL   ESTATE.  275 

him  to  recover  for  the  breacli  of  a  eoveuaut  which  is  shown  iu 
fact  never  to  have  passed  to  him ;  it  seems  to  us  clear,  that  iu  the 
present  case  no  such  objection  can  avail,  as  the  plaintiff,  in  his 
declaration,  and  by  his  own  showing,  has  established  the  fact  that 
the  defendant  had  neither  the  seizin  nor  the  legal  title  to  the  land 
conveyed.     .     .     .     New  trial  ordered. 

The  rule  of  the  common  law  that  the  conveyance  by  one  who  was  dis- 
seized was  void,  has  been  abolished  in  North  Carolina.  Mordecai's  L. 
Lect.  646-649.  That  a  covenant  of  seizin  is  broken,  if  at  all,  as  soon  as 
it  is  made,  and  hence  not  assignable  under  the  common-law  rules;  and 
that  the  same  is  true  of  covenants  of  right  to  convey,  and  against  incum- 
brances, see  Chapman  v.  Holmes,  10  X.  J.  L.  20.  In  a  declaration  or 
complaint  for  breach  of  covenant  of  seizin  and  of  right  to  convey,  it  is 
sufficient  to  allege  the  breach  by  negativing  the  words  of  the  covenant, — 
thus,  after  setting  out  the  covenants,  the  plaintiff  alleges  that  the  said 
covenantor  was  not  (at  the  time,  etc,)  seized  in  fee  of  said  premises;  nor 
had  he  then  good  and  lawful  right  to  sell  and  convey  the  same.  Floom 
V.  Beard,  8  Blackford,  76.  But  while  this  is  true  of  these  covenants,  it  is 
not  true  as  to  covenants  against  incumbrances,  for  quiet  enjoyment,  and 
warranty,  for  as  the  covenantor  does  not  covenant  against  all  interrup- 
tions of  the  covenantee's  possession  nor  against  all  possible  incum- 
brances, the  complaint  should  set  out  specifically  the  nature  of  the  in- 
cumbrance and  interruption  complained  of;  and  as  the  covenant  of  war- 
ranty is  not  against  all  claims  and  ousters,  there  must  be  an  allegation 
of  an  ouster  by  an  older  title.  IMarston  v.  Hobbs,  2  Mass.  433.  See  Wil- 
liams V.  Shaw,  4  N.  C.  630,  inserted  post  in  this  section,  and  notes 
thereto.  See  "Covenants,"  Century  Dig.  §§  59,  60,  64;  Decennial  and  Am. 
Dig.  Key  No.  Series,  §§  62,  63,  67. 


GRAGG  v.  WAGNER,  71  N.  C.  316.     1874. 
Covenants  Against  Incumbrances. 

[Action  for  damages  for  breach  of  covenant  against  Incumbrances. 
.Judgment  against  defendant,  and  he  appealed.     Affiimed. 

Plaintiff  and  defendant  exchanged  lands,  and  each  covenanted  against 
any  and  all  incumbrances.  There  were  incumbrances  on  the  lands  con- 
veyed by  the  defendant  to  the  plaintiff.  Plaintiff  alleged  the  covenant 
and  that  there  were  certain  specified  incumbrances  on  the  land  at  the 
time  the  covenant  was  made.  Defendant  answered  admitting  the  exist- 
ence of  the  incumbrances,  but  set  up  as  a  defense,  that  plaintiff  had 
notice  of  their  existence  when  he  accepted  the  conveyance.  Plaintiff 
demurred  to  the  answer,  and  the  demurrer  was  sustained.] 

HvNi'M.  J.  A  convoys  to  H  a  ti-act  of  hiiid  with  a  coveiiaiit 
against  inciinibraiiccs.  both  parties  having  at  the  lime  full  Icuowl- 
edge  of  the  existence  of  valid  outstaiuliiig  iiicninbraiircs  upon  the 
land  conveyed.  Can  l'>  recover  ii|iiiii  the  covenant?  Tiiei-e  is  no 
allegation  of  frand  or  mistake  in  procuring  the  covenants,  and 
therefore  any  oral  evidence  offered  in  tlie  case  would  fall  under 
the  general  rule  that  it  shall  not  be  admitted  to  contradict,  alter 
or  varv^  the  written  agreement  of  the  parties.  If  there  are  known 
incumbrances  and  it  is  the  ob.iret  fif  the  vendor  to  except  them 
from  the  operation  f)f  the  eovenani,  it  is  always  in  his  power  to 
make  it  appe;ir  so  on   tlu'  lai'i'  of  tip'  deed:  ;iiid   if  he  fails  |o  do 


•J7()  coNCKiv'Ni  N(;    i;i;\i.    i:sr  a'im;.  \('}i.  .1. 

so  it  is  his  own  folly,  jmd  lie  will  not  ht-  .illowcd  lo  rcp.-iir  llic  ciTor 
at  tlio  cxptMist'  of  the  settled  rules  of  const  I'uet  ion  which  have  be- 
come a  part  of  the  laws  of  |n'oiiiM'ty. 

'rht>  pi-ineiple  isca\cat  emptor,  antl.  therefore,  if  tlie  vend(>e  fails 
to  invest  iirate  the  title  or  take  covenants,  lie  is  hound  hy  the  defeet 
of  title  and  innst  hear  the  loss:  hut  if  he.  with  oi-diu.n-y  |)rudeiM'e. 
protects  himself  hy  pi'oper  covenants,  the  vendoi-  is  then  hound  to 
indenniifx.  Thus  the  \en(lor  nuist  take  care  of  the  coveinints  he 
enters  into  and  notice  of  the  incnndirance  can  make  ju»  ditVerenee, 
as  was  decided  in  Levett  v.  Wit heriniiton,  liUtwych,  .'{17.  There, 
in  an  indi'ntni'e  reeitini;  a  lease,  where  the  party  covenanted  that 
the  orifrinal  lea.se  was  good  and  uiiincninhered,  on  an  action  of 
covenant  alleiiinjj:  an  incumhrance.  notice  of  it  was  ])leaded  by  the 
defendant,  and  on  tlemnn-i'i-  the  plaint  ill'  had  judgment.  The  cur- 
rent of  decisions  is  uniform  to  the  same  ])uri)ose.  Townshend  v. 
Wald.  S  Mass.  146;  Harlow  v.  Thomas.  If)  Pick.  70;  11  Serg.  & 
Kawle.  112:  10  Conn,  ^.i^  :  Dun  v.  White.  1  Ala.  646. 

And  on  the  same  principle  it  is  held  that  mere  notice  does  not 
pre.iudice  the  covenantee  from  relief  in  a  court  of  ef|uity.  by  way 
of  detaining  the  purcha.se  money  to  the  amount  of  the  incumbrance 
when  it  is  one  cov(Mianted  against.  Stocktcm  v.  Cook,  ',]  Mnnf.  68. 
So  in  Collingwoixl  v.  Irwin,  3  Watts.  309.  the  covenantor  offered 
to  show  that  at  the  time  of  the  execution  of  the  deed  it  was  agreed 
that  the  assignment  of  a  certain  judgment  should  be  the  only  se- 
curity of  the  covenantee  and  that  the  former  was  not  to  be  held 
liable  on  his  covenant,  it  was  held  that  to  admit  such  proof  would 
not  only  be  admitting  evidence  to  contradict,  but  to  alter  and 
change  the  character  and  effect  of  the  deed  materially. 

Tf  the  vendee  fails  to  take  a  warranty  of  titl(\  in  the  absence  of 
fraud,  the  whole  loss  will  fall  upon  him.  why  then  should  not  the 
loss  fall  upon  the  warrantor  when  he  enters  into  a  warranty?  The 
very  fact  of  the  purchaser  having  notice  of  an  incumbrance  is  the 
best  reason  why  he  should  tp.ke  a  covenant  of  i)rotection  against 
it.  The  purchaser  consents  to  take  a  defective  title  because  he 
relies  for  his  security  upon  the  covenants  of  the  vendor,  and  it  may 
not  be  unwise  in  the  vendor  to  make  the  covenant,  for  it  nnist  be 
presumed  that  he  expects  to  discharge  the  incumbrance  out  of  the 
purchase  money  or  other  available  means,  and  not  allow  it  to  be 
enforced  upon  the  specific  land. 

Tf  a  deceit  was  practiced  upon  the  vendoi'.  oi"  any  false  repre- 
sentation in  the  nature  of  a  fraud  on  which  a  court  of  equity  could 
take  hold,  that  court  would  not  permit  the  party  to  take  advantage 
of  his  own  wrong,  but  would,  on  a  proper  case,  rescind  the  con- 
tract and  restore  the  parties  to  their  original  state,  or  refuse  the 
vendee  any  aid  or  relief  upon  a  covenant  thus  obtained.  But  such 
is  not  the  case  before  us.  Nothing  now  appears  upon  which  the 
erpiitable  jurisdiction  of  this  court  can  fix  itself  and  interpose  be- 
tween the  parties.  Tn  short,  when  the  contract  is  that  the  pur- 
cha.ser  takf^  the  land  cum  onere.  it  must  be  expressly  mentioned, 
and  the  incumbrance  exce[)ted  from  the  ojx'ration  of  the  covenant, 
in  Avhich  case  the. covenantor  Avill  not  be  liable.     But  here  it  is 


Sec.    17.]  CONCERNING    REAL    ESTATE.  277 

otherwise  denominated  in  the  deed,  and  that  instrunient   nuist  be 
its  own  interpreter. 

The  question  of  damages  is  not  now  presented,  and  tlie  amount 
will  depend  upon  the  issues  which  may  arise  on  the  future  plead- 
ings, provided  for  by  the  agreement  of  the  parties  and  entered  of 
record.  The  rule,  however,  is  indemnity,  whieli  may  he  less,  but 
cannot  exceed  the  sum  of  the  purchase  money.  White  v.  Whitney, 
8  Met.  89;  Rawlc.  VM\  140.  There  is  no  error.  Judgment  af- 
firmed. 

In  Prescott  v.  Trueman,  4  Mass.  bot.  p.  629,  it  is  said:  'We  are  of  opin- 
ion that  every  right  to,  or  interest  in,  the  land  granted,  to  the  diminution 
of  the  value  of  the  land,  but  consistent  with  the  passing  of  the  fee  by  the 
conveyance,  must  be  deemed  in  law  an  incumbrance.  We  say  consistent 
with  the  passing  of  the  fee  by  the  conveyance,  because,  if  nothing  passed 
by  the  deed,  the  grantee  cannot  hold  the  estate  under  the  grantor.  Thus  a 
right  to  an  easement  of  any  kind  is  an  incumbrance.  So  is  a  mortgage. 
So  also  is  a  claim  of  dower,  which  may  partially  defeat  the  plaintiff's 
title  by  taking  a  freehold  in  one  third  of  it.  And  for  the  same  reason,  a 
paramount  right  which  may  wholly  defeat  the  plaintiff's  title,  is  an  in- 
cumbrance. It  is  a  weight  on  his  land  which  must  lessen  the  value  of  it." 
See  elaborate  note  to  Browne  v.  Taylor,  4  L.  R.  A.  (X,.  S.)  309.  See 
"Covenants,"  Centurv  Dig.  §  40;  Decennial  and  Am.  Dig.  Key  No.  Series 
§  39. 


PRICE  V.  DEAL,  90  N.  C.  290.     1884. 
Quiet  Enjoyment  and  Seizin.    Measure  of  Damages. 

[Action  for  damages  for  breach  of  covenants  of  quiet  enjoyment  and  of 
seizin.  Verdict  and  judgment  against  defendant,  and  he  appealed.  Re- 
versed as  to  measure  of  damages,  and  affirmed  as  to  other  rulings. 

Plaintiff  purchased  sixty  acres  of  land  from  defendant.  The  deed  from 
defendant  to  jilaintiff  contained  two  covenants — quiet  enjoyment  and 
seizin.  Plaintiff  acquired  no  title  to  nine  acres  of  the  locus  in  quo,  and 
would  have  been  ousted  from  another  parcel  of  twenty-four  acres  thereof 
had  he  not  bought  off  the  adverse  claimant  by  paying  him  one  hundred 
dollars.  These  facts  were  set  up  in  the  complaint.  On  the  trial  the  de- 
fendant admitted  "that  there  was  a  title  paramount  as  to  the  twenty-four 
acres  and  also  as  to  nine  acres."  It  was  shown  that  i)laintiff  had  bought 
off  the  claimant  of  the  twenty-four  acres  after  action  biought  against  him 
therefor;  but  there  had  been  no  actual  ouster  of  plaintiff  from  the  nine 
acres.  The  judge  charged,  that,  as  the  defendant  had  admitted  having 
no  title  to  thf  twenty-four  acres  and  the  nine  acres  at  the  time  he  con- 
veyed to  plaintiff,  the  covenants  in  the  deed  were  broken,  and  plaintiff 
was  f-nlitlcd  to  recover  that  proi)ortion  of  the  amount  ho  paid  for  the 
land,  that  the  value  of  the  two  i)arcels  of  twenty-four  and  nine  acres  bore 
to  the  value  of  the  whole  tract  of  sixty  acres.  Defendant  excei)ted.  The 
opinion  discusses  the  remedy  on  covonants  of  seizin  and  quiet  enjoyment, 
tlip  necessary  pioof,  measure  of  damages,  etc.l 

Aritr.  J.  Thr-  ilcfcndant's  coiniscl  insisted  thai,  as  Ihe  demand 
for  .indgtiu'iit  ill  the  complaint  was  for  dntiKur<'s  for  a  breach  of 
thi"  cftvciiant  of  <|iiiet  ctijoxim'tit ,  tlic  plaiiitilV  could  not  recover. 
Hooansc  nn  evictinn  miflrr  a.  paramounl  lllh  had  ht  i  n  sliDirv.  and 
the  plaintiff  was  not  entitled  to  recover  the  amoinit  paid  by  him 
to  remove  the  iiicniribrance.  because  it  was  a  rohoilnrii  act  on  his 
J>att       Hut  tin-  plaiiilifT  alleged  breaches  of  tli tveuant  of  seizin 


278  CONCliRN'INc;    U'KAI.    KSTATE.  |  (7/.    ,V. 

as  wt'll  as  of  that  of  quiet  onjoynieiil.  and  prayed  for  general  re- 
lief. In  sueh  a  ease  llie  eourts  will  luoli  to  the  allegatious  and 
proofs  aud  give  tlie  plaint ilV  sueli  relief  as  the  justice  of  his  ease 
ilemands,  eonsistenlly  witli  the  faets  set  out  in  llic  ('(»mj)lain1  and 
not  disputetl. 

The  plainliir  alleged  that  two  pareels  of  the  sixty  aeres  pur- 
chased by  him  from  the  defeiidaut,  the  one  consisting  of  twenty- 
four  aeres,  and  the  other  of  nine  aeres,  had  been  claimed  by  persons 
haviuir  i^aramonnt  titles,  and  that  he  had  had  to  pay  one  hundred 
dollars  to  remove  the  incumbrance  from  the  twenty-four  acre  tract. 
The  defendant  admitted  he  had  no  title  to  either  of  these  parcels 
of  land. 

As  a  general  rule  a  plaintiff  cannot  recover  in  an  action  for  a 
breach  of  covenant  for  quiet  enjoyment,  without  showing  an  evic- 
tion from  the  possession  under  a  paramount  title,  and  the  measure 
of  damages  in  such  cases  is  the  price  paid  for  the  land,  with  in- 
terest. Williams  v.  Beeman,  13  N.  C.  483.  But  in  an  action  upon 
a  covenant  of  seizin,  all  the  plaintiff  need  show  is  that  the  defend- 
ajit  had  no  title  or  no  right  to  convey.  "Wilson  v.  Forbes,  13  N.  C. 
30;  Rawle  on  Gov.  for  Title,  66;  Brant  v.  Foster,  5  Iowa,  287. 

The  reason  of  the  distinction  is.  that  a  covenant  for  quiet  enjoy- 
ment is  a  covenant  for  possession,  and  that  of  seizin  is  a  covenant 
for  title,  the  word  being  used  as  synonymous  with  right.  In  an  ac- 
tion upon  the  former  covenant,  an  eviction  must  be  alleged  in  the 
complaint  or  declaration,  but  on  the  latter,  it  is  only  necessary  to 
negative  the  words  of  the  covenant  and  to  allege  that  the  grantor 
had  no  seizin  or  title  to  the  land.  4  Kent,  Com.  479 ;  Richest  v. 
Snyder,  9  Wend.  416.  And,  as  a  general  rule,  the  measure  of  dam- 
ages is  the  same  for  a  breach  of  covenant  of  seizin  as  for  a  breach 
of  covenant  of  quiet  enjoyment.  Wilson  v.  Forbes,  supra.  This 
rule  of  damages  is  applicable  to  those  cases  w'here  there  is  an  evic- 
tion from  the  ivhole  of  the  land  conveyed,  or  a  want  of  title  to  the 
.'^ame.  But  where  there  is  an  eviction  from,  or  a  want  of  title  to, 
07ihj  pari  of  the  land  conveyed,  and  the  plaintiff  has  been  put  to 
the  necessity,  as  in  this  case,  to  advance  money  to  remove  an  in- 
cumbrance, the  measure  of  damages  is  more  difficult  to  be  fixed. 

We  think  his  honor  very  properly  refused  to  give  the  instruc- 
tions asked  for  by  the  defendant,  upon  the  question  of  damages, 
but  we  are  also  of  the  opinion  that  there  was  misdirection  in  the 
instruction  which  he  did  give  to  the  jury. 

It  is  well  settled  that  a  party  who  purchases  land  with  covenants 
for  seizin  or  quiet  enjoyment  may  protect  himself  by  buying  in  the 
outstanding  title.  Faucett  v.  Woods.  5  Iowa,  460.  When  that  is 
done,  the  measure  of  damages,  according  to  the  best  lights  we  have 
been  able  to  obtain  on  the  point,  is.  that  the  damage  in  such  a  case 
would  be  limited  to.  or  measured  by,  not  the  value  of  the  land,  but 
by  the  amount  reasonably  paid  for  that  purpose,  provided  it  did 
not  exceed  the  purchase  money.  Faucett  v.  Woods,  supra  ;  Brant 
V.  Fo.ster.  5  Iowa.  287;  Wood's  Mayne  on  Damages,  sec.  255;  Bank 
V.  Glenn.  68  N.  C.  35.  It  will  be  seen  from  the  rule  laid  down  by 
these  authorities  that  the  price  paid  to  extinguish  the  outstanding 


Si^C.    17.]  CONCERNING   REAL   ESTATE.  279 

title  must  not  exceed  the  piireha.se  money,  and  to  determine 
whether  it  exceeded  that  amonnt  it  becomes  necessary  for  a  jury 
to  as(;ertain  the  relative  value  of  that  parcel,  and  in  doing  so  the 
rule  for  their  guidance  is  not  the  proportion  in  quaidiiy,  as  held 
by  his  honor  in  the  court  below,  but  such  proportion  as  the  value 
of  laud  covered  by  the  paramount  title  bears  to  the  value  of  the 
whole  land,  estimated  by  the  consideration.  Cornell  v.  Jackson, 
3  Cusii.  5U6 ;  jMorris  v.  l*hillii)s.  5  Johns.  49.  But  if  the  amount 
paid  to  extinguish  the  outstanding  title  to  the  twenty-four  acres 
shall  be  found  to  be  more  than  the  assessed  value  of  that  part,  then 
the  amount  so  assessed  shall  be  the  measure  of  damages,  and  this 
latter  measure  applies  as  "vvell  to  the  nine  acres. 

Being  of  the  opinion  that  the  justice  of  the  case  Avas  not  reached 
by  the  jury,  in  conseciueiice  of  the  misdirection  of  his  honor,  the 
case  must  be  remanded  to  the  superior  court  of  Alexander  county, 
that  proper  issues  may  be  submitted  to  the  jury  upon  the  question 
of  damages  only,  with  instructions  as  to  the  measiu-e  of  damages 
in  accordance  with  the  principle  announced  in  this  opinion.  Re- 
manded. 

lu  Blackwell  v.  .Justices  of  Lawrence  County,  2  Blackford,  at  p.  147,  it 
is  said:  "Where  a  title  is  made  that  afterwards  proves  defective,  a  dis- 
tinction has  been  sometimes  drawn  between  the  measure  of  damages  in 
covenants  of  uananty  and  in  covenants  of  seizin.  In  Massachusetts, 
Connecticut,  and  Scath  Carolina,  the  measure  of  damages  in  covenants  of 
warranty,  is  the  value  of  the  land  at  the  time  of  the  eviction.  Gore  v. 
Brazier,  3  Mass.  543;  Horsford  v.  Wright.  Kirby,  3;  Liber  v.  Parsons,  1 
Fiay,  19;  Guerard  v.  Rivers,  lb.  265.  In  New  York,  Virginia,  Pennsyl- 
vania, and  Kentucky,  the  measure  of  damages  in  such  cases,  is  the  pur- 
chase money  and  interest.  Staats  v.  Ten  Eyck,  3  Caines,  111;  Pitcher  v. 
Livingston,  4  .lohns.  1;  Lowther  v.  Commonwealth,  1  H.  &  M.  201;  Nelson 
V.  Matthews,  2  H.  &  M.  164;  Bender  v.  Fromberger,  4  Dall.  436;  Harland 
V.  Eastland,  Hard.  590;  Cox  v.  Strode,  2  Bibl),  273;  Cosby  v.  West,  lb.  568; 
Booker  v.  Bell,  3  Bibl),  173.  The  same  doctrine  is  supported  by  the  cases  of 
Morris  v.  Phelps,  5  Johns.  49;  Caulkin  v.  Harris,  9  Johns.  324;  Bennet  v. 
.  Jenkins,  13  Johns.  50;  Davis  v.  Hall,  2  Bibb,  590.  But  in  covenants  ol 
seizin  the  decisions  have  been  uniform,  that  the  purchase  money  and  in- 
terest is  the  measure  of  damages.  This  rule  is  either  directly  or  indi- 
rectly recognized  in  all  the  foregoing  cases.  See  also  the  cases  of  Marston 
v.  Hobbs,  2  Ma.ss.  433;  Bickford  v.  Page,  Ibid.  455.  When  there  is  a  cove- 
nant to  convey,  and  an  inability  to  perform,  unless  the  inability  arises 
liom  fraud  in  the  covenantor  the  measure  of  damages  is  the  same  as  in 
covenants  of  seizin.  The  reason  that  runs  through  all  the  cases  of  cove- 
nants of  .<ieizin.  applies  with  full  force  to  covenanta  to  convey.  See  also 
the  cases  of  Rutledge  v.  Lawrence,  1  Marsh.  396;  Rankin  v.  Maxwell,  2 
.Marsh.  18S,  and  the  above  cases  of  Cox  v.  Strode  and  Davis  v.  Hall, 
where  this  nilf  is  expressly  recognized.  We  therefore  consider  it  well 
settled,  that  in  a  breach  of  contract  to  convey,  the  measure  of  damages 
is  the  consideration,  or  purchase  money,  with  interest."  See  "Coven- 
ants." Centurv  Dig.  ?§  231  236,  243;  Decennial  and  Am.  Dig.  Key  No. 
Series  55  125.  128. 


liSl>  CONCKRNINl!     KKAl,    KSTATE.  \  (' h . 


Wll.L-IAMS  V.  tfllAW,  4  N.  C.  H30,  G31.     181G. 
Warrant!/  and  Quiet  Enjoyment.     Eviction. 

1  Action  to  rerovfi-  ilamaKcs  for  broacli  of  covenant  of  warranty.  Judg- 
UKMit  ai;ainsl  ilefendanl  in  tlu'  siiprenic  court,  which  iiad  jurisdiction  of 
the  case. 

Shaw  sold  a  tract  of  land  to  plaintiff.  The  deed  contained  this  clause: 
"And  the  said  John  Shaw,  for  himself,  his  heirs  and  executors,  will  for- 
ever warrant  and  defend  the  said  land  against  the  lawful  claims  of  all 
persons  whatsoever."  One  McKeithan  sued  the  i)laintiff,  Williams,  in 
trespass  q. C.  f.  for  entering  upon  the  locus  in  quo.  Williams  notified 
Shaw  of  such  suit.  Williams  resisted  McKeithan's  suit  but  was  defeated. 
Williams  then  brought  this  action  against  Shaw  on  the  warranty,  and 
alleged  the  covenant,  the  recovery  by  McKeithan,  and  that  McKeithan 
owned  the  land  by  title  paramount;  but  there  was  no  allegation  of  an 
eviction  under  lawful  title.     Defendant  filed  a  general  demurrer.) 

D.vNiEL,  J.    It  is  contended  in  snpi^ort  of  the  demurrer,  that  the 
covenant  contained  in  the  deed  is  nothing  more  than  a  covenant  for 
(liiiet  enjoyment,  and  as  there  is  no  allegation  in  the  declaration  of 
an  entry  and  eviction  under  a  lawful  title,  hy  legal  jjroccss,  the 
plaintiflf'  is  not  entitled  to  maintain  his  action.     It  is  a  well  settled 
ride  that  under  a.  covenant  of  wai'ranty.  the  plaintiff  must  sliow  a 
lawful  eviction  in  order  to  maintain  his  action.     2  Johns.  4;  ;i 
Johns.  478;  7  Johns.  2iiS;  11  Johns.  122.     And  the  plain  reason  is 
this,  if  the  eviction  is  not  lawful,  by  some  person  having  a  lietter 
right  to  the   possession,   the   covenantee    would   always  he   able, 
through  the  medium  of  the  courts  of  justice,  to  maintain  his  pos- 
session and  recover  damages  for  the  interruption ;  but  if  the  evic- 
tion  is  lawful,  the  covenantee  has  no  other  remedy  but   on   his 
covenant  for  (|uiet  enjoyment.     Ibid.  84,  85;  Cro.  Eliz.  914;  Cro. 
Jac.  425.     If  the  parties  had  inserted  a  covenant  of  .<ieizin  in  the 
deed,  and  a  breach  had  been  assigned  on  that  covenanl.  Ilx   caHc- 
would  have  been  very  clear.     We  arc  now  called  on  to  say  whether 
there  does  not  appear  sufficient  in  this  case  to  avithori/.c  the  plain- 
tiff to  recover  on  the  covenant  contained  in  the  deed,  under  tlie 
circumstances  attending  it;  or.    in   other   words,  whether  it   was 
necessarv'  for  the  jdaintiff  to  allege  and  prove  that  he  had  been 
evicted  by  a  legal  title  in  an  action  of  ejectment.     It  appears  by 
the  case,  that  the  plaintiff  by  virtue  of  the  deed  entered  upon  the 
land  and  had  some  timber  cut  and  carried  away;  and  the  declara- 
tion states  that  McKeithan.  by  a  better  title,  entered  and  held  him 
out  of  po.ssession.     On  an  examination  of  the  British  authorities, 
it  does  not  appear  to  be  nec(;ssary  for  the  plaintiff  to  show  an 
eviction,  in  con.se(^|uence  of  an  action  hi-otmlit  against  liim.  and  a 
recovery;  it  is  sufficient,  that  he  state  in  his  declaration,  that  he 
was   turned   out    of  j^osse.ssion    by   one    who   had    the    legal   title. 
4  Term,  617,  620;  2  Wms.  Saimders.  181.  n.  10.     In  the  present 
case  the  title  was  fairly  tried,  the  defendant  (Shaw)  had  notice  to 
defend  ;  whether  he  did  or  not.  does  not  appear  from  the  case.    The 
land  being  woodland,  and  no  actual  possession,  the  possession  then 
followed  the  title,  and  that  the  court  and  the  jury  said  was  in  Mc- 


iScC.    17.]  CONCERNING    RE.VL    ESTATE.  281 

Keitliaii.     This  is  equivalent  to  an  eviction  under  legal  process. 
Demurrer  overruled. 

That  it  is  necessary  to  allege  and  prove  eviction  under  title  pai  amount, 
or  wliat  is  equivalent  to  such  eviction,  see  Herrin  v.  Mclntire,  8  N.  C.  410; 
Mizzell  V.  RufRn,  118  N.  C.  69,  23  S,  E.  927;  Webb  v.  Wheeler,  114  N.  W. 
636,  17  L.  R.  A.  (N.  S.)  1178,  and  note;  Re  Hanlin,  113  N.  W.  411,  17 
L.  R.  A.  (N.  S.)  1189,  and  note.  In  Wilder  v.  Ireland,  53  N.  C.  85,  head- 
note  3,  it  is  said:  "A  covenant  of  quiet  enjoyment  in  a  deed  conveying 
a  tee,  is  not  broken  if  the  covenantor  had  the  title  to  a  life  estate,  though 
his  title  failed  as  to  the  remainder;"  and  at  p.  90:  '"As  Mrs.  Cook,  the 
covenantor,  had  the  legal  estate  for  life,  which  passed  to  the  covenantee, 
it  follows  there  is  no  defect  of  title.  .  .  .  It  is  true  there  is  a  defect 
of  title  in  respect  to  the  remainder;  but  that  does  not  amount  to  a  breach 
of  the  covenant  of  quiet  enjoyment — which  is  the  only  covenant  the 
plaintiff  covenantee  had  the  precaution  to  take  for  his  protection.  It  is 
his  misfortune  that  he  did  not  have  the  deed  drawn  by  a  lawyer,  who 
would  also  have  inserted  a  covenant  of  seizin — i.  e.,  that  the  defendant 
c-ovenantor  had  a  title  in  fee  simple  and  could  convey  in  fee.  Such  a 
covenant  is  broken  whenever  there  is  a  defect  in  the  title;  and  its  office 
is,  to  provide  for  a  case  like  ours  where  the  defect  is  in  respect  to  the 
remainder  or  reversion."  "The  covenant  of  quiet  enjoyment  is  a  sub- 
stitute for  the  old  real  warranty,  the  remedy  upon  which  was  by  voucher, 
and  if  the  demandant  recovered,  the  tenant  had  judgment  against  the 
■vouchee  for  other  lands  of  equal  value.  This  remedy  could  only  be  used 
in  real  actions,  where  the  land  was  demanded.  After  the  action  of  eject- 
ment took  the  place  of  those  actions,  the  courts,  to  give  effect  to  the  war- 
ranty, were  obliged  to  construe  it  into  a  covenant  of  quiet  enjoyment; 
but  allowed  the  new  action  to  retain  some  of  the  i)eculiarities  of  the 
remedy  for  which  it  was  substituted — among  others,  that  of  considering 
the  price  as  the  rule  of  damages  in  lieu  of  'other  land  of  equal  value.' 
Williams  v.  Beeman,  13  N.  C.  483."  Nichols  v.  Freeman,  33  N.  C.  at  p. 
104.  See  "Covenants,"  Century  Dig.  §§  130-137,  157-168;  Decennial  and 
Am.  Dig.  Key  No.  Series  §§  97,  102. 


RICKETS  v.   DICKENS,  5  N.  C.  343.  347.     1810. 
Form  of  Action  on  a  Warranty. 

I  Action  of  covenant  on  a  warranty  of  title.  The  case  was  sent  to  the 
sui)reme  court  ujjon  this  i)oint  (among  others):  "Will  an  action  of 
covenant  lie  upon  the  warranty  contained  in  the  deed  mentioned  in  the 
second  count?"  Dickens  and  Wait  were  the  defendants.  In  the  second 
count  the  plaintiff  declared  on  the  following  clause  in  a  deed:  "And  tlH> 
.said  Dickens  and  Wait  and  their  heirs  .  .  .  shall  and  will  warrant 
and  defend  the  said  i)remises  ...  to  the  said  Rickets  and  his  heirs 
forever."] 

T,\YF,OR.  J.  I)\    the  \v;irr;Mity.  wliicli   is  tlic  foimdat  ion 

of  the  second  coinit.  it  imisl  lie  .iilinil  (cd  that  an  (•l)liti:ji1ion  is 
created,  wliicli  in  IOii<rlaiid  is  enforced  by  a  writ  of  warrant  ia 
charfae,  or  hy  vouelier.  The  first  has  never  been  used  in  this 
state ;  tlie  second  is  |>erniittx'd  only  in  real  act  ions,  which  have  never 
been  resorted  to  liere.  I'ldess  then  an  action  ol"  covenant  is  sus- 
tained, tlie  party  who  has  :iii  jicknowlede^ed  \v\i;\\  vvj:\\\  is  without 
remedy.  Tlie  reason  why  ;in  a'-tion  of  covenant  lies  not  in  I'iii^- 
land  on  a  warranty  is.  tliat  the  party  has  a  liiirher  and  better  rem- 


2S2  (.•ONtKRMNti    KKA).    KSTATE.  [('/(.    3. 

cdy.  whii'li  llu'  liiw"  always  comix'ls  a  pci'soii  to  use.  Uiit  cyan 
tluTo.  it'  that  iniKHly  caiiiiot  bt"  alVordod  liim,  tlic  law  pcniiits  him 
to  bring  covenant ;  as  if  a  tiTiii  for  years  only  be  recovered  out  of 
an  inheritance  which  has  l)een  warranted  to  him,  as  in  tliis  ease,  he 
could  not  voucli.  for  that  is  pei-mittcd  only  in  real  actions;  nor 
could  lie  bring  a  warrant ia  i-hartae,  f(U'  that  is  where  some  person 
demands  or  claims  the  fee  of  him.  Of  necessity  it  gives  a  lesser 
remedy.  Tliis  tloctrine  is  exemplilied  in  Yelverton's  Reports.  38!), 
i'encombe  v.  Kudge.  We  therefore  think  that  the  action  of  cove- 
nant will  lie  upon  the  warranty  contained  in  the  second  count  in 
the  declaration.  .     . 

See   "Covenant,  Action  of,"  Century  Dig.  §  2;    Decennial  and  Am.  Dig. 
Key  No.   Series  §   2. 


GRIST  V.  HODGES,  14  N.  C.  198,  201.     1831. 

When  the  Heir,  and  'when  the  Personal  Representative,  of  a  Deceased 
Covenantee  Must  Sue  for  Breach  of  Covenant. 

[Action  for  damages  for  breach  of  covenant  of  quiet  enjoyment.  Ver- 
dict and  judgment  against  defendant,  and  he  appealed.    Affirmed. 

The  action  was  brought  by  the  administrator  of  the  covenantee  against 
the  executor  of  the  covenantor.  The  defendant  contended  that  the  action 
ought  to  have  been  brought  by  the  heir  of  the  covenantee  and  not  by  the 
personal  representative.  The  breach  complained  of  took  place  before  the 
covenantee  died.    This  point  was  ruled  against  the  defendant.] 

RuFFiN.  J.  .  .  .  The  last  exception  stated  in  the  record  is. 
that  the  action  ought  not  to  have  been  brought  by  the  adminis- 
trator, but  belongs  to  the  heir.  This  is  contrary  to  well  settled  law. 
The  case  of  Lucy  v.  Livingston,  2  Lev.  26,  and  1  Venti'is.  175. 
established,  that  for  a  breach  in  the  testator's  lifetime  the  executor 
and  not  the  heir  is  to  sue ;  because  as  no  estate  in  the  land  descends 
to  the  heir,  there  is  nothing  in  him  to  which  the  covenant  can 
attach  itself;  and  the  demand  had  become  a  personal  thing  in  the 
testator,  and  so  goes  to  the  executor,  who  represents  the  person. 
The  case  of  Kingdon  v.  Nottle  (1  M.  &  S.  355,  4  lb.  53).  has  been 
cited  to  the  contrary.  It  is  to  be  observed  that  it  is  directly 
opposed  to  the  cases  of  Hamilton  v.  Wilson.  4  Johns.  72.  and  Ben- 
net  V.  Irwin.  3  lb.  363.  But  if  it  were  not.  it  is  distinguishable 
from  the  case  at  bar.  This  is  an  action  on  a  covenant  f(»r  <juiet 
pr^ssession.  where  there  has  been  an  eviction  and  the  ])ossession  lost 
in  the  lifetime  of  the  bargainee.  Everything  then  was  gone  before 
either  the  heir  or  the  executor  could  claim,  except  the  right  in  one 
of  them  to  recover  damages — which  right  for  the  reasons  given  in 
Lucy  v.  Livingston  comes  to  the  personal  representative.  King- 
don V.  Nottle  was  on  covenants  of  seizin  and  of  a  right  to  convey. 
It  is  true  this  is  broken  as  soon  as  made,  if  the  covenantor  had  no 
title ;  and  for  that  reason  it  would  seem  that  the  executor  ought  to 
sue.  And  so  T  should  think  he  certainly  ought,  if  that  be  the  only 
covenant  in  the  deed,  and  there  be  a  total  defect  of  title,  so  that 


Sec.    17.]  CONCERNING    REAL    ESTATE.  283 

nothing  passed  under  the  deed.  But  if  there  be  other  covenants, 
as  for  example,  for  quiet  possession,  and  some  estate  or  interest  did 
pass,  it  may  make  a  difference.  For  the  bargainee  may  choose  to 
keep  the  estate,  such  as  it  is.  and  rely  upon  his  title  becoming  good 
by  matter  subsequent,  rather  than  treat  his  own  title  as  defective, 
while  he  is  enjoying  mider  it.  And  where  the  ancestor  has  not 
himself  elected  to  treat  his  title  as  bad,  but  on  the  contrary  to  de- 
pend on  the  other  covenants,  and  to  lit  it  descend,  or  devise  it  as 
good,  it  would  seem  reasonable  that  the  executor  sliould  not  be- 
permitted  to  interfere  with  the  claims  of  the  heir  or  devisee,  with- 
out showing  a  special  damage  to  the  personal  estate.  This  is  what 
I  suppose  Lord  EUenborough  might  have  meant  by  saying  the  dec- 
laration by  the  executor  ought  to  show  some  special  damage  to  the 
te.stator  in  his  lifetime.  It  then  becomes  a  personal  demand  to 
the  extent  of  that  damage.  But  if  the  testator  treats  it  as  an  estate 
in  possession,  and  will  not  consider  the  breach  of  covenant  as  de- 
structive of  his  estate,  nor  give  the  latter  up  for  the  damages  which 
he  might  claim  on  the  former.  I  do  not  see  that  the  executor  can 
exercise  that  power  against  the  heir  or  devisee,  or  (for  it  would  gc 
thus  far)  even  against  an  alienee.  The  executor  ought  not  in 
make  that  personalty  for  his  own  benefit,  which  the  testator  dis- 
posed of  as  realty,  unless  there  be  no  method  by  which  those  who 
claim  it  in  the  latter  character  could  obtain  redress  for  the  fina! 
loss  of  the  estate.  But  here,  in  a  ease  of  covenant  for  quiet  pos- 
session, broken  in  the  testator's  lifetime,  the  whole  loss  is  then  in- 
curred, and  there  can  be  nothing  but  damages,  and  tliey  of  eonrse 
attacli  to  the  person Mliiiiied. 

Tn  Martin  v.  Baker,  r,  Blackford,  232,  it  is  lield  that  covenants  of  seizin, 
against  incumbrances,  and  of  quiet  enjoyment,  run  with  the  land,  and 
actions  on  them  may  be  maintained  by  the  assignee,  devisee,  or  heir, 
of  the  covenantee;  and  that  the  personal  representative  cannot  maintain 
an  action  thereon,  unless  he  show  some  special  damage  to  have  accrued 
fo  the  covenantee  in  his  lifetime.  The  opinion  admits  that  there  are  au- 
thorities to  the  contrary  as  to  the  covenant  of  seizin.  The  opinion  is  by 
Blackford,  .1.,  and  is  an  able  discussion  of  the  question  and  review  of  the 
authorities  and  reasons  pro  and  con.  The  case  of  King  v.  .Tones,  !i  Taun- 
ton. 418,  inserted  immediately  post,  is  fully  approved.  See  "Executors 
and  Adminstrators,"  Century  Dig.  §  ?,0?,;  Decennial  and  Am.  Dig.  Key 
No.  S^^ries  §  49. 


KIXG  v.  JONES,  .5  Taunton,  418,  427-428.     1814. 

When   the   Heir  and   when  the  Personal  Reprrsentatire   Must   Slue   for 
Brrooh    of  Covrnnrtt.t.     Covenants  nf  Fiirfhrr   Assurance. 

(Action  by  the  heir  of  the  covonantoo  for  breach  of  a  covenant  for  fur- 
ther assuranfp.  Verdict  against  defendant,  ;ind  he  moved  in  arrest  of 
judgment.  Motion  denied.  The  facts  appear  in  the  opening  of  the 
opinion. 1 

TTK.\Tit.  J.  Tliis  is  a  indliun  in  ;incst  of  indgiiKiit  'I'ln's  action 
appears  to  have  t)oeii  })rnnght  by  flic  plain!  ilT  as  heir  of  bis  father, 
against  the  defendant   as  cveciitor  of  Kicluird   ririfTitli.   npon   the 


•JS4  CONCKIJMNi;     \ii:.\\.    KSTATK.  \  <  '  ll .    r]. 

rovciKiMl  of  tlic  tt"<tal»)r;  .iiul  llic  i)lt'.i(liims  disclose  llii'sc  fiicls:  Jiy 
loasi'  iiiul  roU'iisc  of  tlu'  (itli  and  Ttli  of  Oclolicr,  171)4.  T.  Worj^o 
ami  (.Ji-illitli  and  his  wife  coiivt'ycd  certain  premises  to  J.  Kin«r;  and 
Urillitli  covenanted  with  .1  l\in^  that  In-  and  Mary,  his  wife, 
wonld  i.\o  all  i-easonahle  acts  for  the  fui'tlu'r  conveyance  ol'  the 
premises.  The  pleadinij:s  further  disclose,  tiial  there  was  a  i'e(|uest 
made  liy  J.  Kini;.  the  ancestor,  to  Griflith.  to  levy  a  fine;  that  no 
line  was  levii'd  :  that  J.  Kin«r  tin-  ancestor  died;  and  the  premises 
descended  to  the  plaint  ill'  as  the  heii'  of  J.  Kini?.  and  that  the  |)lain- 
titl"  has  since  heen  evicted;  and  the  (piestion  is.  whether  the  plain 
tiff  can  sustain  this  action,  it  was  admitted  that  this  is  a  covenant 
which  runs  with  the  land.  I'nder  liiis  covenant  the  heir  mi<;lit 
call  for  further  assurances,  even  to  levy  a  tine;  he  certainly  mi«>ht 
have  called  for  the  removal  of  a  judgment,  or  othei-  incumi)ranees. 
It  api^ears  that  J.  King,  the  ancestor,  was  a  willing  j)\irchaser;  he 
paid  his  purchase  money,  relying  on  the  vendor's  covenant;  lie  rc- 
tpiired  him  to  perform  it.  hut  gave  him  time,  and  did  not  sue  him 
instantaneously  for  his  ni'glect.  hut  waited  for  the  event.  It  was 
wise  so  to  do,  until  the  ultimati-  damage  was  su.stained ;  for  other- 
wise he  could  not  have  recovered  the  w^hole  value:  the  ultimate 
damage,  then,  not  liaving  het  n  sustained  in  the  time  of  the  ancestoi'. 
the  action  remained  to  the  heir  (who  rei)resents  the  ancestoi-  in 
respect  of  land,  as  the  executor  does  in  respect  of  personalty),  in 
preference  to  the  executor.  These  are  the  principles  of  the  case: 
how  are  the  authoi-ities?  There  are  few  old  authorities  directly  in 
point,  but  there  is  one  recent  case  that  is  directly  applicable.  The 
old  authorities  are.  Fitzherbert.  X.  H.  Writ  of  Covenant,  p.  oil.  (". 
"if  a  man  make  a  covenant  by  deed  to  another,  and  his  heirs,  to 
enfeoff  him  and  his  heirs  of  the  manor  of  D,  etc.,  now,  if  he  will 
not  do  it.  and  he  to  whom  the  covenant  is  made  dicth,  his  heir 
shall  have  a  writ  of  covenant  upon  that  deed :"  he  cites  the  case  of 
Sir  Anthony  Cook,  Dy.  837.  also  reported  in  Anders.  53.  (Here 
his  lordship  read  the  case.)  The  recent  decision  is  that  of  Kingdon 
V.  Nottle.  last  Piaster  term,  1  Maulo  &  Selwyn,  355.  wherein  the 
court  of  King's  Bench  held  that  the  executor  could  not  recover 
upon  a  breach  of  defendant's  covenant  with  the  testator,  that  he, 
the  defendant,  had  a  good  title  to  convey,  the  testator  having  sus- 
tained no  damage  in  his  lifetime,  therefore  it  follows  that  the  heir 
might  so  recover.  The  court  there  follow  the  doctrine  of  Lucy  v. 
Livingston,  and  they  advert  to  the  circumstance  which  differs  that 
case  from  this,  that  there  the  ultimate  danuisre  was  sustained  in  the 
time  of  the  ancestor,  and  therefore  the  land  did  not  descend  to  the 
heir;  consef|uenly  the  covenant,  which  runs  Avith  the  land,  did  not 
descend  to  the  heir.  The  consefpience  is.  that  this  judgment  ought 
not  to  be  arrested,  and  that  the  rule  nmst  be  discharged. 

This  case  is  approved  by  later  Englisti  authority  and  in  Martin  v. 
Baker,  f,  Blackford,  232,  cited  in  the  note  to  the  next  preceding  case. 
See  "Executors  and  Administrators,"  Century  Dig.  §§  301-305;  Decennial 
and  Am.  Dig.  Key  No.  Series  §§  49-51. 


Sec.    18.]  CONCERNING    REAL    ESTATE.  285 

TUITE  V.  MILLER,  10  Ohio,  382,  383.     1841. 
Remedy  in  Equity  on  Covenants.     Further  Assurance. 

[Bill  in  chancery  asking  for  relief  against  the  covenantor  in  a  covenant 
of  warranty.     Bill  dismissed.] 

Lane,  C.  J.  There  is  a  well  established  chancery  .iitrisdiction 
over  certain  covenants.  The  chancellor  will  exercise  a  restraining 
power  where  the  covenantor,  conti-ary  to  his  stipulation,  disturbs 
the  tenant  by  his  own  act;  and  he  will  enforce  the  specific  perform- 
ance of  the  covenant  for  further  assurance.  But  we  find  no  case 
of  interference  on  this  side  the  court,  in  relation  to  the  covenant 
of  warranty.  This  absence  of  precedent,  although  not  conclusive, 
is  a  strong  argument  against  the  plaintiff's  right  to  relief.     .     .     . 

See  "Covenants,"  Century  Dig.  §  170;  Decennial  and  Am.  Dig.  Key  No. 
Series  §  104. 


Sec.  18.    Mortg.vgee 's  Remedies. 

SLAUGHTER,  Assignee,  v.  FOUST  et  al.,  4  Blackford,  379,  381.    1837. 
Mortgagee's   Remedies   at   Law   and   in    Equity.     Foreclosure.     Parties. 

[Bill  in  equity  to  foreclose  a  mortgage.  Bill  dismissed.  Plaintiff  ap- 
pealed.    Reversed. 

Plaintiff  purchased  two  notes  secured  by  mortgage,  and  brought  this 
bill  against  the  widow,  heirs  at  law,  and  administrator  of  the  deceased 
mortgagor.  The  point  was  made  (among  others  not  necessary  to  con- 
sider), that  the  personal  representative  was  improperly  joined  as  a  de- 
fendant. That  portion  of  the  opinion  which  discusses  this  point  is  in- 
serted.    The  remedies  afforded  a  mortgagee  are  explained.) 

Dewey.  J.  .  .  .  The  demurrer  should  have  been  allowed, 
for  another  reason,  as  to  one  of  the  defendants — the  administrator; 
he  .should  not  have  been  a  party  to  the  suit. 

A  mortgagee  has  three  modes  of  enforcing  satisfaction  of  his  de- 
(tiand.  to  which  he  may  resort  concurrently,  or  separately,  at  his 
I'lection  :  he  may  bring  ejectment  and  thus  acquire  the  rents  and 
f)rofils  of  the  mortgaged  premises  until  his  debt  l)e  satisfied;  or 
ho  may  sue  at  law  on  the  evidence  of  his  claim,  in  which  case  he 
looks,  in  the  first  instance,  to  the  p(M'sonal  property  of  the  mort- 
gagor; or  he  may.  by  a  proceeding  in  chancery,  enforce  his  lien  on 
the  land.  Tlie  result  of  tliis  lattei-  process,  in  Kiigland,  is  generally 
a  strict  foreclosure  of  the  equity  of  redemy)tion  of  tlic  mortgagor, 
and  the  investment  of  an  absolute  estate  in  llie  imirgtgaged  i)rem- 
ises  in  tlir-  niort'.Mgee.  T^ider  tbe  law  of  this  state  the  e(|uitv  of  re- 
demption is  also  Foreclosed  ;  but  tbe  land  is  .'<(il(l  for  the  satisfaction 
of  tbe  debt,  and  the  overplus  arisincr  from  the  sale,  if  any.  is  re- 
turned to  tbe  mortgagor.  Tliis  difference  in  tlie  residt.  however, 
does  not  chaiiL'e  tbe  character  of  tbe  proceeding:  wliicli.  in  both 
count rii's.  is  //;  nni,  and  bas  iti  view  tbe  satisfaction  of  tbe  debt 
from   the   land.      Tf  tlie    mortgagor   be   dead,   tbe    remedy   is   still 


-8l)  CONCKKNINC    K'KAl,    KSTATK.  |r/(.    S. 

Jijriiinst  tin-  hiiul  .111(1  seeks  not  to  iiii'ddle  with  the  j)ei'soTi;il  nssets. 
It  is.  therefore,  well  settled  hy  the  Kiifjflish  i)raetice,  that  the  heir, 
ill  whom  is  the  etinity  of  redemption,  is  the  only  i)roper  defendant 
in  a  bill  of  mere  foreclosure.  ;{  Powell  on  :\Iort.  Rjind's  Ed.  1)69; 
I'.radshaw  v.  Outi-aiii.  l;{  Ves.  2;^!):  Duneonihe  v.  TTansIev  ;}  P 
Will.  XV,],  n. 

It  is  true  tiiat.  in  Kiiudand.  there  ai-e  some  exceptions  to  this  rule 
of  strict  foreclosure;  as.  for  instance,  when  in  consequence  of  the 
inadecpiaey  of  the  security  arising;  from  the  mort«j:atre.  the  mort- 
iraj^iv.  in  his  bill,  pi-ays  an  account  of  the  personal  estate  as  well 
as  a  sale  of  the  land.  To  such  a  liill  the  executor  should  be  a  party 
with  the  heir;  but  the  reason  of  joiuin*;  them  as  defendants  is  not 
because  a  sale  of  the  land  may  be  (h'cre(Hl.  but  because,  in  addition 
to  the  land,  the  bill  seeks  to  api)i'oi)riate  the  personal  assets,  of 
which  the  executor  is  the  representative,  to  the  satisfaction  of  the 
debt.  3  Powell  on  :\lort.  Rand's  Ed.  969;  Daniel  v.  Skipwith,  2 
liro.  C.  C.  155;  Fell  v.  Brown.  Tb.  276.  It  has  also  been  held  that 
w  here  the  bill  contained  an  averment,  that  the  executor  had  been 
in  the  receipt  of  the  rents  and  profits  of  the  mortgaged  premises, 
and  had  paid  the  interest  and  i)art  of  the  debt,  it  was  necessary  to 
make  him  a  party.  Cholmondcley  v.  Clinton.  2  Jac.  &  Walk.  135. 
The  case  befoi'c  us  does  not  come  within  the  reasons  of  these  excep- 
tions. They  aimed  at  the  personalty  as  well  as  the  phnlged  land. 
This  bill  affects  only  the  latter. 

In  Virginia  and  ^Maryland,  the  law  respecting  the  sale  of  mort- 
gaged premises  on  a  bill  of  foreclosure  is  similar  to  ours.  In  each 
of  those  states,  it  has  been  held  that  it  is  not  proper  to  join  the 
personal  with  the  real  representative  of  a  deceased  mortgagor,  in 
proceedings  to  enforce  the  lien.  Graham  v.  Carter,  2  ITen.  &  ^lunf. 
6 ;  David  v.  Grahame.  2  llarr.  &  Gill,  94. 

It  has  been  urged  that  our  pi-obate  act,  by  enabling  the  executor 
or  administrator  to  convert  the  real  estate  of  a  decedent  into  as- 
sets, wlien  the  personal  i)ro]-»erty  is  insufficient  to  pay  liis  debts,  has 
rendered  it  nece.ssai'v  io  make  the  personal  representative  a  party 
to  a  bill  of  foreclosure  and  sale.  There  would  be  strength  in  this 
position,  if  that  law  destroyed  the  lien  of  a  mortgagee  upon  the 
land  mortgaged,  or  compelled  him  first  to  look  to  the  ]>ei'sonal 
estate.  In  our  opinion  it  does  neither;  but  on  the  contrary,  wi; 
think  the  object  of  its  provisions  on  this  subject,  was  to  guard  and 
j)rotect  specific  liens  on  the  real  estate  of  a  deceased  person.  Nor 
do  we  conceive  that  the  i-ight  of  the  mortgagee  to  proceed  to  fore- 
closure and  sale,  without  making  the  personal  representative  a 
party,  can  interfere  with  the  contingent  right  of  the  latter  to  con- 
vert the  estate  into  a.ssets  for  the  payment  of  debts,  whenever  he 
may  discover  the  inaderpiaey  of  the  personalty  for  that  purpose. 

It  not  beinsT  necessary  or  proper  to  make  the  administrator  a 
party  to  the  bill,  this  suit  is  not  embraced  in  that  provision  of  the 
statute,  which  forbids  an  action  to  be  brought  against  an  executor 
or  a<liriinistrator  until  after  the  lap.se  of  one  year  from  the  date  of 
his  appointment.  T'nder  this  view  of  the  subject  the  plea  is  a 
nullitv. 


Sec.    is']  CONCERNING   REAL   ESTATE.  287 

Per  Curiam.  The  decree  is  reversed  with  costs,  etc.  Cause  re- 
manded, etc.  The  demurrer,  except  as  to  the  administrator,  to  be 
disallowed,  and  the  plea  set  aside. 

"The  jurisdiction  of  equity  iu  mortgages  is  simply  to  decree  redemption 
or  foreclosure.  To  that  end,  the  court  directs  accounts  to  be  taken  of  the 
sum  due,  in  order  that  it  may  be  known  how  much  the  mortgagor  must 
pay  to  entitle  him  to  a  reconveyance,  or  to  prevent  his  equity  of  redemp- 
tion being  foreclosed.  Of  late  years  a  beneficial  practice  has  gained 
favor,  until  it  may  be  considered  established  in  this  country,  not  abso- 
lutely to  foreclose  in  any  case,  but  to  sell  the  mortgaged  premises  and 
apply  the  proceeds  in  satisfaction  of  the  debt;  if  the  former  exceed  the 
latter,  the  excess  is  paid  to  the  mortgagor;  if  it  fall  short,  the  creditor 
then  proceeds  at  law  on  his  bond  or  other  legal  security,  to  recover  the 
balance  of  the  debt.  Gillis  v.  Martin,  17  N.  C.  470.  In  Lansing  v.  Goelet, 
9  Cowen.  346,  Chancellor  Jones  treats  the  subject  much  at  large  and  with 
great  learning."  Fleming  v.  Sitton,  21  N.  C.  at  p.  G23.  As  to  making 
the  personal  representative  of  the  deceased  mortgagor  a  party,  see  note 
to  the  next  succeeding  case,  and  Mebane  v.  Mebane,  80  N.  C.  34,  inserted 
IKJst  in  this  section.  See  "Mortgages,"  Century  Dig.  §  1244;  Decennial 
and  Am.  Dig.  Key  Xo.  Series  §  419 


GAMMON  v.  JOHNSON,  et  al.,  126  N.  C.  64,  35  S.  E.  185.     1900. 
Parties  to  Foreclosure  Proceedings.    Disposition  of  Surplus. 

[Action  to  foreclose  a  mortgage.  Order  allowing  a  creditor,  having  a 
lien  by  docketed  judgment,  to  be  made  a  party.  Plaintiff  excepted  and 
appealed.     AfRrmed  and  ai^peal  dismissed.] 

Cl.\hk.  J.  In  General,  all  ineumbraneers.  whether  j)rior  oi-  sub- 
sequent inf'umbraneers.  as  well  as  the  mortgagor,  sliould  be  ])arties 
to  a  jiroeeeding  for  foreclosure;  and  judgment  creditors  as  well  as 
moi'teagees.  Ilinson  v.  Adrian.  86  N.  C.  61  ;  Le  Due  v.  Brandt.  110 
N.  C.  2S0.  14  S.  E.  778.  This  is  because  the  liens,  by  the  sale,  are 
transferred  from  tlic  corpus  to  the  fund  into  which  it  is  converted, 
with  tlieir  respective  priorities  preserved,  and  to  be  asserted  in  the 
decree  for  distribution.  Cannon  v.  Parker,  81  N.  C.  320.  "Tn 
fffect.  the  lien  of  a  docketed  judgment  is  in  the  nature  of  a  stat- 
utoiy  iiiortgagc"  CManufnctui-ing  Co.  v.  Wilcox.  Ill  N.  C.  42,  15 
S.  E.  885).  though  the  judgment  convevs  no  estate  in  the  land 
rBarueh  V.  Long.  117  N.  C.  509,  23  S.  E.  447).  The  lien  of  the 
juflfrmont  ererlitor  being  transferred  to  the  proceeds  of  sale,  sub- 
ject only  to  the  priority  of  the  iihiintiff's  inoi-tgage.  the  jiidgment 
creditor  was  a  proper  j)arty.  as  against  the  derendant.  to  ivceive 
the  amount  due  him  out  of  the  surplus  after  the  payment  of  plain- 
tiff; ej.se,  such  snr|)lus  would  go  iuto  the  hands  of  the  defendant, 
to  tile  destruction  of  tlie  lien  of  the  judirment  envlitor.  who  was  also 
a  jiropcr  party,  as  against  the  plain! ilT,  that  he  might  assert  the 
ercdils  which  sliould  be  charged  against  the  plaintiff  by  reason  of 
timber-  cut  (m  the  land,  since  by  so  doincr  the  surplus  to  be  applied 
to  thr  judgment,  as  the  second  lien,  will  be  swollen.  This  is  not 
bringing  a  new  cause  of  aelion.  but  it  is  a  neee.ssary  step  in  the 
just  and  proper  distribution  of  the  fund  according  to  tlie  priorities 


2SS  coxcFUMXc   i{i;\i,   kstatk.  \('Ii, 


•'>. 


of  tlu'  lifiis  u|»on  llif  ImikI.  wIkisc  s.-iIc  pi-oiliiccd  I  he  fund.  'I'lio 
petition  set  out  llic  jiidiniiiciit  cri'ditor's  tiroiitid  Tor  ;issci1  in<:  a 
eredil  lo  lie  cliarircd  atrainsl  tlic  |»laiiit  ilT.  and.  i  I'  denied,  an  issue 
is  presented  I'or  sett  lenient  heTore  llie  fund  is  distl'ihiltecl.  It  is 
not  a  (Ifl)t  a^'ainst  the  plaint  ill',  wliicli  would  ho  an  alien  oause  of 
action,  but  a  claim  of  a  lar^ci-  share  in  the  fund  heeause  of  a  credit 
which  should  I»e  ehari;-e<l  ai-'ainst   the  lirst    lien. 

Th(>  l)eti1ion  to  ho  made  an  additional  pacty  does  iu)t  oontrovort 
tile  cause  of  action  sot  up  in  the  plaintitVs  complaint,  and  honco 
is  not  ro(|uirod  to  ho  AcM'ilied.  ('(mIo.  v^i;  1S!».  L'7;{.  Indeed,  upon 
the  facts  heinj^f  made  known  to  the  court  in  any  satisfactory  mau- 
nor.  it  could  ami  should,  ex  mero  motu.  have  oi'dorod  the  judg- 
ment croditoi-  made  a  party,  that  there  should  ho  a  full  and  com- 
plete sottlemout  of  the  riglits  of  all  i)arties  holding  liens  upon  the 
fund.  I'itt  V.  Moore,  99  N.  C.  85,  5  S.  K.  ;{S!) ;  Koniegay  v.  Steam- 
l)oat  Co..  107  N.  C.  llT).  12  ^^.  K.  12:1  and  Williams  v.  Kerr.  11:1 
N.  C.  806,  18  S.  E.  501.  ivlied  upon  by  the  plaintilf.  hold  that  sub- 
sequent incuml)rancors.  while  i)i'o[)er  parties,  are  not  lu'cossary 
parties  in  all  cases. 

The  ap])oal  is  premature,  for  the  facts  as  to  the  alh^god  credit 
sliould  have  boon  ]>a.ssod  upon,  and  the  party  against  whom  it  was 
fou)ul  might  not  have  appealed.  The  plaintiff  sliould  have  entered 
his  exception  to  the  interlocutory  order,  and  have  brought  up  his 
appeal  only  from  the  final  judgment  distributing  the  fund,  if  th(3 
disputed  credit  was  found  against  him.  The  point  involved  in  this 
a])peal.  however,  has  been  passed  upon,  as  has  sometimes  been  done. 
j\Iilling  Co.  v.  Finlay,  110  N.  C.  411,  15  S.  E.  4;  Clark's  Code  (8d 
ed.),  §  548.     But  it  nuist  be  entered.    Appeal  dismissed. 

For  disposition  of  the  surplus  after  the  satisfaction  of  the  mortgage 
debt,  see  Kitchens,  v.  Jones,  113  S.  W.  29,  19  L.  R.  A.  (N.  S.)  72?,,  and 
note;  Harrington  v.  Rawls,  136  N.  C.  65;  Horr  v.  Herrington,  98  Par. 
443,  20  L.  R.  A.   (N.  S. )   47,  and  note;    27  Cyc.  1767. 

"It  would  seem  on  reason  and  i)rinciple,  if  not  on  authority,"  that 
the  personal  reju-esentative  of  a  deceased  niort.gagor  is  a  necessary  party 
to  an  action  of  foreclosure,  McGowan  v.  Daveni)ort,  134  N.  C.  mid.  p.  533, 
47  S.  E.  27;  so  is  the  heir  of  the  mortgagee,  Hughes  v.  Gay,  132  N.  C. 
50,  43  S.  E.  539.  The  i)ersonal  representative  of  a  deceased  mortgagee 
cannot  recover  the  land  in  ejectment.  Ibid.  If  the  bill  of  foreclosure 
seeks  a  sale  of  the  mortgaged  proi)erty,  the  personal  representative  of 
the  deceased  mortgagor  is  a  necessary  party.  Mebane  v.  Mebane,  80  N. 
C.  34,  inserted  post  in  this  section.  See  "Mortgages,"  Century  Dig.  §§ 
1268-1291;   Decennial  and  Am.  Dig.  Key  No.  Series  §§  426-438. 


CREDT.E  v.  AYERS,  126  N.  C.  11,  35  S.  E.  128.     1900. 

The  Several  Remedies  of  Mortgagee.    Cumulative  Remedies.    Ejectment. 

Rents  and  Profits. 

f  Action  to  recover  possession  of  land.  .ludgment  against  defendant, 
and  he  a[)pealed.     Affirmed. 

Ayers  bought  the  locus  in  quo  from  Credle  and  agreed  to  pay  for  it  in 
installments.  The  first  installment  being  due  and  unpaid,  Credle  brought 
this  action.  The  defendant  gave  the  bond  required  of  defendants  in  ac- 
tions of  ejectment.     Afteiwards   the  judge  ordered   this  bond   to   be   in- 


Sec.    IS.]  COXCERXIXG    REAL    ESTATE.  289 

creased  to  $5,000.  The  plaintiff  contended  for  judgment  for  the  posses- 
sion of  the  land  and  for  the  actual  rental  value  thereof.  The  defendant 
insisted  that  plaintiff  was  not  entitled  to  any  rents,  but  could  only  re- 
cover the  balance  of  the  purchase  money  and  have  an  order  for  the  sale 
of  the  land  for  the  payment  thereof.  By  agreement  entered  of  record 
the  inquiry  as  to  rents  was  limited  to  the  year  1895.] 

Clark,  J.  The  vendee  having  defaulted  in  payment  of  th(^  first 
instaUment  of  the  purchase  money,  due  November,  1894,  the  ven- 
dors (  and  their  morto:a*ree.  ^lakely.  who  had  joined  in  the  contract 
of  sale)  brought  an  action  of  ejectment  in  December.  1894.  at  the 
end  of  30  days  thereafter,  under  the  terms  of  the  contract.  The 
plaintiffs  could  have  brought  their  action  either  (1)  for  possession 
of  the  land;  (2)  for  sale  and  foreclosure;  or  (3)  in  personam,  for 
judgment  for  the  debt;  or  for  all  three.  They  elected  to  take  the 
tirst.  and  have  sued  for  possession  and  damages  for  withholding. 
A  Hen  v.  Tavlor,  96  N.  C.  37.  1  S.  E.  462 ;  Silvev  v.  Axlev.  118  N.  C. 
959.  23  S.  E.  933 

Tlie  defendant  contends  that  he  is  not  liable  for  mesne  ]U'ofits, 
and  relies  upon  Killehrew  v.  Hines.  104  N.  C.  182,  10  S.  E.  159, 
251 ;  Carr  v.  Dail.  114  N.  C.  284,  19  S.  E.  235;  and  Ilinton  v.  Wal- 
ston,  115  N.  C.  7,  20  S.  E.  164.  Those  cases  hold  that  a  vendee  or 
mortgagor,  before  or  after  breach,  who  is  permitted  to  retain  pos- 
session, is  entitled  to  the  rents  and  profits  (unless  there  is  an  ex- 
press stipulation  in  the  contract  or  mortgage  to  the  contrary,  as  in 
Crinklev  v.  Egerton,  113  N.  C.  444,  18  S.  E.  669;  Jones  v.  Jones, 
117  X.  C.  254,  23  S.  E.  214)  :  but  here  the  withholding  by  the  de- 
fendant, after  action  brought  in  December,  1894,  was  wrongful, 
and  he  became  liable,  like  any  other  defendant  in  ejectment,  for  the 
mesne  profits.  For  what  other  purpose  than  to  secure  such  mesne 
profits  is  the  defense  ])ond  required,  under  Code.  §  237?  Tlad  the 
l)ond  not  been  given,  or  not  been  raised  to  $5,000,  as  required  by 
Ihe  court  (Rollins  v.  Henry.  77  N.  C.  467),  the  plaintiffs  would 
have  had  possession  bv  default  (Code,  §  390;  Norton  v.  IMcLaurin. 
125  \.  C.  185,  34  ?;.  E.  269.  and  cases  cited)  ;  or  if  the  defendant 
had  been  allowed  to  defend  without  the  bond,  by  reason  of  jioverty. 
a  receiver  would  have  been  appointed  to  secure  the  i-ents  and  profits 
(Horton  v.  AVhite.  84  N.  C.  297).  This  case  differs  riom  Lculi  v. 
Curtin.  123  X.  C.  85.  31  S.  E.  269.  in  that  possession  is  here  sued 
for  and  demanded  in  the  complaint.  The  defendants  sui'rendered 
possession  to  Makely  in  May.  18I)(i.  Tliat  did  not  release  the  de- 
fendant's liabilily  I'oi-  rents  and  ])i-oli1s  for  1895,  during  the  wrong- 
ful withholding,  unless  Ihei'c  had  been  a  stipubition  to  that  elTect. 
Otherwise,  any  leiuuit  in  possession  could  wi-oiigrnlly  wilidiohi  j)()S- 
sessinn  (if  land  after  aetion  brought,  aiul  enjoy  the  i-ents  and  profits 
till  fdreed  to  t  i-i;il.  ;inil  thm  ri'le;ise  himself  and  bund  from  liability 
foi"  mesne  prvilits  by  ahamloning  possession.  In  such  ea.sc  the  plain- 
tiffs take  judL'ment  i'or  the  mesne  pr(»(its  till  they  got  possession, 
and  for  the  tit  le.  but  not  for  the  possession.  \Voodlc\- v.  I[;issell.  94 
N.  C.  157:  Chirk's  Code  (3d  ed.).  §  384.  I  ndrr  ihr  r.,niier  prac- 
tice, in  jielions  of  ejeefmejit.  damages  were  recoverable  oidy  up  to 
the  time  jietion  was  begun,  but  nnd"i'  the  pi-eseiit  systr'in  they  are 
Rpiupdips — in. 


290  (.'ONCKKNIN*;    l{i:.M,    KSTATIO.  ICli. 


o. 


rocovoraltic  iii»  to  Ilic  trial,  rcarsoii  v.  Carr.  !»7  N.  ('.  l!H,  1  S.  !•:. 
i»lG;  AiTiiiuMcii  V.  Arriiijj:tuii,  114  N.  C.  at  pa^'f  120,  19  S.  Iv  al 
l)ap'  27!i;  10  Aim.  cV:  Enj?.  Km:  I.uw  (1st  ed.),  537;  Sutli.  Dam. 
jj  S4S.  lii're.  up  to  siuti'ikIim-  of  pi-cniiscs,  and  by  aErrooincril  in  llic 
ordtM-  of  retViviu-o,  tliesie  aiv  rcstrit-ti'd  to  tlie  rents  and  prolits  for 
the  yoar  1895.     .     .     .     Aflinned. 

See  Allen  v.  Taylor,  IttJ  N.  C  37,  1  S.  10.  IGL',  insLMteil  at  sec.  20,  post. 
See  also  note  to  Doe  v.  Mace,  7  Blackford,  2,  3,  inserted  ante,  at  sec.  3. 
See  "Vendor  and  Purchaser."  Century  Dig.  §§  832-843;  Decennial  and  Am. 
Dig.  Key  No.  Series  S§  2:)G-300;  •Mortgages,"'  Century  Dig.  §  482  491; 
Decennial  and  Am.  Dig.  Key  No.  Series  §  213. 


HARSHAW  V.  McKESSON.  66  N.  C.  266.     1872. 
Foreclosure  irhen  the  Debt  Secured  is  Payable  in  Installments. 

(Action  to  foreclose  a  mortgage.  Judgment  against  defendant,  and  he 
appealed.     Reversed. 

The  mortgage  debt  was  payable  in  installments.  The  action  was 
brought  before  all  the  installments  were  due,  but  after  one  installment 
was  due.  The  mortgage  i)rovided  that  if  the  mortgagor  chose  to  i)ay  a 
part  of  the  debt  at  any  time,  he  could  do  so;  but  there  was  no  clause 
providing  that  all  the  installments  should  fall  due  upon  default  in  the 
payment  of  any  one  thereof.] 

Dick.  J.  The  tnortsiasre  pxecnted  ])y  the  defendant.  AVilliani  V. 
]\reKesson  to  Jaeol)  Ilarshaw.  fixes  the  time  of  payment  of  the  debts 
secured,  at  three,  four  and  five  years  in  equal  installments.  This 
action  was  commenced  before  the  time  of  redemption  had  expired, 
and  one  of  the  questions  presented  for  our  consideration  is.  wliether 
this  action  can  be  maintained? 

A  court  of  equity  wall  never  decree  a  foreclosure  until  the  period 
limited  for  payment  of  the  money  be  passed,  and  the  estate  in  conse. 
f|uenee  thereof  forfeited  to  the  morffragee.  for  it  cannot  shorten  the 
time  given  l)y  the  ex|)ress  covenant  and  afi;reement  between  the 
parties,  as  that  would  be  to  alter  the  nature  of  the  contract  to  the 
injury  of  the  party  affected.    3  Powell  on  IMort.  965. 

If  this  mortpraore  had  expressly  stipulated  that  the  estate  should 
be  forfeited  on  the  failure  to  jiay  the  specified  installments  of  the 
debts,  then  on  said  failure  the  mortgagee  might  have  called  for  his 
money,  or  proceeded  immediately  to  foreclose.  2  Eden.  197.  The 
time  of  payment  beinw  delayed  was  evidently  the  inducement  which 
cau.sed  the  mortoafjor  to  enter  into  the  contract,  and  the  security 
thus  furnished  was  satisfactory  to  the  mortgagee.  The  fact  that 
the  mortgagee  did  not  commence  his  proceedings  to  foreclose  upon 
the  failure  of  the  first  payment  shows  that  he  understood  the  agree- 
ment as  is  insisted  upon  by  the  defendants.  Tf  the  agreement  of 
the  parties  was.  that  the  estate  should  be  forfeited  upon  the  failure 
of  the  first  payment,  it  could  easily  have  been  inserted  in  the  con- 
tract. 

The  plaintiflFs,  if  they  had  seen  proper,  might  have  proceeded,  in 
an  action  at  law,  to  recover  the  installments  a.s  they  became  due. 


Sec.    18.]  CONCERNING   REAL   ESTATE.  291 

but  they  could  not  have  proceeded  to  foreclose  until  the  day  of  re- 
demption was  passed,  and  the  decree  of  his  honor  in  this  respect  is 
erroneous.  As  this  action  was  commenced  before  the  plaintiffs 
were  entitled  to  foreclose  the  mortgage,  the  proceedings  must  be 
dismissed.     Judgment  reversed. 

See  Brame  v.  Swain,  111  X.  C.  540,  15  S.  E.  938,  inserted  at  sec.  20, 
post,  sustaining  the  principal  case.  See  15  L.  R.  A.  (N.  S.)  590;  12 
lb.  1190;  37  L.  R.  A.  737;  Mcintosh  on  Cont.  588  and  note.  See  "Mort- 
gages," Century  Dig.  §  1162:  Decennial  and  Am.  Dig.  Key  No.  Series 
§  397. 


MEBANE  V.  MEBANE,  80  N.  C.  34.     1879. 

The  Judgment  in   Foreclosure.     Sale.     Report.     Confirmation.    Married 
Woman's  Land  Mortgaged  for  Husband's  Debt.    Parties. 

[Action  to  foreclose  a  mortgage.  The  court  ordered  a  sale  of  the  mort- 
gaged property.  The  property  belonged  to  the  wife  of  the  mortgagor,  but 
the  debt  secured  was  the  debt  of  the  husband.  The  judgment  of  fore- 
closure gave  no  time  for  redemption;  no  report  of  the  sale  was  required, 
but  the  sale  was  left  to  the  uncontrolled  discretion  of  the  commissioner 
appointed  to  make  the  sale;  the  husband  was  dead,  but  his  personal  repre- 
sentative was  not  made  a  party  to  the  action.  After  the  sale  had  been 
made  and  the  land  conveyed  by  the  commissioner  to  the  plaintiff,  who 
was  the  purchaser  at  the  sale,  the  defendant  moved  to  set  aside  the  sale 
and  for  leave  to  answer  the  complaint.  She  had  not  answered  at  the 
proper  time,  and  the  judgment  of  sale  had  been  rendered  by  default.  She 
offered  excuses  for  her  neglect  to  answer,  and  showed  to  the  satisfaction 
of  the  court  that  she  had  a  meritorious  defense.  The  judge  vacated  the 
judgment  of  foreclosure  and  the  sale  made  thereunder.  The  plaintiff  ap- 
pealed.    Affirmed.! 

Smith.  C.  J.  The  mortgage  on  its  face  shows  the  debt  to  be  that 
of  the  husband  alone,  and  for  which  defendant  was  in  no  manner 
liable,  and  contains  a  clause  vesting,  on  the  debtor's  default,  a 
power  of  sale  in  the  mortgagee.  The  aid  of  this  court,  while  not 
necessary  for  the  plaintitf 's  relief,  is  nevertheless  invoked  to  give 
effect  to  this  provision.  Tn  directing  and  controlling  the  exercise  of 
the  power,  the  court  will  bo  guided  by  those  rules  of  equitablo  pro- 
ceedings, not  inconsistent  with  the  deed,  which  are  observed  in  de- 
crees of  foreclosure  and  sale  of  property  conveyed  in  mortgages 
without  such  jiow'-r.  The  judguient  in  this  case  does  not  conform 
to  those  rules. 

1.  The  foreclosure  is  alt.s<iliite  and  no  time  is  allowed  the  mort- 
gagor to  pay  the  debt  and  redeem.  This  is  not  in  accordance  with 
the  e.stablislied  i)raetiee  in  courts  of  ef(uity.  "The  usual  course 
pursued  on  foreclosure."  says  an  eminoTit  writer  on  the  law  of 
mortgages,  "is  for  the  mortgagee  to  file  his  bill  praying  that  an  ac- 
count may  be  taken  of  |)rineipal  and  interest,  and  lliat  the  defend- 
ant may  be  decreed  to  pay  the  same  with  costs  by  a  short  day  to  be 
appointed  by  the  court,  and  in  default  thereof  he  may  be  foreclosed 
his  efpiify  of  redemption."  And  llii-^  time  is  usually  six  c.-ilendar 
months.  '  Coot's  T>aw  of  Mort.  402. 

Tn  Chirk  v    Kevnolds.  K  Wallace.  :?!«.  a  bill  for  foreclosure  \v:is 


LMtL'  CONCKKNINi;    KKAL    KSl'ATK.  \('ll. 


o. 


lilocl  in  tlic  I'ii'i'uil  court  (»!"  tlic  I'mlcd  Sliites  for  llu'  ilislrict  of 
Kansas,  ami  a  dcrnr  was  cntort'd  ^nviufj;  no  time  to  pay  and  re- 
(.leoni.  and  making  tlic   roreclosnrc  um-oiidit  ioiial  and  ahsolnte  at 
oni'o.     In  (IcIivorinLr  the  opinion  in  tlio  sn|)i-('mo  conrt,  Mr.  Jnstice 
Swayno  says:  "Tlic  setlU'tl   Kn^lisli  practice  is  for  the  decree  to 
order  the  amonnl  dne  to  be  ascei-tainetl  and  the  costs  to  be  taxed, 
anil  that  ii|»un  ihr  paymciil  of  botli  within  six  months  tlie  plaintiff 
shall  reconvey  to  the  defendant,  bnt  in  defanlt  of  payment  within 
the  tinu'  limitetl.  that  the  said  defendant  do  stand  absolntely  de- 
barred and  foi'cclosed  of  ami  from  all  e(piity  of  redemption  of  and 
in  said  mortgaged  ])remises.     We  have  been  nnable  to  find  any 
Kniilish  case  whei-e  in  the  absence  of  fraud,  a  time  for  redemption 
was. not  allowed."    And  he  adds:  "In  the  li^lit  of  these  authorities 
we  are  t-onstrained  to  hold  the  decree  in  the  case  before  us  fatally 
defective."    The  judgmenl   nndci-  (Mnisideration  is  in  almost  idt'U- 
tieal  words  and  falls  under  like  condeimuition.     Ro  in  this  state. 
Pearson.  C.  J.,  says:  "The  decree  of  sale  is  always  after  reasonable 
notice  of  the  decree,  say  three  months,  in  oi'der  to  give  the  mort- 
gagor an   opportunit\-   to  raise   the   iikhicn'   and   prevent  a  sale." 
Capehart  v.  Higg.s,  77  N.  C.  261. 

2.  No  report  of  sale  is  required  to  be  made  to  the  eoni't.  in  order 
that  it  may  be  set  aside  or  confirmed  and  the  title  ordered,  but  this 
is  left,  to  the  uncontrolled  discretion  of  the  commissioner.  This  is 
entirely  at  variance  wnth  the  nature  of  judicial  sales.  The  commis- 
sioner acts  as  the  agent  of  the  court  and  must  report  to  it  all  his 
doings  in  execution  of  its  order.  The  bid  is  but  a  proposition  to 
buy.  and.  until  accepted  and  sanctioned  by  the  court,  confers  no 
right  -whatever  upon  the  purchaser.  The  sale  is  consummated  when 
that  sanction  is  given  and  an  ordei*  foi'  title  made  and  executed. 
This  ])()wer  will  not  be  delegated  to  the  agent  who  exposes  the 
property-  to  public  biddings.  2  Jones'  Mort,  sees.  1608,  1687: 
Rorer  on  Jud.  Sales.  55,  58. 

3.  The  debt  being  due  from  the  defendant's  husband  alone,  his 
personal  ivpresentative  would  seem  to  be  a  proj^er  if  not  a  neces- 
sary pai'ty.  It  is  true  it  has  been  held  in  Averett  v.  Ward,  45  X.  C. 
102.  that  the  perscnial  representative  of  the  mortgagor  and  debtor 
is  not  a  necessary  party  in  a  bill  to  foreclose,  or  for  sale  of  the 
l)remiscs.  But  the  court  adds :  "In  this  state  the  personal  represen- 
tative of  the  mortgagor  may  be  made  a  party,  but  is  not  a  necessary 
pai'ty. "  The  rule  is  somewhat  differently  stated  by  others.  In 
Fisher  on  :\Iort.  84  T.aw  Lib.  159.  it  is  said:  "The  personal  repre- 
sentative of  the  mortgagor  is  not  a  necessary  ])ai'ty  for  foreclosure 
simply,  or  redemption;  but  if  the  object  of  the  suit  be  to  obtain  a 
sale  under  the  mortgage  by  way  of  trust  for  sale,  oi-  on  the  bill  of 
an  unpaid  vendor  of  real  estate  or  otherwise.  .  .  .  the  per- 
sonal representatives  of  the  mortgagor  arc  necessary  ])arties  be- 
eau.se  they  are  interested  in  tlic  i)n)ceeds  of  the  sale  or  in  the  taking 
of  the  accounts."  So  it  is  declared  that  when  a  wife  joins  her  hus- 
band in  a  mortgage  of  hfr  own  esfatr.  and  the  money  is  applied  for 
the  husband's  benefit,  the  personal  estate  of  the  husl)and  will  be 
first  applied  in  payment  of  the  mortgage.    1  Greenl.  Cruise,  6^8. 


Sec.    18.]  CONCERNING   REAL   ESTATE.  293 

It  would  seem  to  be  peculiarly  appropriate  that  the  personal  repre- 
sentative of  the  only  person  owing  the  debt  and  interested  in  reduc- 
ing its  amount  should  be  before  the  court  and  be  bound  by  its  de- 
cree, and  thus  the  measure  of  his  liability  to  the  plaintilf.  whose 
property  may  be  sold  to  pay  it,  be  detinitely  ascertained  and  deter- 
mined. 

"We  have  examined  the  judgment  and  pointed  out  some  of  its 
departures  from  the  established  usage  and  practice  in  courts  where 
the  relief  here  sought  is  afforded,  as  bearing  upon  the  question  of 
power  and  propriety  of  setting  it  aside.  In  form  the  judgment  is 
self-executing  and  final,  leaving  nothing  further  to  be  done  by  the 
court.  But  if  it  had  been  drawn  in  the  usual  form,  it  would  have 
been  an  interlocuforij  order  which  is  always  subject  to  revision  and 
control.  We  see  no  reason  why  under  such  circumstances  it  may 
not  be  dealt  with  and  corrected  as  if  it  were  what  it  should  have 
been.  The  power  to  modify,  change  or  vacate  an  interlocutory 
order  made  in  the  progress  of  a  cause  is  well  settled  both  upon 
principle  and  authority.  Unlike  a  judgment  at  law,  it  may  be 
moulded  and  shaped  to  meet  the  exigencies  of  each  particular  case. 
Ashe  V.  :\Ioore,  6  N.  C.  383;  Worth  v.  Gray,  59  N.  C.  4. 

4.  But  a  case  not  unlike  ours  was  before  the  court  at  last  term, 
Shinn  v.  Smith.  79  X.  C.  310.  The  facts  so  far  as  necessary  to  the 
elucidation  of  the  point  we  are  now  considering  are  these:  Smith 
being  indebted,  he  and  his  wife  united  in  the  execution  of  a  deed 
conve^-ing  lands  belonging  to  her  as  well  as  to  him  to  secure  the 
indebtedness.  Shiini,  an  outside  creditor,  brought  his  suit  against 
the  parties  to  the  inortgage  to  compel  a  foreclosure,  so  that  the 
surplus  of  the  proceeds  of  sale  might  be  applied  to  his  claim.  An 
order  was  obtained  directing  a  sale.  a)id  that  the  wife's  land  should 
be  sold  first.  The  manifest  effect  and  purpose  of  the  order  were  to 
have  the  j)roperty  of  the  wife,  a  sui'ety  only,  applied  in  exoneration 
of  the  lands  of  the  i)rincipal  debtor,  and  that  his  might  be  sub- 
jected to  the  payment  of  Shinn 's  judgment.  The  wife  on  being 
advised  of  the  nature  of  this  order  applied  to  the  court  and  was 
madi-  a  codctciidant.  The  order  of  sale  was  then  modified,  but. 
as  Shinn  alleged,  still  leaving  her  ])roperty  in  the  front  rank  of 
responsibility  for  the  debt  due  to  King.  On  the  proper  conslruc- 
tion  of  this  modified  ordei-  Reade,  J.,  delivering  the  o])inion  of  the 
court  says:  "  Ff  the  modilicd  ordei-  in  unmistakable  terms  dii'ected 
the  sale  of  the  wife's  hnid  to  pay  the  i)laintiff's  debt  for  which 
neither  she  nor  the  laud  was  bound,  it  would  have  been  erroneous." 
Affirmed. 

The  jiiflRment  may,  ami  piohahly  slioulil,  he  in  porsoiiani  for  the  niort- 
Kagp  fl<-l)t,  and  should  also  order  a  sale  lor  t'oi-cclosiiri',  Tiie  jiidp;niont  so 
rendered  in  iiersonaiii  now  Ix'eoines  a  lien  on  oilier  laixfs  of  the  nior)gap:or 
from  the  date  of  its  hein^  properly  doel\eted.  It  was  otherwise  under 
the  praetiee  hefore  the  Code.  Mcf'askill  v.  Graham,  121  N.  C.  1!10,  28  S. 
E.  2fi4.  The  jnclpment  In  personam  for  the  deht  Is  a  final  judRment,  wliile 
the  JtidKnient  for  the  sale  nvdrr  foreclosure  i.t  intcrloeiitortf.  MeCasklll 
V.  MeKinnon.  Tbid.  102.  28  S.  K.  20.^).  The  old  praetiee  in  ef|iiUy  was  to 
deeree  a  strict  foreelosnrp;  hut  afterwards  that  was  dro))i)ed  and  a  sale 
wa.s  ordered  and  the  jjroeeeds  applied  to  the  mortRaKc  deht.     If  a  halanee 


-i>4  concerning;   kkai,   kstate.  [(//.  3. 

was  loft  after  such  ai)i>liiaiion,  tlic  niortgiiKt'i'  proceeded  in  a  court  of  law 
to  recover  such  balance.  Kleniing  v.  Sitton,  21  N.  C.  t!21.  See  •Mort- 
gages," Century  Dig.  §§  1282,  1423,  143G;  Decennial  and  Am.  Dig.  Key 
Xo    Scries  §§  427,  488,  4JM. 


PRITCHARD  V.  ASKEW,  80  N.  C.  86.     1879. 
Foreclosure  Sale,     liaising  the  Bid. 

I  Motion  ill  the  supreme  court  to  open  the  biddings  and  resell  land 
sold  by  a  lonimissioner  under  a  judgment  of  that  court.  The  sale  was 
reported  and  the  confiniiation  recommended  by  the  commissioner.  Re- 
sale ordered.  The  other  facts  appear  in  the  opening  of  that  part  of  the 
opinion  which  is  here  inserted.] 

DiLLARD.  J.  .  .  .  At  this  term  of  the  court  the  i)laintiff 
moves  to  l)e  allowed  to  put  in  an  advance  bid  of  ten  per  cent,  upon 
the  price  at  which  the  purchasers  bought  the  land,  and  offers  to 
secure  the  same  with  his  bond  and  approved  security,  and  in  case 
the  biddings  are  opened  by  this  court,  he  agrees  at  the  resale  to 
start  the  biddings  at  the  advance  now  offered;  and  at  the  same 
time,  the  said  purchavSers  oppose  tlie  motion  to  open  the  biddings 
and  move  on  their  part  for  a  confirmation  of  the  sale  Avhich  has 
been  had.  The  parties  support  their  respective  motions  by  affida- 
vits, and  it  now  becomes  our  duty  to  consider  the  matter  submitted 
to  our  decision,  and  thereon  to  decide,  as  we  may  be  authorized  in 
view  of  justice  to  the  parties  interested,  and  in  accordance  with 
the  rules  observed  in  our  courts  in  the  case  of  judicial  sales. 

In  sales  of  the  character  of  the  one  under  consideration,  the  bid- 
der is  never  considered  a  pui-chaser  until  the  sale  is  reported  and 
confirmed.  He  is  to  be  taken  as  becoming  the  best  bidder,  su))- 
.iect  to  the  understanding  in  all  cases  that  the  court  may  confirm 
the  sale  or  set  it  aside  and  order  a  resale,  as  in  the  exercise  of  a 
sound  discretion  it  may  determine  to  be  right  and  proper.  Wood 
V.  Parker,  63  N.  C.  379;  Ex  parte  Bost,  56  N.  C.  482;  Ashbee  v. 
Cowell,  45  N.  C.  158.  The  court  has  the  power  to  set  aside  sales 
made  in  pursuance  of  its  authority,  either  for  the  owner,  or  at  the 
instance  of  the  purchaser ;  but  as  a  matter  of  policy  it  is  slow  to  do 
.so  and  is  careful  not  to  open  biddings  unless  there  be  some  special 
circumstances,  such  as  unfairness  in  the  conduct  of  the  sale,  want 
of  proper  notice  of  the  time  and  place  of  sale,  fraud  in  the  pur- 
chaser, and  jjalpable  inade(iuacy  of  price,  and  similar  grounds. 
Rorer  on  Jud.  Sales,  ch.  10,  sees.  394-441. 

In  this  case  it  appears  that  the  sale  was  advertised  for  the  4th  of 
January,  and  aftrTwnrrls  changed  to  the  fith.  and  that  plaintiff  had 
arranged  with  ]\lr.  Ilinton  to  attend  and  buy  the  land,  and  allow 
him  to  have  it  on  reimbursing  him.  but  the  inclemency  of  the 
weather  was  very  great,  and  so  much  ice  in  the  roads  and  streams 
as  to  prevent  the  attondanr-e  of  said  Tlinton  and  disable  plaintiff  to 
reach  the  place  of  sale  although  he  endeavored  to  do  so.  From  the 
facts  and  circumstances,  we  think  it  may  fairly  be  presumed  that 
the  sale  came  off  without  a  fair  attendance  of  bidders,  and  cer- 
tainly without  thf  presence  of  TTinton  in  person,  or  the  plaintiff  as 


Sec.    18.]  CONCERNING    REAL   ESTATE.  295 

his  agent,  who  was  prepared  to  give,  and  is  yet  willing  to  give  ten 
per  cent,  advance,  and  perhaps  more,  on  the  bid  of  the  purchasers 
that  day.  and  haih  secured  the  payment  in  case  a  resale  is  or- 
dered. 

We  recognize  it  as  good  policy  in  the  courts  to  maintain  judicial 
sales,  and  to  that  end.  not  to  open  the  biddings  unless  for  some 
cause  palpably  sufficient ;  but  in  this  case  the  purchaser  ought  to  be 
content  to  get  the  debt  he  represents,  and  to  allow  the  plaintiff  the 
benefit  of  any  excess  the  land  may  bring  at  another  sale  more  fa- 
vorable to  a  better  competition  of  bidders.  Justice  should  not  be 
.sacrificed  to  policy. 

There  is  no  intimation  of  anything  unfair  at  the  sale  by  the 
purchaser  or  any  other  person,  but  the  plaintiff  had  the  purpose 
to  be  present  with  a  friend,  and  to  buy  in  the  property  at  a  sum  in 
excess  of  that  at  which  the  property  was  struck  off.  And  he  at- 
tempted to  be  present  and  failed  without  default  imputable  to  him, 
and  it  being  rea.sonably  to  be  inferi'cd  from  the  extreme  severity  of 
the  weather  that  others  were  thereby  hindered  from  attending  the 
sale,  it  is  ordered  that  the  sale  reported  to  this  term  be  set  aside, 
and  the  release  of  the  l)onds  executed  by  the  purchaser,  and  the 
money  paid  in  by  him  be  returned;  and  that  the  clerk  do  resell 
the  land  on  the  terms  prescribed  in  the  original  decree,  open- 
ing the  biddings  at  the  advance  hid  of  the  plaintiff,  and  that  ho 
report  to  tlie  next  term  of  this  court.    Resale  ordered. 

See  Judicial  Sales,"  Century  Dig.  §  79;  Decennial  and  Am.  Dig.  Key 
.\o.  Series  §  41. 


P^ROXEBERGER  v.  LEWIS,  79  N.  C.  426,  435,  436.     1878. 
Mortfjafjee's  Purchasing  at  Foreclosure  Sale. 

[in  the  course  of  an  opinion  discussing  the  legal  and  equitable  status 
of  a  fiduciary  who  purchases  the  trust  property  at  a  sale  made  by  him- 
self, is  the  following:! 

Readp:.  J.  .  .  .  At  law  a  trustee  cannot  buy  at  his  own  sale, 
bi'cause  to  (•oiistitntc  a  sale,  there  must  be  two  persons,  n  vendor 
and  a  vendee.  So  at  law  when  thei-e  are  two  ])ersons.  that  is.  when 
a  second  person  is  substituted  to  make  the  sale  or  to  buy.  the  legal 
requirement  is  supplied  and  the  sale  is  valid.  And  therefore  it  is, 
that  a  trustee  designing  a  ])ersonal  advantage  substitutes  or  pro- 
. Mires  tn  be  substituted  such  second  jx-nson.  wlien.  like  the  ostrich, 
having  iiid  his  own  head,  he  thinks  he  cannot  be  seen.  I'.ul  equity 
is  clcjir-sigbted  luid  l<.<iks  ;il  tlie  substance,  and  the  substitution  of 
the  .second  f)ers()n  makes  not  the  slightest  difference,  allliouirli  it 
does  make  the  smIc  valid  at  law. 

There  is  n  class  of  cases  whicli  have  td  be  distinguished  from  tlie 
general  rule  as  follows:  "Wherever  the  trustee  has  a  personal  in- 
terest in  the  trust  prryp'-rty.  there,  of  course,  be  must  have  the  right 
to  prof.'ct  it.  and  if  to  bid  for  and  buy  it  be  nerrssnry  to  protect  it, 
he  jn\ist  be  allowed  to  dr.  it  for  that  purpose.     The  case  stated  by 


•J!Hi  CONCERNING    KK.M,    KST.VTE.  \  (' h .    3. 

Juilge  Hi>ycU'M  was  an  iiistanci'  of  this.  Tlu-i't',  llu'  triisi  jji-opcrty. 
laud,  boloiiircel  not  to  the  wards  aloiio,  but  to  tlic  wil'o  oi'  the  guard- 
iau,  aud,  as  Judge  lioydou  says,  lie  luul  the  right  to  bid  to  keep  the 
laud  from  beiug  saeriticcd.  The  same  is  true  where  a  mortgagee 
sells  land  to  pay  his  tU'bt.  and  the  property  is  likely  to  be  insufli- 
eieut,  and  he  will  lose  his  debt  uuless  he  bid  for  the  property.  In 
these  eases,  aud  the  like,  it  is  usual  aud  perhaps  neeessary  for  "the 
trustee  aud  benelieiary  to  obtain  leave  of  the  court  to  bid,  or  else  to 
have  a  eoulirmation  with  full  knowledge  of  all  the  facts  appear- 
ing. ' ' 

The  only  other  exceptions  are  where  the  cestuis  que  trust  consent 
or  ratify  with  full  knowledge  of  all  the  facts.  In  the  case  before 
us  there  is  not  a  single  favorable  eircumstauce  for  the  defendant. 
No  uecessity  is  shown  for  having  a  third  party  to  make  the  sale. 
No  reason  why  the  otidcer  of  the  court  was  not  appointed.  No  evi- 
dence as  to  what  was  reported  to  the  court,  or  that  it  was  made 
known  that  the  administrator  had  bought.  The  price  was  one- 
third  of  the  value.  No  otfer  to  surrender  the  land  or  to  account 
for  its  value.  It  is  suggested  that  the  defendant  ought  to  be  al- 
lowed to  surrender  the  land  instead  of  being  charged  with  its 
value.  Doubtless  that  is  usual  at  the  election  of  the  cestui  que 
trust.  But  there  is  nothing  to  show  the  condition  of  the  land.  It 
may  have  been  spoiled  or  it  may  have  been  improved.  There  can 
be  no  injustice  to  the  defendant  in  making  him  pay  the  simple 
value  of  the  land  with  interest,  especially  as  he  has  never  offered  to 
surrender.  Indeed  his  motion  is  to  hold  the  land,  not  at  the  value 
ascertained  already,  but  at  a  value  to  be  ascertained  by  a  reference. 


For  the  proi)er  form  and  substance  of  judgments  in  foreclosure  suits, 
see  Hyman  v.  Devereux,  63  N.  C.  624;  Nimrock  v.  Scanlin,  87  N.  C.  119; 
Ellis  V.  Husseg,  66  N.  C.  501;  Flinn  v.  Smith,  79  N.  C.  310;  Whiting  v. 
The  Bank,  13  Peters  (U.  S.)  at  p.  *15;  McQueen  v.  Smith,  118  N.  C.  569, 
24  S.  E.  412;  Rev.  §  469(7).  See  "Executors  and  Administrators,"  Cen- 
tury Dig.  §  1500;  Decennial  and  Am.  Dig.  Key  No.  Series  §  365;  "Mort- 
gages," Century  Dig.  §  1518;  Decennial  and  Am.  Dig.  Key  No.  Series  §  516. 


Sec.  19.     Remedies  of  the  Mortgagor  and  his  Assigns. 

KEMP  V.  MITCHELL,  36  Ind.  249,  254,  255.     1871. 
Bill  for  Redemption.    Form,  etc. 

[This  was  an  action  to  foreclose  a  mortgage.  Kemp  was  made  a  party 
defendant  because  he  had  originally  made  the  mortgage  in  question;  had 
sold  the  mortgaged  property  subject  to  the  mortgage;  and  then  had  re- 
purchased it,  the  mortgage  still  being  unpaid.  Kemp  filed  a  cross  bill 
(■which  the  court  treats  as  a  Bill  for  Redemption),  and  the  plaintiffs, 
Mitchell  et  al.,  demurred  thereto.  Demurrer  sustained.  .Judgment 
against  Kemp,  and  he  appealed.     Affirmed.] 

Downey.  J.  .  .  .  We  are  inclined  to  regard  the  cross  com- 
plaint as  one  to  redeem  the  mortcracre.  and  regarding  it  as  such, 
the  question  is,  is  it  sufficient?    What  are  the  essentials  of  such  a 


Sec.    19.]  CONCERNING   RE.VL   ESTATE.  297 

complaint?  As  it  is  equitable  relief  which  is  sought,  we  must,  in 
the  absence  of  any  statutory  provision  on  the  subject,  look  to  the 
approved  authorities  on  the  subject  of  equity  pleading  for  an  an- 
swer to  these  questions.  If  the  deed  was  but  a  mortgage,  as  claimed 
by  Kemp,  then  he  was  bound  to  pay  the  money  at  the  time  stipu- 
lated, or,  according  to  the  doctrine  of  the  courts  of  law,  his  right  to 
pay  off  the  debt  and  have  his  land  back  was  gone.  But  in  equity 
the  rule  was  different.  There  he  might  come  afterward  with  the 
money  and  interest,  and.  on  paying,  have  a  return  of  the  pledge. 
If  the  mortgagee  refused  to  accept  it,  he  might  tile  his  bill  to  re- 
deem, and,  praying  the  court  to  take  the  account,  and  offering  to 
pay  what  might  be  found  due,  the  court  would  take  jurisdiction, 
ascertain  the  amount,  and  compel  the  mortgagee  to  accept  it  and 
give  up  his  claim  upon  the  mortgaged  property.  But  though  it 
was  not  necessary  that  the  party  tiling  such  a  bill  should  actually 
bring  the  money  into  court,  in  the  tirst  instance,  it  was  necessary 
that  he  should  oft'er  to  pay  the  amount  which  he  acknowledged  to 
be  due,  or  which  the  court  should  lind  to  be  in  arrear. 

"It  is  a  uniform  requirement  in  regard  to  bills  to  redeem,  that 
the  bill  should  contain  a  formal  oft'er  to  pay  whatever  sums  the 
plaintiff'  admits  to  be  due ;  and  the  ])rayer.  that  upon  payment  of 
whatever  sums  might  be  found  due  upon  taking  the  accoiuits  be- 
tween the  parties,  the  mortgagee  or  other  incumbrancer  might  be 
decreed  to  reconvey  the  property,  is  not  sufficient.  Such  a  bill  was 
held  bad  upon  demurrer,  and  leave  granted  to  amend  by  inserting 
a  formal  oft'er  to  pay.  It  is  not  important  thai  the  oft'er  to  pay 
should  name  any  sum  which  the  plaintiff'  admits  to  be  due,  al- 
though in  point  of  practice  a  definite  sum  is  commonlj'  tendered  in 
such  cases,  in  order  to  recover  costs,  if  the  sum  found  dm^  falls  be- 
low the  sum  tendered.  But  the  bill  must  contain  a  formal  oft'er  to 
redeem,  by  paying  whatever  sum  shall  be  found  due  upon  taking 
the  account."  Storv,  Eq.  IM.  s.  187  (a)  ;  Harding  v.  Pingev,  10 
Jnr.  (N.  S.)  872 

"A  bill  in  equity  must  state  a  case  upon  which,  if  admitted  b\' 
the  answer,  a  decree  can  be  made;  therefore  a  bill  to  redeem  from 
sale  upon  execution  of  a  right  of  redemption,  which  contains  no 
avenricnt  of  roadinr'ss  to  pay  and  an  offer  to  i)ay.  is  bad  on  de- 
murrer, for  want  of  e(iuity."  Perry  v.  Carr,  41  X.  11.  ;571. 
The  judgment  is  affirmed,  with  costs. 

As  to  who  is  entitled  to  redeem,  see  2  L.  R.  A.  (X.  S/)  627;  3  lb.  1068; 
4    ri).   10.'59;    27  Cyn.  1,S04. 

That  there  must  be  a  tender  of  tlie  money,  or  an  offer  in  tlie  i)ill  to  pay 
what  Is  due,  see  .Tones  on  Mort.  sec.  1095.  See  "Mortgages,"  Century  Dig. 
8  18:58:   Decennial  and  Am.  Dig.  Key  No.  Series  §  616. 


SOWELL  V.   BARRETT,   45   N.  C.    '^0.     1852. 
[lill  III  II air  n  Deed  Ahnnlute  Declared  to  he  a  Mortgage,  and  to  Redeem. 

[Rill  for  redemption  of  property  transferred  to  the  defendant  by  the 
jdaintiff  l)y  a  deed  .ibsoliitc  in  form.  Answer,  replication  and  proofs, 
ranse    transferred    to    the    8ui)reme   court    for    trial.      .Tiidgment   against 


298  coNCKKNiNt;   ki;.\i,  kstate.  [(7*.  o. 

liliiiiitilT  (litiuissiiii;  tho  hill  lor  defcrts  poliitod  cnit   in  the  oi)inion.     The 
luoporiy  t'liiliriut'il  in  tlu"  tk-ed  was  a  trad  ol'  laud  and  a  ncgro.J 

l'K.\Hst)N.  J.  Siiuc  llu-  rase  ol'  Strcalor  v.  Jones.  lluTc  has  been  a 
iinil\>rni  eurrent  of  deeisions.  Ity  wliieli  lliese  two  pi'ineiples  are 
i'stablislied  in  refi'iviu-e  lo  bills  which  seeU  lo  correct  a  deed,  abso- 
lute on  its  Taci'.  into  a  inoit^M^e  or  seeui'ity  for  a  debt:  1.  It  nuist 
be  alle<red.  ami  oi'  eoursi'  i)roved.  that  the  clause  of  redemption  was 
omitted  by  reason  of  ignoi-ance,  mistake,  fraud  or  undue  advan- 
tage; 2.  The  intention  must  be  established,  not  merely  by  proof  of 
declarations,  but  by  pi'oof  of  facts  and  cii-cumstances,  dehors  the 
tU'cd.  inconsistent  with  the  idea  of  an  absolute  purchase.  Other- 
wise, titles  evidenced  by  solemn  deeds  would  be,  at  all  times,  ex- 
]H)sed  to  the  ' '  slipj)ery  memory  of  witnesses. ' '  These  principles  are 
fully  discussed  in  Kelly  v.  Hiyan.  41  N.  C.  283,  and  it  is  useless  to 
elaborate  them  attain. 

The  plaintitl'  has  failed  in  both  ])articulars.  He  gave  no  satis- 
factory account  of  the  fact  that  the  deed  is  absolute  on  its  face; 
and  he  proves  no  facts  and  circumstances  dehors  the  deed,  incon- 
sistent Avith  the  idea  of  an  absolute  purchase.  It  is  true  he  proves 
declarations  of  the  defendant,  which  render  it  highly  j)robable  that 
there  was  some  understanding  between  the  parties,  that  the  de- 
fendant would  take  back  his  money  and  reconvey  the  negro:  but 
this  does  not  bring  the  case  within  the  two  principles  above  an- 
nounced.    .     .     .     Bill  dismissed. 

For  the  general  legal  effect  of  deeds  ahsolute  intended  as  mortgages, 
?ee  5  L.  R.  A.  (N.  S. )  387;   11  lb.  2(i9.  825,  and  notes. 

"A  deed  absolute  on  its  face  will  not  be  converted  into  a  mortgage, 
nnless  upon  allegation  and  proof  that  the  clause  of  defeasance  was 
omitted  by  reason  of  ignorance,  mistake,  fraud,  or  undue  advantage  taken 
of  the  mortgagor."  Sorague  v.  Bond,  115  N.  C.  530,  20  S.  E.  709,  headnote. 
But  in  Fuller  v.  Jenkins,  130  N.  C.  554,  41  S.  E.  706,  it  is  held  that  an 
absolute  deed  may  be  declared  to  be  a  mortgage  when  the  parties,  at  the 
time  of  its  execution,  agreed  that  it  should  be  so  considered,  without 
allegations  of  mistake  or  fraud.  See  Jones  on  Mort.  sec.  282  et  seq.;  3 
Pom.  Eq.  Jur.  sec.  1196,.  See  "Mortgages,"  Century  Dig.  §§  60-111; 
Decennial  and  Am.  Dig.  Key  No.  Series  §§  31-38. 


JOYNER  V.  FARMER,  78  N.  C.  196.     1878. 
Bill  to  Redeem  Property  Purchased  by  Mortgagee  at  His  Own  Sale. 

I  The  plaintiff  mortgagor  sued  the  mortgagee  for  the  purpose  of  setting 
aside  a  sale  of  lands  made  by  the  mortgagee  under  a  power  in  the  mort- 
gage.    Judgment  against  the  defendant,  and  he  appealed.     Affirmed. 

The  land  was  sold  by  the  mortgagee  June  20,  1873,  and  purchased  by 
himself  through  an  agent.  Deed  made  to  the  agent  who  immediately  con- 
veyed to  the  mortgagee.  By  agreement  after  the  sale  the  mortga.gor  re- 
tained possession  until  he  harvested  the  crops.  The  property  brought 
more  than  was  due  on  the  mortgage,  and  the  excess  was  paid  to  the  mort- 
gagor less  three  hundred  dollars  deducted  for  rent.  This  action  was 
brought  January  25,  1875,  soon  after  plaintiff  gave  up  the  land.  The  de- 
fendant mortgagee  insisted  that  by  accepting  this  excess  and  giving  up 
possession  of  the  property  the  sale  was  ratified  and  the  mortgagor 
estopped  to  attack  it.     The  judge  ruled  that  the  whole  transaction  made 


Sec.    19.]  CONCERXIXG    REAL    ESTATE.  299 

no  change  in  the  relation  of  the  parties,  but  that  the  relation  of  mort- 
gagor and  mortgagee  still  existed,  and  ordered  the  land  to  be  sold  and 
the  proceeds  to  be  applied  to  the  balance  of  the  debt,  if  any,  due  on  the 
mortgage,  and  the  residue  paid  to  the  plaintiff  mortgagor.] 

KoDMAN.  J.  It  is  not  doubted  that  a  mortgage  of  laud  with  ;i 
power  of  sale  iu  the  mortgagee  upou  default  in  payment,  is  lawful. 
And  if  the  mortgagee  sell  under  such  a  power,  a  stranger  who  pur- 
chases bona  fide  will  acquire  a  good  title  free  of  the  trust.  Coot  on 
Mort.  125,  n.  A,  130 ;  Paschal  v.  Harris,  7-1  N.  C.  335.  It  is  equally 
clear  in  this  state,  and  generally,  but  not  universally,  that  if  the 
mortgagee  himself  purchases  at  his  sale,  whether  he  does  it  directly 
or  by  an  agent,  he  nevertheless  holds  the  legal  estate  subject  to  an 
equity  in  the  mortgagor  to  redeem,  unless  in  some  way  he  releases 
or  loses  that  equity."  AVash.  on  Real  Prop.  -148,  Book  2,  ch.  3, 
sec.  20. 

In  ^Massachusetts  it  appears  to  be  established  that  if  the  mort- 
gage contains  a  provision  authorizing  the  mortgagee  to  purchase 
at  his  own  sale,  he  may  do  so,  if  his  proceedings  are  fair  and  hon- 
est. 14  Allen  (Mass.).'369  ;  Hall  v.  Bliss.  118  :\lass.  554.  It  may  l)e 
that  the  language  of  the  opinion  in  AVhitehcad  v.  Hellen.  76  N.  C. 
99.  is  somewhat  too  strong  to  be  univeiisally  applicable ;  for  the 
deed  from  the  mortgagee  to  his  agent  conveys  the  full  legal  estate  to 
the  latter,  and  in  a  court  of  law  makes  him  the  owner,  thus  divest- 
ing the  mortgagor  of  his  eijuity  of  redemption,  which  is  considered 
even  after  forfeiture  as  an  estate,  although  enforceable  only  in 
equity,  and  liable  to  sale  under  execution  by  the  act  of  1812,  Bat. 
Rev.  ell.  44.  ^  5.  and  turning  the  equitable  estate  into  a  mere  right 
of  action,  which  could  not  be  sold  under  that  act.  But  as  between 
the  mortgagor  and  mortgagee,  the  right  of  the  former  in  equity 
after  such  a  sale  cannot  be  held  to  difi'er  essentially  from  what  they 
were  before,  unless  they  have  been  lost  in  some  of  the  ways  pres- 
ently to  be  mentioned. 

The  sale  of  the  mortgagee  is  not  \uid.  but  voidable,  and  can  1)6 
avoided  only  by  the  mortgagor  or  his  heirs  or  assigns.  Wash.  ante. 
The  estate  of  the  mortgagee  acquired  by  the  sale,  being  voidable 
only,  may  be  confirmed  by  any  of  the  means  by  which  an  owner  of  a 
right  of  action  in  ef|nity  may  part  witli  it :  (1)  By  a  release  under 
seal,  as  to  which  nothing  need  be  said  :  (2)  Such  conduct  as  wwild 
Triake  his  assertion  of  his  I'iglit  Cijudulent  against  the  mortgagee, 
or  against  iliii'd  persons,  and  which  would  therefoi-e  opei-ate  as  an 
r'stoi)|>el  against  its  assertion;  (3)  Long  ac(|uiescence  after  lull 
knowh'dge.  and  [)robably  this  method  may  be  classed  with  tlie  sec- 
find,  unless  it  has  cont  itnir.l  for  so  long  a  time  ttiaf  a  statute  of 
limitations  operates,  or  there  is  a  presumption  of  a  release.  AVash. 
ante:  H  Rich.  K(|.  112:  4  Aliiui  25:  Hi  Md.  508;  Lewin  on  Trusts. 
051. 

What  lentrth  of  time  would  sutYiee  for  such  a  i»urpo.se.  is  left  un- 
certain upon  the  antliorities.  Wliile's  B.  (\  in  K(|.  15H  KIS:  Mitch- 
ell V.  Berry.  1  Mete.  n\y.)  (i02 :  Jenkins  v.  ITogford.  7  l*ick.  1. 
Perhaps  it  may  be  that  tjie  statute  of  three  years  on  a  parol  prom- 
ise may  furnish  a  prrtper  rule. 

Tn  the  present  case  the  plaintiff  was  present   at   the  sale  by  the 


;U)0  co\CKKMN(;    i»'i;ai,   istatk.  [Ch.  ,?. 

iiiorlij;nj;oo  ami  did  not  (tl)jo('t.  lie  afterwards  retained  possession 
oL'  tlie  land  as  tlic  teiiaiit  ol"  \\\v  dcfciidaiit  t"i)r  a  year;  and  appar- 
ently after  tlie  I'lul  of  the  year,  altliougli  tlie  date  is  nut  ^iveu,  re- 
eeived  from  tlie  defenilant  the  residue  of  the  sum  for  wliieh  the 
land  was  sold,  al'li'i-  detlueting  the  rent.  This  action  was  hroujjht 
on  the  L'oth  of  January.  187'),  soon  after  the  expiration  of  his  term 
as  tenant.  The  sale  was  on  the  2Utli  of  June,  187;{.  No  ease  holds 
that  a  mere  ae(iuie.seence  for  so  short  a  time  bars  an  action.  There 
is  nothing  in  the  ease  from  which  it  can  be  inferred  that  the  con- 
iluet  of  the  [)laintirt"  or  his  delay  to  sue.  has  induced  the  defendant 
to  put  him.self  in  any  worse  i)osition  than  he  was  in  inuuediately 
after  the  sale.  The  defendant  says  that  the  plaintilf  deteriorated 
the  laud  during  his  occupancy  of  it.  Hut  it  was  still  an  ample 
security  for  the  debt,  and  if  that  detei'ioration  occurred  during  the 
tenancy,  we  nuist  assume  that  it  was  guarded  against  in  the  lease, 
as  it  might  have  been.  The  rights  of  no  third  persons  have  inter- 
vened, and  the  lapse  of  time  is  too  short  to  raise  any  presumption 
of  a  release  or  al)andonment  of  the  right. 

No  fraud  or  ill  conduct  is  imputed  to  the  defendant.  It  is  not 
alleged  that  it  was  known  at  the  sale,  that  the  purchaser  was  bid- 
ding for  him,  or  that  the  price  was  diminished  by  such  bidding. 
But  the  interest  of  a  vendor  and  a  ])ui-e]iaser  are  so  antagonistic, 
that  the  same  man  cannot  safely  be  allowed  to  fill  both  characters. 
Van  Epps  v.  Van  Epps,  9  I'aige  Ch.  241.  No  doubt  there  are  ex- 
ceptional cases  in  which  a  mortgagee  may  sell  with  perfect  fairness 
and  to  the  advantage  of  the  mortgagor,  and  buy.  But  a  court  can 
never  know  with  certainty,  that  it  has  been  so  in  any  particular 
case,  and  is  obliged  to  act  upon  the  general  rule  for  the  prevention 
of  unfair  dealing.  The  defendant  cannot  be  injured  by  having  the 
value  of  the  land  ascertained  by  a  public  sale,  imder  the  order,  and 
by  an  officer  of  a  court,  and  an  adjustment  of  the  account  between 
him  and  the  plaintiff,  after  such  sale.  Judgment  below  affirmed 
and  case  remanded. 

As  to  what  is  said  in  the  i)riiicii)al  case,  concerning  the  length  of  time 
that  will  bar  the  mortgagor's  right  to  redeem  under  the  circumstances 
before  the  court,  see  Jones  v.  Pullen,  115  N.  C.  at  p.  471,  20  S.  E.  624, 
which  substitutes  ten  years  for  three  years  as  the  statutory  period.  See 
"Mortgages,"  Century  Dig.  §§  1083,  1101;  Decennial  and  Am.  Dig.  Key 
No.  Series  §§  :562,  370. 


Sec.  20.     Remedy  for  Breach  op  Contract  to  Purchase,  Con- 
vey, OR  Devise  L.vnd. 

GARRARD  v.  DOLLAR,  49  N.  C.  175,  178-180,  67  Am.  Dec.  271.     1856. 
Contract  to  Purchase  Land.    Remedy  of  Vendor,  at  law.    Damages. 

[Plaintiff  sued  at  law  for  damages  for  breach  of  contract  by  which 
defendant  obligated  himself  to  purchase  certain  lands  from  the  plaintiff. 
There  was  a  judgment  by  default  and  inquiry,  and  upon  the  inquiry 
there  was  a  special   verdict.     .Judgment  against  the  defendant  for  six- 


Sec.    20.]  CONCERNING    REAL    ESTATE.  301 

pence.  Plaintiff,  not  being  satisfied  witli  such  a  small  sum,  appealed. 
Reversed. 

The  verdict  of  the  jury  was  that  the  vendor,  Garrard,  had  no  title  to 
the  land  when  he  sold  it  to  Dollar,  nor  at  the  time  Dollar  failed  to  pay 
for  it;  but  acquired  the  title  during  the  term  of  court  at  which  the  inquiry 
was  had;  and  if  that  fact  ought  to  be  considered  in  mitigation  of  dam- 
ages, they  assessed  the  damages  at  sixpence;  otherwise  the  damages  were 
fi.xed  at  $2,872.50.  The  judge  being  of  opinion  that  the  facts  with  regard 
to  the  title  should  mitigate  the  damages,  rendered  judgment  for  sixpence 
and  costs.  The  supreme  court,  after  holding  that  the  judgment  by  default 
cut  off  any  defense  growing  out  of  the  want  of  title  in  the  plaintiff  set 
out  in  the  special  verdict,  proceed  to  declare  the  law  as  to  the  measure 
of  damages  in  case  a  vendee  wrongfully  refuses  to  accept  the  land  and 
pay  the  price  agreed.] 

Battle.  J.  .  .  .  On  an  inijiiiiy  of  damages.  u])on  a  default, 
all  the  material  allegations  of  the  plaintiff's  declaration  are  to  be 
considered  as  admitted  by  the  defendant  to  be  true,  and  the  only 
<|uestion  will  be.  what  is  the  rule  of  damages  in  the  particular 
case?  If  the  damages  be.  in  their  nature,  uncertain,  as  in  many 
of  the  forms  of  action  they  will  be.  then  the  amount  will  have  to  be 
ascertained  bj-  the  proofs  which  each  party  may  be  able  to  produce. 
If  they  are  certain,  or.  by  computatioiK  capable  of  being  reduced  to 
a  certainty,  then  there  will  be  little  or  no  room  left  for  the  proof. 
In  the  ca.se  before  us,  the  defendant  covenanted  to  pay  a  certain 
price  per  acre  for  a  tract  of  land,  the  number  of  acres  of  which  was 
to  be  ascertained  by  a  survey.  It  was  so  ascertained,  and  the  sum 
agreed  on  to  be  paid  was  thus  reduced  to  a  certainty.  That  sum 
the  plaintiff  is  entitled  to  recover  as  damages,  unless  it  be  the  rule 
that  a  vendor  of  land,  after  doing  everything  he  can  towards  the 
fulfilment  of  his  part  of  the  contract,  can  recover  from  the  default- 
ing piu'chaser  nominal  damages  only.  This  is  an  important  prac- 
tical question,  and  upon  it  the  decisions  of  the  courts  in  different 
countries  do  not  seem  to  be  uniform.  In  England,  it  is  said  thai 
when  the  vendee  I'efuses  to  perfoi-iii.  the  measure  of  damages  is 
lield  to  be  the  difference  between  the  piice  fixed  in  the  contract  and 
the  value  at  the  time  fixed  on  for  the  delivery  of  the  deed ;  so  that 
if  the  property  does  not  fall  in  value,  the  vendor  can  get  nothing 
but  nominal  damages.  Thus,  in  the  case  of  Laird  v.  Pim.  7  ]\T.  & 
W.  474.  wlierc  an  eminent  judge.  Haron  Rolfe  (wlui  is  now  1he 
Lord  Chanee]h)r  C'l-anwoilh).  had.  at  the  trial,  restricted  llie 
vendoi"  tn  ii(iiiiiii;il  damages.  Ilie  loiiri  of  Exchequei'.  on  the  argu- 
ment of  a  rule  to  show  cause  why  the  damages  should  not  be  in- 
crea.sed  to  the  amount  of  the  |)ui'ehase-money.  said  :  "The  question 
is.  how  jriueh  worse  is  1  lie  plaint  ilT  by  f  he  diminul  ion  in  the  value  of 
the  land,  oi-  the  loss  of  llic  pnrehiise money  in  ronse(|U(.'nce  of  the 
nou-|»erformanee  of  the  eonli'ael  .'  Il  is  clear  he  ciinnot  have  llie 
land  and  its  value  1o(». "  There  ai"e.  indeed,  some  |)i'ior  English 
cases  wliieh  seem  to  have  held  ii  eontraiv  doeli-ine.     (ioodisson  v. 

Nunn.  4  T    b'    7(11  ;  Olazebrook  v,  W In.w.  S  T.  K.  .1(50.    Tn  Ver 

iiiont.  thr'  rule  as  laid  down  by  the  court  of  Exehe(|uer  was  recog- 
nized. Sawyers  v.  Alrlntire.  1ft  Vl.  27.  A  different  rule  prevails 
in  Maine  fAhinfl  \-.  I'lnnimej-.  4  Tlreen.  'i^Hl.  juid  in  \ew  York. 
CShannon   v.  romstoek.  21    Wind.    \'h  :   Willinias  v.    h'icM.  slated 


'^yi  C'oxcEUMXi;    i;i:\i.   isiwtk.  |  T//.  ,?. 

sliortly  ill  m  iiolc  in  |i;i;^i'  iKli  ol'  Scil^w  ick  on  1  );iiii;i<i»'s') .  Mr.  Scdg- 
uicU  s;iys.  tli;it  "the  (|Ut'sti(>M  is  rvidciilly  not  I'fcc  t'l'oiii  pLTplcxily. 
'  >ii  the  one  haiul.  it  is  said  thai  llir  vciuloi-.  by  iiiaUiiifj:  a  tender,  has 
l>ert"ornieil  Ills  eontraet  so  far  as  il  lies  in  his  |)o\ver;  tliat  liis  right 
is  eonipK'te  to  the  i»'rronnanee  of  the  eonlraet  by  th(>  vendee,  and 
that  tliis  pert'orniancc  is  tlie  payment  of  the  ]nirehase-inoney.  liut 
on  the  other  side,  it  is  i-ei)lie(l  with  jjreat  force,  tliat  the  recovery 
rannot  paSvS  thi'  fee  in  the  hnid;  that  the  le«i;al  seizin  still  I'einains  as 
at  tirst  ;  that  the  vt'iuhii'  has  not  parted  with  Ids  pro]ierty ;  that,  if 
the  land  has  not  faUen  in  priee.  he  has  Uist  nothing;  that  tlie  eoni- 
inon  hnv  gives  ihiniages  for  none  bnt  actna!  hiss;  an<l  it  is  insisted 
tliat  the  true  measure  of  damages  in  such  a  ease  is  the  difT'erenee  be- 
tween the  stii)ulated  priee  and  th(^  actual  value  at  the  time  of  the 
l)reaeh,  or,  i)erhaps,  at  the  time  of  the  trial."  Sedg.  on  Dam.  191, 
1!)2.  Tlie  author,  in  a  note  to  the  page  last  referred  to.  expresses 
his  preference  for  the  latter  rule,  though  he  admits  that  it  is  dift'or- 
ent  with  respect  to  the  sale  of  personal  chattels.     See  i)age  281. 

The  counsel  have  not  I'efei  red  us  to  any  case  in  our  court  where 
the  rule  has  been  settled.  In  the  absence  of  an  express  adjudica- 
tion, we  feel  at  libei-ty  to  adopt  the  rule  that  gives  to  the  vendor  the 
contract  price  with  interest  thereon,  when  he  shows  he  has  done  all 
in  his  i)ower  to  comi>lete  the  contract  on  his  part,  by  making  and 
tendering  a  deed  to  the  vendee.  If  a  court  of  law^  cannot  take  into 
consideration  the  fact,  that  upon  payment  of  the  purchase-money 
the  court  of  equity  will  compel  the  ex(M'ution  of  a  deed  l)y  the 
vendor,  it  can  enforce  its  own  salutary  principles,  that  no  jierson 
shall  take  advantage  of  his  own  wrong,  and  will  thus  prevent  an 
unscrupulous  vendee  from  mocking  his  innocent  vendor  by  refusing 
to  perform  his  solemn  engagement,  and  submitting  to  a  judgment 
for  a  penny  damages. 

The  judgment  given  in  the  court  below,  in  favor  of  the  pl.iintiff. 
for  sixpence  damages,  is  reversed,  and  the  judgment  will  be  en- 
tered in  this  court  in  his  favor.  uiKm  the  special  verdict,  for 
$2,872.50,  and  also  for  costs.    Judgment  reversed. 

See  "Vendor  and  Purchaser,"  Century  Dig.  §§  953-956;  Decennial  and 
Am.  Dig.  Key  No.  Series  §  330. 


GRISWOLD  V.  SABIX.  TA  X.  H.  167,  12  Am.  Rep.  76.     1871. 
Contract  to  Punhase  Land.     Remedy  of  Vendor,  at  law.     Damages. 

fGriswold  contracted  to  sell  land  to  Sabin,  and  Sabin  contracted  to 
purchase  the  land  and  pay  $6,000  for  it.  Griswold  tendered  a  deed  in 
due  form  as  stipulated  for  in  the  contract,  but  Satnn  refused  to  accept 
the  deed  and  iiay  the  price.  Thereupon  Griswold  sold  the  land'for  $5,500 
and  sued  Sabin  for  damages  for  breach  of  the  contract.  The  judge 
charged  that  the  measure  of  damages  was  the  difference  between  the 
f  ontract  price  of  $6,000  and  the  value  of  the  land  at  the  time  Sabin  broke 
the  contract  by  refusing  to  accept  the  deed  and  pay  the  price.  Verdict 
and  judgment  against  the  defendant  for  $100,  and  he  appealed.    Affirmed.] 


Sec.    20.]  CONCERNING   REAL    ESTATE.  303 

Sargent,  J.  .  .  .  As  to  the  rule  of  damages  in  this  case. 
.  .  .  The  rule  in  England  is  understood  to  be  well  settled  in 
cases  of  contract  for  the  sale  of  real  estate,  and  is  this :  ' '  Where 
the  vendee  refuses  to  perform,  the  measure  of  damages  is  held  to  he 
the  ditference  between  the  price  lixed  in  the  contract,  and  the  value 
at  the  time  fixed  on  for  the  delivery  of  the  deeds."  Laird  v.  Pirn, 
7  M.  &  W.  474,  and  cases  cited. 

It  ha.s  been  said  to  follow  from  this  rule  that  if  the  property 
does  not  fall  in  value,  the  vendor  can  recover  nothing  but  nominal 
damages.  Hut  that  would  be  assuming  that  the  price  agreed  on 
by  the  parties  was  the  true  value,  which  would  ordinarily  be  the 
case  where  the  trade  was  made  in  good  faith. 

The  same  was  settled  to  be  the  law  of  ]\Iassaehusetts,  after  sev- 
eral rulings  the  other  way.  in  Old  Colony  Railroad  v.  Evans,  6 
Gray.  25,  where  the  court  say:  "Upon  more  full  consideration  ol' 
the  measure  of  damages,  in  an  action  at  law  where  the  defendant 
has  refused  to  receive  the  deed  teiuU'red  him,  the  court  are  of  opin- 
ion that  the  proper  rule  of  damages  in  such  a  case  is  the  difference 
between  the  i)riee  agreed  to  be  paid  for  the  land,  and  the  salable 
value  of  the  land  at  the  time  the  contraet  was  broken." 

In  Elaine  a  ditfcient  rule  was  established,  in  Alan  v.  Plummer, 
4  Greenl.  258.  and  in  numerous  cases  in  New  York,  cited  in  Rich- 
ards v.  Edick,  17  Barb.  260-265,  where  it  is  held  that  in  this  class 
of  eases  "the  vendor  is  entitled  to  recover  the  full  purchase  price." 
Hut  in  the  opinion.  Gi'idley,  J.,  admits  that  this  rule  is  not  equi- 
table, and  that,  if  it  were  a  new  question  in  that  state,  ''there  would 
be  great  reasons  for  adopting  the  principle  which  is  now  held  to  be 
the  law  of  the  Knglish  courts."  Hut  he  felt  bound  by  the  prece- 
dents in  that  state,  on  the  ground  that  the  rule  had  there  become  so 
well  established  that  it  ought  not  to  be  disturbed;  though  the  rule 
is  there  held  to  be  different  in  regard  to  contracts  for  the  sale  of 
personal  property. 

In  this  state  the  rule  is  well  settled  in  regard  to  contracts  for  the 
sale  of  personal  property.  Stevens  v.  Lyford,  7  N.  H.  360;  Wood- 
burv  V.  Jones.  44  Id.  20f) ;  Gordon  v.  Noi-i-is.  49  Id.  376.  and  cases 
cited.  385.  386;  Iljiines  v.  Tucker.  50  Id.  307-317.  And  we  think 
the  same  rule  should  and  imist  l)e  applied  in  cases  of  contracts  for 
the  sale  of  real  estate.  wliei-e  llic  vendee  refuses  to  receive 
the  deed  and  pay  the  price  according  to  the  contract. 

In  this  e;ise  the  defendant  ot)jeets  that  the  instruetions  he  re- 
fpie.sted  were  not  given,  viz.,  that  if  the  defendant  had  broken  the 
covenant,  and  the  |)Ifiintitf  afterward  sold  and  conveyed  the  prop- 
erty withont  defendant's  consent,  the  i)lain1ill'  is  entitled  to  re- 
cover f)iily  iKtiiiinal  <lamages.  Tiie  defendant  having  bi'oken  his 
confi-act.  the  j)lainlilT  might  iiave  bronglit  his  bill  in  chancery  to 
compel  a  specific  performance,  oi-  lie  might  bring  his  sviit  at  law 
for  damages  on  ai-coiint  of  its  breach.  I'nder  the  instnjctions 
given,  it  made  no  dilVerence  whet  her  I  lie  |)laintin'  had  sold  th(»  land 
or  not ;  its  i-eal  value  at  the  time  when  the  dd'endant  broke  his  <H)n- 
tract  was  the  only  (|uestioii  If  the  |)laintifT  had  sold  tlie  land  at 
public  auclion.  and  notified  the  ilereiidant .  he  miLdit  have  been  es- 


o04  COXCKUXIXd     1^'EAL    KSTATE.  [Ch.    3. 

li>p|)i'tl  t(i  say  iliiit  tlu'  |)ric('  (tl)taiii('(l  was  not  its  true  vahic.  But 
as  the  case  stands.  Ilic  plaiiilitV  having'  sold  llic  land  at  private 
sale.  111'  caiiiiol  cl.-iim  that  the  pi'icc  ohlaiiicd  was  tlic  tnie  value: 
but  as  wi*  have  si't'ii.  upon  the  iiisti'uetioiis  f:;iveii.  wliich  we  hold  to 
be  eiM-rect.  it  liecanie  entirely  immaterial  whether  the  jilaintitV  had 
sold  the  land  ov  not.  or  for  what  price.  And  least  ol"  all  eould  he  be 
requireil  to  olitain  the  defendant's  e(»iisent  to  the  sale,  which  he 
miiiht  never  have  been  able  to  do.  I'pon  this  jreneral  sul)ject  of  the 
I'lile  of  damatres  in  this  ela.ss  of  eases,  limited  to  contracts  for  the? 
l>urciia.se  of  I'cal  estate,  see  Sedjrwiek  on  Dam.  liO;').  and  cases;  Pai-- 
sons  on  Cont.  and  cases  cited.    Jud<rment  on  the  verdict. 

The  priutipal  case  is  sustained  by  Hallett  v.  Taylor,  177  Mass.  6,  58 
N.   E.   154;    Waivelle  on  Vendors,  sec.  937;    2   Sutherland  on   Damages, 
ss.  568-571;   29  Am.  &  Eng.  Enc.  Law,  719;    Sedgwick  on  Damages  (Stu- 
dents' Ed.)  319.     See  •'Vendor  and  Purchaser,"  Century  Dig.  §§  953-956; 
Decennial  and  Am.  Dig.  Key  No.  Series  §  330. 


NICHOLS  V.  FREEMAN,  33  N.  C.  99,  103,  104.     1850. 
Contract  to  Sell  Land.    Remedy  of  Purchaser,  at  Law.     Damages. 

[Action  for  damages  for  refusal  or  failure  of  defendant  to  convey  cer- 
tain land  to  plaintiff  pursuant  to  a  contract  between  plaintiff  and  Sutton, 
the  defendant  being  surety  for  Sutton.  .Judgment  of  nonsuit  against  the 
l)laintiff,  and  he  appealed.     Reversed. 

Sutton  and  Freeman  made  their  bond  to  plaintiff  in  the  penal  sum  of 
$10,000,  with  a  condition  to  be  void  if  Sutton  should  convey  the  locus 
in  quo  to  the  plaintiff.  Sutton  did  not  convey  the  land,  and  this  action 
is  brought  for  the  penalty  of  the  bond — the  judgment  to  be  discharged 
upon  the  payment  of  the  damages  claimed.  It  was  agreed  that,  if  the 
judge  considered  the  proper  measure  of  damages  to  be  the  difference 
between  the  value  of  the  property  at  the  time  It  became  impossible  for 
Sutton  to  convey  it  to  the  plaintiff  (because  of  a  sale  thereof  by  the 
sheriff  under  an  execution  against  Sutton)  and  the  balance  of  the  pur- 
chase money  due  by  the  plaintiff,  judgment  should  be  entered  fixing  the 
damages  at  $207.80;  but  if  the  judge  considered  the  measure  of  damages 
to  be  the  amount  which  the  plaintiff  had  paid  to  Sutton  on  the  land,  less 
the  rent  while  the  i)laintiff  was  in  possession,  the  judgment  should  fix 
the  damages  at  $8,060,25.  Plaintiff  contracted  to  i)ay  $8,000  for  the 
property.  He  had  paid  $6,552.78  when  the  sheriff  sold  the  land.  The 
value  of  the  property  at  the  time  the  sheriff  sold  it  was  only  $2,500. 

The  judge  being  of  opinion  that  the  action  could  not  be  maintained  be- 
cause of  matters  not  germane  to  the  subject  under  investigation,  non- 
suited the  plaintiff.  Only  that  part  of  the  opinion  which  discusses  the 
measure  of  damages  for  breach  of  contract  to  convey  the  land,  is  here 
inserted.! 

Pe.\rson.  J.  .  .  .  The  second  question  is.  as  to  the  measure 
of  damapres.  We  cannot  yield  our  assent  to  the  position  assumed 
by  the  plaintiff,  that  he  has  a  ri^lit  in  this  action  against  one  of 
the  obligees  for  a  breach  of  the  bond  for  title,  to  recover  as  dam- 
ag^es  the  amount  of  the  purchase  money  which  had  been  paid,  in 
the  same  way  as  if  the  plaintiff  had  repudiated  the  contract  and 
sued  the  vendor  for  money  "liad  and  received  to  his  use." 

Tn  this  action  the  plaintiff  does  not  repudiate  the  contract,  but 


Sec.    20.]  COXCERXIXG    REAL    ESTATE.  305 

seeks  to  recover  compensation  in  damages  tor  its  nonperformance; 
and  tlic  (piestion  is.  what  damage  has  been  sutfered  ?  What  sum 
will  put  liim  in  as  good  a  condition  as  if  the  contract  had  been  per- 
formed .'  In  that  event,  he  would  have  got  a  property  which  is 
worth  $2,500,  but  he  would  have  been  forced  to  pay  the  balance  of 
the  purchase  money  and.  interest.  He  has  not  paid  this  latter 
amount,  and  his  damage  is  the  difference  between  that  sum  and  the 
value  of  the  property ;  which.  Iiy  the  case  agreed,  is  $207.80.  with 
interest  fro)n  the  8th  of  ^lay.  184-1.  This  gives  the  plaintiff  his 
redress  at  law.  by  compensation  in  damages,  which  he  has  elected 
to  pursue  as  his  remedy.  He  had  the  right  to  file  a  l)ill  in  equity 
for  a  specific  performance,  and  the  decree  would  have  been  for  a 
conveyance  of  the  ])roperty.  upon  his  jiaying  tlie  balance  of  fhe 
purchase  money  with  interest.  He  would  not  have  been  entitled 
to  a  decree  for  the  amount  of  the  i)urchase  money  which  he  had 
paid,  and  there  is  no  principle  njion  which  he  can  recover  it.  in 
this  action  upon  the  bond. 

The  only  difference  between  his  lemedy  at  law  and  in  equity 
upon  the  contract  is.  that  in  the  one  court  he  gets  the  property  by 
l^aying  for  it ;  in  the  other,  he  gets  compensation  in  damages,  which 
is  the  difference  between  the  value  of  tlie  property  and  the  amount 
of  the  purchase  money  remaining  unpaid.  .  .  .  Judgment  re- 
versed. 

See  "Vendor  and  Purchaser,"  Century  Dig.  §§  1047-1058;  Decennial 
and  Am.  Dig.  Key  No.  Series  §  351. 


HOPKINS  V.  LEE,  6  Wheaton   ( T.  S.),  109,  117.     1821. 
Contract  to  S>eU  iMnd.     Remedy  of  Purchaser,  at  Law.    Daviages. 

fLee  brought  this  action  of  covenant  against  Hopkins,  to  recover  dam- 
ages for  not  conveying  certain  tracts  of  land  which  he  had  contracted 
to  convey  to  Lee.  Verdict  and  judgment  against  Hopkins,  who  carried 
fhe  case  to  the  supreme  court  by  writ  of  error.     Affirmed. 

Hopkins  failed  to  convey  the  lands  according  to  his  contract  and  in- 
sisted that  the  measure  of  damages  was  the  value  of  the  lands  as  fixed 
by  the  price  which  Lee  had  contracted  to  pay:  but  the  judge  directed  the 
jury  to  take  the  value  of  the  lands  at  the  time  they  should  have  been  con- 
veyed, by  the  terms  of  the  contract,  as  the  measure  of  damages.  Only 
rhat  portion  of  the  opinion  which  discusses  the  measure  of  damages  Is 
here  inserted. 1 

TiivrNfiSTox.  J.  .      Ill  t he  assessment  of  damages,  flic  coun- 

•<*']  for  file  f)hiintifT"  in  error  prayed  the  court  to  instruct  the  jury 
fhat  they  should  take  the  jiriee  ol"  llic  bind,  jis  agreed  ii|i(Mi  by  tlie 
parlies  in  tlir-  jn'tides  ol"  agreeineiit  upon  which  fhe  suit  was 
broiiglit.  for  their  <:()veriiiiien1 .  But  the  court  refused  jo  give  this 
insfruclioM.  and  dirr-cled  tlie  .iury  to  lake  the  price  fvalue]  of  the 
bnids.  at  the  lime  the\'  ought  to  ha\c  been  eoiiveved.  as  the  meas- 
ure (»f  d;images.  T«)  fjiis  instruction  the  plaiiififT  in  error  excepfed. 
The  rule  is  settled  in  Ibis  court,  that  in  an  acli<ui  by  tlie  vendee  for 
a  breach  of  contract,  on  fhe  part  of  I  he  vendor.  \\>v  not  delivering 
ReniPdiefl — 20. 


306  CONCERNINO    UKAL    KSTATK.  [('/(,    3. 

tlio  artii-K'.  llif  iiu-jisui-c  t)f  ilaiiiiigcs  is  ils  prici'  |v;iluc|  ;il  thi'  tinio 
of  till'  lirt'iii-li.  The  pi-ice  l)eiii^  si'ltli'd  by  llic  contfJU't,  which  is 
jroiuTally  the  case,  makes  no  dilVeroiice,  nui-  oiiylil  it  to  iiuike  any; 
otherwise  tlie  veiuloi-,  if  the  article  have  risen  in  value,  would  al- 
ways have  it  in  his  power  to  disehai'ijje  liinisell"  ironi  his  eontraet. 
anil  put  the  enhanced  value  in  his  own  pocket.  Xor  can  it  make 
any  ditVei'ence  in  jtrinciple  whether  the  eontraet  be  for  the  sale  of 
real  or  personal  pi-operty.  it'  the  lands,  as  is  the  ease  hei-e,  havi!  not 
been  improved  or  built  on.  In  both  cases  the  vendee  is  entitled  to 
have  the  thing  agreed  for  at  the  contract  |)rice,  and  to  sell  it  him- 
self at  its  increased  value.  If  it  be  withheld,  the  vendoi"  ought  to 
make  good  to  him  the  dilference.  This  is  not  an  action  foi-  eviction, 
nor  is  tlie  court  now  ]>rescribing  the  pi'ojx'r  rule  of  damages  in  sucli 
a  ease.    Judgment  al'tirmed. 

Tliat  there  is  no  difference  in  the  measure  of  damages  whether  the 
subject  matter  of  the  sale  be  realty  or  i)ersonalty,  according  to  the  i)re- 
vailing  lule  in  the  I'nited  States,  see  o  Sedg.  on  Dam.  (8th  ed.)  197; 
Ibid.  Students'  Ed.  321;  2  Sutherland  on  Dam.  sec.  578  et  seq.;  29  Am.  & 
Eng.  Enc.  Law,  619,  724.  See  "Vendor  and  Purchaser,"  Century  Dig. 
§§  1047-1058;    Decennial  and  Am.  Dig.  Key  No.  Series  §  351. 


LOVE  V.  CAMP,  41  N.  C.  209.     1849. 

Contract  to  Convey  Land.     Remedy  of  Purchaser,  in  Equity.     Specific 

Performance. 

I  Bill  for  specific  performance  of  a  contract  to  convey  land.  Answer, 
replication,  and  proofs.  Cause  transferred  to  supreme  court  for  trial. 
Decree  against  defendant. 

Camp  contracted  to  convey  the  locus  in  quo  to  the  plaintiff,  and  was 
paid  the  price  agreed  on.  The  land  increased  in  value  and  Camp  refused 
to  make  the  conveyance,  and  set  up  as  an  excuse  for  not  doing  so  and  as 
a  defense  a.gainst  a  decree  that  he  specifically  perform  his  contract,  the 
fact  that  he  had  only  a  share  in  the  land  and  was  unable  to  purchase 
the  other  shares  "after  reasonable  exertion"  so  to  do.l 

Pearsox,  J.  We  think  the  plaintiffs  are  entitled  to  a  specific 
performance  of  the  contract.  The  defandant  says  he  owns  one 
sixth  ])art  in  fee,  and  a  life  estate  in  another  sixth  part,  and  this 
he  is  willing  to  convey ;  but  he  says  he  does  not  own  the  other 
shares,  and,  "after  reasonable  exertion,  since  he  made  the  contract, 
has  been  unable  to  procure  the  title  of  the  other  tenants  in  common, 
who  are  unwilling  to  sell."  and  lie  is  therefore  unable  to  comply 
with  his  contract.  The  question  is.  under  these  circumstances,  will 
a  court  of  equity  decree  a  specific  performance,  or  decline  to  inter- 
fere and  leave  the  plaintiffs  to  their  remedy  at  law.  One.  who  for 
a  valuable  consideration  enters  into  an  agreement,  is  bound  in  con- 
.science  to  perform  it.  A  court  of  law  can  only  give  damages  for  a 
breach — this  remedy  is  in  many  cases  inadequate.  A  court  of 
equity  will  do  full  justice,  and.  addressing  itself  to  the  conscience 
of  the  party,  will  require  a  specific  performance  of  the  agreement. 
This  jurisdiction  forms  one  of  the  great  heads  of  efpiity.  and  in  the 


Sec.    20.]  CONCERNING    REAL    ESTATE.  307 

opiuioii  of  Lord  Hardwieke,  '"the  most  useful  one."  Peun  v.  Lord 
J^altiinore,  1  Ves.  446.  Nothing  should  prevent  the  exercise  of  this 
most  useful  and  well  established  jurisdiction,  but  the  strongest  and 
most  controlling  considerations.  If  a  husband  agrees  to  procure  his 
wife  to  join  with  him  in  a  conveyance  of  her  land,  and  the  wife  re- 
fuses to  do  so.  it  seems  by  the  modern  cases,  that  a  court  of  equity 
will  not  decree  a  specific  performance.  1  ]\Iadd.  ch.  311 ;  Sugden 
on  Vendors.  151.  There  are  cases  in  which  the  husband  has  l)een 
confined  to  the  Fleet,  luitil  his  wife  agreed  to  join  him  in  the  con- 
veyance; and  in  one  case,  the  husband,  after  being  confined  for 
many  years,  was  discharged,  it  appearing  that  his  wife  could  not 
be  induced  to  make  the  conveyance;  5  Ves.  548,  and  8  Ves.  848. 
These  cases  show,  with  what  reluctance  courts  of  equity  stand  by 
and  permit  a  party  to  deprive  another  of  the  benefit  of  his  con- 
tract. But  it  has  recently  been  held,  that  the  court  will  not  inter- 
fere, upon  two  considerations.  The  vendee  knew,  at  the  time  of  the 
contrtkct,  that  the  husband  did  not  own  the  land,  and  might  not  be 
able  to  perform  his  agreement :  he,  therefore,  has  no  right  to  com- 
plain, if  he  is  left  to  his  remedy  at  law,  upon  its  appearing  that, 
after  a  bona  fide  effort,  the  husband  is  not  able  to  procure  fhe 
wife's  consent.  And.  in  the  second  place,  because,  if  the  husband 
be  decreed  to  perform,  he  will  compel  the  wife,  who  is  under  his 
control,  to  convey;  and  the  wife  ought  not  to  be  exposed  to  Ibis 
compulsion  on  the  part  of  her  husl)and.  It  may  be.  but  upon  this 
we  give  no  ojnnion.  that  where  the  vendee  knows  that  the  vtMulor 
has  not  the  title,  and  takes  a  bond  or  covenant  that  a  third  person 
will  be  procured  to  make  a  conveyance,  equity  will  not  decree  a 
specific  performance,  if  it  appears  that  the  vendor  has  made  proper 
exertions  t<i  procure  the  conveyance  from  such  third  person  ;  be- 
cau.se  the  first  consideration  alaove  referred  to,  applies  with  full 
force.  As  if  a  father,  seized  as  tenant  by  the  curtesy  sell  in  fee 
simple,  and  covenants  that  he  will  procure  conveyances  from  his 
chihiren,  when  they  come  of  age.  If  they  refuse  after  proper  ef- 
forts on  the  pa  it  of  the  father,  equity  may  decline  to  decree  a  spe- 
cific performance  and  leave  the  vendee  to  his  remedy  at  law,  this 
being  a  state  of  things  which  he  might  have  expected  and  as  to 
whi(;h  he  took  the  chances.  This  result  would  setnn  to  follow  fi-om 
[he  reason  of  the  thing,  but  in  respect  to  that  we  give  no  opinion. 
\o  cfLse  makes  such  an  exception  to  the  general  jurisdicti(»ii  to  (h^- 
♦•rer-  specific  pcffni-iiiance.  and  it  is  only  adverted  to  for  the  pur- 
pose of  illustrating  the  next  pi'oposition,  ui)on  which  this  case 
turns.  Oliver  v.  Dix.  21  N.  C.  158.  If  the  vendee  docs  not  know 
tliat  the  vendoi-  has  not  the  title,  tlieri'  is  llicii  no  i-(^ason  why  be 
sliouhl  not  be  decreed  to  perform  his  agi'eeiiieiit  :  and  if  lie  is  put  to 
L'real  inconvenienc(!  and  expense  to  enable  him  to  obey  the  (leci'e(\ 
if  will  be  the  consequence  of  his  own  act.  and  he  will  not  b(>  al- 
lowed to  rifl'cr  such  an  excuse  for  not  doing  justice.  When  a  ven- 
dee seeks  to  re.scinrl  a  conlraef.  because  of  a  defect  in  the  title  in  the 
v<'ndor.  the  latter  is  allowed  time  to  complete  his  title,  until  the 
hearing.  C'lantr.n  v.  P.urtress.  17  N.  C.  I.'i.  .\s  a  defect  of  title  will 
not  excuse  a  Vendee,  providetl  it  e;ui  lie  )iiade  godd  ;  iipdU  groiuul  of 


ailS  CONH'KKNINC    KK.M.    KSTATK.  \(ll.    3. 

iiiuluality  it  sIkmiM  iidt  cxciisi'  ;i  vender      As  the  ncikIcc  r.-iimot  dis- 
fharfio  hiinsclt".  should  tlu'  hind  (h'|)n'fiiit('  in  v.ihic  sd  the  xciidor 
should  ii(»l  !)»'  jdlowcd  to  discliarf;!'  liiinsfU'.  if  the  Vidiic  is  t'lilianccd. 
In  this  case  it  dors  not  iippcar  that  the  plaintilT.  Litvc.  knew  that 
tlu' d('''"'idaiit  did  not  li:i\c  t  it  hv     Tlu'  i)ill  avers  that  the  dcl'i'iidaiiL 
tlid  have  title,  or  did  have  rull  authority  from  his  cotenants  to  sell. 
Tlio  (Ict'cndant  diMiics  that  lie  liad  title  to  tlie  whole,  and  in.sists  that 
the  plaint  ill'  had  notice  of  his  want  of  title  ;  hut  lie  offers  no  proof  of 
faet  and  his   covenant    is  to   convey   oi"  cause   to   he   conveyed    the 
wliole  in  fee.  and  he  admits  that  he  has  i-ecei\-ed  Hie  price  of  the 
whole.     .\s  to  the  .iverment  that  he  had  authority  fi-om  ills  coten- 
ants  to  sell,  the  defendant  is  entii'ely  silent,  leaving  the  inference 
that  he  either  had  such  authority,  or  was  f^uilty  of  a  fraud  in  I'e- 
eeivinu:  the  |)riee  of  the  whole.    Hut  if  it  he  conceded,  for  tlie  sake 
of  ar*:'ument.  that  this  court  will  not   mnke  a  decree,  re(|uiring  a 
party  to  do  that  which  it  is  clearly  out  of  his  power  to  do.  as  it  may 
amount  to  pei'i)etual  imprisonment,  there  is,  in  this  case,  ik)  suffi- 
cient alletration  and  no  ju-oof  whatever,  to  raise  the  question.    The 
defendant   avers  generally,   that   after  reasonable  exertion    (and 
what  iimounts  to  it.  he  chooses  to  decide  for  himself),  he  is  unable 
to  pi'ocure  his  cotenants  to  convey.     A  conscientious  man   woidd 
not  consider  this  a  suflii-ient  apology  for  the  breach  of  an  agreement 
creating  no  legal  obligation   [a  fortiori  it  is  no  excuse]  when  of- 
fered as  a  reason  why  ;i  court  of  justice  should  not  com])el  the  ))er- 
formance  of  a  legal  obligation.     It  is  mei'e  mockery.     The  defend- 
ant should  have  set  out  what  he  had  done — w^hat  price  he  had  of- 
fered to  pay — so  that  the  court  might  .judge  whether  his  exertions 
had  been  "reasonable."  es))ecially  as  the  averment  in  the  bill,  that 
the  value  of  the  laml  had  gi'catly  eidnniced  since  the  contract,  by 
the  locatioti   of   the   town   of   Shelby   on    adjoining   land,   creates 
against  him  the  strongest  suspicion,  and  impeaches  his  motives  by 
the  suggestion,  that  if  he  bas  title,  he  refuses  to  perform  his  agree- 
ment for  the  sake  of  gain — or  if  the  title  is  outstanding,  he  is  un- 
willing to  offer  his  cotenants  what  is.  now  a  fair  price.    A  man  of 
proper  feelings  w^ould  be  unwilling  to  avail  himself  of  the  gain,  and 
would  be  willing  to  submit  to  much  loss  rather'  than  violate  his  sol- 
enui  agreement.     A  court  of  equity  acts  upon  the  conscience,  and 
enforces  a  specific  performance,  and  will  require  this  unconscion- 
able gain  to  be  given  up.  or  this  loss  to  be  incurred,  if  it  I)e  neces- 
sary to  enable  him  to  do  that  which  he  luis  undertaken  to  do.  and 
for  which  he  lias  received  the  full  consid(  ration.     There  must  be  a 
decree  for  a  conveyance  to  the  plaintiff,  llomesby.  w'ho  is  the  as- 
signee of  the  other  plaintiff.  Love,  and  the  defendant  nnist  pay  the 
casts. 

For  s|)ecific  performanre  when  the  lanrl  lies  in  another  state  or  when 
the  defendant  is  a  nonresident,  see  23  L.  R.  A.  (N.  S.)  924,  1135,  and 
notes. 

The  ruling  in  the  principal  case  as  to  coercing  a  defendant  to  acquire 
a  title  in  order  to  perform  his  contract,  has  been  greatly  modified  by  later 
decisions — see  Swepson  v.  .Johnston.  84  X.  C.  449.  That  si)fcific  i)erform- 
ance  of  a  contract  to  buy  or  sell  real  estate  will  be  decreed  as  a  matter 
of  course  in  plain  cases,  but  only  in   the  di.scretion  of  the  court  when 


Sec.   20. \  CONCERNING    REAL   ESTATE.  309 

hardship  would  result  from  such  a  decree,  see  Rudisill  v.  Whiteuer,  14G 
X.  C.  4U3,  59  S.  E.  995,  15  L.  R.  A.  (X.  S. )  81,  and  note;  Boles  v.  Caudle, 
133  X.  C.  528,  45  S.  E.  835.  In  headnote  2  of  Weed  v.  Terry,  2  Doug. 
(Mich.)  344,  it  is  said:  "Equity  will  not  compel  the  specific  pertorm- 
ance,  by  a  husband,  of  his  agreement  to  procure  his  wife  to  join  him  in 
a  conveyance  of  real  estate."  In  Fortune  v.  Watkius,  94  N.  C.  at  bot. 
p.  315  is  this:  "A  recent  author,  referring  to  a  demand  of  the  vendee 
for  specific  performance  of  a  contract  to  convey  land,  uses  this  language: 
•If  the  vendee  knows  that  the  vendor  is  a  married  man,  he  knows  that 
his  wife  is  entitled  to  dower  and  that  she  cannot  be  compelled  to  release 
her  dower  right.  Entering  into  the  contiaet  with  such  knowledge,  he  is 
not  entitled,  within  the  doctrine  well  established,  to  ask  anything  more 
than  the  husband  can  give.  It  is  the  vendee's  knowledge,  and  not  any 
notion  of  making  a  new  contract  for  the  parties,  which  prevents  the  pur- 
chaser from  obtaining  compensation  |  for  a  defect  in  title  caused  by  the 
wife's  refusal  to  release  her  dower  right].  On  the  other  hand,  if  the 
vendee  entered  into  the  contract  in  ignorance  that  the  vendor  was  mar- 
ried, and  under  the  supposition  that  the  vendor  could  convey  an  unin- 
cumbered title,  then  he  ought  to  have  a  specific  performance  with  an 
abatement  from  the  price.'  Pomeroy  on  Spec.  Perf.  s.  4G1."  In  Rodman 
V.  Robinson,  134  X.  C.  at  top  p.  516.  47  S.  E.  23,  it  is  said:  "The  decree 
should  have  directed  the  defendant  to  make  reasonable  effort  to  get  his 
wife  to  sign  the  deed.  Swepson  v.  .lohnston.  84  X.  C.  449;  Welborn  v. 
Sechrist,  S8  X.  C.  at  p.  292." 

See  further  on  this  subject,  Ames'  Cases  on  Equity  Jurisdiction,  Parts 
I-VI,  p.  65,  note.  For  full  discussion  of  the  remedy  by  specific  perform- 
ance, see  Seymour  v.  Delancy,  3  Cowen  (X.  Y.),  439,  8  N.  Y.  Com.  Law 
Rep.  (Lawyers'  Ed.)  183,  and  note.  See  19  L.  R.  A.  (X.  S.)  178,  and 
note  (essentials  to  complaint):  6  lb.  585-597,  and  elaborate  note  (si)e- 
cific  performance  of  contract  to  give  a  mortgage  on  realty  or  chattels); 
12  lb.  232,  and  note  (contract  to  provide  for  intended  si)ouse);  2  lb.  210, 
and  note  (effect  of  agreement  for  stipulated  damages  upon  right  to  spe- 
cific performance).  See  "Specific  Performance,"  Century  Dig.  §  31;  De- 
cennial and  Am.  Dig.  Key  Xo.  Series,  §  13. 


.lOHXSTOX  V.  GLAXCY.  4  Blackford,  94,  98,  99.     1835. 
Oral  Cnntract  to  Convey.    Remedy  in  Equity.    Part  Performance.   Better- 
ments ptit  on  by  Vendee.    Price  Paid  by  Vendee. 

(Bill  to  compel  defendants  to  convey  a  lot  of  land,  filed  by  .lohnston 
et  a),  against  (Clancy.  Decree  against  plaintiff  dismissing  the  bill,  and 
plaintiff  apjiealpd.    Reversed. 

Johnston  was  in  possession  of  the  locus  in  quo  as  tenant  of  one  who 
was  seized  in  fee.  This  owner  orally  sold  the  land  to  .lohnston,  while  liP 
was  such  tenant,  for  forty  or  forty-five  dollars  paid  in  work-.  .Johnston 
put  br'ttorments  on  the  lot,  after  his  jjurchase,  worth  between  twenty-five 
and  eighty  dollars.  The  owner  conveyed  the  lot  to  the  defendants,  one  of 
whom  was  his  brother,  who  had  notice  of  Johnston's  claim  to  it.  The  de- 
fendants rested  their  defense  on  the  statute  of  frauds.  The  |)laiuliff  re- 
lied upon  the  doctrine  of  "port  performance"  to  defeat  the  plea  of  the 
ptatiitc  f)f  frauds,  and  as  ground  for  his  prayer  that  the  defendants  be 
derrpt'd  to  <f>nvpy  to  him.  "The  onlv  question  of  any  weight  in  the  case 
Is  whether,  under  all  the  facts  presented  by  the  record,  a  specific  execu- 
tion of  this  parol  contract  ])etweon  the  owner  in  fee  and  the  complainant. 
•  an  !)«'  cnforcnd  against  the  pica  of  the  statute  of  frauds  insisted  on  bv 
Ihp  defendants'"! 

Stkvknp.  J  rV»in-fs  fif  ('(inity  hnvo  flotortniiicd.  ;in(I   il 

si'cnis  now  tfi  ))(•  flic  sffflcfl  nilr  of  dccisinn.  flial   parol  iiLrrconicnts 
iriny  111' cjiforcf(l  if  flu- airfi-fiiifiil  lias  hci-ji  in  pait  pcrfoniic*!.  pro- 


310  CDXCKKM.NC    UKAL    KttTATE,  [C'A.    o. 

vided  siu'li  i>;ii-t  pci'ToniKiiuH'  he  iidiiiiitcd  by  llir  parly  chargi'd,  or 
be  satisfiK'torily  i)ri)vt'ii.  W'liat  ai-ls  aiiioiuit  to  sin-li  part  pert'onii- 
aiK-c  as  wiU  take  a  pai'i)l  coiitrat't  oiit  oL'  the  statute,  is  not  entirely 
elear  of  ik)id)l.  It  was  for  a  while  hekl,  that  ihv  payment  of  part 
or  all  ol'  tile  purehase-nioney  was  such  part  perloriuance ;  but  tliat 
doetrine  is  now  entirely  rejeeted.  i'aynient  in  whole  or  in  part  is 
a  stron<;  auxiliary  laet  in  establisliinj;-  pait  pei'l'onuauee,  but  it  is 
not  of  itseli'  sullieient.  Tlie  ground  upon  whieh  relief  is  granted  in 
these  eases  is  fraud;  and  the  great  leading  principle  by  whieh 
courts  are  governed,  is,  that  there  nuist  be  some  act  of  performance 
dime,  that  is  i)alpable  and  evident  to  the  senses  of  all, — an  act  that 
can  be  relied  on  as  certain,  about  which  there  can  be  no  misunder- 
standing, and  which  does  not  rest  solely  in  the  recollection,  under- 
standing, or  belief  of  witnesses,  such  as  absolute  and  visible  posses- 
sion of  the  premises,  the  actual  building  of  houses,  or  the  making  of 
other  lasting  improvements.  But  even  these  acts  of  part  perform- 
ance must  be  done  with  a  direct  view  of  the  agreement  being  per- 
formed, and  be  such  acts  as  could  be  done  with  no  other  view,  or 
the  agreenunit  will  not  l)e  taken  out  of  the  statute. 

If  the  purchaser  was  not  previt)usly  in  possession  of  the  premises, 
and  after  the  parol  purchase  he  enters  upon  the  estate  w'ith  the  as- 
sent of  the  vendor,  such  possession  is  ahvaj'-s  held  as  part  i)erform- 
ance,  and  takes  the  case  out  of  the  statute,  and  much  moi-e  so.  if 
after  he  enters  he  makes  Vfduabhi  and  lasting  improvements.  But 
the  taking  of  such  possession  without  the  knowledge,  consent,  or 
will  of  the  vendor,  will  not  do.  l^uteher  v.  Stapely,  1  Vernon, 
363;  Lacon  v.  Mertins,  3  Atk.  1  ;  AVills  v.  Stradling,  3  Ves.  Jun. 
378;  Bowere  v.  Cator.  4  Ves.  Jun.  91 ;  Gregory  v.  Mighell,  18  Ves. 
Jun.  328;  Kine  v.  Balfe.  2  Ball  &  Beat.  343;  Wilber  v.  Paine.  1 
Ohio,  251  ;  Wetmore  v.  White,  2  Caines'  Cas.  87;  Givens  v.  Calder. 
2  Des.  171.  ]!)0;  Sugden  on  Vend.  77-80;  Tibbs  v.  Barker.  1  Black  P. 
58;  Morphett  v.  Jones,  1  Swanst.  181;  liuckmaster  v.  llarrop.  13 
Ves.  Jun.  474.  But  possession  by  a  tenant,  who  was  in  possession 
of  the  premises  as  a  tenant  at  the  time  of  the  purchase,  and  who  re- 
mains in  ]iossession.  is  not  considered  a  i^art  performance;  for  a 
tenant,  of  course,  may  continue  in  possession  until  he  has  notice  to 
quit;  and  therefore  the  mere  act  of  his  continuing  in  possession 
amounts  to  nothing,  and  will  not  take  the  case  out  of  the  statute. 
Wills  V.  Stradling.  3  Ves.  Jvui.  378;  Savage  v.  Carroll.  1  Ball  & 
Beat.  265;  Anthony  v.  Leftwich.  3  Kand.  238;  2  ITovend.  on  P'r. 
3;  Sugd.  on  Vend.  80. 

In  this  ca.se,  the  complainant,  at  and  long  before  the  time  of 
making  the  purchase,  was  in  possession  of  the  lot  as  tenant  to  the 
vendor;  therefore,  his  continuance  in  pos.session  cannot  be  con- 
sidered as  a  part  performance  of  the  contract.  There  is  some  fluc- 
tuation in  the  decisions  on  this  subject,  and  some  contradiction  in 
the  hooks,  as  to  how  far  eoui'ts  of  erpiity  may  go  in  taking  parol 
contracts  out  of  the  statute;  and  some  cases  have  gone  fiu'ther  than 
the  principles  stated  above  would  warrant.  We.  however,  are  not 
disposed  to  carry  such  cases  heyond  the  clear  medium,  of  the  chain 
of  decisions,  wliich  mav  be  safely  relierl  on:  at  that  point  w^e  stop. 


Sec.   20.]  CONCERNING   RE.VL,   ESTATE.  311 

Tn  the  ease  now  before  us.  we  are  satistied  that  a  specific  execution 
of  the  contraet  should  not  be  decreed;  yet  we  think  that  the  circuit 
court  did  wrong  in  dismissing  comphiinant's  bill:  he  is  entitled  to 
relief,  and  justice  requires  us  to  grant  it  to  him  without  further  ex- 
pens;/  or  delay.  AVhen  the  specific  execution  of  a  parol  contract 
cannot  be  decreed,  by  rea.son  of  the  vendor's  pleading  the  statute 
of  frauds  in  bar  of  such  decree,  it  is  the  duty  of  the  court  to  decree 
compensation  to  the  complainant,  to  the  amount  of  the  purchase- 
money  by  him  paid  and  interest  thereon ;  and  also  for  all  beneficial 
and  lasting  improvements,  which  he  may  have  made  on  the  prem- 
ises. 2  Ilovend.  on  Fr.  4;  Sugd.  on  Vend.  78,  and  n. ;  Anthony  v. 
Leftwieh.  supra;  Parkhurst  v.  Cortlandt.  1  Johns.  Ch.  273;  King  v. 
Rardeau.  (i  Id.  38  -.  Kelly  v.  Bradford,  3  Bibb.  317 ;  Phillips  v. 
Thompson.  1  Johns.  Ch."l31  ;  Foi-ster  v.  Hale,  3  Ves.  713;  Green- 
away  V.  Adams.  12  Ves.  395.  In  this  case,  it  is  certain  that  the 
plaintiff  has  sustained  an  injury  by  the  acts  of  the  defendants,  and 
his  claims  are  suf^cient  to  authorize  the  interference  of  the  court 
in  securing  adequate  compensation. 

Per  Curiam.  The  decree  of  the  circuit  court  is  reversed  with 
costs;  and  it  is  ordered,  etc..  that  the  complainant  recover  of  Jo- 
sepli  Glancy.  one  of  the  defendants,  the  sum  of  ninety  dollars,  etc. ; 
and  that  tlie  complainant  ivtain  possession  of  tlie  premises  till  the 
.said  sum  of  ninety  dollars  and  the  costs  be  paid,  etc. 

For  a  full  review  of  the  doctrine  of  Part  Performance,  see  elaborate 
note  at  pp-  790-817  of  3  L.  R.  A.  (N.  S.);  3  lb.  852;  and  Ames'  Cases 
on  Equity  .lurisdiction.  Parts  I-VI,  pp.  279-281.  This  doctrine  is  repudi- 
ated in  North  Carolina.  Barnes  v.  Teague,  54  N.  C.  277;  Mcintosh  on 
Cont.  134.  See  "Frauds.  Statute  of,"  Century  Dig.  §§  301-326;  Decennial 
and  Am.  Dig.  Kev  No.  Series  §  137;  'Specifie  Performance,"  Century  Dig. 
§§  120-139,  417;  Decennial  and  Am.  Dig.  Key  No.  Series  §§  40-47,  128. 


ALBEA  V.  GRIFFIN,  22  N.  C  9.     1838. 
Oral    Contract    to    Convey.     Remedy   of   Purchaser.     Betterments.     Pur- 
chase Money. 

[Bill  for  sixT-ifir-  lierformanre.  Statute  of  frauds  pleaded.  Decree  in 
supreme  court  for  certain  relief  against  defendant,  but  siiecific  perform- 
ance is  refused. 

Thp  defendant's  ancestor  contracted  orally  to  convey  the  locus  in  quo 
to  the  phiintiff;  collected  i)art  of  the  price,  and  put  plaintiff  in  posses- 
sion. Thp  i)laintiff  built  a  house  on  the  land.  Defendants,  to  whom  the 
land  descended,  refused  to  carry  out  the  oral  contract  of  their  ancestor.] 

O.VSTON.  J.  It  is  objeclcd  on  tlie  part  of  the  defendants,  that  by 
uiiract  of  iHlf)  ;ill  parol  contracts  to  convey  land  are  void,  and  that 
no  y)ar1  pcrfoniKUK-c  c;iii.  in  this  state,  take  a  parol  <-ontract  out  of 
tlie  operation  <.r  Miat  statute.  AV.>  ;i(liiiit  tiis  (ibjcc1i..ii  to  be  well 
fouTHled.  ;ind  we  bcild.  as  a  consef|uence  from  it.  that  the  conlrnct 
i»eiiiir  void,  not  rmly  its  spe.'ifie  perform;ince  cannot  be  enforced, 
but  that  no  action  will  lie  in  law  or  erjuity  for  damages  because  of 
non-performance.     But  we  are  nevertheless  of  the  opinion  tliat  the 


;;iLl  CUNCKKN'ING    UKAL    KSTATK.  I  (  7( . 


.1. 


plnintilT  lias  ;iii  iMjiiity  which  L'litillos  him  to  relief,  and  that  parol 
I'videnee  is  adiiiissihle  Tor  the  purpose  ol"  siiuwiiiji  that  e»|uity.  The 
plaintitVs  lai»or  and  money  have  been  expended  on  improving 
property  whirh  the  aneestor  of  the  defendants  encouraged  him  to 
expect  shouUl  hccomi-  his  own.  and.  by  the  a<'t  of  (»od  or  by  the 
eai>riee  of  tlu*  defendants,  this  expectation  lias  been  frustrated. 
The  eoiisequenee  is  a  loss  to  him  ami  a  gain  to  them.  It  is  against 
eonseienee  that  they  should  be  ciii-iched  by  gains  thus  acquired  to 
his  injury,  liakri'  \,  Caison.  21  N.  ('.  ;>81.  If  they  rei)udiat(^  the 
contract,  whii-h  they  have  a  right  to  do,  they  nuist  not  take  the 
improved  i)roperty  from  the  plaintiff  without  compensation  for 
the  additional  value  which  these  im{)rovements  have  conferred 
upon  the  propei'ty. 

Tlie  court  thei'cfore  tlirects  that  it  be  i-efcn'ed  to  the  clerk  of 
this  court,  to  intpiire  and  report  what  is  the  additional  value  con- 
ferred on  the  land  in  (luestion  by  the  im])rovements  of  the  plain- 
tiff", and  that  he  stiite  ;ui  account  between  the  parties,  charging  the 
plaintirt'  with  a  fair  rent  since  the  death  of  Andrew  (jlrillin,  and 
crediting  him  with  what  has  been  advanced  towards  payment  for 
said  land  and  with  the  .iniount  of  the  additional  value  so  conferred 
upon  it. 

"It  was  also  contended  for  tlie  defendant  that  the  right  to  have  pay  for 
improvements  only  exists  while  the  bargainee  is  in  possession,  and  Albea 
V.  Griffin  and  Pass  v.  Brooks,  125  N.  C.  129,  34  S.  E.  228,  were  cited  as 
authority  for  this  position.  But  neither  of  these  cases,  nor  any  other 
case  that  has  been  called  to  our  attention,  supports  this  contention.  In 
these  cases  and  other  like  cases,  the  bargainee  being  in  possession,  the 
court  said  that  such  bargainee  should  not  be  turned  out  until  the  bar- 
gainor paid  for  the  improvements.  This  was  only  a  means  resorted  to  by 
the  court  to  enforce  the  bargainee's  recovery,  and  not  as  the  ground  of 
plaintiff's  equity,  which  was  made  distinctly  to  rest  upon  the  fraud  of 
the  bargainor;  and  it  would  be  just  as  fraudulent  and  unconscionable  for 
the  bargainor  to  take  profit  by  means  of  such  fraud,  if  the  bargainee  was 
out  of  possession,  as  if  he  was  still  in  possession.  It  is  the  fraud  that 
gives  the  right  of  action,  and  not  the  i)ossessio7i.  But  the  cases  of  Tucker 
V.  Markland,  101  X.  C.  422,  8  S.  E.  169;  Pitt  v.  Moore,  99  N.  C.  85,  5  S. 
E.  389;  Thomas  v.  Kyles,  54  N.  C.  302,  and  other  cases,  seem  to  settle 
the  contention  against  the  defendant.  Tt  is  true  that  it  is  said  in  Pass 
v.  Brooks  that  the  contract  is  admitted,  and,  defendants  being  in  posses- 
sion, the  case  of  Albea  v.  Griffin  was  followed  as  to  the  judgment;  and 
the  statement  that  the  contract  was  admitted  is  only  a  statement  of  the 
facts  of  the  case.  Theie  is  nothing  in  the  case  of  Pass  v.  Brooks  that 
conflicts  with  wiiat  is  said  in  this  opinion.  The  doctrines  announced  in 
this  case,  or  many  of  them,  are  held  in  the  recent  case  of  North  v.  Bunn, 
122  N.  C.  766,  29  S.  E.  776,  in  which  case  it  is  held  that  the  bargainee 
was  entitled  to  an  account,  and  that  if  anything  should  be  found  in  her 
favor,  it  should  be  a  lien  on  the  land.  "  Teuton  v.  Badham,  127  N.  C.  96, 
103,  37  S.  E.  143.  See  further  on  the  subject  of  the  i)rincipal  case,  Wilkie 
V.  Womble,  9(»  X.  C.  254;  Ford  v.  Stroud,  150  X.  C.  3G2,  64  S.  E.  1;  Mc- 
intosh on  Cont.  111-114,  128-135.  See  Doty  v.  Doty,  SO  S.  W.  803.  2  L. 
R.  A.  fX.  S.I  713.  and  note.  See  "Frauds,  Statute  of."  Century  Dig.  § 
333;  Decennial  and  Am.  Dig.  Key  Xo.  Series  5i  138. 


Sec.   20.]  CONCERNING    RE.VL    ESTATE.  313 


WILSON  V.  BRUMFIELD,  8  Blackford,  14G.     1846. 
Contract  to  Convey.    Specific  Performance  with  Compensation  for  Defects. 

Per  Curiam.  A  i)urehaser  of  real  estate  eanuot  be  eoinpelled  to 
take  only  a  part  of  the  land  for  \vhieh  he  has  eontraeted.  If  he 
cannot  get  the  whole,  he  has  a  right  to  rescind  the  contract;  but 
he  has  also  a  right,  generally,  to  insist  that  the  vendor  shall  per- 
form the  contract  so  far  as  he  is  able,  and  make  compensation  in 
damages  for  the  breach  of  that  part  of  it  which  he  cannot  per- 
form. 2  Story's  Fa[.  §  779 ;  Paton  v.  Rogers,  1  Ves.  .fc  H.  351 ;  Todd 
V.  Gee.  17  Ves.  273;  Waters  v.  Travis,  9  Johns,  l.")*)-.  1  Sugd.  Vend. 
319. 

See  •Vendor  and  Purchaser,"  Century  Dig.  §§  201,  329;  Decennial  and 
.\m.  Dig.  Key  No.  Series  §§  113,  165. 


SHAW  V.  VlxXCENT,  64  X.  C.  690,  693,  694.     1870. 
Right  to  Rescind  and  Recover  in  Assumpsit.    Compensation  for  Defects. 

f  Assumpsit  for  money  had  and  received.  Judgment  against  defendant 
for  one  hundred  dollars,  but  plaintiff  being  dissatisfied  with  the  amount 
of  the  verdict,  appealed.  The  action  was  commenced  before  the  Code 
I)ractlce  was  adopted  and  was  an  action  of  assumpsit. 

Vincent  contracted  to  sell  certain  lands  to  Shaw.  Shaw  paid  part  of 
the  price,  but,  upon  the  ground  that  Vincent  had  no  title  to  part  of  the 
locus  in  quo,  he  notified  Vincent  that  he  abandoned  the  contract  and  de- 
manded repayment  of  the  two  hundred  dollars  paid  thereon.  He  then 
brought  this  action  for  that  sum  and  for  other  relief.  The  question  pre- 
sented is:  Did  Shaw  have  a  right  to  rescind  the  contract  and  recover 
what  he  had  paid  on  it,  simply  because  the  title  to  part  of  the  land  was 
defective.! 

RoDM.vx.  J.  .  .  .  Tile  plaintiff'  rests  his  case  principally  on 
the  first  cotint  whii-h  is  founded  on  the  idea  lli.il  as  soon  as  he  dis- 
covered that  the  flefeiidanls  were  unable  to  make  him  a  title,  hi' 
had  a  right  to  rescind  the  contract,  and  recover  the  money  ho  had 
paid  undei-  a  jiiistake. 

There  is  also  another  objection  |to  i)laititifF's  claim  of  a  right  to 
rescind  the  contract].  In  Franklin  v.  :\Iill('i-.  -1  A.  cV:  E.  .')!><►  (31 
K.  ('.  L.).  Littledale.  J.,  said:  "It  is  a  clearly  recogni/ed  princii^li- 
that  if  there  is  only  a  partial  failure  of  pei-fcu-mance  by  one  jiarty 
to  a  contract  for  which  there  may  be  a  compensation  in  damages, 
the  cf)ntract  is  iK)t  put  an  end  to. "  Tn  this  case  the  dcrcndanls  did 
own  an  undivided  part  (»f  tlie  lands  conlracted  to  l)c  sold;  and  the 
inability  to  perform  is  otdy  partial.  Tlic  docli-im^  of  a  court  of 
ecinity  is.  that  where  llie  vendor  can  convey  only  an  itisignificant 
and  immaterial  part  of  what  is  bargained  for.  it  will  not  eomy^'l  .i 
Vendee  to  take  that,  even  at  a  corresponding  rednetion  of  the  price: 
tint  if  he  can  substantially  perfoi-m  biseonlrael.  and  the  pai't  as  t.i 
which  he  eannrtf  perform  is  of  siieli  a  eluir.ieti'r  as  lo  .idmit  of 
eonipensatioii  beinL'  made  to  the  vendee  for  ihe  failure,  there  the 
eoiii'f  will  enforce  the  specific  performance  nf  Ibr  cdnlract  so  mod- 


314  coNci'JKMNci   ki:ai,  i;!stati;.  [C/i.  :i. 

iHod.     lint  this  is  an  ('(|iiity  wliii'li  cnnnot  Ite  applirtl  in  a  couii  nl' 
law.  N'cnirc  lU'  mono. 

For  :i  lull  ilisi-iissioii  of  the  ikHtrine  annoumed  in  the  principal  case 
see  Sutton  v.  Davis,  \U  X.  C.  474,  of)  S.  E.  S44.  See  "Speiine  Perform- 
anee,"  Century  Dig.  §  IT)!);  Decennial  and  Am.  Dig.  Key  No.  Series  §  94; 
"Vendor  and  Purchaser,"  Century  Dig.  §§  199-201,  900-972;  Decennial 
an.l  Am.  Dig.  Key  No.  Series  §§  112,  113,  334. 


THOMPSON  V.  DEANS,  59  N.  C.  22.     1860. 
Specific  Performance  of  Auard  of  Arbitrators. 

I  Bill  in  equity  to  enforce  specific  performance  of  the  award  of  arbitra- 
tors relative  to  a  controversy  affecting  the  title  to  real  estate.  Cause 
heard  in  the  supreme  court  ui)on  hill,  answer,  and  i)roofs.  Specific  i)er- 
formance  was  decreed. 

Plaintiff  and  defendant  owned  adjoining  lands.  A  dispute  arose  as 
to  the  dividing  line,  which  was  submitted  to  arbitrators  by  a  written  sub- 
mission, and  the  i)arties  gave  bond  to  each  other  to  abide  the  award.  The 
award  was  duly  made.  Plaintiff  offered  to  make  a  deed  for  such  part  of 
the  land  in  his  i)ossession  as  the  award  gave  to  the  defendant,  and  de- 
manded that  the  defendant  do  the  like.  Upon  defendant's  refusal  so  to  do 
the  plaintilT  brings  this  bill.] 

Manly.  J.  The  bill  is  to  enforce  an  auaid  hy  conipelling  a  spe- 
cific execution.  The  submission  appears  to  be  by  agreement  in 
pais,  and  by  reference  to  it.  it  is  found  the  arbitrators  are  author- 
ized to  make  lines  and  settle  the  di.spnte  then  existing  between  the 
parties  in  i\'gard  to  their  dividing  lines;  and  they  l)ind  tliemselves 
to  abide  by  such  lines  as  sliall  be  made  and  laid  down  by  such  ref- 
erees, and  to  allow  each  other  peaceably  to  enjoy  the  same  as  al- 
lotted. The  referees  laid  down  a  line  of  division,  and  the  parties 
thereupon  adjusted  their  respective  possessions  in  conformity  with 
the  same.  After  two  or  three  years  acquiescence  by  all  concerned, 
the  defendant.  Deans,  took  pos,session  again  of  a  parcel  of  land 
which  he  had  abandoned  under  the  award,  and  this  bill  is  brought 
to  compel  him  to  abide  by  the  lines  established,  and  to  allow  each 
peaceably  to  enjoy  the  part  allotted  to  him. 

We  do  not  perceive  \vhy  this  object  may  not  be  accomplished  by 
the  bill.  By  the  submission,  the  parties  contracted  to  do  what  the 
arbitrators  miglit  direct.  When  the  latter,  therefore,  made  their 
decision,  the  submission  and  award,  together,  amounted  to  an 
agreement;  and  as  this  agreement  is  plainly  executory  in  its  na- 
ture, it  is.  in  substance,  the  ease  of  an  executory  agreement  under 
a  penalty.  The  enforeeiiicnl  of  such  an  agreement  specifically  is  a 
familiar  subject  of  eqiiily  jnri.sdiction.  In  Russell  on  Arbitrators. 
525.  it  is  said,  a  bill  will  lie  to  enforce  a  specific  performance  of  an 
award  whenever  the  matter  directed  by  it  is  such  that  it  would  be 
enforced  by  the  court  as  an  agreement  or  contract — especially 
when  the  award  be  to  do  anything  in  respect  to  lands.  This  is 
confirmatory  of  our  view.     .     .     .     Decree  made. 

See  "Specific  Performance,"  Century  Dig.   §  21.5;    Decennial  and  Am 
Dig.  Key  No.  Series  §  81. 


.S'(f.    ^0.]  CONCERNING    REAL    ESTATE.  315 


PARSELL  V.  STRYKER,  41  X.  Y.  480.     1869. 
Specific  Performance  of  Contract  to  Devise. 

[Bill   for  specific  performance  of  an  agreement  to  devise  real  estate 
Decree  against  defendant,  and  he  appealed.    Affirmed. 

David  Parsell  contracted  to  devise  the  locus  in  quo  to  the  plaintiff^ 
David  C.  Parsell.  The  contract  was  based  upon  a  valuable  consideration. 
David  Parsell  conveyed  the  land  to  the  defendant  for  a  valuable  consider- 
ation, but  defendant  took  with  notice  of  the  former  contract  to  devise  the 
land  to  the  plaintiff.] 

James.  J.  .  .  .  As  to  plaintiff's  equities,  it  made  no  differ- 
ence whether  the  agreement  Avas  to  deed  the  farm  at  a  future  day, 
on  performance  by  plaintiff,  or  to  devise  the  farm  by  a  will  made  in 
the  lifetime  of  the  party,  a  court  of  equity  will  decree  the  specific 
performance  of  the  latter  agreement  after  death,  where  otherwise 
unobjectionable,  equally  with  a  contract  to  convey  while  living. 

This  question  was  fully  considered  and  properly  decided  in 
Johnson  v.  IIuV)bell.  10  N.  J.  Eq.  ;^:}2.  On  this  branch  of  the  case 
Chancellor  AVilliamson  said:  "There  can  be  no  doubt  but  that  a 
person  nmy  make  a  valid  agreement,  binding  himself  legally  to 
make  a  particular  disposition  of  his  i)roperty  by  last  will  and  tes- 
tament. The  law  permits  a  man  to  dispose  of  his  own  property  at 
his  pleasure:  and  no  good  reason  can  be  assigned  why  he  may  not 
make  a  legal  agreement  to  dispose  of  his  property  to  a  particular 
individual,  or  for  a  particular  purpose,  as  Avell  by  will  as  by  con- 
veyance, to  be  made  at  some  specified  future  time,  or  u]ion  the 
hapi)ening  of  some  future  event.  It  may  be  imwise  for  a  man  to 
•Miibarrass  himself  as  to  the  final  disposition  of  his  property,  but 
he  is  the  disposer  by  law  of  liis  own  fortune,  and  the  sole  and  best 
judge  as  to  the  manner  and  time  of  disi)Osing  of  it.  A  court  of 
<*(|uity  will  decree  the  specific  i)erfoi"iiiaiice  of  such  an  agreement. 
upon  the  recognized  principles  by  which  it  is  governed  in  the  ex- 
ercise of  this  branch  of  its  jiirisdiction."  Rivere  v.  Rivere.  3  Des- 
sau. 105;  J(mes  V.  :\Iartin.  3  Ambler.  882:  19  Yes.  fifi :  3  Yes.  412; 
I'odmore  v.  Gurnsey.  7  Simons.  G4-i-()54.  The  validity  of  an  agree- 
ment to  devise  land  by  will  was  recognized  by  this  court  in  Steph- 
ens v.  Reynolds.  (\  X.  Y.  458.     .     .     .     Judgment  affii-iiMMl. 

The  case  in  10  N.  .1.  Eq.,  cited  in  the  principal  case,  discusses  the  ques- 
tion fully  ;ind  cites  a  ereat  number  of  authorities  which  fully  sustain  the 
ruling  In  the  principal  case.  See  to  same  effect,  2C,  Am.  &  Kna.  En<-. 
Law,  91:  East  v.  Dollhite,  72  X.  C.  r>r,2:  Price  v.  Price,  133  N.  C.  hot.  p. 
r.ns,  45  S.  E.  8".',.  See  "Specific  Performance."  Century  Dip.  §§  22:'..  224, 
Decennial  and  Am.  Dig.  Key  No.  Series  §  80. 


ALLEX  V.  TAYLOR,  9f.  X.  C.  37.  1   S.  E.  402.     1887. 
Cftntrnrt  to  Convey  Rcftlti/.     Cumiilntirr  Remedies  of  Vendor. 

[Action  of  fjpf  tnu'nt  bv  vendor  against  vendee.  .Tudgnu-nt  against  de- 
fendanf,  and  he  apnpalcd.     AfTlrmcd. 

Plaintiff  contracted  in  writing  to  convey  the  lo  us  in  quo  ti  tlu>  defend- 
ant,  who,   in    turn,   contracted    to   i)av   the   i)rice   a^ree(l   nn       neferirlMnt 


;{!()  cDNCiiUNiNd   k'i;ai,   kstatk.  [Ch.  o. 

failed  to  nuM't  his  itaynionts.  IMaiiitilT  c:avi>  him  six  niontlis'  notice  to 
vacate  the  [)remises,  and  at  the  expiration  of  that  time  sued  liim  for  the 
possession.  The  statutes  of  Nortli  Carolina  require  the  defendant  to  file 
a  bond  to  secure  the  rents  and  luolits,  etc.,  to  the  plainiiff,  as  a  condition 
precedent  to  lieiUi;  allowed  to  defend  an  action  of  ejectment  (provision 
being  made  for  defending  in  forma  i)aui)eris).  The  defendant  having 
failed  to  comply  with  this  statute,  there  was  a  jucigment  aMain.sl  liiiii  h  i- 
want  of  an  answer.! 

Merkimo.n.  J.  The  plaint  ill'  a  Ilexes,  in  suhslam-c,  lliat  she  con 
traeted  to  sell  td  the  do  feud  ant  tlie  tract  of  land  dcscrihcd  in  llir 
coniplaiiil  :  that  she  cxocntod  to  liiiii  licf  hond  for  title  thereto,  con- 
ditioned tliat  it  should  l)o  made  1o  him  when  and  as  soon  as  he 
shoidd  pay  sundry  in-oinissoi-y  notes,  runninii'  to  maturity  at  dil- 
forent  times,  given  li\  him  to  her  For  the  i)urehase  money  thereof; 
that  the  defendant  failed  to  pay  these  notes  as  tliey  matured,  and 
has  oidy  paid  a  small  ])art  of  the  money  dne  npon  them;  that  the 
defendant  is  and  has  l)een  in  possession  of  the  land  ever  since  the 
contract  of  purchase  was  made;  that  he  is  utterly  insolvent;  thai 
the  plaintitf  gave  him  more  than  six  months'  notice  to  (ptit  the 
]iossession  tliereof.  and  to  snrrender  the  same  to  her.  which  he  re- 
fused to  do.  This  action  is  l)roiight  to  recover  such  possession.  At 
the  appearance  term  the  plaintitf  tiled  her  complaint,  and,  this 
being  an  action  to  recover  the  possession  of  land,  she  insisted  that 
the  defendant  should  not  he  allowed  to  answer  the  same  until  he 
should  give  a  proper  undertaking  as  re<|uired  by  the  statute 
(Code,  §  237)  in  such  cases.  This  he  refused  to  do,  contending  that 
the  statute  does  not  apply  to  and  embrace  cases  like  this.  The 
court  held  otherwise;  and.  the  defendant  having  failed  to  give  the 
undertaking,  it  gave  judgment  for  the  ])laintifr.  from  which  the 
defendant  appealed  to  this  court.  Tt  is  well  settled  that  the  pur- 
chaser of  land,  when  let  into  possession  under  the  contract  of  pur- 
chase, is  sim])ly  an  occtipant  of  it  at  the  will  of  the  vendor,  and 
he  so  continues  imtil  the  purchase  money  shall  be  paid.  The 
vendor  may  at  any  time  put  an  end  to  such  occupancy  by  demand- 
ing possession  after  reasonable  notice  to  quit;  and.  if  it  be  not  sur- 
i-etidered.  then  he  may  at  once  bring  and  maintain  an  action  to  re- 
cover the  possession.  The  occupancy  is  by  permission,  and  there- 
fore lawful,  and  hence  the  occupant  is  entitled  to  reasonable  notice 
to  quit.  It  has  been  held  in  one  ease  that  three  weeks  is  sufflcient 
notice.  This,  however,  mav  depend  on  the  circumstances.  Carson 
V.  Baker.  15  X.  C.  220;  Love  v.  Edmonston,  2:^  X.  C.  153;  Butner 
v.  Chatifin.  61  X.  C.  V.)7.  .  .  .  The  vendor  has  two  remedies 
that  he  may  adopt  to  collect  his  debt, — one  in  personam,  to  compel 
the  vendee  to  pay  it.  the  other  in  yrm,  to  subject  the  land  to  its 
payment. — and  he  may  ])rosecute  both  these  remedies  at  the  same 
time,  and  in  the  meantime  he  is  entitled  to  have  possession,  and 
can  maintain  an  action  to  recover  the  same  under  the  present 
method  of  civil  |)rocedure.  just  as  he  mitrht  have  done  under  that 
formerly  prevailing.  We  cannot  conceive  of  any  just  reason  why 
this  may  not  be  so.  and  this  court  has  repeatedly  declared  that  it 
may  be  done.  Jones  v.  Boyd.  80  X.  C.  258 ;  Thompson  v.  Justice. 
88  N.  C.  2fin.     As  between  the  vendee  and  vendor,  the  latter  is  on 


Sec.    20.]  CONCERXIXG    REAL    ES^TATE.  317 

the  footiiip:  of  a  mortgagee,  and  a  mortgagee  may  maintaiu  an  ac- 
tion, now  as  formerly,  against  the  mortgagor  for  the  possession  of 
the  hind  mortgaged.  Ellis  v.  IIussv.  ij6  N.  C.  .lOl  ;  Green  v.  Wil- 
bar.  72  X.  C.  592;  Hemphill  v.  Ross.  (i6  X.  C.  477. 

The  plaintitt'  states  such  a  cause  of  action  as  obviously  entitles 
her  to  the  po.ssession  of  the  land  described  in  the  complaint,  in  the 
absence  of  an  answer  and  any  defense  pleaded.  She  is  entitled  to 
the  judgment  granted  by  the  court  l)elow.  as  the  defendant  failed 
to  answer.  There  is  not  the  slightest  reason  why  he  could  not  be 
required  to  give  the  undertaking  before  being  allowed  to  answer 
as  required  by  the  statute.  Code.  >;  2:^7.  He  comes  within  its  let- 
ter and  spirit.  Such  undei'taking  is  intended  to  secure  such  costs 
and  damages  as  the  plaintift'  may  recover  in  the  action,  including 
damages  for  the  rents  and  profits.  Xothing  to  the  contrary  ap- 
pearing, the  plaintiff  was  entitled  to  recover  costs  and  damages. 
The  complaint  contains  unnecessary  and  redundant  matter,  but 
nothing  appears  that  hinders  the  plaintiff's  recovery.  The  judg- 
ment nuist  be  atifinned. 

See  Credle  v.  Avers,  126  N.  C.  11,  35  S.  E.  128,  inserted  at  sec.  18,  ante. 
See  "Costs,"  Century  Dig.  §  422;  Decennial  and  Am.  Dig.  Key  No.  Series 
§  107;  "Vendor  and  Purchaser,"  Century  Dig.  §§  837-842;  Decennial  and 
Am.  Dig.  Key  No.  Series  §  299. 


BRAME  V.  SWAIX,  111   N.  C.  540,  15  S.  E.  938.     1892. 
Contract  to  Convey  Realty.     Cumulative  Remedies  of  Vendor. 

[Action  for  the  price  of  realty  and  specific  performance  of  the  contract 
of  purchase.  Judgment  against  the  ])iaintiff  dismissing  the  action,  and 
he  ajjpealed.  Affirmed  as  to  refusing  specific  ijerlormance,  and  reversed 
as  to  refusing  judgment  for  the  debt. 

Biame  contracted  to  convpy  land  to  Swain,  and  Swain  contracted  to 
pay  the  price  in  four  installments.  This  action  was  commenced  after 
two  installments  were  ijast  due  but  before  the  other  two  were  due.  The 
lilaintiff  demanded  judgment  (1)  in  personam  for  all  the  installments; 
and  (2)  that  the  land  be  sold  for  the  satisfaction  of  his  claim.  The 
judge  denied  any  relief  to  the  plaintiff.l 

SinopnERD.  J.  Wlicic  a  colli  ract  is  made  i'di-  tlic  sale  dI"  land, 
the  purchase  money  to  lie  paid  in  atimial  iiislallments.  and  llie 
vendee  is  let  into  possession,  the  vendor  caniiol  tiiaintaiii  an  ac- 
tion for  specific  performance  until  the  last  payment  is  due.  Tlf 
relation  between  such  |)ai-ties  is  substantially  that  subsisting  be- 
tween jiutrtirayec  jmd  mortgagor,  aiul  governed  by  tbc  same  gen- 
eral rules  (Jones  V.  lioyd.  Si)  X.  ('.  2r)S)  ;  ;ind.  in  tlie  absence  of  a, 
'■t  i|»ulation  to  that  eireel.  a  mortgage  eainiot  be  foi'oclosed  luitil  the 
iiiafiirity  of  all  of  the  nr»tes  wirn-h  it  is  given  to  secure  fITarshaw 
V.  .\b-Kessoii.  (K;  \.  ('.  2(\(\).  These  authorities  fidly  sustain  his 
h<»rior  in  deeliniuLr  to  decree  a  sale  of  any  ])art  of  the  land.  W(' 
think,  however,  there  was  error  in  refusing  th<'  plaintifTs  a  per- 
sonal Judgment  on  the  notes  actually  due  at  the  eonunenecment  oF 
tbc  action      Tlitre  is  nothing  in  the  eonlrael   of  sale  wliieji  eitlier 


318  t(i\ci:i;\i.V(;   ki:ai,   i:st.\'1"k.  \('li. 


o. 


t'.\prt»ssly  ov  hy  iiiiplicil  imi  ;iiii(Uiiils  lo  ;iii  ;i<ii'('ciiH'iil  to  suspend 
tlu'  poi'soiKil  rtiiu'tly  ;  .iiitl  in  I  I;irsli;i\\  "s  Cjtsc.  siipi-ii,  in  which  <i 
I'orerlosun'  \v;i.s  denied,  the  eiuirt  explicit  1\'  (h'chii'cd  that  "thii 
plaintitVs,  il"  they  hatl  seen  pioper.  nii^lit  have  proceech-d  in  an 
action  at  hiw  to  reeover  the  installnienls  as  lliey  hecaine  due.  hut 
lliey  eonld  not  ha\e  a  rorcehisuic  untd  the  ihiy  of  rodeniption  was 
l.assed."  See.  also.  .Mien  v.  Taylor.  !)G  N.  C.  lil .  1  S.  K.  Hep.  462. 
The  principle  stated  in  llaishaw  v.  McKesson,  Gf)  N.  C  (iSH,  that 
where  a  niortira^'e  is  executed  to  secure  a  note  previously  given, 
theiv  is  an  implied  proini.se  to  suspend  tlie  personal  remedy,  has 
no  application  to  the  facts  of  this  case.     Modiiied. 

See  Harshaw  v.  .McKesson,  liG  X.  C.  266,  inserted  at  ch.  3,  sec.  18,  ante. 
If  the  vendor  in  a  contract  to  convey  realty  die,  an  action  against  the 
vendee  for  specific  performance  must  be  brought  by  both  his  real  and 
Iiersonal  represeiUatives.  |  But  an  action  in  personam  for  the  debt 
merely,  may  he  brought  by  the  i)ersonal  representative  alone.  1  Grubb  v. 
Lookabill,  Kio  .\.  C.  267,  6  S.  E.  :J9t».  If  the  vendee  in  such  contract  die, 
the  vendor  may  proceed  against  the  personal  representative  of  the  vendee, 
but  he  is  not  obliged  to  resort  to  that  remedy,  for  he  may  proceed  against 
both  the  real  and  i)ersonal  rei)resentatives  to  have  the  land  sold  for  the 
^atisIaction  of  his  chiim.     Harper  v.  M(Combs,  109  X.  C.  714,  14  S.  E.  41. 

In  an  action  foi'  specific  performance  of  a  contract,  the  plaintiff  must 
allege  and  prove  that  he  has  performed  his  part  of  the  contract,  or  his 
ability  and  readiness  to  do  so.  Wilson  v.  Lineberger,  92  N.  C.  at  mid. 
p.  551,  citing  several  authorities.  See  "Vendor  and  Purchaser,"  Century 
Dig.  §  847;  Decennial  and  Am.  Dig.  Key  No,  Series  §  302. 


Sec.  21.    AVkit  of  Assistance, 
kxight  v.  holghtalling,  94  n.  c.  408.    1886. 

Remedy  of  Purchaser  at  Jndicial  Sale  to  Obtain  Possession. 

I  Petition  in  the  cause  by  Winston  and  Hargrove,  purchasers,  for  a 
writ  of  assistance.  The  petition  was  filed  in  the  supreme  court,  the  sale 
having  been  niade  by  a  commissioner  appointed  by  that  court.  Writ  of 
assistance  ordered. 

The  supreme  court,  by  a  jiulgment  in  this  case,  ordered  certain  lands 
to  be  sold  by  a  commissioner  appointed  by  the  court.  Winston  and  Har- 
giove  bought  the  land,  ijaid  for  it.  and  took  a  deed  from  the  commis- 
sioner. The  sale  was  duly  reported  and  confirmed  and  the  commissioner 
directed  to  make  title  to  the  land  to  the  purchasers.  William  H.  Wood 
was  in  possession  of  the  land  and  positively  and  defiantly  refused  to  sur- 
render it  to  Winston  and  Hargrove  after  oral  and  written  demand  for 
i-uch  surrender.  Wood  was  one  of  the  defendants  in  the  original  action 
against  whom  a  judgment  for  sale  had  been  rendered.! 

Asm-:.  J.  AVe  are  of  opinion.  u]>oii  the  facts  of  the  ease  as  stated 
in  the  petition  and  acconipanxintr  affidavits,  that  the  petitioners 
are  entitlecl  to  the  writ. 

The  wi'it  of  as.sistaiiec  is  a  no\el  process  in  this  state.  We  believe 
it  is  the  first  time  }in  a|)plicalion  has  been  made  to  any  court  of 
this  state  for  sucli  a  writ.  ]'>ut  it  has  been  fre(piently  used  in  sev- 
eral of  tlie  state.s.  It  may  be  termed  an  equitable  habere  facias 
possessionem,  for  it  is  only  issued  from  courts  of  chancery,  and  only 


Sec.   21.]  CONCERNING   RE.VL   ESTATE.  319 

in  these  cases  when  the  courts  have  by  their  decree  caused  lands 
to  be  sold,  in  which  case  they  will  complete  the  sale  by  putting  the 
purchaser  in  possession,  when  it  is  withheld  by  the  defendant,  or 
any  one  who  has  come  into  possession  pendente  lite.  It  is  never 
issued  except  when  the  case  is  clear,  and  upon  notice  to  the  person 
in  possession — and  it  "is  held  to  be  the  appropriate  remedy  to 
place  the  purchaser  of  mortgaged  premises,  under  a  decree  of 
foreclosure,  in  possession,  after  he  has  obtained  the  sheriff's  deed.'" 
Herman  on  Executions.  §  353.  and  cases  referred  to  on  margin.  It 
is  said  by  the  same  authority  in  sec.  354.  that  "all  that  is  requisite 
to  obtain  a  writ  of  assistance,  as  against  the  parties,  and  those  claim- 
ing under  them  after  the  commencement  of  the  action,  is  to  fur- 
ni.sh  to  the  court  proper  evidence  of  a  presentation  of  the  deed  to 
Them,  and  a  demand  of  the  possession,  and  their  refusal  to  surren- 
der it."  A  demand  of  possession,  it  woiild  seem,  is  always  neces- 
sary, but  the  presentation  of  the  deed  to  the  party  in  possession 
may  be  dispensed  with,  when  it  is  waived  by  the  conduct  of  the 
parties,  as  in  this  case,  when  the  party  in  possession  was  informed 
of  the  .sale,  the  purchase,  and  the  deed  as  registered,  and  he  makes 
no  question  as  to  these  facts,  but  ]-)ositively  refuses  to  surrender 
possession,  and  sets  at  defiance  the  demand  of  the  i)urchasers.  We 
are  of  opinion  the  petitioners  are  entitled  to  the  writ,  and  it  is  so 
ordered. 

See  Rule  19  of  the  Equity  Rules  of  the  United  States  Supreme  Court; 
4  Cyc.  290  et  seq.  For  form,  see  Shiras  Equity  Practice,  21.5,  and  1  Love- 
land's  Forms  of  Federal  Practice,  p.  605.  See  "Assistance,  Writ  of,"  Cen- 
tury Dig.  §§  1-4;  Decennial  and  Am.  Dig.  Key  No.  Series  §§  1-9.  That 
the  purcha.ser's  remedy  is  not  confined  to  the  writ  of  assistance  but  he 
may  also  bring  ejectment,  see  Townshend  v.  Simon,  38  N.  J.  L.  239,  in- 
serted at  ch.  8,  sec.  6,  ante. 


320  FOKMS    OK    ArriONS  \('Ji.     /. 


CITAPTKK  TV. 

FORMS  OF  ACTION  TO  ASSERT  RKJIITS  OTHKR  THAN  CONCERN- 
ING REAL   PROPERTY. 


Sec.  1.     Actions  Ex  Contr-vctt  and  Kx  Delicto  Distinguished. 

MOORE  V.  GREEN,  73  N.  C.  394,  396,  397.     1875. 
Imprisonment  for  Debt  and  for  Tort  Distinguished. 

I  Motion  by  det'eiidant  to  vacate  an  order  of  arrest  issued  in  the  cause. 
Motion  refused,  and  defendant  ai)pealed.     AfBrmed. 

Moore  sued  Green  for  damages  for  an  alleged  libel,  and  had  Green  ar- 
rested under  antillary  proceedings  of  arrest  and  bail.  Green,  after  being 
arrested,  made  tliis  motion  before  the  judge.  Green  contended  that,  as 
this  was  a  civil  action  for  damages,  he  could  not  be  lawfully  arrested  and 
imprisoned,  because  the  state  constitution  forbade  imprisonment  for  debt 
excei)t  in  cases  of  fraud.] 

Rodman.  J.  .  .  .  It  is  contended  that  an  arrest  in  an  action 
for  a  libel  is  in  violation  of  sec.  16  of  the  Bill  of  Rights  of  this  state, 
which  says :  ' '  There  shall  be  no  imprisonment  for  debt  in  this  state, 
except  in  cases  of  fraud."  The  argument  is  this:  The  moment  a 
judgment  shall  be  obtained,  the  claim  for  damages  is  converted  into 
n  debt :  the  ])('rson  of  the  defendant  is  thereupon  liberated,  and  his 
bail  discharged.  For  what  purpose,  then,  require  bail,  who  are  to 
be  discharged  at  the  first  moment  when  their  liability  can  be  of 
anv  value  ?  Tt  is  an  oppression  to  the  defendant  and  of  no  possi- 
ble benefit  to  the  plaintitf.  Dellinger  v.  Tweed.  %Q  N.  C.  206.  is 
cited  as  authority  for  the  proposition  that  the  claim  for  damagres 
is  converted  into  a  debt,  within  the  meaning  of  the  constitution, 
by  the  recovery  of  judgment,  rndonbtedly,  for  some  purposes,  it 
is.  An  action  of  debt  may  be  maintained  on  it,  and  a  fi.  fa.  may 
issue  on  it.  But  to  construe  the  above-cited  clause  of  the  Bill  of 
Rights  as  forbidding  imprisonment  for  any  cause  of  action  which 
by  judgment  would  becoine  a  debt,  would  make  its  prohibition  ex- 
tend to  all  cases,  as  every  cause  of  action  becomes  a  debt  in  one 
sense  when  a  judgment  is  recovered  on  it.  Chitty.  in  his  standard 
book  on  IMeading.  divides  all  actions  into  two  great  classes:  Those 
which  are  ex  contractu  and  those  which  arise  ex  delicto.  No  doubt, 
the  fi'aiiK^rs  of  the  constitution  had  this  familiar  classification  in 
mind,  and  in  forbidding  imprisonment  for  debt  they  referred 
rather  to  the  cause  of  action  as  being  ex  contractu  than  to  the 
form  it  would  assume  upon  a  judgmfnt.  Tf  they  had  meant  to 
t'oibid  imprisonment  in  every  civil  action,  they  would  have  said  so. 
P»ut  by  forbidding  it  for  debt,  they  plainly  imply  that  it  may  be 


Sec.    1.]  FORMS   OF   ACTIONS.  321 

allowed  in  actions  which  are  not  for  debt.  In  forbidding  impris- 
onment for  debt  as  popularly  understood,  viz..  for  a  cause  of  ac- 
tion arising  ex  contractu,  they  responded  to  the  general  public 
sentiment ;  but  I  know  of  no  writer  on  the  reform  of  law  who  has 
reeonunended  the  abolition  of  punishment  for  trespassers  and 
wrongdoers.  Such  a  provision  might  be  humane  to  the  injuring, 
but  it  would  not  be  so  to  the  injured  parties.  It  would  withdraw 
from  the  state  its  power  to  impose  a  wholesome  check  on  violence 
and  wrong,  and  would  tend  to  license  disorders  and  law-breakings 
incompatable  with  the  peace  and  welfare  of  society.  .  .  . 
There  is  no  error  in  the  judgment  below. 

The  principal  case  is  fully  approved  in  Long  v.  McLean,  88  N.  C.  3,  in 
which  case  it  is  said  that  similar  provisions  in  the  constitutions  of  other 
states  have  received  a  like  construction,  citing  therefor  Harris  v.  Bidgers, 
.57  Ga.  407;  McCook  v.  State,  23  Ind.  127;  Lathrop  v.  Singer,  39  Barb. 
(N.  Y.)  396;  People  v.  Gotten,  14  111.  414.  That  a  judgment  for  damages 
consequent  upon  a  tort,  is  not  a  debt  ex  contractu,  and  as  such  protected 
b.v  art.  7,  sec.  10,  of  the  constitution  of  the  United  States,  is  ruled  in 
Louisiana  v.  Mayor  of  New  Orleans,  109  U.  S.  285,  3  Sup.  Ct.  211.  See 
Arrest,"  Century  Dig.  §§  8-12;  Decennial  and  Am.  Dig.  Key  No. 
Series  §  4. 


RICH  V.  X.  Y.  C.  &  H.  R.  R.  Co.,  87  N.  Y.  382.     1882. 
Various  Definitions  of  Tort.    Tort  Arising  out  of  Contract. 

[Action  for  damages.  .Judgment  against  plaintiff  dismissing  the  action, 
from  which  he  appealed.     Reversed. 

Plaintiff  alleged  several  contracts  between  himself  and  the  defendant 
lelafive  to  the  location  of  a  passenger  station  in  close  proximity  to  plain- 
tiff's business  house;  that  defendant  had  on  several  occasions  broken 
such  contracts  and  then  renewed  them  upon  valuable  concessions  being 
made  by  plaintiff:  that  at  length,  with  a  view  to  coercing  plaintiff  to 
further  and  ruinous  concessions,  the  defendant  had,  regardless  of  its 
fontracts  to  the  contrary,  cloved  the  passenger  station,  thereby  causing 
great  loss  and  damage  to  the  i)laintiff  by  reason  of  the  deterioration  In 
the  value  of  his  property  as  the  direct  consequence  of  such  acts  of  the 
defendant;  that  "in  all  of  which  the  defendant  was  actuated  by  malice 
and  vindictiveness  toward  the  plaintiff,  and  a  design  to  crush,  ruin  and 
destroy  him."  The  questions  presented  are:  (1)  Did  defendant's  mali- 
cious purjiose  in  breaking  its  contract  constitute  a  tort  for  which  an  action 
of  tort  would  lie?  f2)  Was  the  cause  of  action  set  up  in  the  complaint 
a  contract  or  a  tort?  The  plaintiff  offered  testimony  to  establish  his 
cause  of  action,  but  it  was  ruled  out  by  the  judge,  because  he  ruled  that 
plaintiff's  cause  of  action  as  set  out  in  the  complaint  was  in  tort,  while 
th(!  proof  offered  tended  to  established  a  breach  of  contract. 1 

FiNrrt.  J.  AV<-  liav<-  brcii  unable  to  find  any  aecurato  and  per- 
f.-<-f  d<-firiilion  of  a  tort.  I'.clwcon  actions  plainly  ox  contractu  and 
tliftsc  as  clearly  ex  ddidd  tbc)-c  exists  what  has  been  tcrnied  a 
border-land,  where  tlie  lines  of  distinction  are  sh;i(li>wy  and  ob- 
scure, iitnl  llir  Infl  ;iii(l  llie  contract  so  approaeli  r;icli  other,  and 
beeoirie  so  iie;irl\-  eoitieident  as  to  make  llieii-  |  il'ad  ie;i  1  separation 
soinewliat  diftienlt.  (Moak's  rnderlnll  on  Torts.  2:{.)  Tlie  lext- 
writors  either  avoid  a  definition  entirely  (Addison  on  Torts),  or 
frame  one  ])lainly  imperfect  (2  Bonvier's  \.:\\\  Diet.  riOO).  or  de- 
Remedies— 21.  • 


822  FORMS   (tF    ACTIONS.  [Ch.    1. 

ptMul  upon  niic  wliicli  they  eoneedr  to  he  inaecurato,  but  hold  sut'Ci- 
rifut  for  .judirial  piii-poscs.  (Coolcv  on  Torts.  '.\.  n.  1  ;  .Moaks  I'u- 
di'rliill.  4;  1  Ililliaid  on  'Ports.  \.)  Hy  thcso  hist  autliors  a  tort  is 
desi-ribod  in  «;omM-al  as  "a  wi-oiijjf  iiidcptMidont  of  contract."  And 
yet.  it  is  conceded  that  a  tort  may  "jrow  out  of,  or  make  part  of,  or 
be  ('oiut'i(h'iit  witli.  a  contract  (2  liouv.  supra),  and  that  pri'- 
cisely  tlic  same  state  of  facts.  l)ct\veen  the  same  parties,  may  admit 
of  an  action  eitlier  ex  contractu  or  ex  delicto.  Cooley  on  Torts, 
90.)  In  such  cases  the  titrt  is  dependent  njwn.  while  at  the  same 
time  independent  of.  the  eonti'act.  for  if  th(^  latter  imjxises  a  Icfjal 
duty  ui^on  a  jierson.  tln»  nej^leet  of  that  duty  may  constitute  a  tort 
founded  ujion  a  contract.     1  Addison  on  Torts,  13. 

Ordinarily,  the  essence  of  a  tort  consists  in  the  violation  of 
some  duty  due  to  an  individual,  which  duty  is  a  thinjJ^  ditTerent 
from  the  mere  contract  oblij^ation.  ^Vhen  such  duty  ^rows  out  oC 
relations  of  trust  and  confidence,  as  that  of  the  agent  to  his  princi- 
pal or  the  lawyer  to  his  client,  the  ground  of  the  duty  is  apparent, 
and  the  tort  is.  in  general,  easily  se|)ai-al)le  from  the  mei-e  breach 
of  contract.  But  where  no  such  relation  flows  from  the  constituted 
contract,  and  still,  a  breach  of  its  obligation  is  made  the  essential 
and  principal  means,  in  combination  with  other  and  ])erhaps  inno- 
cent acts  and  conditions,  of  inflicting  another  and  different  injury, 
and  accomplishing  another  and  ditf'ei-ent  ]>urpose.  the  (luestion 
whether  such  invasion  of  a  right  is  actionable  as  a  breach  of  con- 
tract only,  or  also  as  a  tort,  leads  to  somewhat  difficult  search  for  a 
distinguishing  test. 

In  the  present  case,  the  learned  counsel  for  the  respondent  seems 
to  free  himself  from  the  difficulty  by  practically  denying  the  ex- 
istence of  any  relation  between  the  parties,  except  that  constituted 
by  the  contract  itself,  and  then,  insisting  that  such  relation  was 
not  of  a  character  to  originate  any  separate  and  distinct  legal 
duty,  argues  that,  therefore,  the  bare  violation  of  the  contract 
obligation  created  merely  a  breach  of  contract,  and  not  a  toi't.  He 
says  that  the  several  instruments  put  in  evidenct^  showed  that  there 
never  had  been  any  relation  between  the  plaintiff  and  the  railroad 
company,  except  that  of  parties  contracting  in  reference  to  cer- 
tain specific  subjects,  by  plain  and  distinct  agreements,  for  any 
breach  of  which  the  parties  respectively  would  have  a  remedy, 
but  none  of  which  created  any  such  rights  as  to  lay  the  foundation 
for  a  charge  of  wilful  misconduct  or  any  other  tortious  act.  Upon 
this  theorv^  the  case  was  tried.  Evei-y  offer  to  prove  the  contracts, 
and  especially  their  breach,  was  resisted  upon  the  ground  that  the 
complaint,  through  all  its  long  history  of  plaintiff's  grievances,  al- 
leged but  a  single  cause  of  action  and  that  for  a  tort,  and,  there- 
fore, something  else,  alx)ve  and  beyond  and  outside  of  a  mere 
breach  of  contract,  nuist  be  shown,  and  proof  of  such  breach  was 
immaterial.  From  everv  direction  in  which  the  plaintiff  ap- 
proached the  allegations  of  his  complaint,  the  same  barrier  ob- 
structed his  path  and  excluded  his  proof.  Whatever  may  be  true 
of  the  earlier  agreements  between  the  phontiff  and  the  railroad 
company,  and  conceding,  what  seems  probable,  that  the  evidence 


Sec.   1.]  FORMS   OF  ACTIONS.  323 

relating  to  them  was  properly  rejected,  on  the  ground  that  they 
left  the  defendant  entirely  at  liberty  to  change  the  site  of  its  depot, 
so  that  such  change  was  in  no  respect  either  unlawful  or  wrong, 
there  was  yet  a  later  agreement  by  the  terms  of  which  the  defend- 
ant was  bound,  as  soon  as  practicable  and  within  a  reasonable  time, 
to  restore  the  depot  to  its  old  location.  The  complaint  explains 
the  importance  of  such  restoration  to  the  plaintiff.  It  alleges  that 
valuable  property  of  his,  heavily  mortgaged,  had  depreciated  in 
value  in  consequence  of  the  removal  of  the  depot,  and  could  only 
be  restored  to  something  like  its  old  value,  and  saved  from  the  sac- 
rifice of  a  foreclosure  in  a  time  of  depression,  by  the  prompt  re- 
turn of  the  depot  to  its  former  site.  The  complaint  further  avers, 
that  to  secure  this  result,  the  plaintiff  had  surrendered  valuable 
riparian  rights  to  the  defendant,  but  the  latter,  fully  understand- 
ing the  situation,  maliciously  and  wilfully  broke  its  agreement, 
and  delayed  a  restoration  of  the  depot  for  the  express  purpose  of 
preventing  plaintiff  from  being  enabled  to  ward  off  a  foreclosure 
of  the  mortgage,  and  itself  instigated  such  foreclosure  and  caused 
the  ultimate  sacrifice.  For  the  breach  of  this  contract  to  restore 
the  depot  within  a  reasonable  time,  the  plaintiff  had  a  cause  of 
action.  But  that  was  not  the  one  with  which  he  came  into  court. 
His  complaint  was  for  a  single  cause  of  action,  and  that  for  a  tort ; 
and  what  that  alleged  tort  was,  it  is  quite  necessary  to  know,  and 
in  what  respect,,  and  how  it  differs  from  a  mere  breach  of  contract, 
in  order  to  determine  whether  the  rejected  proofs  were  admissible 
or  not. 

There  was  here,  on  the  theory  of  the  complaint,  something  more 
than  a  mere  breach  of  contract.  That  l)reach  was  not  the  tort;  it 
was  only  one  of  the  elements  which  constituted  it.  Beyond  that, 
and  outside  of  that,  there  was  said  to  have  existed  a  fraudulent 
scheme  and  device  by  means  of  that  breach  to  procure  the  fore- 
'•l(»sure  of  the  mortgage  at  a  particulai-  lime  and  under  such  cir- 
cnmstances  as  would  make  that  foreclosure  ruinous  to  the  plain- 
tiff's rights,  and  i-emove  hini  as  an  obstacle  by  causing  him  to  lose 
his  proptirfy.  and  thereby  his  means  of  resistance  to  the  ])ui'pose 
ultimately  sought.  Tn  other  words,  the  necessaiy  theory  of  the 
complaint  is  that  a  breach  of  contract  may  be  so  intended  and 
planned;  sf)  |)ur|)osely  fitted  to  time,  and  circumstances  and  condi- 
tions; so  inwovt'ii  into  a  scheme  of  op])ression  and  fraud;  so  made 
to  set  in  motion  iinioccnt  causes  which  ollicrwisc  would  uol  nperate. 

IS  to  cease  to  be  a  mere  bi'cach  of  contract,  and  becniiic.  in  its 
.is-sociation  with  the  attendant  circumstances,  a  tortioiisaud  wrong- 
ful  act    or  omission \ssumiiig   now    that    wc   correctly 

understand  what  the  tort  jilcjidcd  was.  au<l  which  was  conceded 
to  constitute  a  cause  of  action,  if  seems  to  us  (|uitc  clcai-  llial  the 
|)laintilT  was  imjiropcrly  barred  from  proving  it.  lie  is 

ctifitlcd   to   prove   his  cause  of  action    if  he  can.      The   judgment 

liipiild   lie   reversecl. 


Wlir-n  a  tiroarh  of  ronfract  invnlvos  a  tort,  ttio  rontrart  may  tin  waived 
anfl  ifdrcM^  lir-  lial  in  an  action  of  tnrt.     Maiuilnn  v.  I'Vimit.iin.  1)7  N.  C. 


;{L*4  KOK.MS    i»l'    ACTIONS.  [CIl .    i. 

at    p.    15\   (>0   S.    10.   1145.     Soo   next    siircocdiii.n   laso   and    noto.     See  also 
Uoweis  V.  R.  R..  107  N.  C.  721,  insorled  latiT  in  this  soc-lioii. 

As  to  tlu'  diffu-ulty  expi'iionced  by  tlu>  court  in  scparal  inj;  tlie  shadowy 
and  obsrure  lints  of  denuirUation  botween  actions  ox  contract u  and  ac- 
tions ex  delicto,  it  may  not  be  inapi)ropriate  to  quote  the  language  of 
Judge  Blown,  in  State  v.  Oanncnbeig.  l.'.O  N.  C.  799:  "Nor  can  we  an- 
swer afiii  luaiivcly  the  inquiry  of  the  attorney-general,  'but  is  there  not 
somewhere  between  the  buttermilk  of  the  pure  in  heart  and  the  i)randy 
of  the  morally  stunted  a  twilight  zone,  and  does  not  the  drink  sold  by 
this  defendant  lie  within  this  zone?'  "  While  in  the  way  of  quoting  from 
the  attorney-general,  it  may  not  be  amiss  to  add  the  following  from  the 
columns  of  the  Durham  Herald:  "In  rounding  up  his  argument  in  sup- 
port of  the  Charlotte  ordinance  and  the  right  of  North  Carolina  cities  to 
control  the  near-beer  problem  with  license  taxes  within  their  discretion 
Attorney-General  T.  W.  Bickett  said:  'What  is  near-beer?  The  testi- 
mony in  this  case  shows  that  it  is  a  beverage  that  finds  ready  sale  as  a 
substitute  for  real  beer.  Our  bibulous  constituents  cry  for  It  as  children 
cry  for  castoria.  It  is  made  by  the  people  who  make  beer,  and  drunk  by 
the  people  who  drink  beer.  It  looks  like  beer,  smells  like  beer  and  tastes 
like  beer.  It  is  served  by  the  same  white-aproned  many-chinned  friends 
who  were  wont  to  comfort  us  in  other  days.  It  is  shoved  across  the  old 
oaken  counter  and  mirrored-back  bar,  with  the  picture  of  Aphrodite 
springing  from  the  foam,  making  the  illusion  complete.  And  sometimes 
in  the  gloaming  the  alchemy  of  a  shadow  projecting  from  a  policeman's 
expansive  back  and  falling  athwart  the  bar,  works  a  transformation,  and 
suddenly,  even  as  the  thirsty  one  lifts  the  cup  to  his  lips,  near-beer  be- 
comes the  real  thing.  And  yet  this  court  is  asked  to  relegate  this  lusty 
beverage,  this  scion  of  centuries  of  vats,  to  the  insipid  level  of  soda 
water.  Perish  the  thought.  It  proclaims  itself  in  North  Carolina  as  the 
sole  heir  and  successor  to  the  gaudy  fluid.  It  boasts  of  its  bubble,  and 
sparkle  and  snap.  It  says  to  the  disconsolate  legions  in  an  arid  land,  'I 
may  not  be  entirely  wicked,  but  try  me.'  It  capitalizes  its  kinshi])  with 
Budweizer  and  Schlitz.  It  scorns  soda  water  as  Roosevelt  scorns  a  molly- 
coddle, and  lords  it  over  grape  juice  like  a  mint  julip  over  a  milkshake." 
See  "Action,"  Century  Dig.  §§  160-19.5;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  27. 


BULLINGER  v,  MARSHALL,  70  N.  C.  520,  525,  526.     1874. 
Tort  Arising  out  of  Contract.     Waiving  the  Tort  and  Suing  in  Contract. 

[Action  commenced  in  the  superior  court  for  the  recovery  of  damages 
for  deceit  in  the  sale  of  a  mule.  Defendant  moved  to  dismiss  for  want 
of  jurisdiction.  Motion  overruled.  Judgment  against  the  defendant,  and 
he  appealed.  Affirmed.  The  facts  appear  in  that  portion  of  the  opinion 
which  Is  here  inserted.] 

Pearsox.  C.  J.  .  .  .  The  action  demands  damages  for  a  de- 
ceit in  the  sale  of  a  mule  and  the  allegation  made  ont  a  cause  of 
action  which,  hy  the  former  mode  of  procednrc  would  have  been 
classed  under  "actions  ex  delicto."  as  distinguished  from  "actions 
ex  contractu."  At  the  trial  it  was  moved  on  the  part  of  the  de- 
fendant to  nonsuit  the  plaintiff,  on  the  ground  that  the  action 
ought  to  have  been  commenced  before  a  justice  of  the  peace,  as 
the  damages  demanded  are  only  one  hundred  dollars. 

The  constitution  ordains,  art.  IV.  sec.  23:  "The  several  justices 
of  the  peace  shall  have  exclusive  original  jurisdiction  of  all  civil 
actions  founded  on  contract  wherein  the  sum  demanded  shall  not 
exceed  two  hundred  dollnrs.  and  where  the  title  to  real  estate  .shall 


Sec.   1.]  FORMS   OF. ACTIONS.  325 

not  be  in  controversy."  According  to  our  construction  of  this 
section  a  justice  of  the  peace  has  not  jurisdiction  in  "actions  ex 
delicto,'"  although  the  cause  of  action  may  grow  out  of  a  contract. 
It  being  in  form,  under  the  old  mode  of  procedure,  an  action  ex 
delicto,  proves  that  it  is  not  founded  on  the  contract,  but  is  col- 
lateral thereto.  There  are  ca.ses  where  a  party  is  allowed  to  waive 
the  tort  and  sue  in  contract,  as  if  one  takes  ni}^  hor.se  and  sells  it 
and  receives  the  money,  I  may  waive  the  tort  and  sue  for  ' '  money 
had  and  received  to  my  use, ' '  and  if  the  sum  does  not  exceed  two 
hundred  dollars  the  jurisdiction  belongs  to  a  justice  of  the  peace ; 
but  if  the  money  be  not  received,  my  remedy  is  for  the  tort,  and  a 
jiLstice  of  the  peace  has  not  jurisdiction.  So  if  there  be  a  warranty 
of  soundness  in  the  sale  of  a  horse,  the  vendee  may  sue  upon  the 
contract  of  warranty  and  a  justice  of  the  peace  has  jurisdiction,  or 
he  may  declare  in  tort  for  a  false  warranty  and  add  a  count  in 
deceit  (see  Williams'  notes  to  Saunders'  Reports),  in  which  case  a 
justice  of  the  peace  has  not  jurisdiction — the  plaintiff  being  per- 
mitted to  declare  collaterally  in  tort  for  a  false  warranty,  in  order 
to  enable  him  to  give  in  a  count  for  the  deceit,  which  of  course 
was  in  tort. 

Our  conclusion  is.  that  the  effect  of  this  section  of  the  constitu- 
tion is  to  enlarge  the  jurisdiction  of  a  justice  of  the  peace  by  rais- 
ing the  amount  to  the  siun  of  two  hundred  dollars,  and  by  extend- 
ing it  to  eases  founded  on  contract  for  unliciuidated  damages — as 
in  cases  of  a  breach  of  warranty  of  soundness  and  other  like  in- 
stances; but  that  the  jurisdiction  does  not  extend  to  any  matter 
collateral,  although  it  grew  out  of  the  contract,  for  in  such  case 
the  action  is  not  founded  on  the  contract.  See  Froelich  v.  Express 
Co..  67  X.  C.  1.     .     .     .     Affirmed. 

In  Manning  v.  Fountain,  147  N.  C.  mid.  p.  19,  60  S.  E.  645.  it  is  said: 
"Even  if  a  tort  had  been  committed,  growing  out  of  a  false  and  fraud- 
ulent representation,  the  plaintiff  had  a  right  to  waive  the  tort  and  sue 
for  money  had  and  received.  Such  an  action  is  ex  contractu  and  not  ex 
delicto.  Winslow  v.  White.  66  X.  C.  432;  Bullinger  v.  Marshall,  70  .\.  C. 
.o26.  Upon  this  theory  it  has  been  held  that,  where  defendant  wrong- 
fully took  into  his  possession  timber  logs  of  the  plaintiff  and  sold  them 
and  received  the  money,  the  plaintiff  might  waive  the  tort  and  sue  for 
the  money.  Land  Co.  v.  Brooks,  109  N.  C.  700,  14  S.  E.  :!1.".  E  oonverso,  it 
has  bpf-n  hi  Id  that  where  the  l)reach  of  fontract  involves  a  tort,  the 
foniplaining  jiarty  may  waive  the  contract  and  recover  damages  for  the 
tortious  injury.  Bowers  v.  R.  R.,  107  N.  C.  722,  12  S.  E.  4.52."  See  •'Jus- 
tires  of  the  Peare,"  Centurv  Dig.  §§  116-134;  Decennial  and  Am.  Dig.  Kev 
No.  Series  §  38. 


BRITTAIX  V.  PAYNE.  118  X.  C.  080,  24  S.  E.  711.     1806. 
Wniriiiff  thr  Tort  and  Suincf  in  Assinnpait- 

[Civil  artlon  in  justire's  court  for  one  hundred  and  sixty  dollars  re- 
ceived by  defendant  from  the  unauthorized  sale  of  timber  belonging  to 
idalntifr  Defendant  ap|)r-alcd  to  the  suiicrlor  cniirt,  and  tbcrc  moved  to 
disniisH  the  action  for  want  of  jurisdiction  in  the  justice's  court.  Motion 
allowod  .Iiulgment  against  the  plaintiff  dismlHsing  the  action,  and  he 
-tppealed.     Reversed.! 


8LM)  KUKM^    (IK    ACTIONS.  |  (  7/ .     /. 

L'lakk.  fl.  Wlifii'  |)i'(i|>i'rt\  is  loflioiisly  t;ik('ii  .iiid  sold,  1  lu' 
owiuT  iiijiy  wjiivi'  till'  Itiit.  ;iii(l  iiiiiiiilaiii  iiii  ;iclioii  to  riH-ovcr  tho 
iiioiH'N  n'iilized  i'l'om  tlif  sale  hv  tlu'  di'lViulaiit.  Ijand  Co.  v. 
Brooks.  10!)  N.  ('.  (i!)S.  14  S.  E.  M15;  Wall  v.  Williams,  i)l  N.  C. 
477.  .\iid  this  is  idcai-ly  what  tlif  plaiiititV  did  by  his  complaint  in 
this  cast'.  Kvory  iiitondiiu'ut  hciii^  in  favor  of  jiwisdiction,  if  tho 
complaint  coukl  have  been  construed  as  bcinj;  cither  for  tho  tort 
or  to  recover  the  money  received  by  the  defendant,  this  being  an 
action  before  the  justice,  the  court  would  construe  it  to  be  an  ac- 
tion on  the  imi)licd  contract,  in  favor  of  the  jurisdiction.  Lewis 
V.  Railroad.  Do  X.  C.  171);  Stokes  v.  Tavlor.  ]()4  N.  C.  ;3!)4,  10  S. 
K.  :)(i(i:  Fulps  V.  Mock,  108  N.  C.  GOT,  13  S.  E.  92.    Error. 

Compare  with  the  i)rinoii)al  case  and  those  preceding  it,  Mann  v.  Ken- 
dall, 47  X.  C.  11*2,  which  holds  that  jurisdiction  cannot  be  conferred  by 
waiving  the  tort  and  suing  in  assumpsit.  Xo  court  can  talve  jurisdicton 
of  the  assumpsit  that  would  not  have  had  jurisdiction  of  the  tort  "for 
the  reason  that  the  same  questions  of  law  arise  in  each."  In  Froelich  v. 
Express  Co.,  67  X.  C.  1,  plaintiff  sued  an  express  company  for  $164  for 
not  delivering  a  barrel  of  wine  shipped  by  ex|)ress..  After  declaring  the 
law  as  to  waiving  the  tort  and  suing  in  assumpsit  and  giving  several 
instances  of  it,  attention  is  called  to  the  fact  that  all  the  old  forms  of 
actions  are  abolished  by  the  constitution,  which  provides  that  there  shall 
be  but  one  form  of  action  in  civil  cases.  It  is  then  said  that  the  i)laintiff 
could  have  recovered  the  $164  in  an  action  founded  on  contract,  and 
whether  lie  declared  in  contract  or  tort  his  recovery  would  be  the  same, 
to  wit,  the  agreed  price  of  the  wine.  "As  the  distinction  between  de- 
claring in  tort  or  in  contract  is  a  refinement  abolished  by  the  constitution, 
taking  it  in  any  point  of  view,  this  is  a  civil  action  founded  on  contract." 
The  action  was  commenced  in  the  superior  court.  The  complaint  set  up 
the  failure  to  deliver  a  barrel  of  wine  shipped  c.  o.  d.  by  plaintiff  to  a 
person  in  Connecticut;  that  the  ivine  rvas  valued  at  $'l(i'i.  The  sum  for 
which  the  plaintiff  prayed  judgment  was  $2,50.  In  the  supreme  court 
there  was  a  motion  to  dismiss  for  want  of  jurisdiction,  which  motion 
was  sustained  and  the  action  dismissed — the  real  subject  of  the  action 
being  $164  due  by  contract,  notwithstanding  the  prayer  for  judgment  for 
$250. 

See  ".lustices  of  the  Peace,"  Century  Dig.  §  310;  Decennial  and  Am. 
Dig.  Key  Xo.  Series  §  91;  "Action,"  Century  Dig.  §§  196-21.5;  Decennial 
and  Am.  Dig.  Key  Xo.  Series  §  28. 


BOWERS  V.  RAILROAD,  107  X.  C.  721,  12  S.  E.  452.     1890. 
Waiviyig  the  Contract  and  Buing  in  Tort. 

[Action  in  the  superior  court  for  damages  for  failure  to  deliver  goods 
shipped  to  the  plaintiff  from  Boston.  Judgment  against  plaintiff  dis- 
missing the  action  for  want  of  jurisdiction.  Plaintiff  appealed.  Re- 
versed. 

The  complaint  alleged  the  shipment  and  failure  to  deliver,  and  that 
defendant  "so  negligently  and  carelessly  conducted  itself  in  regard  to 
the  same"  that  part  of  the  goods  were  "broken  open  and  scattered  to  the 
great  damage  of  the  plaintiff  of  one  hundred  and  forty  dollars."  Not- 
withstanding the  statement  as  to  the  damage  sustained,  the  plaintiff 
prayed  for  judgment  for  three  hundred  dollars.  The  questions  presented 
are:  (1)  If  a  carrier  fails  to  deliver  goods  shipped,  does  an  action  ex 
contractu  or  ex  delicto  lie  against  him?  (2)  May  the  plaintiff  waive  the 
contract  and  sue  in  tort?l 


Sec.    1.]  FORMS   OF   ACTIONS.  327 

Merrimon.  C  J.     It  is  settled  that,  under  the  present  method 
uf  eivil  procednre.  when  the  breach  of  a  contract  involves  a  tort, 
the  complaining  party  may  waive  the  contract,  and  sue  for  and 
recover  damages  for  tlie  tortious  injury.    In  such  case,  if  the  dam- 
ages alleged  in  good  faith  are  $50.  or  less,  the  court  of  a  jvistiee  of 
the  peace  will  have  jurisdiction;  if  for  that  or  a  greater  sum,  the 
superior  court  will  have  jurisdiction.     Bullinger  v.  ^Marshall.  70 
N.  C.  52(1;  .\she  v.  Gray.  88  N.  C.  190:  Xorville  ^^  Dew.  9-i  X.  0. 
43;  Harvev  v.  Hambrigiit.  98  N.  C.  446.  4  S.  E.  Kep.  187 ;  Edwards 
v.  Cowper.  99  X.  C.  421.  6  S.  E.  Rep.  792;  Long  v.  Fields,  104 
X.  C.  221.  10  S.  E.  Rep.  253.    In  this  case  the  plaintiffs  might  have 
sued  fnr  a  simple  breach  of  the  contract,  and  if  they  had  done  so 
the  superior  court  would  not  have  original  jurisdiction,  because 
the  damage  alleged  was  but  $140.  a  demand  within  the  jurisdiction 
of  the  court  of  a  justice  of  the  peace.    The  mere  demand  for  $300 
could  not  give  the  sui)erior  court  jurisdiction,  becau.se.  manifestly, 
such  demand  would  not  l)c  made  in  good  faith,  but  simply  to  ap- 
parently give  the  court  jurisdiction,  and  the  court  ought  to  dis- 
miss the  action.     We  think,  however,  that  it  appears  sufficiently 
from  the  face  of  the  complaint  that  the  plaintiffs  allege,  not  simply 
a  breach  of  contract,  but  a  tort,  a  tortious  injury,  and  damages  oc- 
casioned thereby  exceeding  $50.  so  that  the  court  had  jurisdiction. 
A  breach  of  the  contract  is  alleged  in  general  terms,  but  it  is  fur- 
ther alleged.  i)articularly  and  specifically,  that  the  defendant  "so 
negligently  and  carelessly  conducted  in  regard  to  the  same  that 
the  said  niica  was  greatly  damaged,  three  boxes  being  broken  open 
and  scattered,  to  the  great  damage  of  the  plaintiff's  of  one  hundred 
and  forty  dollars."   Obviously,  these  words  were  intended  to  allege 
more  than  a  simple  bi-each  of  the  contract. — a  tort,  tortious  injury. 
Granting  that   more  appro])riate  terms  for  .such  purpose  might 
have  been  employed,  still  the  court  can  see  the  purpose  informally 
expressed,  and  an  it  can.  the  pleading  should  be  upheld  and  the 
jurisdiction  sustained.     As  we  have  seen,  the  plaintiff  might  sue 
for  the  tort,  and  it  sufficiently  appears  that  he  intends  to.  and  does 
«o.     In  cases  like  that  under  consideration,  when  the  plaintiff  in- 
tends to  sue  in  tort,  the  distinctive  tortious  cause  of  action  .shouM 
be  alleged  in  terms  that  clearly  show  the  purpose.     This  is  neces- 
sary to  the  end  the  court  may  see  that  it.  and  not  the  court  of  a 
justice  of  Ihe  peace,  has  jurisdiction.     There  is  error.     The  court 
should  have  denied  the  motion  to  dismiss  the  action.     To  the  end 
that  the  jud'-'iitent  may  be  reversed  and  the  action  disposed  of  ac- 
cording to  law.  let  this  opinion  be  certified  to  the  superior  court. 
It  is  so  ordered. 

See  Balto  fU:  Rv.  Co.  v.  Kemp,  fit  Mfl.  filO.  inserted  in  section  r,  post  of 
this  chapter.  Spp'  Tonrts."  Century  Dig.  §  549;  Decennial  and  Am.  Dig. 
Kev  No.  Series  §  183. 


V2S  FOKMS    Ol'    ACTION'S.  \  (' ll .     I. 


WlllTK  V.  KLEY.  145  N.  C.  36,  58  S.  E.  437.     1907. 
Tuit  or  Vdiitrart.  ol  Plaintiff's  Klcclion.     .ftirisdivtidii. 

1  Action  for  ronversion  of  a  sum  of  money  less  (lian  $200,  eommenced 
in  llie  superior  court.  Demurrer  to  the  jurisdiction.  Demurrer  sus- 
tained anil  action  dismissed.  I'laintiff  appeals.  Reversed.  The  facts  ap- 
pear  in  the  opinion. ) 

C'lakk.  C.  J.  The  ooniplaiiit  tiUoiji's  lli.il  phiiiilirt'  pliiccd  uilli 
the  defendant  a  hoi'se  to  sell  for  liini ;  tliat  the  defendant  reeeived 
for  tlie  lioise  tlie  snm  of  $149,  which  he  has  eonverted  to  his  own 
use.  and  asks  for  the  reeovery  of  the  siiiii  so  eonverted,  and  for 
arrest  and  bail  of  defendant.  The  defendant  demurred  ore  tenns 
lliat  Ihe  superior  court  had  no  original  jurisdiction  because  this  is 
an  action  on  contract.  The  court  sustained  the  demurrer  and  dis- 
missed the  action.  There  is  error.  "  When  the  action  can  be  fairly- 
treated  as  based  either  on  contract  or  in  tort,  the  courts,  in  favor 
of  iurisdiction,  will  sustain  the  election  made  by  the  plaintiff." 
Bri'ttain  v.  Pavne.  118  N.  C.  989.  24  S.  E.  711  ;  Sehulhofer  v.  Kail- 
road.  118  N.  C.  1096,  24  S.  P].  709.  The  plaintiff  could  sue  either 
for  the  tort,  the  unlawful  conversion,  or  on  the  contract.  Hring- 
ing  the  action  in  one  court,  when  he  might  have  brought  it  in  the 
other,  is  prima  facie  an  election.  Sams  v.  Price,  119  N.  C.  574, 
26  S.  E.  170;  Parker  v.  Express  Co.,  132  N.  C.  1130,  43  S.  E.  603. 

In  such  cases  the  plaintiff  may  waive  the  tort  and  sue  in  con- 
tract. Bullinger  v.  Marshall,  70  N.  C.  520;  IMcDonald  v.  Cannon, 
82  X.  C.  245;  Wall  v.  Williams.  91  N.  C.  477;  Edwards  v.  Cowper, 
99  N.  C.  421,  6  S.  E.  792;  Timber  Co.  v.  Brooks,  109  N.  C.  698, 
14  S.  E.  315.  Or  he  may  elect  to  sue  for  the  tort.  Bowers  v.  Rail- 
road. 107  N.  C.  721,  12  S.  E.  452;  Purcell  v.  Railroad,  108  N. 
C.  424,  12  S.  E.  954,  956;  Thompson  v.  Express  Co.,  144  N.  C. 
389.  57  S.  E.  18.  In  Froelich  v.  Express  Co.,  67  N.  C.  1,  it  was 
held  that  the  complaint  showed  that  the  plaintiff  had  elected  to 
sue  on  the  contract  for  a  sum  less  than  $200,  notwithstanding 
the  action  had  been  brought  in  the  superior  court.  The  judgment 
dismissing  the  action  is  reversed. 

See  "Action."  Century  Dig.  §§  196-215;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  28. 


FISHER  V.  GREENSBORO  WATER  SUPPLY  CO.,  128  N.  C.  375,  38  S. 

E.  912.     1901. 

Action  of  Tort  for  Breach  of  Contract. 

[Action  for  damages  caused  by  inefficiency  of  the  water  supi)ly  fur- 
nished by  the  defendant.  Verdict  for  the  plaintiff.  Plaintiff  insisted  upon 
a  judgment  as  upon  a  recovery  for  a  tort,  because,  under  a  statute,  such 
a  judgment  had  advantages  over  a  judgment  on  a  contract.  The  judge 
refused  to  grant  such  a  judgment,  and  the  iilaintiff  appealed.     Reversed. 

The  defendant  had  contracted  with  the  city  of  Greensboro  to  furnish 
a  water  supply  up  to  a  specified  standard  of  efficiency.  Plaintiff's  house 
was  injured  by  fire,  and  he  alleges  that  his  loss  was  attributable  to  de- 


iiec.    1.]  FORMS   OF    ACTIONS.  329 

fendant's  failure  to  perform  its  contract  with  the  city  and  its  inhabitants, 
and  also  the  •wilful,  tortious,  culpable,  reckless,  and  gross  negligence" 
of  the  defendant  to  keep  a  sufficient  storage  of  water  for  fire  extinguish- 
ing purposes.  The  third  and  fourth  issues  ami  the  responses  thereto 
were:  (3)  Did  the  defendant  fail  in  its  contract?  Ans.  Yes.  (4)  Was 
the  plaintiff  injured  by  the  negligence  of  the  defendant?    Ans.  Yes.] 

Cook.  J.  There  is  but  one  question  presented:  Was  the  plain- 
tiff entitled  to  judgment  ex  contractu  or  ex  delicto?  which  depends 
solely  upon  the  nature  of  the  action  as  brought. — whether  for  a 
breach  of  contract  or  for  negligent  injuries.  The  rule  is  that  where 
the  law.  from  a  given  statement  of  facts,  raises  an  obligation  to  do 
a  particular  act,  and  there  is  a  breach  of  that  obligation,  and  a 
consequent  damage,  an  action  on  the  case,  founded  on  the  tort,  is 
the  proper  action.  Bond  v.  Hilton.  44  N.  C.  310,  54  Am.  Dec.  552; 
R<jbinson  v.  Threadgill.  35  N.  C.  41 ;  Solomon  v.  Bates,  118  N.  C. 
315,  24  S.  E.  478.  .  .  .  Upon  the  verdict  the  plaintiff  moved 
for  a  judgment  "for  the  tortious  injury  and  damage  done  him  by 
the  negligence  of  the  defendant."  which  was  refused  by  his  honor, 
wlio  entered  judgment  for  damage  as  upon  breach  of  contract,  to 
which  plaintiff  excepted  and  appealed. 

We  think  the  plaintiff"  was  entitled  to  judgment  as  prayed  for. 
There  was  an  express  and  legal  o])ligation  upon  the  part  of  the  de- 
fendant to  provide  and   furnish   ample   protection   against  fires, 
and  a  breach  of  that  obligation,  and  a  consequential  damage  to  the 
plaintiff.     Although   action   may  have  been  maintained  upon   a 
promi.se  implied  by  law,  yet  an  action  founded  in  tort  was  the 
more  proper  form  of  action,  and  the  plaintiff'  so  declared.     He 
stated  the  facts  out  of  which  the  legal  obligation  arose  fully,  and 
also  the  obligation  itself,  and  the  breach  of  it,  and  the  damage 
ivsulting  from  that  breach.     Chit.  PI.  155;  5  Thomp.  Corp.  §  6340. 
Th.^  ease  of  Coy  v.  Gas  Co.  (Ind.  Sup.),  4(3  X.  E.  17,  36  L.  R. 
A.  535,  is  to  the  .same  effect,  and  very  similar  in  facts.     In  that 
case  the  defendant  had  obligated  to  supply  the  town  of  Haughville 
and  its  inliabitants  witli  natural  gas.     By  reason  of  defendant's 
negligence  and  failure  to  supply  the  needed  gas  for  fuel  during 
severe  winter  weather,  the  plaintiff's  child  died,  (tn  account  of 
which  the  action  was  brought.     The  coiu-t  there  held  that  the  fail- 
ure to  perform  such  obligation  was  in  itself  a  tort,  and  sustained 
the  action.     Whih?  coiiimon-law  judgments  do  not  contain  any  of 
the  precedent  facts  or  pi-oceedings  on  which  they  are  based,  and 
;ire  comprised  of  those  words  only  which  exi)lain   tlic   idea   with 
utmost  accuracy  and  brevity,  yet.  under  our  systeiu  of  pleading 
and  pra«'licc,  courls  ai"e  i-('(|uii'('d  1o  i'raun'  llicir  judgincnis  so  as 
to  determine  all  the  rights  of  the  parties,  as  well  (Miuilablc  ;is  legal 
'  ITutchinson  v.  Smith,  6H  N.  C.  354)  ;  and,  being  a  Hiud  deleriuina- 
tion,  should  contain  every  clenieTit  of  the  action  necessai'y  lo  eiiabli' 
the  sucees.sful    f»;n't y  tr>  ohliiin    llie   fullness  of  his  r(>covery.      Tie- 
ilefendanl    in    this   ;ii'tion    is   ;iu    in<-iirjMir;ite(|    conqtany.    ;ni<l    tlie 
hiaintiff  insists  tliat,  under  section  1255  ol"  the  Code,  an  execution 
issued  upon  a  judirnienf  founded  on  ati  action  for  tort  has  stqx'rior 
advant;i'_'es.  in  its  enfdreeinent .  ovei-  execntions  issued  upon  judg- 


XiO  FDKMS    Ol'    A(   TKtNy.  [Cli,     }, 

mollis  fouiuU'd  111)011  ((iiitijU'ts.  As  \o  tins.  liowi'Vi'i-.  we  do  not 
express  JIM  oitiiiioM.  ;is  tluit  <|nestioii  is  not  hefoiH'  us.  Let  the 
judy:ineiit  ol"  tlio  eourt  below  be  entered  aeeordinj:  to  this  ((pinion. 
Error. 

See  Nevin  v.  I'ullinaii  I'alaie  far  Co.,  lOli  111.  Ul'^,  III  Am.  Rei).  at 
p.  697,  inserted  at  sec-.  3  of  this  chapter.  See  F.  &  W.  Mfg.  Co.  v.  Beckett, 
70  N.  E.  r.o;',,  12  L.  R.  A.  (N.  S. )  024.  and  elaborate  note.  See  "Action," 
Century  Dig.  §§  lGO-195;    Decennial  and  Am.  Dig.  Key  No.  Series  §  27. 


GATES  V.  KENDALL,  67  X.  C.  24L     1872. 

Forms  of  Action  Ex  Contractu  and  Ex  Delicto  under  the  Code  Practice. 
Declaration  in  Tort,  Recoi^ery  in  Contract. 

[Action  to  recover  damages  for  alleged  conversion  of  plaintiff's  cotton 
by  defendant.  Verdict  and  judgment  against  defendant,  and  he  appealed. 
Affirmed. 

1  lainliff  bought  some  cotton  from  the  defendant.  The  cotton  was  paid 
for  and  delivered;  but  placed  in  defendant's  custody.  The  defendant  sold 
the  cotton  to  another  person  and  collected  the  proceeds.  Prior  to  such 
sale  by  defendant,  the  plaintiff  had  sold  the  cotton  to  another  person, 
but,  of  course,  had  not  delivered  it.  Defendant  insisted  that,  as  this  ac- 
tion was  for  the  wrongful  conversion,  the  jjlaintiff  could  not  sustain  the 
action  because  he  was  not  the  owner  of  the  cotton  at  the  time  of  the 
defendant's  conversion.    The  judge  ruled  otherwise.! 

BoYDEN.  J.  In  this  ease  it  is  contended,  that  the  plaintitf  cannot 
recover,  for  the  reason  that  although  this  is  a  civil  action,  it  is  in 
the  nature  of  an  action  of  trover,  and  that  at  the  time  of  the  al- 
leged conversion  the  plaintiff  was  not  the  ownei-  of  the  cotton  al- 
leged to  have  been  converted.  It  is  true,  that  to  sustain  an  action 
of  trover,  according  to  the  principles  of  the  common  law,  the 
lilaintitf  ninst.  as  a  general  rule,  be  the  owner  of  the  property 
at  the  time  of  the  alleged  conversion,  so  that  if  this  had  l)een  an 
action  of  trover,  under  our  former  system  of  pleading,  the  plain- 
tiff could  not  recover.  ...  In  our  case  it  is  not  c^ven  pre- 
tended that  there  is  any  substantial  defense  to  this  action;  the 
main  ob.jection  to  the  recovery  being,  that  the  ])laintiff.  in  his  com- 
plaint, has  alleged  and  set  out  a  case  in  trover,  when  the  case,  as 
jtroved  on  the  trial,  shows  that  it  should  have  been  in  the  nature 
of  an  assumpsit  for  money  had  and  received.-  It  would  be  a  viola- 
tion of  one  of  the  most  important  provisions  of  the  new  code,  to 
permit  a  party  to  defeat  a  recovery,  upon  the  sole  ground  that  the 
form  of  the  complaint  is  not  ,iust  as  it  should  have  been,  from 
the  facts  established  by  the  proofs  in  the  case.  To  allow  such  an 
(ibjection  now  to  avail  a  party  would  be  to  defeat  that  great  and 
vital  principle  of  the  new  code  and  constitution,  which  declares 
that  there  shall  be  but  one  form  of  action,  and  it  would  incorporate 
into  our  new  system  all  the  mischief  and  intricacies  touching  the 
form  of  action  intended  to  be  obviated  by  that  provision.  No  such 
ob.iection  can  be  permitted  to  defeat  a  recovery.  The  135th  section 
of  the  C.  C.  P.  enacts  that  "the  court,  and  the  .iudge  thereof,  shall 
in  everv  staire  of  the  action  disrecrard  anv  error  or  defect  in  the 


Sec.    1.]  FORMS    OF    ACTIONS.  331 

pleadings  or  proceedings  which  shall  not   affect  the  substantial 
rights  of  the  adverse  party."     .     .     .     Judgment  affirmed. 

See  "Trover  and  Conversion,"  Century  Dig.  §  214;  Decennial  and  Am. 
Dig.  Key  Xo.  Series  §  34. 


WILLIAMS  V.  RAILROAD,  144  X.  C.  498,  504,  505,  57  S.  E.  216.     1907. 

Foms  of  Action  Ex  Contractu  and  Ex  Delicto  under  the  Code  Practice. 

Tort  for  Breach  of  Duty  to  the  Public,  Arisiyig  Ex  Contractu. 

f Action  to  recover  damages  because  defendant  failed  to  stop  its  train 

to  take  plaintiff  on  board  as  a  passenger.  Verdict  and  judgment  against 
plaintiff,  and  he  appealed.     Reversed. 

The  plaintiff  alleged  that  the  defendant  negligently  failed  to  stop  the 
train  where  it  should  have  stopped  for  passengers  to  get  aboard,  etc. 
He  further  charged  that  the  defendant  xoilfuUy  disregarded  the  plain- 
tiff's rights  in  refusing  to  stop,  etc. 

The  judge  charged  that  if  the  failure  to  stop  was  wilful  and  intentional 
the  plaintiff  could  recover,  because  he  had  sued  in  tort;  but  if  the  failure 
to  stop  was  merely  negligent,  plaintiff  could  not  recover,  because  he  had 
sued  in  tort  and  not  in  contract;  that  plaintiff  might  have  sued  in  con- 
tract, and  if  he  had  done  so.  he  could  have  recovered  for  negligence,  be- 
cause such  negligence  would  have  constituted  a  breach  of  the  contract 
which  the  railroad  "had  with  the  peoi)le  generally;"  that  such  breach 
would  entitle  the  plaintiff  to  nominal  damages  at  least;  that  if  the  de- 
fendant acted  wilfully  and  intentionally,  plaintiff  could  recover  punitive 
damages  in  this  action.  The  question  presented  is:  Is  there  any  dis- 
tindion  between  tort  and  contract  in  actions  for  wrongfully  failing  to 
stop  a  train  for  passengers  to  get  aboard?) 

W.\i>KEK.  J.  [After  discussing  the  liability  of  the  defendant 
for  punitive  damages  if  it  wilfully  refused  to  stop,  etc.]  .  .  . 
AVe  might  well  stop  here  and  rest  our  decision  upon  the  clear  and 
explicit  statement  of  the  law  as  contained  in  the  cases  cited,  but 
for  the  fact  that,  while  the  court  charged  correctly  its  to  punitive 
damages,  it  withdrew  from  the  considerati(m  of  the  jury  the  ques- 
tion of  actual  or  compensatory  damages  altogether,  and  resti'icted 
the  recovery  to  nominal  and  punitive  damages,  and  cliargod  that 
they  could  be  recovcrc.'d  only  in  case  the  ^ury  found  that  llie  en- 
gineer wilfully  refused  to  stop  the  train.  This  charge  was  given 
because,  as  his  honor  stated.  Iln'  iihiintilTs  had  sued  in  tort,  and 
not  in  contract,  and  that  mere  inatlciition  on  the  part  of  the  en- 
•rincer.  or  a  negligent  failun-  to  stoj)  the  train,  would  not  entitle 
the  plaintiffs  to  recover  a.s  for  a  tort.  and.  further,  that  they  could 
not  recover  actual  damages,  because  none  had  been  alleged  or 
proven.  We  are  not  aware  of  any  authority  distinguishing  be- 
tween tort  and  contract  in  resjx'ct  to  the  ritrlil  to  i-ecover  in  actions 
of  this  kind.  .\I1  forms  of  action  ;ire  abolished,  and  we  have  now 
but  one  form  for  the  enforcement  of  privat<'  rights  and  the  redress 
of  private  wrongs,  which  is  denominated  a  civil  ;ielion  CRevisal 
lOOf),  5;  '{r)4).  and  the  court  gives  relief  aceonlintr  to  flie  facts 
alleged  and  established.  (Mark's  Code  CM  <'d.).  §  Ki:?.  and  notes; 
Rams  V.  Price.  110  \.  C.  :u2.  26  S.  Iv  170;  Bowers  v,  Railroad. 
107  X.  r.  721.  12  S    E.  4r,2:  Vr.orbees  v.  Porter.  ir?4  N.  C.  501. 


3.12  KOW.MS    Ol'    ACTIONS,  \('ll.     I. 

47  S.  Tv  1^1.  Tin-  coiiiiilaiiit  in  tliis  cisc  is  llit^  pi-otlucl  of  a  careful 
and  skillful  plcadi'i".  kiu)\viiii>-  liis  clii-nrs  cause  of  ael ion  and  ablH 
to  slato  it  with  accuracy  and  precision.  Its  alleij^ations  are  abund- 
antly sullicient  to  cover  every  phase  of  the  c\  idenco,  and  it  is  other- 
wise sullicient  in  .sul)stance  and  in  form.  The  i)laintilVs  have  al- 
Icijed.  not  only  a  willful  disrejxard  of  their  i-ijihts,  I»ii1  neiiliyent 
inatttMition  on  tlie  part  of  the  engineer;  and  whether  it  is  in  tort 
or  contract  can  make  no  ditVerence.  The  law  does  not  deal  with 
forms,  but  with  facts.  Thei'e  was  error  in  the  charge,  so  far  as  it 
denied  to  tlie  plaintitVs  the  right  to  recovery  for  mere  negligence. 

The  error  of  the  court  in  conrtning  the  plaintiffs'  right  of  re- 
covery to  the  narrow  limits  stated  in  the  charge  entitles  them  to 
another  trial.     New  ti'ial. 

See  "Carriers,"  Century  Dig.  §  1075;  Decennial  and  Am.  Dig.  Key  Xo. 
Series  §  274. 


X.  C.  LAND  CO.  V.  BEATTY  and  BENNETT,  69  N.  C.  329,  333-335.     1873. 
Joinder  of  Tort  and  Contract  in  the  Same  Action.    Multifariousness. 

[Action  to  recover  money  alleged  to  be  due  for  commissions.  .Judg- 
ment against  defendants,  and  they  appealed.    Reversed. 

Plaintiff  alleged  a  contract  with  the  defendant  Beatty,  by  which  plain- 
tiff was  to  be  paid  a  commission  for  selling  land  which  Beatty  asserted 
to  belong  to  him;  that  Bennett  was  present  and  knew  of  this  contract  and 
assertion  of  Beatty's;  that  plaintiff  brought  about  the  sale  and  thereby 
became  entitled  to  the  commissions  under  the  contract  with  Beatty;  that 
after  the  sale  the  land  was  found  to  belong  to  Bennett  and  not  to  Beatty; 
that  both  refused  to  pay  the  commissions  due  the  plaintiff;  that  in  mak- 
ing the  representations  to  the  plaintiff  as  to  the  ownership  of  the  land, 
and  in  procuring  i)laintift"'s  services,  etc.,  "the  defendants  were  guilt.v 
of  fraud  upon  the  plaintiff,  and  plaintiff  believes  they  are  jointly  and 
severally  liable  to  the  plaintiff  to  the  amount  of  the  commissions  claimed 
by  virtue  of  the  conti-act,  or  as  damages  for  the  fraud."  Demurrer  by 
defendants  for  misjoinder  of  causes  of  actions — one  a  money  demand 
claimed  under  a  contract  with  Beatty,  to  which  contract  Bennett  was  not 
a  party;  the  other,  to  recover  damages  for  a  fraud,  tort,  alleged  to  have 
been  perpetrated  by  both  defendants.     Demurrer  overruled.] 

Rodman,  J.  .  .  .  The  question  before  us  is.  can  the  plain- 
tiff join  in  the  same  complaint  a  count  (or  cause  of  action)  in  con- 
tract against  one  of  the  defendants,  with  a  count  (or  cause  of  ac- 
tion) on  the  fraud  of  both? 

Prior  to  the  C.  C.  P.  it  is  clear  that  at  law  such  a  misjoinder 
was  demurrable.  1  Chit.  PI.  331;  Chamberlain  v.  Robertson.  52 
N.  C.  12.  In  equity  multifariousness  was  not  allowed  in  a  bill. 
1  Dan.  Ch.  Pr.  384;"P,oyd  v.  Hoyt.  S.  Paige.  65.  Multifariousness 
is  well  defined  in  Sjo?-y  E(|.  PI.  §  271,  and  in  Bedsole  v.  IMonroe, 
40  X.  C.  313.  T>y  (Mther  definition  this  action  wotild  be  multi- 
farious. 

But  it  is  contended  that  the  joinder  is  allowed  by  sec.  126,  C. 
C.  P.  This  says:  "The  plaintiff  may  unite  in  the  same  complaint 
several  causes  of  action  whether  tlii'V  be  such  as  have  been  hereto- 


Sec.    1.]  FORMS    OF    ACTIONS.  333 

fore  denominated  legal  or  equitable,  or  both,  where  they  all  arise 
out  of:  (1)  The  same  transaction,  or  transactions  connected  with 
the  same  subject  of  action;  (2)  Contracts  express  or  implied;  or 
(3)  Injuries  with  or  without  force,  etc.  But  the  causes  of  action 
so  united  must  all  belong  to  one  of  these  classes,  and  .  .  . 
must  atfect  all  the  parties  to  the  action,  .  .  .  and  must  be 
separately  stated." 

The  argument  of  the  plaintiff  must  be  that  under  the  first  clause 
he  could  unite  any  number  of  causes  of  action  belonging  to  all  of 
the  after  enumerated  cla.sses.  provided  only  they  all  arose  out  of 
the  same  transaction,  or  out  of  distinct  transactions  concerning  the 
same  subject  of  action.  It  is  easy  to  see  that  this  construction 
would  produce  all  the  inconvenience  and  confusion  which  it  was 
the  object  of  all  the  rules  regulating  the  joinder  in  action  to  pre- 
vent. Take  an  example:  A  lends  a  horse  to  B  Avho  sells  him  to 
C.  The  sale  is  one  transaction,  but  it  may  give  rise  to  several 
causes  of  action  of  different  kinds,  and  between  different  parties. 
A  may  have  an  action  of  trover  against  B  or  C.  B  may  have  an 
action  for  the  price.  C  may  have  an  action  for  deceit ;  and  if  the 
sale  were  to  C  in  trust  for  D,  he  might  have  an  action.  If  we  sup- 
pose two  transactions  about  the  same  horse,  the  number  of  pos- 
sible actions  about  the  same  subject  becomes  nuich  greater.  It 
cannot  be  possible  that  all  these  numerous  actions  between  differ- 
ent parties,  and  having  no  common  bearing  or  connection,  except 
that  the  subject  of  all  is  the  same  horse,  can  be  united. 

It  is  difficult  to  give  any  exact  meaning  to  that  clause.  Perhaps 
it  was  not  intended  to  make  a  distinct  class;  for  it  is  not  united 
as  all  the  following  clauses  are,  by  the  conjunction  "or."  Or.  per- 
haps it  is  an  imperfect  attempt  to  condense  the  rule  of  equity  by 
which  all  persons  having  rights  oi-  estates  in  the  same  subject 
matter  (as  for  example  devisees,  heirs  at  law,  creditors  and  a 
widow,  in  the  estates  of  decedents)  may  by  one  proceeding  obtain 
an  adjustment  of  all  theii'  respective  claims.  However  this  may 
l)e.  the  clause  has  no  beai'ing  on  tlie  |)resent  question.  These  re- 
main the  classes  of  contract,  injury,  etc.  Any  number  of  causes 
f)f  action  belonging  to  any  one  of  these  may  1)e  united,  provided 
they  all  afl'ect  the  pai'ties.  but  no  two  Ix'longing  to  different  classes. 
Judgment  ))elow  reversed  and  demurrer  sustained. 

See  "Action,"  Century  Dig.  §§  378-rj47;  Decennial  aiid  Am.  Dig.  Key 
No.  Series  §§  43-.51 


WILT  \.  WKF.SII.  C,  Watts  ( I'a. ) ,  !i,  Sniilirs  Cases  L.  P.  329.     1837. 

Tort  Ornwinff  Out  of  Contract.     Wnivinff  Contract   and   Ftiiing  in   Tort. 
Application  to  Infant's  Contract h. 

[Wt-lsli  siif'd  Will  in  trover.  Wilt  iilcadcd  infancy.  .Tndginent  against 
Will,  who  carried  flif  case  to  the  snprcinc  couit  l)y  writ  of  error.  Re- 
versed. 

The  infant,  Wilt,  hired  Welsh's  horse  to  go  to  one  i)lace,  hut  Instead 
of  ahiding  by  the  contract,  he  drove  the  horse  to  another  jilace.  The 
deafh  of  the  horse  was  the  resnU.  AVelsli  claimed  thai  flic  act  of  the 
infant  in  rlriving  to  a  rliffcrcnt   jdace  from  Ihat  specified  in  the  contract, 


334  I'OK.MS    0|-    ACTIONS.  |r//.     i. 

WHS  a  tort  anil  llial  tlio  iul'aiit  was  liable,  siiuc^  iiifaiuy  is  no  defense  to 
a  tort.  The  infant  contended  that  his  liahilily,  if  any,  eould  only  arise  out 
of  the  contract,  hiMween  himself  and  Welsh,  under  which  the  horse  was 
hired:  that  the  drivinii  to  a  diffei-ent  place  from  that  contracted  for,  was 
a  breach  of  the  contract  and  not  a  tort;  and  as  an  infant  is  not  liable  for 
his  contracts  of  this  kind,  if  he  chooses  to  avoid  them,  his  plea  of  infancy 
is  a  good  defense.  The  judge  below  hehl  with  Welsh  and  against  Wilt, 
the  infant.  Th(>  supreme  court  held  witli  Will,  the  infant,  and  against 
Welsli.l 

GmsoN.  r.  J.  It  would  have  been  sufficient  to  rest  the  decision 
of  this  cause  on  the  pivcedeiit  ol'  Penrose  v.  Cunvn,  '.]  Rawle.  351, 
if  tho  point  had  not  since  been  ruled  differcnily  hy  tlic  conrt  of 
errors  of  New  Ymk:  hut  a  icspeet  for  the  t)pinion  of  that  court, 
renders  it  projx'r  to  re-examine  the  question  on  ])rineiple  and  au- 
thority. Tlie  irroiind  of  the  New  York  ease  (Canii)hell  v.  Stakes, 
L'  Wend.  137)  is  that  a  positive  breach  of  the  contract  is  a  dis- 
atHii'iiiaiiee  which  works  a  dissolution  of  it  and  reduces  the  infant 
to  a  level  with  an  adult  who  is  eharocable  with  a  conversion,  for 
any  act  which  subverts  the  nattire  of  the  bailment.  That  would, 
indeed,  brinw  the  connuon-law  i)rinciple  of  protection  within  a 
narrow  compass;  for  there  are  few  breaches  of  bailment  that  are 
not  subversive  of  it.  The  supposed  act  of  subversion,  in  cases  like 
the  present,  is  the  overworking?  of  a  horse  or  the  otherwise  abusing 
of  the  thing  bailed,  which,  by  the  way.  is  at  the  same  time  an  in- 
disputable breach  of  the  contract,  and  ground  sufficient  for  an 
action  on  it.  This  being  so.  it  remains  to  be  seen  whether  an  in- 
fant is  chargeable  for  it  in  the  shape  of  a  tort.  There  are  two 
cases  fPowel  v.  Layton.  2  N.  R.  365.  and  Weall  v.  King,  12  East. 
452)  in  which  it  is  maintained  that  even  an  adult  is  not.     .     . 

But  Campbell  v.  Stakes,  though  entitled  to  less  authority  merely 
as  a  decision,  being  the  judgment  of  a  popular  court,  yet  distinctly 
enough  discl(»ses  the  foiuidation  of  the  doctrine.  The  contract,  it 
was  justly  said,  comprises  a  promise  to  kec])  the  thing  from  harm 
and  return  it  at  the  stipulated  time;  for  a  negligent  breach  of 
which,  it  was  adtnitted,  the  infant  would  not  be  liable  as  for  a  tort. 
But  it  was  said  that  any  positive  act  of  injury  inconsistent  with 
the  contract,  would  disaffirm  it  and  leave  him  liable  as  if  there  had 
never  been  a  contract.  What  is  that  but  to  make  him  a  tortfeasor 
by  constniction  ?  Tt  is  scarce  maintainable,  liowevi^r.  that  a  positive 
breach  of  the  contract  is  an  uiKpialilied  disaffirmance  of  it.  Where 
the  infant  intended  no  disaffirmance.  I  am  unable  to  see  how  the 
adult  shall  intend  it  for  him.  or  insist  that  he  rescinded  the  whole 
by  perhaps  an  inconsiderable  breach  of  a  part.  TTowever  con- 
venient such  a  pretext  might  be  to  add  a  new  i-esponsibility  to  the 
predicament  of  the  bailee  or  to  extricate  the  bailor  from  an  old  one, 
it  is  to  be  remembered  that  the  exercise  of  the  privilege  is  not  for 
the  adult  but  for  the  infant.  T  know  nothing,  nor  did  T  ever  be- 
fore hear,  of  a  constructive  election  to  disaffirm  in  order  to  strip 
an  infant  of  his  privilege,  and,  by  turning  him  from  a  contractor 
into  a  trespa-sser.  to  put  him  in  a  worse  condition  than  if  the  con- 
tract had  been  indefeasible.  Such  a  construction  is  not  in  keeping 
with   the  benign   [)rinciples  of  the  comni(»n   law,  which,   in  other 


Sec.    1.]  FORMS   OF   ACTIONS.  335 

oases,  holds  him  only  to  such  acts  as  are  beneficial  to  him,  and  de- 
clares such  as  are  positively  detrimental  to  him  to  l)e  i)ositively 
void.  Even  were  that  othenvise,  yet  to  give  to  an  injury  done  to 
the  thintr  bailed  the  character  of  an  independent  trespass,  would 
require  the  bailment  to  have  been  first  terminated;  for  the  very 
foundation  of  the  argument  is,  that  the  contract  was  out  of  the 
way  at  the  time;  but  by  the  most  attenuated  construction,  its 
cessation  and  the  inception  of  the  wrong,  could  be  but  sinuil- 
taneous.  On  what  principle,  then,  can  it  be  a  trespass?  The  dis- 
tinction taken  in  the  Six  Carpenters'  Case,  8  Coke,  14(),  betwixt 
an  authority  given  by  the  law,  whose  abuse  makes  the  offender  a 
trespasser  from  the  beginning,  and  a  license  by  the  party,  whose 
abuse  does  not.  has  never  been  questioned.  The  killing  of  a  beast 
distrained  by  the  grantee  of  a  rent  charge  makes  not  the  distress 
a  trespass,  because  it  is  given  by  the  grant  and  not  by  the  law. 
1  Inst.  l-H.  The  reason  is  that  a  party  is  entitled  to  the  best  pro- 
tection the  law  can  give  against  an  abuse  of  an  authority  dele- 
gated not  by  himself  but  l)y  the  law.  which  to  that  end.  makes 
void  evervthing  improperly  done  under  it ;  while  a  party  who 
gives  an  authority  to  an  unsafe  person  has  only  himself  to  blame 
for  it.  6  "Wils.  Bac.  561.  Xow  taking  for  granted  that  the  act 
annihihited  the  contract;  it  cannot  be  denied  that  there  was  a  prec- 
edent license,  for  an  excessive  use  of  which  the  infant  is  sought  to 
be  charged  as  for  a  trespass;  with  what  pretense  of  reason,  when 
an  adult  could  not  be  so  charged,  it  is  unnecessary  to  say.  The 
theoi-y  on  which  a  breach  of  contract  has  been  thus  turned  into  a 
trespass,  is  as  incomprehensible  to  me  as  the  theory  on  which  a 
common  recovery  bars  an  entail ;  and  why  we  should  employ  any 
juggle  whatever  to  tear  from  an  infant  the  defenses  with  whicli 
the  law  has  covered  his  weakness,  is  equally  incomprehensible.  Tn 
the  American  courts,  the  hardship  of  particular  cases,  as  in  the 
'•arlier  decisions  on  the  statute  of  limitations,  seems  to  have  run 
away  with  the  law:  but  it  is  to  be  remembered  that  iiai-ticular 
liardsliips  arc  to  be  borne  in  giving  effect  to  every  general  prin- 
ciple of  policy.  To  fritter  away  the  rule  by  exceptions  such  as 
these,  would  expose  a  child  of  the  most  tender  years  to  an  action 
for  the  destruction  of  a  delic;ite  or  dangerous  instrmiuMit  thought- 
k'S.sly  or  wickedly  put  into  his  hands;  for.  in  conteiiq)lati()n  of  law, 
an  infant  of  three  years  is  not  inferior  in  discretion  to  one  of 
twenty.  The  mi.schiefs  to  which  miiioj-s  are  exposed  from  the 
cupidity  of  those  whose  trade;  it  is  to  ])ami)er  their  appetites,  are 
sufficiently  depicted  in  Penrose  v.  Curren  :  and  we  are  not  dis- 
posed to  surrender  the  principle  assertecl  in  il.  It  is  cleai-  that 
the  evidence  of  infancy  oipjiil  In  liave  been  admitted-.  ;uid  that  the 
<-ourt  erred  also  in  directing'  that  if  the  infant  hired  the  horse  to 
go  to  a  particular  phice  ;ind  injui'cd  him  by  going  beyond  it,  he 
w;is  truilty  of  a  convei'sion.  Judgment  icversed,  and  a  venire 
facias  de  iio\d  awarded. 

Sep  "Infants."  Centiirv   Die.  §8   K,1    108;    I)fc.niii;il   ;ni.l   Am.   DiR.  Key 
Xo.  Series  §§  59-62. 


33()  KOK'MS    Ol'    ACriONS.  [CJl.     i. 


KRKE.MAN    v.    HOLAXD,    11    li.    I.   \V\   Siuilirs  Cases,   L.    I'.   :!;n.   .'1    Anu 

Rep.  340.     1882. 
Sanii    I'oiiils  as   in    Wilt    r.    Welsh,   Ante. 

DruFEE.  (\  J.  The  (|U('sti(>ii  lirrc  is  wiii'tlicr  :iii  inraiit  or  minor 
wlio  liircs  ;i  liorsc  .-iiid  l)iiii>:\'  to  di'ivc  1o  ;i  pjirl iciihir  place,  and. 
wlio.  liavinu:  irot  llicin  under  tlio  liii'injr,  di'ivcs  beyond  the  plaee 
or  in  ancttlier  direetion.  is  liable  in  ti-over  i'or  the  conversion.  We 
think  he  is.  There  are  eases  in  which  infancy  has  been  lield  to 
be  a  g:ood  defense  to  an  action  ex  delicto  for  tort  committed  under 
contract  or  in  makintr  it.  But  (hat  is  not  this  case.  The  act  here 
complained  of  was  committed,  not  under  the  contract,  but  by 
abanditning:  it;  the  bailment  lieinc;  thus  determined. 

The  contract  cannot  avail  if  the  infant  goes  beyond  the  scope 
of  it.  The  distinction  may  be  subtle,  but  it  is  well  settled,  and 
has  been  ofti'U  ai)i)lied  in  support  of  actions  pi-ecisely  like  this.  It 
is  true  the  contract  nuist  be  generally  ])ut  in  proof  to  support  th(^ 
action,  but  this  is  because  the  tort,  inasmuch  as  it  is  committed 
by  departing:  from  the  terms  of  the  contract,  cannot  be  shown 
without  showing  the  contract,  and  not  because  the  contract  is 
otherwise  involved.  Homer  v.  Thwing,  3  Pick.  492;  Towaie  et  al. 
V.  Wiley,  23  Vt.  355;  Fish  v.  Ferris.  5  Duer,  49;  A^asse  v.  Smith, 
G  Cranch.  226:  Green  v.  Sperry.  16  Vt.  390;  Campbell  v.  Stakes. 
2  AYend.  137;  Addison  on  Torts,  sec.  1314.  .  .  .  Exceptions 
overruled. 

See  "Infants,"  Century  Dig.  §§  161-168;  Decennial  and  Am.  Dig.  Key 
No.  Series  §§  59-62. 


BARNES  V.  HARRIS,  44  N.  C.  15.    1852. 
Same  Points  as  in  Wilt  v.  Welsh,  Ante. 

[Action  of  tort  against  a  feme  covert  and  her  husband  for  injuries  to  a 
horse  caused  by  the  wife.  Verdict  and  judgment  against  plaintiff,  and 
he  appealed.     Affirmed. 

The  feme  defendant  borrowed  the  i)laintiff's  horse  to  drive  a  distance 
of  fourteen  miles,  and  injured  it  by  hard  driving  and  overloading.  She 
acted  with  negligence  and  with  want  of  skill  and  judgment  in  her  treat- 
ment of  the  horse,  but  7iot  wilfully  or  malicionsly.  In  borrowing  the 
horse  the  wife  acted  as  agent  for  her  husband.  The  judge  charged  that 
the  plaintiff's  remedy  was  on  the  contract  of  the  husband,  and  that  he 
could  not  recover  of  the  wife  by  electing  to  sue  her  in  tort.l 

Nash.  C.  J.  The  action  was  commenced  against  Jesse  Harris 
and  his  wife,  the  present  defendant,  IMatilda  Harris,  and  against 
Henry  Xance.  the  other  defendant.  Jesse  Harris  is  dead,  and  the 
suit  abated  as  to  him ;  and  the  only  question  raised  by  the  bill  of 
exceptions  is.  can  it  be  carried  on.  or  survive  against  the  wife? 
On  the  part  of  the  plaintiff  it  is  admitted  that  in  the  contract  of 
bailment.  >^lrs.  Harris  was  the  agent  of  her  husband,  and  on  it  she 
is  not  liable:  but  it  was  sought  to  subject  her  by  deserting  the  con- 


Sec.    1.]  FORMS    OF    ACTIONS.  337 

tract  and  siuiip:  in  tort,  upon  the  ground  that  a  feme  covert  is  an- 
swerable for  her  own  personal  trespasses,  and  may  be  sued  with 
her  husband,  and  that  if  he  die  pending  the  action,  the  suit  will 
not  abate  as  to  her.  The  principle  is  correct  in  the  abstract,  and 
if  the  facts  set  forth  in  the  case  amount  to  such  a  trespass  on  her 
part,  then  the  suit  is  properly  prosecuted  against  her.  All  persons 
are  liab,le  for  their  own  tortious  acts,  unconnected  with,  or  in  dis- 
affirmance of.  a  contract.  Thus,  though  an  infant  cannot  be  sued 
upon  his  contract,  except  for  necessaries,  yet  he  is  liable  in  dam- 
ages for  an  assault  and  battery,  and  for  his  slander;  but  a  person 
cannot,  by  changing  his  form  of  action,  charge  him  for  a  breach 
of  contract,  as  for  negligence  or  immoderate  use  of  a  horse.  Jen- 
nings V.  Rimdall.  8  Term  R.  335.  In  that  ca.se.  the  immoderate 
use  of  the  horse,  which  was  the  gravamen  of  the  plaintiff's  claim, 
and  which  had  been  hired  to  the  defendant,  who  was  an  infant, 
was  strongly  urged  as  being  a  tortious  act,  which  would  sustain 
the  action.  It  was  decided  that  the  plaintiff  could  not  recover, 
because  the  cause  of  action  grew  out  of  a  contract,  for  a  breach 
of  wliich  no  action  could  be  sustained.  If  this  were  not  the  law, 
the  protection  thrown  around  infants  would,  in  many  cases,  be 
fruitless.  A  married  woman  is  not  personally  liable  for  her  con- 
tracts of  any  kind ;  but  if  she  conmiit  an  actual  tort,  she  is  liable, 
and  may  be  sued  jointly  with  her  husband :  but  it  nuist  be  an 
actual  tort,  as  an  assault  and  battery,  and  not  a  constructive  one, 
arising  from  ignorance  and  negligence.  Coke  Lit.  180,  B.  n.  4.  It 
is  admitted  in  this  case,  that  in  borrowing  the  horse  from  the 
l^laintift',  .she  was  acting  as  the  agent  of  her  husband;  and  there- 
fore the  attempt  is  made  to  charge  her  in  tort.  Two  tortious  facts 
are  alleged — the  one  overloading  the  vehicle,  and  the  other  im- 
mcjdcrate  driving.  AVe  understand  from  the  case,  that  she  both 
loaded  and  drove  the  vehicle.  Do  both  or  either  of  these  acts 
amount  to  such  an  actual  trespass,  as  to  subject  her  to  an  action? 
We  }in'  V('7-v  clearly  of  opinion  they  do  not.  Both  the  overloadirig 
and  the  immoderate  driving  were  acts  of  negligence  or  want  of 
skill.  In  the  ca.se  of  the  infant,  we  have  seen  that  the  immoderate 
driving  was  not  such  a  tortious  act  as  subjected  the  defendant  to 
an  action  of  tort.  Why  should  it  in  a  feme  covei-t  .'  Neither  was 
answerable  u])on  the  conti'act.  and  both  are  answeral)le  for  an 
actual  tort.  The  case  discloses  no  act  of  the  defendant,  ^Matilda, 
amdunting  to  such  a  1(ir1.  Il  is  not  shown  that  she  struck  the 
horse  a  blow  on  the  i-ide.  If  she  had  beaten  him  with  a  club,  or 
cut  him  with  a  knife,  whereby  he  was  injured,  or  his  owner  de- 
prived of  liis  services,  siie  would  have  been  answerable — and  for 
an  actual  t<trl.     \V(*  see  no  error  in  l!ie  judgment.     .Mliniied. 

See  also  Schenck  v.  StmiiK.  1  .N.  .1.  L.  illi;  Lowery  v.  Cate.  64  S.  W.  1008, 
"i  L.  R.  A.  fi?:'.,  and  notf  elaborately  treating  the  subject  of  actions  in  tort 
brought  against  infants  for  acts  growinp;  ont  of,  or  intimately  connected 
with,  <'Ontra(ts.  The  excellent  summary  of  the  doctrine,  at  the  end  of  the 
note,  gives  a  elear  and  eonflKe  outline  not  only  of  the  law,  but  of  the  con- 
flieting  views  entertained  on  the  subject.  See  "Husband  and  Wife,"  Cen- 
tury Dig.  §8  T'tl    79.'.;   Decennial  aiul  Am.  Dig.  Key  No.  Series  §§    214,  223. 

Remedies — 22. 


33S  FORMS    ()!•'    ACTIONS.  iCIl.     i. 


Sko.  'J.     Actions   Kx  Con  tkac'I'i:. 
(ii)     Con  na III. 

JEROME  V.  ORTMAN.  66  Mich.  668,  33  N.  W.  759.     1887. 
In   ^Vhat  Cases  the  Action  of  Covenant  TAes. 

[Aition  ol'  covenant  on  an  instrument  not  actually  sealed.  Objection 
by  defendant  to  the  t'orni  of  the  action.  Objection  overruled  and  verdict 
and  judgment  against  the  defendant,  from  which  he  appealed.     Affirmed. 

A  statute  in  Indiana  enacts  that  "no  bond  shall  be  deemed  invalid  for 
want  of  a  seal  affixed."  The  instrument  sued  on  possessed  all  the  requi- 
sites of  a  bond  or  covenant  except  th^  seal.] 

Campbell,  C.  J.  In  this  case  the  plaintiffs  sued  defendants  in 
an  action  of  covenant  for  the  violation  of  the  terms  of  an  agree- 
ment which  was  executed  without  any  actual  seal  or  scroll,  but 
which  was  declared  to  be  the  act  of  the  parties,  in  witness  whereof 
they  thereunto  set  their  hands  and  seals.  The  court  below  held 
that  the  action  of  covenant  was  properly  brought,  and  judgment 
was  rendered  upon  the  verdict  of  the  jury  for  damages  shown.  It 
is  claimed  now  by  defendants  that,  the  agreement  not  being 
actmtlly  .sealed,  assumpsit  was  the  only  action  permissible;  and 
assumpsit  being  barred  in  six  years,  while  covenant  is  not  barred 
until  ten  years,  the  di.stinction  is  material  and  vital  in  the  present 
case,  where  more  than  six  years  had  expired.  We  have  no  stat- 
utory definition  either  of  a  covenant  or  of  the  action  of  covenant. 
We  must  therefore  go  back  to  the  common  law.  It  is  claimed  by 
defendants  that  a  covenant  is  an  instrument  under  seal,  and  that 
the  action  of  covenant  is  confined  to  sealed  instruments.  This 
was  generally  so  at  common  law.  but  the  definition  is  not  accurate 
in  the  order  of  statement.  Covenant  at  common  law  is  an  action 
upon  a  deed.  It  is  only  because  a  deed  at  conniion  law  required 
a  seal  that  covenant  has  been  declared  to  lie  upon  a  covenant  or 
agreement  under  seal.  It  is  the  question  whether  the  instrument 
was  a  deed  or  not  that  governs.  All  sealed  instruments  are  deeds. 
But  even  at  common  law^  a  party  could  be  held  sometimes  where  he 
had  not  affixed  his  own  seal  at  all.  Thus  the  lessee  in  a  king's 
patent  might  l)e  sued  for  a  covenant  broken,  although  he  sealed  no 
counterpart,  because  bound  by  his  acceptance.  Com.  Dig.  "Cov- 
enant." A  1.  And  in  a  lease  to  two  persons,  one  only  of  whom 
sealed  the  counterpart,  the  same  doctrine  was  laid  down.  Id.; 
Co.  Lift.  231a.  Several  other  ca.ses  are  put  in  Comyn  to  the  same 
effect.  Implied  covenants,  before  our  statutes  on  the  subject,  came 
under  this  rule. 

In  Fitzherbert's  Xatura  Brevium.  146 A.  where  the  writ  of  cov- 
enant is  explained,  it  is  said  that  by  the  custom  of  London  cov- 
enant would  lie  without  deed.  And  the  same  customary  exceptions 
appears  to  have  exi.sted  elsewhere.    Com.  Dig.  Id. 

It  is  declared  by  our  statutes  rilow.  St.  §  7778)  that  no  bond, 
deed  of  conveyance,  or  other  contract  in  writing,  signed  by  any 
party,  his  agent  or  attorney,  shall  be  deemed  invalid  for  want  of 


Sec.  2  h.]  FORMS  OF  actions.  339 

a  seal  or  scroll  affixed  thereto  by  such  party.  At  common  law  the 
seal  alone  was  the  test  of  the  existence  of  a  deed.  Our  statutes 
contemplate  a  signature  as  equally  necessary.  The  statute  just 
referred  to  indicates  that  some  other  thing  than  a  seal  may  be 
considered,  and  this  can  only  be  the  intention  of  the  parties  as 
found  in  the  instrument  itself,  and  the  purpose  it  was  intended  to 
serve.  There  can  be  no  doubt  what  the  agreement  before  us  means. 
It  uses  the  word  "covenant"  throughout  to  indicate  what  agree- 
ments the  parties  were  making,  which  involved  the  sale  and  con- 
veyance of  lands  when  paid  for.  It  was  provided  that  the  cov- 
enants should  bind  the  heirs  of  the  respective  parties  as  well  as 
their  representatives;  and  it  recited  that  the  parties  thereunto  set 
their  hands  and  seals.  This  language,  and  the  whole  contract 
taken  together,  cannot  be  construed  as  intending  anything  else 
than  what  would  have  been  an  agreement  under  seal  or  deed  at 
common  law.  It  is  apparent  that  the  failure  to  seal  was  inad- 
vertent. It  is  the  precise  ea.se  intended  by  the  statute,  where  an 
instrument  purporting  to  be  a  deed  is  not  sealed.  There  is  no 
ambiguity  in  the  expressed  intention.  The  statute  is  in  harmony 
with  the  general  policy  of  our  law.  which  does  not  require  any  par- 
ticular method  of  sealing,  and  permits  anything  to  be  called  a 
seal  which  is  adopted  for  that  pui*pose.  It  does  not  put  specialties 
and  simple  contracts  on  the  same  footing,  but  it  allows  parties  who 
intend  to  make  specialties  to  have  their  intent  carried  out.  In  a 
ea.se  so  plain  as  the  one  before  us,  there  is  no  occasion  for  pro- 
longed discussion.  The  paper  purports  to  be  a  deed,  and  is  a  deed. 
The  judgment  must  be  affirmed. 

"Debt  and  covenant  are  concurrent  remedies  for  the  recovery  of  any 
money  demand,  when  there  is  an  express  or  implied  contract  in  any  in- 
strument under  seal  to  pay  it:  but,  in  general,  debt  is  the  preferable  rem- 
edy— as  in  that  form  of  action  the  judgment  is  final  in  the  first  instance  if 
the  defendant  do  not  plead.  See  Stephens  N.  P.  10.57."  Taylor  v.  Wilson, 
27  N.  C.  at  p.  21  f5.  See  "Covenant,  Action  of,"  Century  T^ig.  §  6;  Decennial 
and  Am.  Dig.  Key  No.  Series  §  1. 


(h)      Drhf. 

CASSADY  v.  LAUGHLTN,  3   Blackford,   134.     1832. 
In  Whnf  Cnsrs  flip  Action  of  Debt  Lies. 

(Laughlin  sued,  in  debt,  on  an  instrument  for  the  payment  of  two  hun- 
drel  dollars — to  be  paid  in  lumber  of  such  description  as  the  payee 
mlKbt  rffpiiro,  af  tho  lowest  cash  price.  The  declaration  sot  oiit  the  in- 
pfruuH-nt;  that  demand  had  bc^n  made  for  the  lumber;  that  dpiivory  was 
refused.  Demurrer:  (^)  That  debt  will  not  lie,  but  the  jjrnper  action  was 
rovenant;  (LM  That  the  demand  was  insufficient.  Demurrer  overruled 
and  judgment  against  the  defendant.  After  the  judgment  was  rendered, 
the  defendant  rljed  and  Cassady,  his  administrator,  carried  the  case  to  the 
supreme  court  by  writ  of  error.     Reversf'd.l. 

Sntrvfnr.  J.  .  .  .  In  Dip  decision  of  lliis  cas(\  we  do  not 
think  it  noeessarv  to  exjiinine  both  ciiiises  of  (Icinurrcr.  us  tli.-  lir^t 


340  I'OK.MS    (II-    ACTIONS.  [Cll.     L 

point  niailo  is  a  (U'cisivc  ohjcclion.  Debt  is  di'liiiod  in  Bac  Al)r. 
to  be  an  action  foinuU'd  on  an  (xpiuss  or  i  in  pi  lid  coHlnul,  In  tchtcli 
the  cci'tahihj  of  iJie  sitni  or  (lul]i  appmrs,  and  "tluTot'ore  the 
plaintitf  is  to  recover  the  same  in  nnniero.  and  not  to  he  repaired 
in  damatics  by  tiie  jni'v."  Com.  Dis;.  says:  "  Deltl  lies  n|)on  every 
expri'ss  contract  to  pay  a  sinn  c(rtalit."  iUacUstonc  in  liis  com- 
mentaries, says:  "The  k'ljjal  aeeejitation  of  debt  is,  a  snni  of  money 
due  hy  certain  and  i'xi)ress  agrecMnenl.  where  the  ((iianlil\-  is  fixed 
anil  s|H'ciHi*.  and  ih>es  not  depend  npon  any  suhse(|uent  vahiatioii 
to  scttk'  it."  liuU'cd.  the  (h'linilion  ^iven  in  all  the  books  amounts 
to  the  same  thing.  'Plie  phiintilT  must  recover  in  nuniero  and  not 
in  ihimages. 

The  three  distin<!:uisliing  ])()ints  in  tlie  a<'tion  of  debt  are  that 
the  contract  must  be — 1st.  for  money;  2nd,  for  a  sum  certain: 
3rd.  specifically  recoverable. 

The  contract  in  this  ease  is  not  for  money,  but  for  lumber;  and 
as  that  is  not  any  certain  and  spi^'ific  ]ninl)er.  beinfr  desiprnated 
only  l)y  its  ]n-ice  or  value,  the  contract  cannot  be  specifically  en- 
forced by  a  judjsrment.  It  applies  equally  to  all  lumber  of  that 
value,  and  no  specific  judgment  could  be  rendered  for  it.  The 
sum  to  be  recovered  sounds  in  damages,  and  may  be  a  greater  or 
le.ss  sum.  That  the  recovery  should  be  the  amount  of  the  valu<' 
for  which  it  ought  to  have  been  delivered,  is  granted;  but  a 
greater  or  a  less  sum  might  be  recovered,  for  the  contract  is  not 
to  pay  the  amount  in  money,  but  sounds  solely  in  damages  for 
the  breach  of  the  contract.  If  upon  a  failure  to  pay  the  lumber, 
the  demand  became,  instanter,  a  licpiidated  demand  for  money 
then  being  due  by  specialty,  the  interest  would  iiinnediately  attach 
as  a  legal  consequence.  But  that  is  not  the  case  here;  for  interest 
may  or  may  not  be  allowed  in  the  discretion  of  the  court  or  jury 
who  try  the  issue. 

Suppose  the  defendant  below  liad  offered  a  plea  of  tender  of 
$200  in  money  on  the  day  of  ])aymeiit.  would  it  have  barred  the 
action  ?  It  would  not.  The  defendant  had  bound  himself  to  de- 
liver lumber,  and  the  delivery  of  the  specified  sum  of  money  named 
in  the  contract  as  the  value  of  the  lumber,  is  not  a  legal  com- 
pliance with  the  contract.  The  payee  might  be  much  more  or 
much  less  damaged,  than  the  amount  of  the  price  or  value  set 
upon  the  lumber  bv  the  contract.  "Wilson  v.  Hickson.  1  Blackf. 
230;  Hedges  V.  Grav.  1  Blackf.  216;  Campbell  v.  Weister.  1  Litt. 
30:  Bruner  v.  Kelsoe.  1  Bibb.  487:  AVatson  et  al.  v.  I\I'Nairy.  1 
Bilib.  356 :  Scott  V.  Conover.  1  Hals.  222. 

Per  Curiam.    The  judgment  reversed  with  costs. 

See  "Debt,  Action  of,"  Century  Dig.  §§  !S-10;  Decennial  and  Am.  Dig. 
Key  No.  Series  §  1. 


Sec.   2   C]  FORMS   OF    ACTIONS.  84J 


(c)     Account. 

SCOTT  V.  Mcintosh,  2  Campbell,  238.     1809. 
When  an  Action  of  Account  Lies. 

Assumpsit  for  commission  on  the  sale  of  goods,  for  money  paid, 
for  money  had  and  received,  and  on  account  stated.  Plea,  the 
general  issue. 

This  action  was  brought  to  recover  the  balance  of  an  account 
which  had  been  running  between  the  parties  for  several  years,  and 
which  consisted  of  several  thousand  items.  The  plaintiff's  case 
being  opened  by  the  attorney-general. 

Lord  Ellenborough  said,  this  being  strictly  a  matter  of  account, 
if  it  was  to  be  investigated  in  a  court  of  law.  the  action  of  account 
was  the  proper  remedy.  I  should  be  fully  warranted  in  stopping 
the  trial  and  requiring  the  plaintiff  to  institute  a  different  mode 
of  proceeding.  Those  who  so  wisely  framed  our  jurisdictions  did 
not  contemplate  a  long  account  between  merchants  being  referred 
to  a  jury.  This  tribunal  is  quite  unfit  for  such  an  investigation ; 
and  we  have  not  the  necessary  time  to  bestow  upon  it.  Let  the 
plaintiff  bring  his  action  of  account,  and  auditors  will  be  ap- 
pointed, who  will  do  justice  between  the  parties,  without  pro- 
ducing any  inconvenience  to  the  public. 

The  attorney-general  allowed  that  the  action  of  account  was  the 
proper  mode  of  proceeding:  but  said  assumpsit  had  been  brought, 
in  tiie  confidence  that  the  matters  in  dift'erence  would  have  been 
referred  to  an  arbitrator,  who  would  have  performed  the  office  of 
the  auditors.     The  defendant  would  not  agree  to  a  reference,  and 

the  plaintiff  submitted  to  be  nonsuited. 

See  •Account,"  Century  Dig.  §§  26-35;  Decennial  and  Am.  Dig.  Key 
Xo.  Series  §  11. 


TOMKIXS  V.  WILLSHEAR,  5  Taunton,  431.     1814. 
When  an  Action  of  Account  Lies. 

This  was  an  action  for  money  IukI  and  received,  and  on  an  ao- 
••ount  stated;  it  was  tried  bcTore  Ricliards.  Ti.  at  the  Sussex  spring 
a.ssizes  1814.  when  Ibe  defendant  objected  that  the  action  could  not 
lif'  maintained  under  the  circumstances  of  the  ca.se.  The  learned 
I'.aron  reserved  Hie  poijit.  l)nt  wished  the  case  to  go  lo  tlie  jury, 
w  bo  accordingly  found  a  vci'dict  foi*  Ibe  piaintill".  Tlic  action  was 
brought  to  recover  the  bidanee  of  a  banking  account,  which  had 
run  from  ISOO  to  180H.  hi  1H08  a  balance  was  struck:  between 
1808  and  1^11  a  great  Jiiany  sums  bad  been  paid,  but  no  balance 
struck.  The  balance  now  due  appeared  1o  be  l^M  pounds.  Tt  was 
■  bjected  on  the  authority  of  Scott  v.  :\rcTntosh.  2  Cami>b.  238,  that 
assunq)sit  was  not  the  propei-  form  of  net  ion  \i>  try  such  a  cause, 
but  tbat  it  outrlit  to  be  an  action  of  account.  ati<l  r'anij>bell  cited 
CJilb    Kvid    1!»2.  aii.l  2  Kcb.  781.  Lincoln  v.  Parr. 


342  FORMS   OF   ACTIONS.  \  (' It .     /. 

Slu'plu'rd.  sulit'ilor  ^^'lu-r;!!.  in>\\  u\o\c(\  \o  set  aside  tlic  vcriiict 
aiul  oiitiT  a  nonsuit,  upon  tlu'  grouutl  that  assumpsit  could  not  be 
maintained. 

(.luuis,  C.  J.  A  sad  use  is  made  of  these  nisi  prius  cases.  T  re- 
iiuMuber  tliat  ease:  it  was  a  ease  whieli  it  was  impossibli'  to  try; 
and  tbiTi'  is  usually  a  deeeney  about  eo\nisel  wliieli  prevents  them 
from  pressiuiT  tbat  to  a  conclusion  which  can  never  be  concluded. 
It  is  imj^ossible  it  ever  can  have  been  decided,  that  if,  upon  dis- 
seetinijr  an  account,  there  appears  money  due  upon  certain  items, 
an  action  for  money  liad  and  received  cannot  be  maintained.  The 
use  of  the  action  of  account  is.  where  the  plaintiff  wants  an  ac- 
count, and  cannot  g'we  evidence  of  his  right  without  it;  but  if, 
by  subtract inir  the  amount  of  the  six  articles  on  the  one  side,  from 
the  amount  of  the  nine  articles  on  the  otlier,  tlie  plaintiff  can  make 
out  that  a  balaut-c  is  due  to  him.  even  of  50  pounds,  it  is  impossible 
to  say  that  the  action  of  assumpsit  will  not  lie  for  that  balance. 
Here  the  ]ilaintiff  takes  up  the  balance^  stated  on  the  account,  pro- 
ceeds with  bis  evidence  thi'ough  many  otlier  items,  and  establishes 
a  balance  due.    Rule  refused. 

See  ■•Account,"  Century  Dig.  §§  26-35;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  11. 


FIELD  V.  BROWN,  146  Ind.  293,  297-299,  45  N.  E.  464.    1896. 

"Bill  for  an  Account,"  "Acconnt  Render,"  Assumpsit  at  Law.     Bill  for 

an  Account,  in  Equity. 

[Action  (1)  to  set  aside  a  settlement;  (2)  for  an  account;  and  (3)  for 
money  had  and  received.  A  jury  trial  was  refused  as  to  the  first  two 
(affirmed),  and  denied  as  to  the  last  (reversed).  Only  so  much  of  the 
opinion  as  discusses  the  jurisdiction  at  law  and  in  equity  in  matters  of 
account,  is  here  inserted.] 

Hackney,  J.  .  .  .  Bisp.  E(|.  §  484,  is  cited  hy  appellees.  It 
is  there  said:  "While  the  jurisdiction  of  courts  of  chancery  in 
matters  of  account  is  limited  by  the  considerations  above  stated, 
and  perhaps  by  others,  it  is.  nevertheless,  difficult  to  draw  the  line 
with  absolute  precision.  It  may,  however,  be  affirmed  that,  in  all 
cases  in  which  an  action  of  account  would  be  a  proper  remedy  at 
law,  the  jurisdiction  of  a  court  of  equity  is  undoubted ;  and  that 
this  jurisdiction  Avill  extend,  moreover,  to  all  cases  of  mutual  ac- 
counts, and  also  to  cases  in  which  the  accounts  are  all  on  one  side, 
but  are  very  complicated  and  intricate,  although  such  accounts 
would  not  be  cognizable  in  the  common-law  action,  as  not  existing 
between  those  parties  by  and  against  whom  account  render  will 
lie.  In  short,  the  jurisdiction  of  the  chancellor  covered  all  cases 
for  which  account  render  would  lie,  besides  many  to  w^hich  that 
action  did  not  extend."  Some  of  the  limitations  referred  to  in  the 
section  quoted  are  stated  in  section  483  of  that  work:  "It  must 
not  be  supposed,  however,  that  a  court  of  chancery  can  draw  to 
itself  everv  transaction  between  individuals  in  which  an  account 


Sec.    2    C]  FORMS    OF   ACTIONS.  343 

between  the  parties  is  to  be  adjusted.  Its  jurisdiction  is  limited 
by  certain  restrictions.  A  court  of  equity  cannot  take  cognizance 
of  every  action  for  goods,  wares,  or  merchandise  sold  and  deliv- 
ered, or  for  money  advanced,  where  partial  payments  have  been 
made,  or  of  every  contract,  express  or  implied,  consisting  of  vari- 
ous items,  in  which  dilferent  sums  of  money  have  become  due.  and 
different  payments  have  been  made.  .  .  .  Where  the  receipts 
or  payments,  or  both,  are  all  on  one  side,  a  bill  for  an  account 
will  not  lie."  To  clearly  comprehend  the  meaning  of  the  author  in 
these  sections,  we  must  look  to  the  definitions  of  the  phrases  "bill 
for  account"  and  "account  render."  They  were  formerly  em- 
ployed in  the  common-law  practice  to  denote  the  procedure  by 
which  an  accounting  was  secured,  and.  as  indicated  by  Tiedeman, 
supra,  the  frequent  inadec|uacy  of  the  remedy  at  law  or  by  jury 
trial  gave  rise  to  the  equitable  remedy.  Hut  this  did  not  carry 
into  equity  every  proceeding  to  enforce  the  collection  of  an 
unliquidated  demand  consisting  of  several  items.  "The  diffi- 
culty of  drawing  the  line  with  ab.solute  precision"  between  those 
demands  of  an  e(iuitable  and  those  of  a  legal  nature  has  re- 
sulted in  the  more  modern  action  of  assumpsit,  a  legal  remedy, 
and  the  suit  for  an  accounting,  an  efjuitable  remedy.  Burrill  Law 
Diet.  "Account."  p.  22;  Bouv.  Law  Diet.  "Account,"  p.  85; 
2  Greenl.  Ev.  §§  34,  35;  Bisp,  Eq.  §§  479,  480,  481,  482; 
Ene.  PI.  &  Prac.  pp.  84,  85.  In  the  latter  it  is  said:  "  'Account,' 
.sometimes  called  'account  render.'  was  a  form  of  action  at  common 
law  against  a  person  who,  by  reason  of  some  fiduciary  relation, 
was  bo\md  to  render  an  account  to  another,  but  refused  to  do  so. 
In  England  the  action  early  fell  into  disuse.  And,  as  it  is  one  of 
the  most  dilatoi-y  and  expensive  actions  known  to  the  law.  and  the 
parties  are  held  to  the  ancient  rules  of  pleading,  and  no  discovery 
<-an  be  obtained,  it  never  was  adopted  to  any  great  extent  in  the 
['nited  States.  P>ut  the  action  of  account  was  adopted  in  several 
states,  principally  because  there  were  no  courts  of  chancery  in 
which  a  l)ill  for  an  acccmnting  lay."  Pennsylvania.  Connecticut, 
and  Illinois  are  cited  as  some  of  the  states  adopting  the  old  prac- 
tice. It  is  by  rea.son  of  these  changes  from  the  ancient  to  the 
modem  rules  of  practice,  as  here  illustrated,  that  the  appellant's 
.second  and  third  pai'agraphs  of  coiiq)laint  presented  causes  of 
e(|uitable  jurisdiction,  and  that  his  first  paragraph  presented  a 
'au.se  of  legal  juri.sdietion.  The  former  would,  under  the  old  prac- 
ticc.  have  been  causes  of  eoiinnon-law  jiu'isdietion.  The  latter  is 
now  the  action  of  assunipsit. 

We  do  not  think,  however,  that  the  dividing  line  between  causes 
or  defenses  of  ef|uifablc  and  Ihose  of  legal  cognizance  is  to  be  ascer- 
tained by  cr.untiiiL'  the  items  of  account  subject  to  inquiry.  If  an 
accounting  is  necessary  or  desirable,  by  reason  of  the  conq>lieate(l 
condition  of  the  transactions  in  dispute,  an  appeal  may  be  made  to 
the  equitable  juris(lieti<.n  of  our  courts,  either  by  complaint  or 
cross  complaint,  seeking  such  relief.  P)Ut  it  has  nev(>r.  in  this 
state,  been  deemed  a  cause  for  e(|uitable  relief  that  one  may  set 
forth  an   account   f>f  numerous  items.     As  early  as  Cununins  v. 


;{44  I'ninis  oi'  actions.  \('Ii.    I. 

White.  -1  Hhickf.  '^M'k  it  \v;is  licltl  tliat  "('(luily  lins  no  jurisdiction 
over  aceounts,  however  nuineious  iiiul  iinportant  the  eharfjes, 
where  there  is  no  uuituality  of  dealinjjj.  and  discovery  is  not  re- 
quireil;  hut  hiw  ha.s."  That  there  sliouhl  appear  ai'linnatively  some 
cause  l"or  eipiitahle  relief.  iiuh'iHMuiently  of  the  presentation  of 
numerous  items  of  aeeount,  hcl'ore  the  ecpiity  side  of  the  court  will 
be  opened  to  entertain  the  (|uestion,  is  manifest.  This  j^roposilion 
has  been  clearly  held  in  Grafton  v.  RtH'd.  2(i  W.  Va.  437;  liowen 
v.  Johnson,  \'2  Ga.  il  and  Lpton  v.  l»axton  (Iowa),  33  N.  W.  773. 

See  ch.  8.  §  3  (a);  23  L.  R.  A.  (N.  S.)  478,  787,  924,  and  notes.  For  a 
very  full  statement  of  the  practice  in  the  action  of  account  at  connnon 
law",  see  the  brief  at  pp.  394-400  of  33  N.  C.  Reports.  For  the  practice  in 
North  Carolina  before  the  adoption  of  the  Code  of  Civil  Procedure,  see 
Rev.  Code.  pp.  102,  179,  §§  94,  114.  See  Adams"  Eq.  *220  for  further  in- 
formation on  the  suljject  of  the  action  of  account  at  law  and  the  jm-isdic- 
tion  of  equity  in  matters  of  account.  See  "Account,"  Century  Dig.  §  62- 
71;   Decennial  and  Am.  Dig.  Key  No.  Series  §§  12-14. 


(d)  Assumpsit. 


CARROL  et  al.  v.  GREEN  et  al.,  92  U.  S.  509,  512-514.     1875. 
When  Assumpsit  Lies,  and  the  Origin  of  the  Action. 

[Plaintiff  filed  a  bill  in  equity  in  the  United  States  Circuit  Court  seek- 
ing to  enforce  the  personal  liability  of  the  defendants  as  stockholders  in 
a  bank  chartered  in  South  Carolina.  Defendants  set  up  the  statute  of 
limitations.  The  judge  held  that  the  cause  was  not  barred  and  rendered  a 
decree  against  the  defendants,  from  which  they  appealed.     Reversed. 

The  statute  of  limitations  applicable  to  this  case  required  actions  on 
the  case,  and  actioi^s  of  debt  grounded  upon  any  contract  except  a  spe- 
cialtv,  to  be  brought  within  four  years.  This  bill  was  not  filed  within 
four  years.  Only  that  portion  of  the  opinion  which  discusses  the  actions 
of  debt  and  case  or  assumpsit,  is  here  inserted,  j 

]\Ir.  Justice  Swayne.  .  .  .  The  section  of  the  Act  of  1852, 
which  is  said  to  create  the  individual  liability  here  in  rpiestion,  is 
silent  as  to  who  shall  sue.  The  suit  was,  therefore,  necessarily  to 
be  brought  bv  and  for  the  benefit  of  the  parties  injured.  2  Inst. 
650;  Com.  Dicr.  Debt.  A.  1. 

Individual  liability  is  repugnant  to  the  law  of  cori)orations.  and 
qualifies  in  this  ease  an  exemption  which  would  otherwise  exist. 
Stockholders  in  such  cases  are  liable  according  to  the  plain  mean- 
ing of  the  terms  employed  by  the  legislature,  and  not  otherwise. 
The  section  is  silent  as  to  a  preference  to  any  class  of  creditor's. 
All.  therefore,  in  this  case,  stood  upon  a  footing  of  equality,  and 
were  entitled  to  share  alike  in  the  proceeds  of  the  litigation.  The 
remedv  against  the  stockholders  was  necessarily  in  equity.  Pol- 
lard V.  Bailey.  20  Wall.  521.  They  were  severally  compellable  to 
contribute  accordinir  to  the  amount  of  .stock  they  respectively  held, 
and  the  lial)ilities  of  the  bank  to  be  met.  after  exhausting  its  means, 
the  maximum  of  fhe  liability  of  each  stockholder  not  to  exceed  in 


Sec.  2  cL]  FORMS  of  actions.  345 

any  event  twice  the  amount  of  his  stock.    The  Bank  of  Circleville 
V.  Iglehart.  6  :\IcLean.  568.  Fed.  Cas.  No.  860. 

It  is  obvious  from  this  statement,  that,  if  there  had  been  a  suit 
at  law  against  the  stockholders,  debt  could  not  have  been  main- 
tained. The  action  of  debt  lies  on  a  statute  where  it  is  brought  for 
a  sum  certain,  or  where  the  sum  is  capable  of  being  readily  re- 
duced to  a  certaintv.  It  is  not  sustainable  for  unlicjuidated  dam- 
ages. 1  Chit.  PI.  108,  113;  Stockwell  v.  United  States,  13  Wall. 
542.  "The  action  of  debt  is  in  legal  contemplation  for  the  recov- 
ery of  a  debt  eo  nomine  and  in  nuniero."  "Case,  now  usually 
called  assumpsit."  is  founded  on  a  contract  express  or  implied. 
1  Chit.  !)!):  :\l(ncalf  v.  Robinson.  2  McLean,  364,  Fed.  Cas.  No. 
9.4!)7. 

Let  us  apply  these  tests  to  the  case  in  hand.  Certainly  the 
amount  sought  to  be  recovered  was  not  certain,  and  could  not 
readily  be  reduced  to  a  certainty:  and  there  was  clearly  an  im- 
plied promise  on  the  part  of  the  stockholders.  The  legislature 
created  the  corporation,  and  prescribed  certain  terms  to  which  the 
stockholders  should  be  subjected.  This  was  an  offer  on  the  part 
of  the  state.  It  could  be  accepted  or  declined.  There  was  no  con- 
straint. By  taking  the  stock  the  terms  were  acceded  to,  the  con- 
tract became  complete,  and  the  .stockliolders  were  bound  accord- 
ingly. The  same  result  followed  which  would  have  ensued  under 
the  like  circumstances  between  individuals.  The  assent  thus  given 
and  the  promise  implied  are  of  the  essence  of  the  liability  sought 
to  be  enforced  in  this  proceeding.  If  a  remedy  at  law  were  neces- 
sary, clearly  it  nuist  have  been  case. 

Case  is  a  generic  term,  which  embraces  many  different  species  of 
actions.    "There  are  two,  however,  of  more  frequent  use  than  any 
other  form  of  action  whatever:  these  are  assumpsit  and  trover." 
Stcph.  PI.  18.     "The  iiioi'e  legal  dcnomiiuitioii  of  the  action  of  as- 
siHiipsit  is  trespass  on  the  case  upon  ])romises. ' '    3  Woodison  's  Lect. 
168.     This  form  of  action  originated,  like  many  others,  under  the 
Slat,  of  Westm.  2.  13  Edw.  1.  eh.  24.  s.  2.     Its  establishment  was 
strenuously  resisted  through  several  reigns.    2  Reeves's  Hist.  394, 
507.  608.     It  was  sustained,  upon  full  consideration,  in  Slade's 
T'a.se.  4  Coke,  which  was  decidcil  in   14  lOlizabeth.    AVhen  the  stat- 
ute of  South  T'aroliua  of  1712.  hei-e  in  (juestion.  was  enacted,  tlie 
term  case  was  as  well   understood  to  embrace  assumpsit  as  any 
Ibing  else  in  the  law  of  procedure  to  which  it  is  now  held  to  apply. 
P.lackstone  thought  tliat  one  of  the  most  important  amendments  of 
the  law  during  the  century  in  which  he  lived  was  effected  "l)y  ex- 
tending the  ef|uitable  writ  of  trespass  on  the  case,  according  to 
its  primitive  institution  by  Kiiur  Kdwai'd  the  First,  to  jM most  every 
instance  of  ininsticc  not   remedied  b\-  an\'  dllier  process."     4  Com. 
142. 

But  if  debt  were  the  proper  form  of  action,  if  this  wei-e  a  suit 
at  law.  tile  result  nnist  he  the  same.  The  act  bars  "all  actions  of 
debt"  grounded  ui»on  an.\'  lending  or  confi-ael  witlioni  specialt.v, 
"after  the  lapse  of  four  years."  Tlie  contract  here  was  of  the 
class  last  designated.     The  statute  was  oid.v  indu'-enietit      The  \m- 


34t)  KUKMS    OF    ACTIONS.  [CIl.    1. 

])lie(.l  pruiiiise  ol'  the  stocklu)kk'i\s  to  lulfil  its  reqiiiroiiioiits  was  the 
agroeiiK'iit  on  their  pai't.  and  it  was  withont  spi'cialty.  .  .  , 
It"  a  c'Uiini  like  that  of  the  appellees  |  plaint  illsj  snecl  at  law 
would  Inive  been  liancd  at  law.  llieir  claini  is  barred  in  equity. 
Tliis  proposition  is  too  elear  to  require  argument  or  authorities  to 
supi>ort  it.     Deeree  reversed. 

See  "Assunipsit,  Action  of,"  Century  Dig.  §  1;   Decennial  and  Am.  Dig. 
Key  Xo.  Series  §  1. 


WILSON  V.  MURPHEY,  14  N.  C.  352.     1832. 
When  Ass  inn  lis  it  Docs  Not  Lie. 

[Assumpsit  for  money  due  upon  a  settlement,  between  plaintiff  and  de- 
fendant, of  matters  arising  under  a  written  and  sealed  lease.  Defendant 
objected  to  the  form  of  action  and  insisted  that  tlie  plaintiff  should  have 
brought  covenant.  Objection  overruled  and  judgment  against  the  de- 
fendant, from  which  he  appealed.     Reversed. 

Maintiff,  by  the  terms  of  the  lease,  was  to  be  paid  for  all  necessary  rails 
used  in  fencing  the  demised  land.  The  parties  came  to  an  accounting, 
and  a  balance  was  found  to  be  due  to  plaintiff  for  rails,  which  balance  the 
defendant  promised  to  pay.     Hence  plaintiff  sued  in  assumpsit.] 

RuFFJN,  J.  I  should  very  gladly  decide  this  small  cause  for  the 
plaintiff  (who  is  a  pauper),  if  I  could  do  so  without  removing  the 
landmarks  of  the  law.  We  must  take  it  that  the  sum  due  him  upon 
the  settlement,  was  for  work  mentioned  in  the  lease  to  be  done  on 
the  plantation,  namely,  getting  rails  at  a  particular  price.  If  so, 
he  still  had  a  remedy  on  the  covenant  in  the  lease,  which  was 
executed  by  both  parties.  Can  he  have  the  inferior  one  of  as- 
sumpsit for  the  same  thing?  If  one  owe  money  on  a  bond  and 
engage  by  parol  to  pay  it  on  such  a  day,  he  cannot  be  sued  in  as- 
sumpsit. This  is  not  a  mere  technical  rule.  All  the  securities 
which  deeds  are  intended  to  create,  as  to  the  terms  of  the  contract, 
in  favor  of  the  covenantor,  depend  on  it.  If  indeed  there  be  no 
remedy  on  the  deed;  if  the  contract  has  been  rescinded,  or  aban- 
doned before  breach;  if  after  breach  it  has  been  delivered  up,  or 
satisfaction  entered  upon  a  settlement,  then  it  is  different,  because 
there  is  but  one  remedy  and  that  on  the  promise.  If  one  covenant 
to  build  a  house  for  another  by  a  i)artieular  day  and  fail,  but 
builds  it  afterwards  and  it  is  accepted,  the  deed  does  not  bar  an 
action  on  the  quantum  meruit,  though  it  may  restrict  the  prices 
to  those  specified  in  it.  So  if  any  other  executorv  agreement  be 
rescinded  before  breach,  and  in  consideration  of  that,  the  ])aiiies 
account,  assumpsit  lies  for  the  balance  struck.  Why?  Because 
there  is  no  remedy  on  the  deed.  That  was  percisely  the  case  of 
Foster  v.  Allanson.  2  T.  R.  470.  and  is  the  footing  on  which  Judge 
Buller  rests  his  deci.sion.  and  this  was  after  the  case  of  Moravia 
V.  Levy,  before  him  at  Nisi  Prius.  A  partnership  was  there  formed 
by  deed  for  seven  years,  and  there  was  a  covenant  to  account  an- 


HeC.   2   d.]  FORMS   OF   ACTIONS.  347 

Dually,  and  to  account  and  pay  at  the  end  of  the  term.     Before 
the  seven  years  were  out  they  agreed  to  dissolve,  and  then  to 
account  and  pay.     They  did  account,  and  the  action  was  brought 
for  the  sum  acknowledged  to  be  due.    On  the  deed  no  action  could 
by  its  tenns  be  brought ;  and  BuUer  said  the  question  was,  whether 
the  dissolving  a  previous  partnership  and  settling  the  account  was 
or  was  not,  in  point  of  law,  a  sufficient  consideration  for  an  ex- 
press assumpsit,  which  he  clearly  held  in  the  affirmative.    But  no 
instance  can  be  stated  in  which  after  the  time  limited  in  the  deed 
for  the  performance  of  a  duty  thereby  created,  an  action  can  be 
maintained  on  a  promise  to  fulfil  the  covenant,  the  deed  remaining 
all  the  while  in  existence  and  full  force.     The  reason  is,  because 
precisely  the  same  evidence,  as  to  the  extent  of  the  demand,  and 
indeed  every  other  matter  but  the  making  of  the  agreements  and 
the  terms  of  them,  will  support  both  actions.     And  whether  the 
law  ought,  for  the  certainty  of  the  contract,  to  take  the  specialty 
or  the  verbal  agreement,  it  is  easy  for  any  to  judge.     Here,  for 
example,  the  lease  fixes  the  price  of  the  rails.   It  might  be  different 
if  that  were  left  uncertain ;  for  fixing  the  price  is  in  itself  a  new 
agreement,  distinct  from  any  provision  in  the  deed;  but  in  the 
present  case,  the  only  further  requisite  to  a  full  recovery  on  the 
deed  is,  evidence  of  the  quantity ;  and  that  is  as  susceptible  of 
proof  in  an  action  on  the  covenant,  by  the  acknowledgement  of  the 
dt'fendant.  as  it  is  in  assumpsit.    There  is,  then,  no  new  considera- 
tion for  the  promise,  and  the  deed  remained  in  force,  for  it  was 
to  be  delivered  to  the  plaintiff  by  the  holder,  not  as  far  as  appears, 
to  be  cancelled,  but  as  properly  belonging  to  the  only  person  who 
ihen  had  an  interest  in  it  and  could  take  advantage  under  it.    In 
such  a  case.  I  think  no  action  lies  on  the  promise  merged  in  the 
existing  deed,  more  than  on  a  promise  merged  in  a  deed  or  judg- 
ment subsequently  taken  for  the  same  delit.     The  case  of  Codman 
V.  Jenkins.  14  ]\Iass.  93.  is  an  authority  in  support  of  the  general 
iva.soning  I  have  adopted,  and  also  of  the  import  of  Foster  v. 
.\ Hanson,  which  is  cited  and  commented  on  by  the  court.     That 
was  the  r-a.se  of  a  lease  for  life,  and  an  assignment  by  the  lessor 
of  the  reversion:  the  assignee  and  the  lessee  came  td  nn  account  of 
tlie  rent  in  arrear  in  his  time,  and  the  tenant  made  an  express 
prf>mise  to  pay  it:  held,  that  assumpsit  would  not  11,'.  but  that  it 
(lught  to  !)('  debt  or  covenant.     This  seems  to  m<'  to  be  in  ])()int ; 
and  I  think  there  must  be  a  new  trial.     Judgment  reversed. 

For  furthf-r  information  rpRarflinp;  tlip  tpchnicnl  law  Koverninp:  the 
arfion  of  assuniii.sit,  sep  liouvipr's  Law  Diet.  "Assumpsit."  Soe  "Assunu'- 
slt.  Action  of,"  Century  Dig.  §§  27-36;  Decennial  and  Am.  Dig.  Key  No 
Snrles  §  6. 


348  FOK.MS    Ol-    A(   TKI.NS.  |  f  7/ .     /. 

Sec.  3.  Actions  E\  1")ki,i(  ro. 
(a)    TrrsfxiSfi   ]'i  (I   Aim  Is. 

LOUUZ  V.   IIAFXER,  12  X.  C.  ISr..     1S27. 
WlH-n   TrcsiHiss    Vi   et    Arniis    Lies. 

lAotion  of  Trespass  Vi  et  Arniis  lor  purijosely  Irighteiiing  plaintiff's 
horses  by  beating  a  drum  in  tlie  public  highway.  The  judge  held  that  tiie 
action  would  not  lie,  but  that  trespass  on  the  case  should  have  been 
brought.     Judgment  against  the  plaintiff  and  he  appealed.     Reversed. 

Plaintiff  was  driving  his  horses  along  the  pul)lic  road.  Defendant  came 
into  the  road  and  beat  a  drum  wilfully  and  for  the  purpose  of  frightening 
the  horses.  The  horses  ran  away  because  of  the  beating  of  the  drum,  and 
injured  plaintiffs  wagon.] 

Taylor,  C.  J.  All  llie  aiithofities  euiicur  in  the  position,  that 
whenever  the  injury  is  committed  by  the  immediate  act  comi)lained 
of,  the  action  must  be  trespass;  in  other  words,  "if  the  injurious 
act  be  the  inniiediate  result  of  the  force  orijijinally  applied  by  the 
defendant,  it  is  the  sul)ject  of  an  action  of  trespass  vi  et  armis,  by 
all  the  cases  ancient  and  modern,  and  that  it  is  innnatei-ial  whether 
the  injury  be  wilful  or  not."  Several  cases  are  put  to  illustrate 
this  rule,  as  when  one  shooting  at  a  mark  with  a  bow  and  arrow, 
and  having  no  unlawfid  purpose  in  view,  woimded  a  man,  it  was 
held  that  trespass  was  the  proper  action.  So  where  a  person  is 
lawfully  exercising  himself  in  arms,  and  happens  to  wound  an- 
other, the  same  action  must  be  brought.  Hob.  134.  In  actions  of 
trespass,  the  distinction  lias  not  turned  cither  on  the  lawfulness 
of  the  act  from  whence  the  injury  happened,  or  the  design  of  the 
party  in  doing  it,  to  commit  the  injury ;  hut  on  the  difference  be- 
tween immediate  injuries  or  consequential  ones.  For  if  the  injury 
be  done  by  the  act  of  the  i)arty  himself  at  the  time,  or  he  be  the  im- 
mediate cause  of  it,  though  it  happen  accidentally  or  by  misfor- 
tune, yet  he  is  answerable  in  trespass.    3  East,  600. 

It  is  impossible  to  doubt  from  the  stalement  in  this  case,  that  the 
action  is  properly  brought  according  to  all  the  decisions.  For  if 
the  wilfulness  were  a  necessary  ingredient  in  the  case,  it  exists 
here,  since  the  defendant  beat  the  drum  for  the  purpose  of  friglit- 
ening  the  plaintiff's  horses.  It  is  nuich  stronger  than  the  case  of 
Scott  V.  Shei)hcrd,  for  here  the  act  was  immediately  injurious, 
without  any  intermediate  agency.  If  in  the  case  of  Scott  v.  Shep- 
herd, the  injury  had  been  done  to  the  person  upon  whom  the  squib 
first  alighted,  it  would  have  resembled  the  case  before  us.  and  then 
there  would  have  been  no  grounds  for  the  dissenting  oj)inion  of 
Mr.  Justice  Blackstone,  who  thought  that  the  first  act  was  complete 
when  the  squib  lay  on  the  stall  where  it  first  fell,  and  that  the  in- 
jury done  to  the  plaintiff  after  the  squib  had  received  two  new 
directions,  was  the  conseciuence  of.  and  not  done  immediately  by, 
the  first  act  of  the  defendant. 

The  nature  of  the  act  done  in  this  case,  the  time  and  place  where 
it  was  done,  a  wagon  and  team  passing  the  public  road,  rendered  it 
probable  that   injury  woiilr]  be  the  iitmicfliate  result,  and  would 


Sec.  3  a.]  forms  of  actions.  349 

render  the  defendant  liable  in  the  action,  though  he  had  no  views 
as  to  the  consequences.  For  though  the  bad  intention  must  be  al- 
leged and  proved  in  a  charge  of  felony,  it  is  not  necessary  to  be 
considered  in  this  action.  "Where  a  man  shoots  with  a  bow  at  a 
mark  and  kills  a  man  [by  misadventure.  4  Blk.  *192]  it  is  not 
felony,  and  it  should  be  construed  that  he  had  no  intent  to  kill 
him.  but  when  he  wounds  a  man.  althou.gh  that  be  against  his  will, 
he  shall  be  said  to  be  a  trespasser."  3  Wils.  408.  If  the  injury 
done  be  not  inevitable,  the  person  who  doth  it.  or  is  the  immedi- 
ate cause  thereof,  even  by  accident,  misfortune,  and  against  his  will, 
is  answerable  in  this  action  of  trespass  vi  et  armis.  1  Strange. 
596 ;  Sir  T.  Jones.  305 ;  Sir  T.  Raym.  422.  For  these  reasons  I  am 
of  opinion  that  upon  every  ground  of  law  and  convenience,  as  well 
as  the  most  manifest  justice  in  the  particular  case,  the  action  was 
well  brought,  and  the  plaintiff,  on  the  proof  offered,  should  have 
had  a  verdict.    Reversed. 

See  "Action."  Century  Dig  §§  236-255;  Decennial  and  Am.  Dig.  Key  No. 
Series  §  30;  "Trespass,"  Century  Dig.  §  16;  Decennial  and  Am.  Dig.  Key 
No.  Series,  §  17. 


McCLEES  V.  SIKES,  46  N.  C.  310.     1854. 
When  Trespass  Vi  et  Armis  Lies. 

[Trespass  with  two  counts — (1)  Trespass  q.  c.  f.;  (2)  Trespass  vi  et 
armis.  Plaintiff  abandoned  the  first  count.  Verdict  and  Judgment  against 
the  defendant  on  the  second  count,  and  he  appealed.    Affirmed. 

Defendant  entered  upon  land  which  belonged  to  neither  plaintiff  nor 
defendant,  and  drove  off  plaintiffs  slaves  who  were  at  work  there  by 
plaintiff's  orders.  The  defendant  did  not  touch  the  slaves.  The  judge  in- 
structed the  jury  that  uiwn  these  facts  plaintiff  could  recover  in  trespass 
vi  et  armis.  Defendant  excepted.  Defendant  also  objected  to  the  joinder 
of  the  two  counts;  but  that  point  was  also  ruled  against  him  by  the 
judge.] 

Battle.  J.  The  objection  to  the  joinder  of  the  count  for  tres- 
pass vi  et  armis  to  slaves,  with  that  for  trespass  quare  clausum 
fregit  to  land,  is  clearly  untenable.  The  form  of  the  action  is  the 
same,  requiring  the  same  plea  and  judgment.  This  question  is  too 
y)lain  to  require  any  reference  to  authority. 

We  think  there  is  very  little  more  force  in  llic  other  object  ion. 
The  defeiid;mt's  condui't  wa.s  certaiidy  an  unhiwfiil  interfei'ence 
with  the  plaintiff's  slaves.  He  did  not  toncli  them,  it  is  true,  but 
his  driving  them  oft'  wa.s  a  direct  injury  with  force,  similar  to  that 
<»f  an  assault,  for  wliich  tr<-spass  vi  et  armis  is  the  proper  remedy. 
In  the  case  of  Sanqtle  v.  liell.  44  \.  C.  338.  where  the  action  was 
trespass  on  the  case,  there  was  no  force.  eithcM'  actual  or  inqilied. 
The  present  is  a  iiin'-h  stronger  ease  than  tliat  of  Tjoubz  v.  TTafner, 
12  X.  (\  IH.").  in  which  it  was  held  that,  where  the  defendant  beat 
a  drum  near  the  highway,  which  caused  a  team  of  horses  to  run 
away  with  ;ind  damage  a  wagon,  trespass  vi  et  armi.s  was  the  proper 
actiftn.    Tlie  jiidgirir-nt  must  be  .'iffirmed. 

Spp  ■Aftion."  Cenfiny  Dig.  8§  236-255;  Decennial  and  Am.  Dig.  Key  No. 
SrrJps  «  30. 


350  roims  oi'  aciioxs.  \('Ii.  1. 


(  h  )    Til  s/iiiss  (lit  I  Ik   Cdsv. 

"The  ai'tion  of  trespass  on  the  case  lies  where  a  party  sues  for 
(iaiiiaircs  for  an\'  wroiii;'  or  cansi*  of  coiDplaint  foi*  wliieli  covenant 
or  trespass  will  not  lie.  This  action  oriuinati'd  in  the  power  ji;iven 
l)y  tlie  statute  of  Wt'stniinster  'J,  l;>  Va\w.  1,  eh.  24,  to  the  clerks  in 
chancery  to  frame  new  writs  in  consiiiiili  casu  witli  wi'its  already 
known.  I'nder  this  power  they  consti-ncted  many  writs  for  diifer- 
cnl  injuries  which  were  considcrctl  as  in  consimili  easu  with,  that 
is.  to  hear  a  certain  analogy  to.  trespass.     The  new  writs  invented 

I'ceeived  the  ;ippell;it  ion  of  writs  of  Trespass  on  the  Case — 
hre\ia  dc  trans'jressione  super  casum     .  .     to  distin<;uish  them 

from  the  old  writ  of  Tivspass;  and  the  injuries  which  ai'e  tlu;  suh- 
ject  of  such  writs  were  not  called  trespasses,  but  had  the  general 
nanie.^  of  Torts.  Wrongs,  or  Grievances."  These  writs  of  Trespass 
on  the  Case  thoutih  i.ssued  in  various  forms,  to  fit  the  six'cial  cir- 
cumstauees  of  each  case,  by  dcyi-i-es  formed  a  new  <ienus  which 
took  the  name  of  Trespass  on  the  Case.  This  genus  comprises 
many  species,  the  most  prominent  of  which  are  Assumpsit  and 
Trover,  which  are  moi-e  nsed  than  any  othei-  form  of  action  what- 
ever.''    Stei)hen  on  ricading.  *17.  18. 

In  17()2  it  was  said  by  Lord  Mansfield:  "An  action  on  the  case 
is  founded  upon  the  mere  justice  and  conscience  of  the  plaintiff's 
case,  and  is  in  the  nature  of  a  bill  in  equity,  and,  in  effect,  is  so. 

AVhatever  will,  in  equity  and  conscience.     .     .     .     bar  the 

plaintiff's  recovery,  may.  in  this  action,  be  given  in  evidence  by 

the   defendant    [without    being    specially    pleaded.]    because   the 

])laintiff'  nuist  recovei-  u])on  the  justice  and  conscience  of  his  case 

and  upon  that  only."    IJird  v.  Randall.  3  Burrows,  at  ]^.  13o5. 

See  "Action  on  ttie  Case,"  Century  Dig.  §§  1-14;  Decennial  and  Am. 
Dig.  Key  No.  Series  §  1. 


VAX  PELT  v.  McGRAW,  4  N.  Y.  110.     1850. 
Trespass  on  the  Casr.     Broad  Scope  of  the  Action. 

[Case  for  wrongfully  and  fraudulently  removing  rails,  timber,  etc.,  from 
land  on  which  i)laintiff  held  a  mortgage,  .ludgment  against  the  defend- 
ant, and  he  appealed.  Affirmed.  Only  so  much  of  the  opinion  as  discusses 
the  form  of  action,  is  here  inserted.! 

I'r.\tt.  J.  There  is  no  (h>nl)t  but  that  an  action  on  the  case  will 
lie  for  an  injui-y  of  the  character  complained  of  in  this  case.  It 
forms  no  objection  to  this  action  that  the  circumstances  of  the 
case  are  novel,  and  that  no  case  precisely  similar  in  all  respects 
has  previously  arisen.  The  action  is  based  upon  very  general  prin- 
cij)l(-s.  and  is  fhsifinrd  to  afford  relief  in  all  ca.<ies  vhere  one  man 
is  injured  hij  Ihr  irrongfnl  art  of  another,  tvlierp  no  olju  r  r(  niedji 
is  provided.  Tliis  injury  may  result  from  some  breach  of  positive 
law.  or  some  violation  of  a  right  or  duty  growing  out  of  the  rela- 
tions existing  between  the  ])arties.    1  Cow.  Treat.  3. 


Sec.   3   h.]  FORMS  OF  ACTIONS.  351 

The  defendant  ^McGraw,  in  tliis  case,  came  into  the  possession  of 
the  land  subject  to  the  mortgage.  The  rights  of  the  holder  of  the 
mortgage  were  therefore  paramount  to  his  rights,  and  any  at- 
tempt on  his  part  to  impair  the  mortgage  as  a  security,  was  a  viola- 
tion of  the  plaintiff's  rights.  But  the  case  is  not  new  in  its  cir- 
cumstances. The  case  of  Gates  v.  Joice.  11  John.  136,  was  pre- 
cisely like  the  case  at  bar  in  principle.  That  action  was  brought 
by  the  assignee  of  a  judgment  against  a  person  for  taking  down 
and  removing  a  building  from  the  land  upon  which  the  judgment 
was  a  lien.  The  plaintiff's  security  was  thereby  impaired.  The 
court  in  that  case  sustained  the  action.  The  decision  in  that  case 
was  referred  to  and  approved  in  Lane  v.  Hitchcock,  14  John.  213; 
and  in  Gardner  v.  Heartt.  3  Denio.  234.  Xor  is  there  anything  in 
the  case  of  Peterson  v.  Clark.  15  John.  205.  which  contlicts  with 
the  principle  of  these  cases.  That  was  an  action  by  a  mortgagee  in 
the  usual  form  of  action  for  waste.  The  declaration  alleged  seizin 
in  the  plaintiff,  upon  which  the  defendant  took  issue.  There  Avas 
no  allegation  that  the  mortgagor  was  iu.solvent,  or  the  judgment  as 
a  security  impaired.  The  only  issue  to  be  passed  upon  was  that  in 
relation  to  the  seizin.  It  is  quite  clear  that  upon  such  an  issue  the 
mortgagee  must  fail.  Now  this  action  is  not  based  upon  the  as- 
sumption that  the  plaintiff'\s  land  has  been  injured,  but  that  his 
mortgage  as  a  .security  has  been  impaired.  His  damages,  therefore, 
would  be  limited  to  the  amount  of  the  injury  to  the  mortgage,  how- 
ever great  the  injuiy  to  the  land  might  be.  It  could,  therefore,  be 
of  no  consequence  whether  the  injuiy  occurred  before  or  after  for- 
feiture  of   the   mortgage.      The   action   is   clearly   maintainable. 


See  fh.  3,  §  8.  and  ch.  7,  §  1.     See  "Mortgages."  Century  Dig.  §§  544, 
555;   Decennial  and  Am.  Dig.  Key  No.  Series  §§  205,  216. 


KELLY  V.  LETT,  35  N.  C.  50.     1851. 

Trespass  on  the  Case  and  Trespass  Vi  et  Armis  Distinguished.     Waivino 
the  Trespass  and  Bringing  Case. 

[Aftion  on  the  fa.sp  for  lireaking  |)laintiff's  niilldam.  Defendant  in- 
sisted that  tre.spa.ss  and  not  case  was  the  iiroper  remedy,  and  that,  hence, 
this  action  would  not  lie.  The  judge  ruled  that  this  action  would  lie. 
.Tudgnipnt  ngain.st  defendant,  and  he  appealed.  Reversed.  The  facts 
appear  in  the  opening  of  the  opinion. 1 

pRARSox.  J.  The  deehiratiou  alleges  lliat  llie  plaintiff  was  the 
owner  fif  a  mill  aboiif  (nie  half  (if  a  mile  below  a  mill,  nu  llie  same 
streain.  owned  by  the  defendant;  that  the  defendant  repeatedly 
shut  iliiwn  liis  gates,  so  as  to  accumulate  as  large  a  head  of  water 
as  fKissihIe.  ami  then  i-aised  them,  so  as  thereby  t(i  diseliai'ge  an 
immense  vulumi'  nf  water,  whieh  ran  with  great  force  against  the 
darn  <>f  the  jilaintitf  and  swept  it  away;  and  that  this  was  done  by 
tlie  defendant.  wilf\illy  and  witli  intent  to  do  the  i!nnr\-.  The 
only  f|nestion  is,  can  an  action  on  the  ease  lie  sustained. 


'Ab'2  Koinis  oi'   AcnoNs.  |r//.    /. 

Wlu'U  llu'  (tit  itsd)  is  couiplaiiicd  nl'.  Ircspjiss  vi  v\  ;iiMiiis  is  llie 
lUMjUM"  iU'tion.  Wlii'ii  Iho  cousanu  ii('(  s  oiihi  iirc  (M)iiij)ljiiiu'd  of, 
tlu'ii  ciisc  is  tilt"  propel-  art  ion  ;  or.  as  tlic  I'lilc  is  expressed  in  the 
1h>i>1\s.  trespass  lies  where  Ihe  injury  is  innnedinle — ease  when  it  is 
eonseciuential.  There  is  no  dil'lieully  as  to  the  i'\ile.  The  dil'lieulty 
is  as  \o  its  applieation.  and  it  sometimes  i-cMpiires  an  exceedingly 
nie<'  pereeption  to  he  ahle  to  traee  the  dividing  line.  But  this  case 
is  settled  by  anthority.  and  there  is  no  occasion  to  resort  to  reason- 
ing or  to  a  discussion  ol'  i)i'ineiples.  In  Scott  v.  Sliepherd.  2  Blk. 
Hep.  SI)2.  (irey.  C.  J.,  cites  a  suit  from  the  register,  Oaa  of  trespass 
vi  et  armis.  for  cutting  down  a  head  ol"  water  maliciously,  which 
tliereupon  tlowed  down  to  and  oNcrwhelmed  another  pond,  which  is 
our  ease. 

It  is  true  that  in  some  cases.  (iIIIkhkjIi  I  Ik  iiiJKrif  he  immediate, 
tiie  pari  11  ]ias  his  (hctioii,  and  uniji  waive  lli<  trespass  and  bring 
case  for  the  coiiseejuoitial  datn<i(i( .  As  if  one  take  another's  horse, 
he  may  elect  to  bring  trover  (which  is  an  action  on  the  ease),  or  if 
one  in  driving  his  carriage  run  on  that  of  another,  althongh  the 
damage  is  immediate,  case  nia>-  he  sustained,  alleging  that  the  de- 
fendant so  ne()Jigent}\i  drove  his  carriage  that  it  ran  against  that 
of  the  plaintiff  and  did  great  damage;  and  the  defendant  is  not  al- 
lowed to  def(>at  the  action  by  averring  that  the  injury  was  more 
aggravated,  for  tliat  in  fact  he  drove  against  the  carriage  of  the 
plaintiff  on  ])nr])ose  and  with  intent  to  do  the  injury.  Williams 
V.  Holland.  10  Bing.  116.  But  if  the  declaration  alleges  that  the 
defendant  took  the  horse  from  the  i)OSsession  of  the  plaintiff,  in- 
stead of  supposing  that  he  found  it ;  or  that  the  defendant  wilfxdln 
drove  against  the  carriage  instead  of  ascribing  it  to  negligence, 
case  cannot  be  sustained  because  these  allegations  are  inconsistent 
with  the  nature  of  that  action,  and  it  is  simply  an  attempt  to  re- 
cover in  case  for  a  direct,  wilful  trespass,  which  is  the  peculiar 
subject  of  another  form  of  action.  To  maintain  case,  you  must 
waive  your  ground  of  complaint  on  account  of  the  trespass.  Day 
v.  Edwards,  5  T.  R.  6-18.  It  is  apparent,  then,  that  this  right  of 
election  cannot  exist  except  in  cases  where  there  is  a  separate  and 
distinct  cause  of  action  besides  the  trespass.  Admitting,  for  the 
sake  of  ai'gument.  this  to  be  one  of  those  cases,  the  plaintiff  has  no 
ground  to  stand  on.  Tie  has  not  waived  the  trespass — that  is,  the 
burden  of  his  complaint.  But  it  seems  to  us  this  is  not  one  of 
those  cases,  and  we  are  inclined  to  think  that  case  could  not  be 
maintained,  if  the  declaration  has  been  ever  so  carefully  or  skil- 
fully drawn.  Suppose  the  defendant  had  ))lanted  a  cannon  on  his 
dam  and  wilfully  fired  at  the  plaintiff's  dam  until  it  was  demol- 
ished, it  could  not  he  distinguished  from  the  present  case — the 
only  difference  being  in  the  kind  of  force.  In  the  one.  the  dam 
is  destroyed  by  metal,  propelled  by  the  force  of  gunpowder;  in  the 
other,  it  is  destroyed  hy  water,  propelled  by  the  force  of  gravita- 
tion— the  water  heing  kept  back  on  purpose  to  increase  the  head 
and  thereby  add  to  the  power  of  the  propelling  force.  Both  are 
neither  more  nor  less  than  wilful  trespa.ss.     And- although  the  in- 


Sec.   3   h.]  FORMS  OF   ACTIONS.  353 

tent  is  not  the  test  of  liability,  yit,  icJten  the  elamage  is  immediate, 
it  is  the  test  of  the  proper  form  of  action.  If  the  elamage  he  imme- 
diate and  the  act  is  wilful,  trespass  is  the  only  form  of  action. 

There  is  no  question  that  the  doctrine  by  which  plaintiffs  in  cer- 
tain eases  are  allowed  to  waive  trespass  and  bring  case,  which  is 
finally  settled  by  authority,  is  an  indulgence  granted  on  account  of 
the  difficulty  of  tracing  the  dividing  line ;  and  the  principle  is, 
that  the  plaintiff  may,  without  injustice  to  the  defendant,  take  the 
most  charitable  view  of  the  case.  But  this  doctrine  only  applies 
when  two  causes  of  action  are  involved;  then  one  may  be  waived 
and  still  leave  ground  to  stand  on;  but  if  the  case  involved  merely 
a  cause  of  action  for  trespass,  to  allow  an  election  to  bring  case 
would  be  an  absurdity — as  if  one  wilfully  shoots  down  another's 
horse  or  commits  a  battery  on  the  person.  Judgment  reversed,  and 
venire  de  novo. 

See  "Action,"  Century  Dig.  §§  236-255;    Decennial  and  Am.  Dig.  Key 
No.  Series  §  30. 


NEVIN  V.  PULLMAN  PALACE  CAR  CO.,  106  111.  222,  46  Am.  Rep.  689 

1883. 

Trespass  on  the  Case  for  Breach  of  Duty;  for  Breach  of  Contract.     Case 
and  Assumpsit  when  Concurrent  Remedies. 

[Action  on  the  case  for  excluding  plaintiff  from  a  sleeping  car  after  en- 
gaging a  berth  and  tendering  the  price.  Judgment  against  plaintiff,  and 
he  carried  the  case  to  the  supreme  court  by  writ  of  error.    Reversed. 

The  error  assigned  is,  that  the  lower  court  erred  in  holding  that  case 
would  not  lie. 

After  defiding  that  the  defendant  owes  a  duty  to  all  unobjectionable 
persons  to  furnish  them  berths  when  it  has  berths  unoccupied  and  the 
price  is  tendered,  and  that  the  facts  of  the  case  show  a  breach  of  such 
duty;  and  holding  further  that,  under  the  facts  of  this  case,  the  defend- 
ant was  bound  by  contract  to  furnish  plaintiff  a  berth,  the  opinion  pro- 
ceeds to  discuss  the  question  jiresented.  to  wit:  Will  an  Action  on  the 
Case  lie  for  excluding  one  from  a  sleeping  car  after  he  has  engaged  his 
berth  and  tendered  the  fare? I 

Mci.KEv.  J.  .  .  It  is  clear,  in  the  present  case  the  defendant 
utterly  disregai-ded  its  duly  in  not  Jiiaking  \\\)  the  bertii  of  the 
l»hiiiitifT,  and  in  not  ijermitting  hiiii  and  his  wife  to  occupy  it 
tlirough  Ihe  iiiglit.  and  in  expelling  them  from  the  car.  and  for 
this  it  must  be  lield  liMl)le. 

The  view  here  expressed  is  Iielieved  In  be  in  eoiisoiianee  with  the 
general  jirineiples  (if  the  law.  and  is  clearly  sustained  by  some  of 
the  he.st  (•(►nsidered  cases.  Imth  I']ngilsli  and  Anieriejin.  I'urnett  v. 
FiVneh.  .")  lijirn.  &  f'ress.  HSU;  11  Hng.  Com.  l..aw.  T)!)? ;  Il;ineock  v. 
<'<.nin.  21  Kng.  Com.  Law.  :{]H:  Dickson  v.  Cliftcin.  2  Wils.  319; 
l'(K»rmaii  v.  lirown.  3  Ad.  «S:  Kl.  fX.  S.)  .')2r).  In  this  last  case. 
Cliief  .Justice  Tindiil.  in  (jejiverinu'  the  Jnilgnient  in  the  Exchequer 
riijiniber.  entered  into  an  extended  review  of  the  authorities,  and 
in  suMUJiing  u|>  used  this  langnaLre:  "The  principle  in  ;dl  these 
Rf-niedif 


;{i)4  IMKMS    HI-    ACTION'S.  |r//.     /. 

cases  would  simmii  to  Ix'.  tli;il  tln'  foiit  I'licl  crciites  ;i  duly,  and  tlu' 
lu'gk'i-t  to  pcil'onu  tlial  duty,  or  tin-  iKmrcasaiu'c,  is  a  ground  of 
aftiou  upttu  a  tort."  and  lliis  case  was  at'lii'ined  on  appeal  to  the 
House  or  Loi'ds.  11  CI.  »S:  Fin.  44.  In  this  i-ase  Ijord  Campbell,  in 
<leliverin«i  the  jutliriui'nt  in  the  llousi'  of  Lords,  says:  "I  think  the 
judijnient  of  liic  Coni't  ol'  I'^xehecpicr  ( 'li;inilicr  is  I'i^hl,  for  you 
cannot  eonline  the  I'i^ht  of  recovery  merely  to  those  eases  where 
there  is  an  eniplosinenl  without  any  special  contract,  liut  wher- 
ever there  is  a  contract,  and  sonielhin*;'  to  he  done  in  the  course  of 
the  einployniciil  which  is  llir  subject  ol'  thai  coiitracl,  if  there  is  a 
breach  of  the  duty  in  the  course  of  that  employment  the  plaintiff 
may  recover  eithei-  in  tort  or  in  contract."  This,  subject  to  tiie 
limitatiitn  liereafter  to  be  stated,  we  ivgard  as  the  tiue  ride  on  the 
subject. 

It  is  often  and  indeed  generally  stated  that  the  action  lies  only 
for  the  breach  of  a  connnon-law  duty  and  this  we  believe  to  be 
strictly  true;  yet  there  is  some  confusion  in  the  cases  as  to  w'hat  is 
meant  by  a  common  laiv  duty,  growing  out  of  the  fact  that  it  some- 
times arises  without  the  intervention  of  a  contract  and  sometimes 
with  it.  and  in  the  latter  ease  it  is  often  said,  as  in  the  case  last 
cited,  "the  contract  creates  the  duty,"  and  while  this  is  true  and 
accurate  enough  in  a  certain  sense,  yet,  when  we  attempt  to  define 
with  precision  just  when  the  action  w'ill  lie  and  when  it  will  not, 
the  statement  is  not  sutliciently  definite;  for  it  nmst  be  conceded 
the  law  makes  it  the  duty  of  every  one  to  perform  his  contract,  and 
it  is  clear  that  case  will  not  lie  for  the  breach  of  every  duty  cre- 
ated by  contract.  If  one  contracts  to  deliver  to  another  a  load  of 
wood,  or  pay  a  specific  sum  of  money  on  a  given  day,  and  fails  to 
do  so.  an  action  on  the  contract  alone  will  lie,  and  yet  it  is  mani- 
fest, in  the  case  supposed,  there  has  been  a  breach  of  duty  created 
by  the  contract.  We  think  it  more  accurate,  therefore  to  say  that 
case  lies  only  for  the  breach  of  such  duties  as  the  law  implies  from 
the  existing  relations  of  the  parties  whether  such  relations  have 
been  established  with  or  w'ithout  the  aid  of  a  contract;  but  if  cre- 
ated by  contract  it  is  no  objection  to  the  action  that  the  perform- 
ance of  the  duty  in  rpiestion  has  been  expressly  stipidated  for,  if  it 
woujd  have  exi.sted  ])y  reason  of  such  relations  without  such  stipu- 
lation. This  is  well  illustrated  by  the  case  put  in  the  early  part  of 
this  opinion  where  B  let  his  horse  to  A  to  be  kept  at  a  stipulated 
price  per  day  and  returned  on  demand.  Now  in  that  case  ])y  the 
mere  delivery  of  the  horse  to  be  kept  at  the  price  agreed  upon,  the 
law  implied  or  imposed  the  duty  of  returning  him  upon  demand 
without  any  agreement  to  that  effect,  and  the  duty  being  thus  im- 
plied by  law,  independently  of  the  express  stipulation  for  its  per- 
formance, ca.se  clearly  would  lie  for  its  breach. 

The  general  principle  seems  to  be:  Where  the  duty  for  whose 
breach  the  action  is  brought  would  not  be  implied  by  law  by  rea- 
son of  the  relations  of  the  parties,  whether  such  relations  arose  out 
of  contract  or  not.  and  its  existence  depends  solely  upon  the  fact 
that  it  has  been  expressly  stipulated  for,  the  remedy  is  in  contract. 


Sec.  3  d.]  FORMS  OF  actions.  355 

and  not  in  tort ;  when  otherwise,  case  is  an  appropriate  remedy. 
Of  course  assumpsit  is  a  concurrent  remedy  with  case,  in  all  cases 
where  there  is  au  express  or  implied  contract.  .  .  .  Judgment 
reversed. 

See  Fisher  v.  Greensboro  Water  Supply  Co.,  128  N.  C.  375,  38  S.  E.  912; 
Bowers  v.  R.  R.,  107  X.  C.  721,  12  S.  E.  452,  and  Williams  v.  R.  R.,  144 
N.  C.  498,  57  S.  E.  216,  all  inserted  at  oh.  4,  §  1.  See  also  Solomon  v. 
Bates,  118  N.  C.  at  p.  315,  24  S.  E.  478,  and  Robinson  v.  Threadgill,  35 
N.  C.  39,  inserted  at  ch.  8,  §  3,  d.  See  -'Action,"  Century  Dig.  §§  177-195; 
Decennial  and  Am.  Dig.  Key  No.  Series  §  27. 


(c)  Trover. 


Trover  is  one  of  the  forms  of  trespass  on  the  case  and  is  "usu- 
ally adopted  b}'  preference  to  that  of  detinue  to  try  disputed  ques- 
tions of  property  in  goods  and  chattels.  In  form,  it  claims  dam- 
ages ;  and  is  found  on  a  suggestion  in  the  writ — which  suggestion 
is  in  general  a  mere  fiction — that  the  defendant  found  the  goods  in 
question,  being  the  property  of  the  plaintiff;  and  proceeds  to  al- 
lege that  he  converted  them  to  his  o\v\\  use."  Stephen  on  Plead- 
ing. *18,  19. 

The  action  of  trover  is.  in  form,  a  fiction;  in  substance,  a  rem- 
edy to  recover  the  value  of  pei'sonal  chattels  wrongfully  converted 
by  another  to  his  own  ase.  The  form  supposes  the  defendant  may 
have  come  lawfully  1)y  the  possession  of  the  goods,  though  the  ac- 
tion lies  where  the  defendant  did  in  truth,  get  possession  of  the 
goods  lairfulhi.  Where  the  taking  by  the  defendant  is  wrongful 
and  by  trcsiia.ss.  if  the  plaintiff  brings  trover,  he  thereby  waives 
thf  trespass  and  admits  the  possession  to  have  been  lawfully  got- 
ten ;  and  hence  no  damages  can  be  recovered  in  such  action  for  the 
frrspass  in  taking  the  goods.  Trover  is  an  action  of  tort;  and  the 
wiiole  tort  consists  in  the  irrongful  conversion.  Two  things  are 
m-crssary  to  be  proved  in  trover:  (1)  Property  in  the  ])laintiff; 
(2)  A  wrongful  conversion  by  the  defendant.  Cooper  v.  Cliitty 
and  Blackiston.  1  Burr.  20.  .'^1. 

See  "Trover  and  Conversion,"  Century  Dig.  §§  103-116;    Decennial  and 
Am    nig.  Key  Xo.  Spries  §  13. 


f(l )    h'i  fill  vin. 

DAf'.GETT  V.  ROniXS,  2  Blackford,  415.     1831. 
The  History  and  Nature  of  Replevin. 

[Action  of  replevin.  Defendant  pleaded  former  judgment.  Plaint  iff 
dpmurrcd  to  the  pica.  Demurrpr  overrulod,  judgment  against  plaintiff, 
and  he  apppaled.  Rpvcrs-cd.  The  facts  aiijjpar  In  the  opening  of  the 
opinion.  I 


356  iMinis  OF  ACTION'S.  \CJi.   i. 

Stevens.  ,1.  This  was  ;iii  aclinii  ol"  rt'plcviii.  coniiuoiu'i'd  l)y  the 
appellant  atrainst  tiu'  dct'ciulant  for  ('cvtaiii  floods  and  chattels, 
wliii'h  he  alle«red  the  dei'endani  un.nistly  and  uidawi'ully  took  and 
tletained  froni  him.  The  defenilanl  pleaded  in  bar  Ihal  the  jdain- 
titV  in  the  year  IS'J!).  in  the  \"\\i.o  eirenit  iv)url,  by  an  action  of 
replevin  ajjainst  tlu'  del'endant.  rei)levie(l  the  same  goods  and 
chattels  out  of  the  defendant's  ptwsession  :  and  that  at  the  I\Iay 
ti'i-m.  \^'.W.  of  said  eirenit  court,  the  said  plaintiff  was  nonsuit. 
and  the  defendant  had  judirment  for  a  return  of  the  goods  and 
chattels;  and  that  they  \vere  retunu'd  by  the  sheriff  of  the  county. 
To  this  plea  the  plaiiilifi'  (h'lnui'red.  and  the  demurrer  was  over- 
ruled by  the  court  and  judgment  rentlered  for  the  defendant. 

The  principal  ([uestion  is,  whether  a  nonsuit  in  replevin  is  a 
bar  to  a  second  replevin.  By  the  common  law^  it  would  be  no  bar, 
but  the  statute  of  Westminster  2(13  Edw.  I,  st.  1),  ch.  2,  restrains 
the  plaintiff  in  replevin  from  a  second  replevin  after  nonsuit,  but 
permits  him  to  ]>i'oeeed  with  his  first  action  by  a  writ  of  second 
delivery,  and  if  he  become  nonsuit  after  the  writ  of  second  de- 
livery, no  further  proceedings  can  be  had.  The  counsel  for  the  ap- 
pellant insists  that  the  record  in  this  case  shows  it  to  be  an  action 
foiuuled  (ui  a  statute  of  the  state  authorizing  the  action  of  replevin 
in  all  cases  where  goods  and  chattels  are  unlawfully  taken  and  de- 
tained, and  not  governed  by  the  statute  of  AVestminster  which  re- 
lates only  to  replevins  founded  on  a  distress  for  rent.  The  record 
does  not  show  whether  the  action  is  founded  on  a  distress  for  rent 
or  not.  nor  is  it  material  that  it  should;  the  action  in  either  case, 
when  once  in  court,  is  governed  by  the  same  principles  and  rules 
of  practice.  The  record  in  an  action  of  replevin  never  shows 
•whether  it  is  bottomed  on  a  distress  for  rent  or  not,  unless  the  de- 
fendant in  rei)levin  spreads  that  fact  upon  the  record  by  his 
avowry,  cognizance,  or  other  defense  which  he  may  make  to  the 
action.  It  is  true,  that  at  the  time  those  proceedings  were  had  in 
Vigo  circuit  court,  there  were  two  statutes  authorizing  the  action 
of  replevin,  the  one  founded  on  a  distress  for  rent,  and  the  other 
regulating  the  proceedings  when  the  action  is  founded  on  any 
other  unlawful  and  unjust  taking  or  detaining  of  goods  and  chat- 
tels. But  tliese  acts  only  provide  for  the  issue  and  service  of  the 
writ,  the  disposition  to  be  made  of  the  goods  and  chattels  replevied, 
and  the  condition  and  effect  of  the  replevin  bond.  etc.  The  plead- 
ings, prosecution  and  proceedings  in  each  action,  and  the  judg- 
ment rendered,  and  the  execution  awarded,  are  the  same,  except 
as  to  costs. 

The  only  action  n(»w  in  use  is  the  detinuit  and  is  an  action  that 
lies  not  only  in  the  case  of  a  wrongful  distress  for  rent,  but  in  all 
cases  where  goods  and  chattels  are  tortiously  and  unjustly  taken 
and  detained;  and  our  slalutes  above  noiiced  do  not  materialhj 
change  the  general  doctrine  on  the  subject.  The  passage  in  Black- 
stone's  Commentaries,  which  says  that  replevin  only  lies  in  case 
of  an  unlawful  distress,  is  unwarranted,  and  is  contradicted  by 
the  best    authorities   in   p]ngland  and  America.     Vide  2   Saund. 


Sec.  3  d.]  FORMS  OF  actions.  357 

Plead,  and  Evid.  760;  1  Chit.  PI.  11!):  Bishop  v.  :\rontap:ue.  Cro. 
Eliz.  824;  Paiigburn  v.  Partridge.  7  Johns.  140;  Shannon  v.  Shan- 
non. 1  Schoales  &  Lef.  327 :  ILsley  et  al.  v.  Stubbs.  5  :\Iass.  283. 
The  action  of  replevin  is  founded  on  a  tortioiLs  taking  and  detain- 
ing, and  is  analogous  to  an  action  of  trespass,  but  is  in  part  a  pro- 
ceeding in  rem.  to  regain  po.ssession  of  the  goods  and  chattels,  and 
in  part  a  proceeding  in  personam,  to  recover  damages  for  the  cap- 
tion and  detention.  l)ut  not  for  the  value  thereof.  Vide  Hopkins  v. 
Hopkins.  10  Johns.  373;  1  Chit.  PI.  119;  1  Saund.  Rep.  347.  b, 
note  2:  Fletcher  v.  AVilkins  et  al..  6  East,  283. 

In  England  there  are  two  kinds  of  replevin;  first,  b}^  common 
law,  when  the  writ  issues  out  of  the  court  of  chancery ;  second,  by 
the  statute  of  ^Nlarlbridge.  52  Hen.  3.  which  enables  the  sheriff  to 
make  replevins  without  any  writ  and  then  having  taken  security, 
proceed  on  the  complaint  of  the  plaintiff,  either  by  parol  or  pre- 
cept to  his  bailiff,  and  if  a  claim  of  property  is  put  in,  the  writ  of 
de  proprietate  probanda  at  once  issues,  and  is  tried  by  an  inquest, 
and  if  found  for  the  plaintiff',  the  sheriff'  goes  on  to  make  the  re- 
plevin; but  if  for  the  defendant,  he  forbears.  If  the  writ  issues 
out  of  chancery  at  connnon  law,  it  is  only  directory  to  the  sheriff  to 
make  replevin  and  proceed  in  the  county  court,  and  is  not  a  re- 
turnable process.  In  that  case,  the  writ  de  proprietate  probanda 
cannot  issue  until  a  pluries  is  issued  and  returned  into  the  King's 
Bench  or  Common  Pleas,  Mhere  a  judicial  writ  may  issue.  Any  of 
these  suits  are  removal)le.  by  either  party,  into  tlie  King's  Bench 
or  Common  Pleas,  to  be  there  determined.  If  the  replevin  be  by 
writ  in  the  county  court,  it  must  be  removed  by  a  pone;  if  by 
plaint,  it  must  be  removed  by  a  recordari  facias  loquelani;  if  in  a 
court  of  record  that  may  hold  pleas  of  replevin,  it  nuist  be  re- 
moved by  a  writ  of  certiorari ;  and  if  in  a  court  of  another  lord,  it 
may  be  removed  by  recordari  to  the  sheriff. 

this  much  of  the  law  of  England  is  stated  to  show  that  there 
can  be  no  replevin  under  either  the  connnon  law.  or  the  statute  of 
Marlbridge.  without  the  aid  of  our  statutes.  The  English  law  is 
founded  on  the  usages  and  customs  of  that  kingdom,  growing  out 
of  the  relation  of  landlord  and  tenant  under  the  feudal  system  and 
the  ari.stocratical  doctrines  of  primogenitui'e.  and  is  local  to  that 
kingdom  and  cannot  be  in  force  here.  There  are  no  two  kinds  of 
replevin  in  tliis  state  as  in  England,  one  by  plaint  and  another  by 
writ;  nor  is  the  writ  in  reidevin  liable  to  be  defeated  by  a  claim  of 
property  as  it  is  in  Enghind.  wliere  sucli  claim,  as  before  ol)served. 
puts  an  end  to  the  snit.  unles.s  it  is  revived  by  Ihe  writ  de  jn-oprie- 
tate  probanda.  Onr  writs  of  replevin  aiv  id  iinial)le  writs  and 
the  party  is  nM|iiirr(|  tn  ;i|i|ic;ir  nii  tin-  ivhini  day.  They  i.ssue  <mt 
of  the  circnit  eoiiits  as  otlier  writs  do.  and  ai-e  there  n-turnable; 
atid  the  snit  is  docketed,  proceeded  in.  set  down  for  trial  and  tried. 
agreeablv  to  tlie  laws  and  i)ractice  of  the  court  as  other  actions 
are.  The  statute  of  Westminster  2  (13  Edw.  1.  st.  1).  ch.  2.  is 
applieable  oidy  to  actions  of  replevin  founded  on  a  distress  for 
rent,  and  is  not  of  a  L'cncral  natnre.  ])nt   is  local  to  that   kingdom 


;{;)M  FORMS    OV    ACTK^N'!^.  \('ll.     I. 

aiul  iiifuMsisti'iit  Willi  llic  l;i\\s,  prad  ici'  aiul  policy  of  tliis  state, 
ami  thcri'fore  imt  in  Wn-rr.  Tlic  cimrl,  therefore,  considers  the 
pk'H  of  tlie  lU'feiulaiil  in  this  lii'liall'  iiisut'licicnt  in  law  to  bar  the 
l)laintitt"s  action,  and  lliat  the  circuit  coiiii  I'lTcd  in  overrulin)^- 
the  dennuTci-  thei-cto.     Jud«i;nient  reversed. 

See  •Keplevin,"  Century  Dig.  §§  G9-S2;    Decennial  and  Am.  Dig.  Key 
No.  Series  §  9. 


DUFFY  V.  MURRILL,  ;n  N.  C.  46.     1848. 
Common-Lan    Action  of  Replevin.     Essentials.     Distinguished  from  Tro- 
ver and  Detinue. 

I  Action  of  replevin  tor  a  slave.  No  affidavit  was  filed  as  was  required 
by  a  statute.  Action  dismissed  on  motion  of  defendant,  and  plaintiff  ap- 
pealed.    Reversed.     No  further  statement  of  facts  is  necessary.  | 

Nash,  J.     The  error,  into  wliich  his  Honor  was  betrayed,  con- 
sisted in  considering;  the  i)roeeedin^s  as  instituted  under  the  act 
of  188C).  when,  in  truth,  it  is  a  proceeding  at  common  law,  in  which 
no  affidavit  is  reciuiretl.     Tlie  act  cUx's  not  repeal  the  common-law 
action,  nor  supersede  it,  but  simi)ly  applies  the  remedy  by  replevin 
to  cases,  to  which  it  did  not  extend  before.    By  the  conmion  law, 
a  taking  by  the  defendant  was  necessary  to  authorize  this  remedy, 
and  sucli  is  the  language  of  the  writ;  it  is:  "We  command  you, 
that  .justly  and  without  delay,  you  cause  to  be  replevied  the  cattle 
of  B  which  D  took  and  unjustly  detains,"  etc.    1  Fitzh.  N.  B.  68. 
Wifhoul  a  fr(spass  hij  ihc  dcfcndani,  (he  writ  could  not  he  used. 
If  the  defendant  came  into  po.ssession  by  bailment,  the  plaintiff 
was  driven  either  to  his  action  of  trover  or  detinue.    By  the  latter 
alone,  the  possession  of  the  property  detained  could  be  regained, 
and,   even   then,  after  much   delay,   and   subjecting  the   plaintiff 
often  to  inconvenience  and  loss  which  the  tardy  recovery  would  not 
compensate.     ]\Iuch   the   most   valuable   portion   of   the   personal 
property,  owned  by  the  individuals  of  this  state,  consists  of  slaves, 
who.  l)y  artful  and  designing  men  having  or  pretending  a  claim 
of  right,  can  be  induced  to  leave  the  possession  of  the  proprietor 
and  go  into  that  of  his  opponent.    To  such  a  case  the  common-law 
remedy  of  replevin  could  not  apply,  because  the  defendant  had 
not  taken  the  slave;  he  did  but  detain  him.     It  was  the  intention 
of  the  legislature  to  remedy  this  evil  by  giving  this  writ,  whereby 
the  plaintifi'  might  more  speedily  and  surely  regain  possession  of 
his  property.    The  words  of  the  act  are  very  broad,  "replevin  for 
slaves  shall  he  held  and  deemed  sustainable  in  all  cases,  etc..  where 
actions  of  detinue  and  trover  are  now  proper."    It  is  unnecessary 
to  inquire  here,  whether  these  words,  broad  as  they  are,  can  em- 
brace everv'  ca.se.  in  which  actions  of  detinue  or  trover  for  a  slave 
may  be  sustained.    It  is  sufficient  for  our  present  purpose,  to  show 
that  the  act  of  1836  was  intended,  not  to  repeal  the  common  law 
remedy  of  replevin  in  such  cases,  but  to  apply  it,  when  by  the  com- 


Sec.   3   e.]  FORMS   OF   ACTIONS.  359 

nion  law  it  could  not  be  used.  The  writ,  in  this  case,  is  not  issued 
under  the  act;  if  it  had  been,  the  affidavit  required  in  the  proviso 
to  the  first  section  would  have  been  necessary,  and  his  Honor 
would  have  been  right  in  holding  that  the  plaintiff's  proceedings 
could  not  be  sustained  :  but  it  is  at  common  law.  The  writ  is  "then 
and  there  to  answer  the  said  Charles  Duft'y.  of  the  taking  and  de- 
taining." etc.  This  is  the  language  of  the  writ,  as  set  forth  in  the 
natura  breviuiii.  A  taking  is  charged,  and  without  proving  it  on 
trial,  the  plaintiff  cannot  entitle  himself  to  a  verdict,  if  the  de- 
fendant pleads  no  cepit.  Cummins  v.  McGill.  6  X.  C.  357.  Judg- 
ment reversed. 

See   -Replevin,"  Century  Dig.  §§  1-3;   Decennial  and  Am.  Dig.  Key  No. 
Series  §§  1,  2. 


(e)  Detinue. 


JOHNSTON  V.  PASTEUR,  1  N.  C.  520,  526.     1800. 
Xature  of  Detinue.    Ancient  and  Modern  Practice. 

[Action  of  detinue  for  a  slave.  Judgment  in  the  court  of  conference 
against  the  defendant.  The  opinion  is  that  of  the  court  of  conference, 
which  then  constituted  the  highest  court  in  this  state.  The  point  pre- 
sented was,  whether  or  not  a  husband  could  sue  jointly  with  his  wife,  in 
detinue,  for  the  goods  of  the  wife  which  the  defendant  had  detained  be- 
fore her  marriage.  The  decision  holds  that  he  can.  Only  that  part  of  the 
oi.inion  which  discusses  the  action  of  detinue,  is  here  inserted.] 

By  the  Court.  (Macay.  Taylor,  Hall,  and  Locke.)  .  .  . 
Some  dicta  have  been  shown  from  the  books  which  seem  to  counte- 
iKince  the  idea  that  the  ad  ion  of  detinue  for  the  wife's  goods  must 
Ix!  brought  by  the  husl)and  alone.  Hut  it  is  probable  that  if  the 
original  cases  could  be  examined,  it  would  appear  that  such  ac- 
tions by  the  husband  alone  were  sustained  only  where  the  goods 
had  bt-en  in  his  possession  during  the  coverture,  either  actual  or 
-•oiistructivr.  In  that  case  the  property  is  completely  his  own, 
ind  the  right  would  devolve  to  his  representatives  upon  his  deafh. 
and  would  not  survive  to  his  wife.  This  is  rendered  likely  by 
what  is  said  in  Viiier.  Title.  Beson  &  Feme.  30.  that  the  husband 
and  wifr  may  join  in  dctiinie  for  the  wife's  goods,  bailed  by  the 
wife  before  coverture.  And  so  it  is  said  with  respect  to  replevin 
for  her  goods  taken  wlien  she  was  sole. 

In  a<lditioii  to  this,  it  is  fo  be  remarked,  that  tlie  action  of  de- 
tinue hatb.  at  least  in  this  state,  taken  a  range  verv  wide  of  its 
original  design.  an<l  l»ecii  a|.|tlii<l  to  t ran.sactions  whicli  were  not 
formerly  eoneeived  to  tall  wilhin  its  reach.  Tt  is  defined  in  the  old 
books  as  a  reinedy  founded  upon  the  delivery  of  goods  ])y  the 
owner  to  another  to  keep,  wlu)  will  not  afterwards  deliver  th<*m 
back  atrain.  Tn  Fit/.b.  X.  R.  323.  and  2  Klk.  152.  it  is  said  that,  to 
iirniind  (in  tnlinn  of  ihliiiiK.  irhirh  /.<?  onhi  for  drlnininq.  it  if<  n 
nfcramni  jxilnl  nmonfi  ollurs.  Ihnl   lh<    fjffnif7(nit  rnwr  Inu'fvlly 


3(i0  FOU.MS    OF    ACTIONS.  [('//.    J. 

iufo  the  possvssiun  of  the  (joods.  us  <  illn  r  hij  tleliverji  la  liim.  or  bif 
finding  them.  Wvuw  it  was  tliat  the  wa^cf  of  law  was  pciiiiitled 
in  this  action,  wliifli  •ri'cw  out  of  \\\v  conlidt'iico  r(>i")Osi'(l  in  tlio 
bailee  by  the  bailoi-.  At  |>i'esi'iit,  however,  the  action  is  a{)i)lied  to 
every  case  where  the  owner  i)i(fets  recovering  the  specific  prop- 
ei'ty  to  damages  for  its  i'onversit)n.  and  no  ri'gai'd  is  liad  to  tiie 
manner  in  which  the  defendant  ac(i\iired  the  possession.  .  .  . 
Judgment  for  the  plaint ilV. 

See  "Detinue,"  Century  Dig.  §§  4-11;   Decennial  and  Am.  Dig.  Key  No. 
Series  §§  3-6. 


PETERS  V.  HEYWARD,  Cro.  Jac.  682.     1626. 
Form  of  Judgment  and  Execution  in  Detinue. 

[This  was  an  action  of  detinue.  Judgment  against  defendant,  and  he 
insists  that  there  was  error  in  the  form  of  the  judgment.  Judgment  re- 
versed^ 

The  action  was  to  recover  a  bond.  Verdict  against  the  defendant  as- 
sessing seven  pounds  damages  if  the  bond  could  be  found;  but  if  the 
bond  could  not  be  found,  the  damages  were  assessed  at  twenty  ])ounds 
additional.  The  judgment  rendered  was:  That  the  plaintiff  recover  the 
seven  pounds,  and  the  bond  or  twenty  pounds,  and  that  a  distringas  f ex- 
ecution] issue  to  the  sheriff  for  the  bond  or  twenty  pounds.  Defendant 
contended  that  the  judgment  should  be  conditional  and  not  alternative^ — 
that  is,  the  judgment  should  have  been  that  the  plaintiff  recover  the  bond 
and  the  seven  pounds  damages,  but  if  possession  of  the  bond  could  not 
be  obtained,  then  that  plaintiff — in  that  event  and  only  in  that  event — 
recover  the  additional  twenty  pounds  as  damages.  Some  point  was  also 
made  on  the  form  of  the  distringas  ordered.] 

The  court  held — That  although  Waller,  the  prothonotary  of 
the  common  pleas,  certified  that  there  were  divers  precedents  there 
in  this  manner;  and  it  was  said,  that  in  the  Book  of  Entries  judg- 
ment is  entered  in  this  manner,  and  alleged  that  the  judgment  be- 
ing that  he  shall  recover  the  bond  or  tw^enty  pounds  tantamount, 
and  is  to  be  intended  conditional  that  he  shall  have  the  bond,  and 
if  he  cannot  have  it.  then  the  twenty  ]~)Ounds;  yet  upon  considera- 
tion of  many  other  precedents,  and  the  books  which  mention  that 
the  judgment  is  and  ought  to  be  conditional  in  itself,  and  not  by 
intendment,  the  jndgment  was  erroneous;  for  by  that  judgment 
and  awarding  of  a  distringas  the  sheriff  might  distrain  for  the 
one  or  the  other  at  his  choice,  which  ought  not  to  be;  but  he  ought 
to  distrain  for  the  thing  itself,  and  if  he  cannot  have  it,  then  for 
the  twenty  pounds:  and  although  the  writ  of  distringas  was  well 
iTiade.  and  in  that  manner  as  it  was  shown  to  the  court;  yet  foras- 
much as  the  judgment  is  otherwi.se,  the  awarding  upon  the  roll, 
w'hich  is  the  warrant  of  the  writ,  was  not  good:  wherefore  rule 
was  given  that  the  judgment  .should  be  reversed. 

See  "Detinue,"  Century  Dig.  §  47;  Decennial  and  Am.  Dig.  Key  No. 
Series  §  25. 


Sec.   3   C.]  FORMS   OF   ACTIONS.  361 

BADGER  V.  PHIXXEY,  15  Mass.  359,  362,  363.     1819. 

Detinue  and  Replevin  Distinguished.    Judgment  and  Execution   in  De- 
tinue. 

[Action  of  replevin  in  which  the  plaintiff  declares  on  a  taking  by  the 
defendant  on  the  day  the  writ  issued,  and  a  detention  on  that  day.  The 
defendant  showed  tliat  no  demand  had  been  made  upon  him  prior  to  the 
commencement  of  the  action,  and  insisted  that  therefore  replevin  would 
not  lie,  but  that  plaintiff's  remedy  was  detinue.  The  facts  were  agreed 
on  and  the  case  submitted  to  the  court  for  such  judgment  as  was  proper. 
Judgment  was  rendered  against  the  defendant  for  reasons  set  out  in  the 
opinion;  but  only  that  part  of  the  opinion  is  inserted,  which  treats  of 
the  common  law  actions  of  replevin  and  detinue.] 

Putnam,  J.  Several  objections  have  been  made  to  the  plain- 
tiff's recovery.  It  is  said  that  there  has  not  been  any  tortious  tak- 
ing by  the  defendant,  and  that  replevin  lies  only  where  there  has 
been  such  a  taking.  And  it  is  a  general  remark  in  the  books  that, 
where  there  has  been  a  tortious  taking,  replevin  will  lie.  as  well  as 
detinue  and  trespass. 

Where  the  taking  was  originally  without  wrong,  but  the  party 
detains  the  goods  wrongfully,  the  owner  should  have  some  remedy 
for  them  specifically,  if  to  be  found.  The  defendant  contends  that 
detinue,  in  such  case,  is  the  only  remedy.  This  is  certainly  not  so 
effectual  a  remedy,  if  indeed  it  be  not  entirely  obsolete.  The  judg- 
ment in  detinue  is,  to  recover  the  thing,  or  the  value  of  it  if  it 
cannot  be  found,  with  damages  for  the  taking.  In  replevin,  the 
thing  is  immediately  seized;  but  in  detinue,  the  possession  is  not 
changed  until  after  judgment;  and  this  being  conditional,  the 
value,  as  estimated  by  the  jury,  may  be  but  a  poor  compensation 
for  the  thing  detained.  After  a  judgment  in  detinue,  a  distringas 
goes  to  the  defendant,  ad  deliberanda  bona;  and  if  he  will  not  de- 
liver them,  the  plaintiff'  shall  have  the  value,  as  ascertained  by  the 
jui-y.  So  that  it  is  at  the  defendant's  election  to  deliver  the  goods 
or  the  value. 

Replevin  is,  then,  the  only  certain  remedy  to  recover  the  specif!"- 
goods;  and  it  may  l)e  maintained  where  the  taking  wa.s  lawful,  but 
the  detention  unlawful.  Thus,  where  one  takes  cattle  damage 
feasant,  if  the  owner  will  tender  amends  before  the  cattle  are  im- 
pounded, he  may.  at  common  law.  maintain  replevin  for  the  un- 
lawful detention  although  the  taking  was  lawful.  And  in  such 
oa,se,  the  plaintiff  .shall  recover  damages  for  the  detention,  and 
there  shall  be  no  return.  It  was  truly  said  by  Lord  Redcsdal" 
that  this  action,  being  founded  on  any  unlawful  taking,  is  "calcu- 
lated to  sui)|tly  the  place  of  di'linuc  and  ti'over. "  And  the  re- 
mark seems  to  apply  as  well  to  an  ludawful  detenlion.  as  to  ;ui  un- 
lawful takinir.  Judgment   for  the  plaintiff. 

A.S  to  the  ruling  that  rff)levin  will  lie  where  the  taking  is  lawful,  but 
the  detention,  and  that  only,  is  unlawful,  the  principal  case  is  doubted  In 
a  note  to  the  case  In  the  edition  publlflhed  In  1861.  But  whether  that  rul- 
ing he  correct  or  not,  the  statement  of  the  distinction  between  detinue  and 
replevin  Is  valuable.  See  "Replevin."  Century  Dig.  §§  71-73;  Decenniiil 
and  Am.  Dig.  Key  No.  Series  §  9. 


L>()2  I'dlCMS    {)[■•    ACTIONS.  lr/(.     /. 


SKf.  4.     K«»K.Ms  o\'  Ac'i'ioN  Indku   rill';  Codk  Thai  tick. 

On  the  siibj(H-t  ol'  fniiiis  of  ad  ion.  it  is  said  by  Clark,  C.  J.,  iu 
lliii-irri^v'  V.  Iliu-ris.  llC  N.  C.  IIS.  41!).  420,  21  S.  E.  916  (1895)  : 
"I'luliT  (lur  ('(inst  it  lit  idii  art.  IN',  s  1.  tlirrc  is  hut  one  i'onn  of 
action  ill  I'ivil  i-asi's.  In  that,  many  ancilhiry  iviiictUes  may  bo 
askod.  i.  t-..  Ai-rost  and  liail.  Claim  and  Delivery,  Injunction,  At- 
tachment, and  Appointmont  of  Receivers.  These  need  not  be 
asked  even  it'  the  paitx'  is  entitled  to  1h<'in  (Wilson  v.  Ilnjrlies,  1)4 
X.  C  18lM.  and  if  tlu'V  are  impro])erly  asked,  tliey  are  simply  de- 
nied or  dismissed,  but  that  does  not  atfeet  the  action  itself,  vvhicli 
goes  on  if  the  plaintiff  is  entitled  to  any  other  remedy.  Deloateli 
V.  Comnn.  DO  X.  C.  186;  .Morris  v.  OVHriant,  94  N.  C.  72.  This  is 
tlie  broatl  distinction  between  the  ])resent  system  of  procedure  and 
that  formerly  in  force.  Under  the  old  system,  all  these  were  dis- 
tinct forms  of  action,  and  so  much  regard  was  jiaid  to  the  mode  in 
which  relief  was  asked  that  however  nicritoi'ious  the  cause  of  ac- 
tion, a  mistake  in  the  exact  manner  of  seeking  the  remedy  sent  the 
plaintilf  out  of  court.  The  common  sense  of  mankind  and  the  in- 
telligence of  the  age  have  caused  the  old  system  to  be  abrogated  in 
the  large  ma.jority  of  states  and  countries  of  the  Knglish  speaking 
race — indeed  it  was  never  in  force  in  any  other.  It  was  abolished 
in  this  state  over  a  quarter  of  a  eenturv  since." 

In  Bitting  v.  Thaxtoii.  72  X.  C.  541."  548,  549  (1875,  Reade,  J., 
says:  "The  distinction  between  actions  at  law  and  suits  in  equity, 
and  the  forms  of  all  such  actions,  heretofore  existing,  are  abol- 
ished, and  there  shall  be  in  this  state  hereafter  but  one  form  of  ac- 
tion,' etc.  C.  C.  P.  i;  12.  'All  the  forms  of  pleading  heretofore  ex- 
isting are  abolished.'  etc.  C.  C.  ]*.  §  91.  A  counterclaim  must  be 
'a  cause  of  action  arising  out  of  the  contract,  or  transaction  set 
forth  in  the  complaint,  as  the  foundation  of  the  plaintiff's  claim,  or 
connected  with  the  subject  of  the  action.'  C.  C.  P.  §  101  (1).  If 
there  is  anything  settled  in  onr  new  system  it  is  that  there  is  but 
one  form  of  action.  There  are  torts  and  contracts  just  as  thoi" 
used  to  be;  but  there  are  not  several  forms  of  action  as  there  used 
to  be,  and  pleadings  are  not  suited  for  different  forms  of  action,  as 
they  used  to  be;  but  all  are  suited  to  (me  form,  whether  the  subject 
of  the  action  be  a  tort  or  a  contract.  And  when  the  ])laintif'f  liles 
his  complaint,  setting  forth  the  'transaction.'  whether  it  be  a  tort 
or  a  contract,  the  defendant  may  set  up  any  claim  which  he  has 
against  the  plaintiff,  connected  with  the  transaction  set  uj)  in  the 
com]>laint ;  and  this  is  called  a  'counterclaim.'  And  when  the 
l»laintiif  states  the  'transaction'  in  his  complaint,  he  cannot  by 
calling  it  by  one  name  or  another — as  tort  or  contract — cut  off  the 
defendant's  counterclaim  growing  out  of  the  same  transaction.  It 
is  the  transaction  that  is  to  be  investigated,  without  regard  to  its 
form  or  name." 

In  Lumber  Co.  v.  Wallace,  93  X.  C.  22,  25-28  (1885).  Merri- 
Mox.  J.,  says:  "Under  the  code  system  of  procedure  as  it  prevails 


Sec.    4.]  FORMS   OF   ACTIONS.  363 

in  this  state,  equitable  relief  may  be  granted  in  every  civil  action 
wherein  it  appears  by  proper  averments  and  proofs  that  the  par- 
ties, or  any  of  them,  are  entitled  to  it.  The  constitution  (art.  IV, 
^  1)  provides  that,  'the  distinction  between  actions  at  law  and 
suits  in  equity  and  the  forms  of  all  such  actions  and  suits,  shall  be 
abolished ;  and  there  shall  be  in  this  state  but  one  form  of  action, 
for  the  enforcement  or  protection  of  private  rights  or  the  redress 
of  private  wrongs,  which  shall  be  denominated  a  civil  action.'  etc. 
This  provision  does  not  imply  that  the  distinctions  between  law 
and  equity  are  abolished,  or  that  the  principles  and  doctrines  of 
law  and  equity  are  so  blended  as  to  constitute  one  embodiment  of 
legal  science,  without  the  differences  that  have  heretofore  existed 
between  them  and  been  recognized  by  courts  of  judicature  in  their 
application.  Principles  of  law,  principles  and  doctrines  of  eciuity, 
remain  the  same  they  have  ever  been — the  change  wrought  is  in 
the  method  of  administering  them,  and  in  some  degree,  the  extent 
of  the  application  of  them. 

"Under  the  common  law  method  of  procedure,  the  principles  of 
law  were  applied  and  enforced  in  courts  of  law  according  to  meth- 
ods and  forms  of  action  peculiar  to  them — the  principles  of  equity 
were  applied  and  administered  in  courts  of  equity  according  to 
forms  and  methods  of  procedure  peculiar  to  them.  Such  differ- 
ences were  distinctive,  well  understood  and  treated  as  essential. 
The  constitutional  provision  cited  abolishes  such  distinctions  as  to 
actions  and  their  forms,  and  to  a  very  large  extent — not  wholly — 
the  method  of  procedure  in  directly  applying  principles  both  of 
law  and  equity.  Causes  of  action  distinctively  legal  in  their  na- 
ture, and  like  causes  ]>urely  e(|uitabl('  in  their  nature,  although  in 
it'spect  to  the  same  matter  in  different  aspects  of  it.  need  not  neces- 
sarily be  united  in  the  same  action,  though  they  may  be.  if  the\' 

■  ■nine  within  any  of  the  classifications  prescribed  in  the  code, 
j;  2(i7.  Gregory  v.  TTobbs,  i):^  X.  C.  1.  But.  when  a  single  cause  of 
action  luis  lioth  legal  and  equitable  elements,  and  also,  when  the 

■  quitable  relief  sought  is  merely  incidental  or  ancillary  in  the  ac- 
tion— in  such  eases,  the  principles  both  of  law  and  equity  nuist  be 
ajjplied  in  the  same  action — as  in  case  of  application  for  relief  by 
injunction,  or  the  appointment  of  a  receiver  in  the  course  of  the 
action.  And  this  is  so  as  well,  when  two  or  more  causes  of  action 
are  united  in  the  same  action. 

"The  purpose  jind  effect  of  tlie  constitutional  provision  is  to 
iiholi.sli  the  distinctions  between  actions  of  biw  and  suits  in  ('(|uity. 
jind  the  forms  of  such  actions — not  the  diffej-eiice  in  respect  to 
principles — and  to  establish  a  single  for-iii  of  action  ;i|i|ili(;ilile  in 
;"ll  ca.ses.  whether  the  cause  of  act  ion  lie  leg;il.  oi'  (■(|iiit;iltle.  or  Itoth. 
Tlie  end  sought  to  he  ntlained  is  to  oliviiite  i-ircnitx'  and  multi- 
plicity of  actions,  vai'iety  of  forms  of  actio?)  and  complicat ioji  in- 
cident thereto,  and  to  facilitate  the  application  of  the  principles  of 
law  and  equity  where  they  apply  to  a  greater  or  less  extent  to  the 
HHuw  causes  of  ar-tion.  The  code  of  civil  pioi-cdure  ])rescribes 
the  method  f>f  af»[)lying  both  law  and  e((uity  i?!  oin-  form  of  ac- 
tion.     \'y   it    is  established    a   system    nf    |i|ra<line.    iIh'    |Mn'|tose  of 


M4  I'dKMS    ()!■•    ACl'IONS.  [dl .    •/. 

whii'h  is  to  (.'tVcct  iKili'  llic  iiili'iilidu  dl'  the  const  it  lit  ioiuil  provision 
imdor  oonsidiTjition.  This  iiictluid  oi'  pioccduro  is,  in  some  re- 
spects, iniperfect.  pni-tirul.u'ly  in  i-cspect  to  the  trial  of  issues  of 
faet  arisijisj  in  cases  pni-cdy  c(|uital)lc,  and  lliat  soniclimos  arise  in 
eases  involvini:  Imth  lc>,'al  and  e<iuital)h'  clcincnts.  IJccansc  of  this 
iniperfeetion.  the  courts  oftentimes  find  it  dil'Hcult  to  firant  the 
full  measure  of  c(piitable  relief  as  contemplated  by  the  doctrines 
of  ecpiity.  The  trial  of  issues  of  fact  by  a  jury  is  generally  ill- 
suited  to  the  settlement  of  the  facts  in  cipiity  cases,  lint  in  some 
other  respects,  it  facilitates  and  eidarges  the  scope  of  etpiitablc  re- 
lief that  may  be  granted.  This  is  so  especially  as  to  relief  by  in- 
junction and  the  appointment  of  receivers.  The  provisions  of  the 
code.  >;§  338.  3711.  in  ex[)ress  terms  invest  the  court  with  very 
large  and  comprehensive  powers  to  protect  the  rights  and  prevent 
the  perpetration,  or  the  continuance,  of  wrong  in  respect  to  the 
subject  matter  of  the  action,  and  to  take  charge  of  and  protect  the 
property  in  controversy  both  before  and  after  judgment,  by  in- 
junctions and  through  receivers,  pending  the  litigation;  they  facil- 
itate and  enlarge  the  authority  of  the  courts  in  the  exercise  of 
these  remedial  agencies,  and  do  not  in  any  degree  abridge  the  exer- 
cise of  like  general  powers  that  appertain  to  courts  of  equity  to 
grant  the  relief  specified,  or  to  grant  perpetual  injunctions  in 
proper  cases,  and  the  like  relief. 

"It  is  not.  however,  to  be  understood,  that  the  court  will  admin- 
ister both  law  and  eciuity  in  the  same  action  upon  the  mere  sug- 
gestion of  the  parties,  or  some  of  them.  Of  course,  the  cause  of  ac- 
tion, or  the  defense  thereto,  whatever  may  be  its  nature — whether 
legal  or  equitable  or  both — must  be  set  forth  in  the  action  as  re- 
quired by  the  method  of  pleading  established  by  the  code,  and  in 
such  intelligent  w^ay  as  to  enable  the  court  to  see  what  principles 
apply  and  how  they  must  be  administered.  The  pleadings  should 
develop  the  nature  of  the  relief  sought.  Such  relief  may  be 
granted  in  the  same  action  in  respect  to  the  same  cause  of  action, 
not  only  to  the  plaintiff,  but  as  well  to  the  defendant,  either  tem- 
porarily in  the  course  of  the  action,  or  by  the  final  judgment,  ac- 
cordingly as  it  may  ap])ear  that  he  is  entitled :  and  this  is  es- 
pecially .so.  when  the  defendant  pleads  a  counterclaim  that  he  may 
be  entitled  to  plead.  Indeed,  a  counterclaim  is  generally,  practi- 
cally and  in  effect,  a  counter-action  brought  by  the  defendant 
against  the  ])laintiff.  Such  being  the  scope  and  purpose  of  the 
method  of  civil  procedure  in  this  state,  we  thiid\  there  can  be  no 
doubt  that  the  defendants  are  entitled  to  equitable  relief." 

In  Staton  v.  Webb.  ]37  N.  C.  35,  30,  40,  49  S.  E.  55,  57,  Doug- 
las. J.,  says:  "It  is  evident  .  .  .  that  the  code  of  civil  ])roce- 
dure  was  neither  a  modification  nor  a  simplification  of  any  of  the 
common-law  modes  of  procedure.  It  practically  abolished  all  the 
common-law  forms  of  action,  and  adopted  the  old  equity  practice, 
with  some  slight  modifications,  the  principal  one  being  that  in 
the  code  practice  the  sunnnons  precedes  the  complaint;  while  in 
equity  the  subpa-na  follows  the  bill.  "Wilson  v.  ^Toore.  72  N.  C. 
558.    A  brief  glance  at  the  methods  of  procedure  in  actions  at  law 


Sic.    t/.]  FORMS   OF    ACTION?.  365 

before  the  adoption  of  the  code  of  civil  procedure  will  show  how 
complete  is  the  change.  In  this  state  the  courts  followed  the  prac- 
tice of  the  court  of  King's  Bench  in  England.  ]\Iuch  space  and 
learning  were  expended  upon  the  nature  and  requisites  of  the  dif- 
ferent pleadings,  but  in  actual  practice  the  method  was  of  the  sim- 
plest kind.  The  action  was  begun  by  an  "original  writ"  com- 
manding the  sheriff  to  "take  the  body  of  C.  D.  (if  he  be  found  in 
your  county)  and  him  safely  keep  so  that  you  have  him  before 
the  justices  of  our  Court  of  Pleas  and  Quarter  Sessions  to  be  held 
.  .  .  then  and  there  to  answer  A.  B.  of  a  plea  of  trespass  on 
the  case  to  his  damage  ....  dollars.'  If  the  action  lay  in 
debt  or  covenant  or  any  other  form  of  action,  the  only  change 
made  was  to  in.sert  in  lieu  of  the  words  'trespass  on  the  case'  the 
words  'that  he  render  imto  him  the  sum  of  ...  .  dollars, 
which  he  owes  to  and  mi  justly  detains  from  him-."  or  a  'breach  of 
covenant.'  as  the  case  miglit  be.  Eaton's  Forms.  44.  Under  this 
writ  the  sheriff  took  the  defendant  into  custody  unless  belonging 
to  some  exempted  class,  such  as  a  woman  or  an  administrator,  and 
held  him  to  bail,  or  himself  became  special  bail.  The  plaintiff  was 
supposed  to  file  a  declaration  which  in  fact  was  rarely  if  ever 
done,  the  mere  indorsement  of  the  nature  of  the  action  on  the 
l)ack  of  the  writ  being  deemed  a  sufficient  compliance  with  the 
rule  in  the  absence  of  a  specific  demand.  The  defendant  was  also 
t'xpected  to  plead,  which  was  usually  done  by  his  counsel  merely 
marking  upon  the  docket  the  nature  of  his  pleas  in  contracted 
form.  "Whatever  it  may  have  been  in  theory,  the  usual  entry  was 
about  as  follows:  'Genl.  Issue.  Payt..  &  set-off.  Stat.  Lim.  with 
leave.'  The  last  two  words  mean  leave  to  plead  any  other  defense 
that  may  chance  to  occur  to  the  pleader,  such  as  nil  debit,  accord 
and  satisfaction,  non  est  factum,  or  the  like.  In  ejectment,  a  form 
of  trespass  wherein  the  general  issue  was  'not  guilty.'  the  proce- 
dure was  more  complicated,  but  even  in  that  action  ]\Ir.  Eaton 
feels  called  on  to  say:  'The  practice  which  prevails  in  North  Caro- 
lina of  trying  actions  of  ejectment  with  no  declaration  on  file  but 
that  against  the  casual  ejector  is  very  irregular.'  The  force  of 
this  remark  is  apparent  when  we  recall  that  the  casual  ejector  had 
no  aftual  existence,  being  jiui'cly  a  fictitious  personage,  the  airy 
phantom  of  judicial  imagination.     Iti  llie  old  system  the  principal 

•  lif'ticulties  lay  in  deciding  upon  the  proper  form  of  action  and  tlir 

•  laiigcr  of  encountering,  during  the  trial,  some  equitable  right 
lliat  could  not  be  juljusted  in  llial  court.  The  fad  that  the  courts 
of  law  and  cfiuity  were  held  by  the  same  judge  at  the  same  place 
and  during  the  same  week,  did  not  prevent  them  from  being  sepa- 
rate jiiid  distinct  courts,  with  subjects  of  jurisdiction  and  methods 
of  pHM-edure  entirely  dilTereiit.  It  was  to  remedy  these  evils  that 
the  new  system  was  adopted.  "Wlietlier  it  comes  up  to  the  full 
measure  of  sim[)licity  claimed  \'(>y  it  by  its  most  enthusiastic  ad- 
vocates, we  are  not  entirely  pl'e[i;irc(l  to  say." 

flee  "ArtJon."  Century  Dig.   §  2.'.7;    Decennial   and    Am.   Dig.   Key  No. 
Series  S  32. 


iUili  i'i;ijs(».\'.\i,  si'X'iun'x .  i.iiu'.ktn  .  irrc.  \('li.  J. 


INJURIES    TO    PERSONAL    SECURITY,    TO    PERSONAL    LIBERTY, 

AND  TO   PRIVILEGES. 


Sec.  1.    Kemedies  for  tiii-;    Death   ok   a    Person.    Appeals  of 
Death.     Lord  Campbell's  Act. 

LOUISVILLE  &  ST.  L.  R.  R.  v.  CLARKE,  152  U.  S.  230,  14  Sup.  Ct.  579. 

1894. 

Appeals  of  Death.     Weregild. 

[Clarke,  as  executor  of  a  person  alleged  to  have  been  killed  by  the  neg- 
ligence of  the  I^uisville,  etc.,  R.  R.  Co.,  sued  the  railroad  company  for 
damages.  The  railroad  company  demurred.  Demurrer  overruled,  and 
answer  filed.  Verdict  and  judgment  against  the  railroad  company,  and 
thff  company  (arried  the  case  to  the  supreme  court  by  writ  of  error. 
Affirmed. 

The  action  was  brought  in  the  United  States  circuit  court  for  the  dis- 
trict of  Indiana  to  recover  damages  under  the  statute  of  Indiana.  It  ap- 
peared from  the  comijlaiut  that  the  injury  to  the  deceased  occurred  on 
November  iTj,  188G,  but  the  death  was  not  until  February  23,  1888.  The 
ground  of  demurrer  was,  that  no  cause  of  action  was  alleged,  because 
the  death  of  the  injured  person  did  not  occur  within  a  year  and  a  day 
after  the  injury. 

The  Indiana  statute  provided  for  the  recovery  of  damages  for  the  death 
of  a  person,  if  such  action  were  commenced  within  ttvo  years  from  the 
death  of  such  person.  In  this  case  the  action  was  commenced  within  two 
years  from  the  death;  but  the  railroad  comi)any  contended  that  no  cause 
of  action  existed  at  all  because  of  the  common-law  rule  that  where  the 
death  of  a  person  occurs  more  than  a  year  and  a  day  after  an  injury  to 
such  i)erson,  the  injury  shall  not  be  considered  the  cause  of  the  death. 

Only  that  i)ortion  of  the  opinion  which  discusses  the  common  law  gov- 
erning the  remedy  for  wrongful  acts  causing  death,  appeals  of  death,  etc., 
is  here  inserted.] 

"At  coniiiKiii  law  there  were  three  occasions  upon  which  the 
courts  inquired  in  respect  of  the  killing  of  a  human  being:  First. 
Indictments  which  were  public  prosecutions — prosecutions 
brought  in  the  name  and  behalf  of  the  king.  Second.  Appeals  of 
death,  whicli  were  proceedings  bi-ought  not  by  the  king  nor  in  his 
name,  but  in  the  name  and  for  the  benefit  of  private  individuals. 
Third.  Tn(|uisitions  against  deodands. "  (From  brief  of  counsel, 
p.  281.) 

^\\\.  Jf'STiCE  ITarlan.  ...  In  eases  of  murder  the  rule  at 
common  law  undoubtedly  was  that  no  person  should  be  adjudged, 
"by  any  acf  whatever,  to  kill  another,  who  does  not  die  by  it  within 


Sec.    1.]  PERSONAL    SECURITY.    LIBERTY,    ETC.  367 

a  year  and  a  day  thereafter,  in  computation  whereof  the  whole 
day  on  which  the  hurt  was  done  shall  be  reckoned  fir.st.''  1  Hawk. 
P.  C.  c.  13;  2  Hawk.  P.  C.  c.  23  §  88 ;  -t  Bl.  Comni.  197.  30G.  The 
reason  as.signed  for  that  rule  was  that,  if  the  person  alleged  to 
have  been  murdered  "die  after  that  time,  it  cannot  be  discerned, 
as  the  law  presumes,  whether  he  died  of  the  stroke  or  poison,  etc., 
or  a  natural  death ;  and.  in  ease  of  life,  a  rule  of  law  ought  to  be 
certain."  3  Inst.  oi.  And  such  is  the  rule  in  this  country  in 
prosecutions  for  murder,  except  in  jurisdictions  where  it  may  be 
otherwise  prescribed  bv  statute.  "Whart.  Am.  Cr.  Law,  §  1073; 
State  V.  Orrell.  1  Dev.  139. 

An  appeal,  when  spoken  of  as  a  criminal  prosecution,  denoted, 
according  to  Blackstone,  an  accusation  by  a  private  subject  against 
another  for  some  heinous  crime, — a  "private  process  for  the  pun- 
i.shmeiit  of  juiblic  crimes."  having  its  origin  in  a  custom,  dei'ived 
from  the  ancient  Germans,  of  allowing  a  pecuniary  satisfaction, 
called  a  "weregild."  to  the  party  injured  or  his  relations,  "to  ex- 
piate enormous  offenses."  4  HI.  Conmi.  312,  313.  Bacon  defines  it 
to  be  a  "vindictive"  action. — "the  party's  private  action,  seeking 
revenge  for  the  injury  done  him.  and  at  the  same  time  prosecuting 
for  the  crown  in  respect  of  the  offense  against  the  public."  Bac. 
Abr.  tit.  "Appeal."  These  appeals  could  be  brought  "previous 
to  an  indictment,  and.  if  the  appellee  be  acquitted  thereon,  he 
could  not  be  afterwards  indicted  for  the  same  offense."  4  Bl. 
Comm.  315;  Com.  Dig.  tit.  "Appeal,"  G,  11.  16.  While,  during 
the  continuance  of  the  custom  referred  to,  a  process  was  given  for 
recovering  the  weregild  by  the  party  to  whom  it  was  due,  "it 
seems  that  when  these  offenses,  by  degrees,  grew  no  longer  redeem- 
able, the  private  process  was  still  continued,  in  order  to  insure  the 
infliction  nf  |)unishment  on  the  offender,  though  the  party  was 
allowed  no  pecuniary  c(im])cnsation  foi'  the  olTense."  Book  4, 
p.  314.  By  statute  of  ">!)  Geo.  111.  c.  4(i.  ai)peals  of  murder,  trea- 
son, felony,  and  otlier  offen.ses  were  abolished. 

During  the  time  wlien  a p| teals  of  death  were  allowed,  at  com- 
mon law.  the  rule  established  by  the  statute  of  Gloucester  (6  Edw. 
I.  c.  9)  was  that  "the  appeal  nuist  be  sued  out  within  a  year  and 
a  day  after  the  conii)le1  ion  of  the  felony  by  the  death  of  the 
party.""  I  I'.l.  Gonnii.  31.1.  This,  the  author  said,  seemed  to  be 
only  declaratory  of  the  common  law.  And  TTawkins  says:  "It 
seems  clear  that  the  appeal  of  death  must  set  foi-th  the  day  when 
the  hurt  was  given,  but  also  the  day  when  the  jiarty  died  of  it. 
as  it  appears  from  ;ill  precedents  of  Ihis  kind,  both  in  Coke  and 
Haslat.  and  also  from  tlie  inatiirest  reason  of  the  thing,  that  it  may 
appear  thai  the  party  died  within  a  .\-ear  and  a  day  after  the 
stroke,  in  which  case.  only,  the  law  intends  the  death  was  oc- 
casion.-d  by  it."  2  Hawk.  I'.  (".  c.  23.  §  88.  I'.acon.  refei-ring  lo 
the  statute  of  Gloncester.  says  that,  by  thai  statute,  "an  appeal 
shall  not  be  abated  for  default  of  fresh  suit  if  the  party  sue  within 
the  year  and  day  after  the  deed  done,  the  compulation  wlieroof.  as 
the  hiw  is  now  settled,  shall  be  niailc.  not    rmin   the  da\-  when  Ihc 


3t>8  i'i:i{s«»N.\L  sKcruirv.  i.ihkutv,  etc.  [Cli.  5. 

wound  is  irivi'U.  l>ut  ri'om  llic  day  wlini  I  he  jiarly  died;  also,  the 
year  and  tlic  dav  shall  Itc  coniputi'd  ft'oni  llic  lii'^iimiiig  of  the  day, 
anil  not  Iroin  the  preeise  lime  when  the  death  liappened,  because 
reirnlai'ly  iki  tract  ion  siiall  he  made  oi' a  day. "  Uac  Ahr.  tit.  "Ap- 
peals," 1).  And  ("ouiyn:  "  1\\  tin-  statute  ol'  ( J loueester,  6  Edw. 
1.  e.  1>.  an  appeal  siiall  net  ahate  by  want  ot"  fresh  suit,  if  brought 
in  a  year  and  a  da\  alter  the  fact  done;  which  statute  is,  by  eon- 
struetion.  restrained  to  an  appeal  for  the  death  of  a.  num.  And, 
therefore,  an  api)eal  upon  the  death  of  a  man  may  be  within  the 
year  and  day.  thoufjh  there  be  not  any  fresh  suit ;  within  a  year 
and  a  day  after  the  death,  thoufih  the  blow  was  given  before." 
2  Inst.  -VIO.  tit.  "Appeals,"  J). 

The  rule  of  a  year  and  a  day  was  also  applied  at  coninioii  law 
to  in(juisitions  of  deodands.  bi-ou^dit  to  forfeit  to  the  king,  "to  l)e 
apidied  to  pious  uses  and  distributed  in  alms  by  his  high  al- 
moner,"— personal  chattels  that  were  the  immediate  occasion  of 
the  death  of  any  reasonabh^  ci-eature.  1  1^1.  Comm.  "JOG.  The  rule 
in  those  eases  was  thai  the  law  does  not  look  upon  such  a  wound  as 
the  cause  of  a  man's  death,  "after  which  he  lives  so  long." 
1  Hawk.  P.  C.  c.  8.  ^  7. 

"We  have  made  this  full  reference  to  prosecutions  for  murder, 
appeals  of  death,  and  inquisitions  against  deodands  because  of  the 
earnest  contention  of  counsel  that  the  rule  applied  at  common  law 
in  such  cases  shoidd  control  the  construction  of  the  Indiana  stat- 
ute. In  our  judgment,  the  rule  of  a  year  and  a  day  is  inapplicable 
to  the  case  before  us.  In  prosecutions  for  murder  the  rule  was 
one  simply  of  criminal  evidence.  A])peals  of  death  and  inquisi- 
tions against  deodands.  although  having  some  of  the  features  of 
civil  proceedings,  were,  in  material  respects,  criminal  in  their  na- 
ture. Besides,  as  we  have  seen,  the  statute  of  6  Ed\v.  I  c.  9,  was 
construed  as  giving  a  year  and  a  day  from  the  death  of  the  party 
killed,  not  from  the  time  the  wound  was  inHicted;  and  we  do  not 
understand  that  any  different  construction  was  placed  upon  the 
statute  of  3  ITen.  VII.  c.  ],  to  which  counsel  referred. 

But.  be  that  as  it  may.  in  prosecutions  for  nuirder  and  appeals 
of  death,  the  principal  object  was  the  punishment  of  public  of- 
fenses. In  cases  of  nuirder  and  appeals  of  death,  human  life  was 
involved,  while  in  inquisitions  against  deodands  it  was  sought  to 
forfeit  property  that  had  caused  the  death  of  some  one.  In  such 
cases  the  rule  of  a  year  and  a  day  might  well  have  been  applied. 


[The  court  holds  that  the  rule  of  a  year  and  a  da.v  has  no  application 
to  actions  under  statutes  like  that  of  Indiana,  "which  are  purely  civil 
proceedings  that  involve  no  element  of  punishment,  but  only  provide 
compensation  to  certain  relatives  of  the  decedent  who  have  been  deprived 
of  his  assistance  and  aid."l 

Appeals  of  murder  were  never  regarded  as  contrary  to  Magna  Charta: 
but  were  considered  "a  noble  remedy  and  a  badge  of  the  rights  and  liber- 
ties of  Englishmen."  Persons  acquitted  of  murder  on  indictment  were 
often  tried  again  on  appeals  of  murder,  and  convicted  and  executed. 
The  right  of  appeal  existed  in  Pennsylvania  and  Maryland.     No  appeal 


Sec.    1.]  PERSONAL    SECURITY.    LIBERTY,    ETC.  369 

was  ever  brought  in  Pennsylvania,  but  in  1763  a  negro  was  hung  under 
such  proceedings  in  Maryland.  An  appeal  of  murder  was  brought  in 
England  in  1817,  but  was  defeated  because  the  prosecutor — called  the 
appellant — declined  to  accept  "the  wager  of  batteL"  Hurtado  v.  The 
People  of  Cal.,  110  U.  S.  516,  526.  See  9  L.  R.  A.  (N,  S.)  1193,  19  lb.  633, 
and  notes,  for  doctrine  of  principal  case.  See  also  4  Blk.  *312-317; 
1  Bac.  Abr.  291-299.  See  'Death,"  Century  Dig.  §  21;  Decennial  and 
Am.  Dig.  Key  No.  Series  §  17. 


GROSSE  V.  DEL.,  &  W.  R.  R.  CO.,  50  X.  J.  L.  317,  13  Atl.  233.     1888. 
Actio  Personalis  Moritur  cum  Persona.    Lord  Campbell's  Act  of  1846. 

I  Action  by  plaintiff  for  damages  caused  by  the  death  of  his  wife  as  the 
consequence  of  defendant's  alleged  negligence.  Demurrer  by  defendant. 
Demurrer  sustained.     Judgment  against  the  plaintiff,  and  he  appealed. 

Affirmed.     The  facts  appear  in  the  opening  of  the  opinion.] 

Magie,  J.  The  declaration  demurred  to  charged  the  defendant 
company  with  the  immediate  killinii'  of  plaintiff's  wife  by  the 
negligence  of  its  employees.  It  sought  to  recover  damages  for  the 
loss  of  her  society  and  a.ssistance  in  plaintiff's  domestic  affairs,  and 
for  money  laid  out  by  him  in  burying  her.  The  case  thus  pre- 
sented does  not  come  with  the  provisions  of  the  statute  of  March  3, 
1848  (Revision.  294).  or  any  other  statute.  It  is  of  novel  im- 
pression in  this  state,  and  the  demurrer  raises  the  question  whether, 
apart  from  the  aulliority  conferred  by  statute,  an  action  will  lie 
to  recover  damages  for  the  killing  of  a  human  being.  In  the  very 
ingenious  argument  submitted  in  behalf  of  the  plaintiff'  in  error,  it 
seems  to  be  admitted  tliat  the  current  of  English  authority  indi- 
cates that  such  an  action  could  not  l)e  brought  at  connuon  law.  In 
1607  it  was  held  that  a  husband  could  not  recover  for  the  injury 
lie  sustained  by  the  death  of  his  Avife  occasioned  by  the  battery  of 
defendant.  Il'iggins  v.  Butcher.  Yel.  89.  In  deciding  the  case, 
Tan'field,  J.,  expressed  this  opinion:  "If  a  man  Ijeat  the  servant 
of  S.  so  that  he  dies  of  that  battery,  the  master  shall  not  have  an 
action  for  the  battery  and  loss  of  service,  because,  the  servant 
ilying  of  the  extremity  of  the  battery,  it  is  now  become  an  offense 
to  the  crf)\vn.  being  converted  into  a  felony,  and  that  drowns  the 
particular  offense  and  i)rivate  wrong  offered  to  the  master  before 
and  his  action  is  thereby  lost."  \o  trace  of  a  case  involving  the 
rJL'ht  tr  recover  for  the  ]o.ss  of  services  occasioned  by  the  k-jUing 
of  a  wife  or  .servant  can  ])e  found  tliereafte)-  until  1808.  Then,  in 
an  action  tried  ])efore  Lord  Kr.LENnoRorGir.  ;i  husbinid  sought  to 
recover  (l;iMi;i<4es  for  injuries  inllicteil  on  his  w  i  tV  liy  tlic  negligent 
overtur'iiiug  of  a  statre-coach.  and  which  evenlually  |»ro«iuce(l  Ikm' 
death.  That  eminent  judge  directed  the  jury  to  limit  lln'  damages 
to  those  the  husliand  had  suffered  duriuir  the  life  of  liic  wife,  giv- 
iiitr  as  till'  rrasoii.  tliat  "in  a  i'i\il  court  \]\r  death  of  a  human 
bfinrr  cainiot  be  complaiiKMl  of  as  an  iiijui'V."  I'.aker  v.  I'olton. 
1  f'ainp.  49:?.  \o  furtln'i-  oi)i)ofliniily  to  adjudi<'atr  upon  the 
Remedies — 2-1. 


370  I'KKsoNAi,  si:<Tijrrv.  l.ll!l•:u^^■.  etc.  \('/t.  5. 

question  seiMiis  to  luivc  licfii  .itVordrd  iiiilil  ISTl'.  w  Ihmi  ;in  acliou  by 
;i    ratllt'f.    \'i)V    liiss  dl'    llic   S('i'\  ices   ol'   ;i    (l.iiiiilitci-   :iii(l    servant,    Oi'- 
I'Msioiu'd  !)>■  Iiri-  ilcntli  cMiiscil  by  llir  iicj^di^ciicc  of  a  scrvniit  of  tlic 
dotViulant,   canie   lu't'oro  the  t'Oiirt  of  cxcIkmukm-  on   (IciiniiTcr  to 
ploas.  one  of  which  sot  np  that  tho  d(>ath  ol"  tlie  (hiughlcr  was  the 
inuiit'diatt'  ;ind  iiislaiitaiicous  result  ol'  Ihe  nc^li^'enee.    The  valid- 
ity of  that  plea  was  suslained  as  al'l'ttrdinji;  a  (•oin])lete  answer  to  tlie 
father's  ehiini.     Oshi)i-n  v.  Gillett,  L.  K.  S  Kxeh.  88.     This  course 
of  decision   cannot,   jierliajis.   he  said   to  have  been   i)i'oinulgated 
without  some  protest.    Thus  the  learned  reporter  of  Baker  v.  Bol- 
ton appends  to  the  rejiort  this  (|uery:  "If  the  wife  be  killed  on 
the  spot,  is  tliis  to  be  considered  daininun  al)S(pie  injui'ia!"     In 
Osborn  v.  Lillitt.  the  result  was  reached  by  the  concurrence  ot 
Kell3%  C.  B..  and  Pigott,  B.,  against  the  vigorous  dissent  of  the 
then  Baron  Bramwell.     Notwithstanding  such  evidences  of  some 
doubt,  the  fact  that  the  conunon  law  has  been  construed  in  Eng- 
land from  the  earliest  times  to  reject  an  action  for  loss  of  services 
occasioned  by  the  death  of  the  servant  appears,  not  only  from 
these  adjudged  cases.  l)ut  also  from  the  absence  of  precedents  for 
such  actions  (the  opportunity  for  which  must  have  frequently  oc- 
curred), and  of  any  doctrine  of  text-wi'iters  or  conunentators  to 
the  contrary.     There  also  appears  a  parliamentary  declaration  of 
what  was  the  connnon-law  rule,  which  seems  to  me  must  be  de- 
cisive.    It  occurs  in  a  recital  of  the  preamble  of  Lord  Campbell's 
act  of  9  &  10  Vict.  c.  03  (1846).  which  declares  that  "no  action 
is  now  maintainable  against  a  person  w^ho  by  his  wrongful  acts 
may  have  caused  the  death  of  another  person."    There  is  nothing 
to  justify  any  restriction  of  this  general  expression  of  what  the 
conunon  law  was,  because  the  act  then  proceeds  to  give;  an  action 
in  favor,  among  others,  of  a  husband  for  the  death  of  his  wife,  and 
of  a  parent  for  the  death  of  his  child,  although  such  death  had 
been  caused  under  circumstances  which  would  amount  in  law  to 
felony. 

Counsel,  therefore,  properly  admitting  this  rule  to  have  existed 
at  connnon  law,  strenuously  contend  that  it  has  never  l)een  and 
ought  not  to  be  adopted  here.  His  argument  is  that  this  doctrine 
depend(Hl  upon  the  notion  that  every  homicide  was  felony,  and  oc- 
casioned the  forfeiture  of  the  felon 's  goods ;  and  since  his  property 
was  to  go  to  the  crown,  and  his  body  to  the  gallows,  an  action  for 
a  private  injury  was  useless  and  absurd;  but  that  in  this  country, 
where  the  law  of  forfeiture  has  never  been  adopted,  the  rule  is 
inapplicable  under  the  maxim,  cessante  ratione.  cessat  ipsa  lex. 
But  it  is  obvious  that  the  reason  counsel  assigns  for  the  rule  is  not 
that  afforded  by  the  cases.  In  TTiggins  v.  Butcher  it  is  said,  not 
that  the  private  action  is  useless,  but  that  the  private  wrong  is 
merged  or  drowned  in  the  public  wrong.  In  Baker  v.  Bolton  the 
ease  was  not  necessarily  one  of  felony,  and  Lord  Ellenborough's 
ruling  oppf)sed  a  bai-rier  to  any  civil  action  for  a  death,  however 
caased.  In  Osbom  v.  Gillett  there  was  nothing  to  show  the  killing 
to  have  been  felonious,  and  all  the  judges  treat  the  case  as  not 


Sec.  1.]  PERSO^•AL  security,  liberty,  etc.  373 

involving  a  felony.  So  the  recital  of  Lord  Campbell's  act  declared 
that  no  action  lay  against  any  person  who  by  his  wrongful  (not 
necessarily  felonious)  acts  had  caused  the  death  of  another.  The 
rule  having  been  applied  to  eases  not  felonious,  we  cannot  accept 
the  reason  attributed  by  counsel  as  the  ground  of  the  rule.  j\Iany 
reasons  have  been  suggested  for  the  rule.  It  has  been  said  that 
it  is  inconsistent  with  the  policy  of  the  law  to  permit  the  value  of 
human  life  to  become  the  subject  of  .iudicial  computation  (Worley 
V.  Railroad  Co.,  1  Handy,  481)  ;  that  upon  the  principle  which 
would  allow  an  action  to  those  who  liave  been  deprived  of  the 
services  of  deceased,  an  action  would  lie  in  favor  of  those  entitled 
to  the  protection  or  interested  in  the  life  of  deceased,  as  dependents 
or  even  creditors  (Insurance  Co.  v.  Railroad  Co..  25  Conn.  265)  ; 
that  there  is  a  national  and  universal  repugnance  among  enlight- 
ened nations  to  setting  a  price  on  human  life  (Hyatt  v.  Adams. 
16*^Iich.  180)  :  and.  which  is  perhaps  as  satisfactory  as  any.  that 
the  right  to  such  services  as  are  under  discussion  ceases  at  the  in- 
stant of  death,  so  that  the  husband  or  master  is  deprived  of  no 
service  to  which  he  can  be  said  to  have  a  right.  Wood,  Mast. 
&  Serv.  §  233:  Shear.  &  R.  Xeg.  §  290.  AVhat  may  have  been 
the  real  reason  for  the  establishment  of  this  rule  of  the  common 
law  we  may  not  be  able  to  discover;  but,  if  so,  I  do  not  apprehend 
we  can  apply  the  maxim,  cessante  ratione.  In  that  case  the  rule 
must  be  held  to  be  one  (to  use  the  apt  ilhistration  of  Mv.  Bishop) 
originally  created  for  some  legal  reason  which  in  the  unitation  of 
things  has  crumbled  away,  leaving  the  rule  so  crystalized  as  to  be 
immovable  except  by  legislative  power.  1  Bish.  Crim.  Law,  §  337. 
It  is  in  this  sense  I  think  that  the  rule  has  been  accepted  as  law 
in  this  country.  AVhile  several  of  our  text-books  criticise  it.  all 
seem  to  admit  it  to  have  been  a  rule  of  the  common  law  generally 
adopted  here.  Reeve,  Dom.  Rel.  377;  Schouler,  Dom.  Rel.  110; 
Shear.  &  R.  Xeg.  $  290;  AVood.  IMast.  &  Serv.  §  223;  1  Thomp.  Xeg. 
note.  1272;  Ilil.  Torts.  87.  There  are  two  early  cases  in  this  coun- 
try in  which  the  common-law  rule  was  not  applied.  The  first  was 
Smith  V.  "Weaver.  Tayl.  (N.  C.)  42,  in  which  an  action  for  dam- 
ages for  the  killing  of  a  slave  was  allowed.  The  report  is  obscure, 
and  it  is  obvious  that  sonic  considei-ations  growing  out  of  the  pe- 
culiar relations  of  master  and  slave  may  have  afforded  ground  for 
the  decision.  The  other  case  is  that  of  Ford  v.  IMonroe,  20  Wend. 
210.  wlx're  a  fatlicr  was  permitted  to  recover  for  the  loss  of  the 
se^^'icx•s  of  his  son  killed  by  tln'  defendant.  But  tlie  ])oint  was 
evidently  not  raised  by  counsel,  and  ])assed  snb  silentio.  The  case, 
moreover,  as  well  as  tlie  Inter  case  of  Lynch  v.  Davis,  12  IIow.  Pr. 
323.  was  clearly  overruled  l)y  the  court  of  appeals  in  the  case  be- 
low cited.  I  have  not  found  any  other  casas  giving  the  least 
countenance  to  the  contention  of  plaintiff  in  error  until  one  of 
recent  date  hereafter  referred  to.  On  the  coutiary.  we  have  the 
common-hiw  rule  fofbifldin<:  an  action  for  damages  occasioned  by 
the  de;itli  of  ;i  huimni  Iicing.  except  in  ciiscs  wlici'e  a  statute  gives  a 
renjedy    by    action,    aiknowledged    in    .Ma.ssachuset ts    (Skinner    v. 


;}72  I'KRsoN.M-  sKcritrrY.  i.iiu'.urv.  ktc.  [Ch.  5. 

Hailroiul   (^>l•p..    1    Ciisli.  47")'!  ;   in    Kciituck\-    ( I'Mcii   v.  lliiilroad 
Co..   14   U.   Moil,   hi.'));  ill   New    York    ((Irccii  v.    K'ailroad  Co..  2S 
Barb.  9.  41*  N.  Y.  2!)4)  :  in  .Miclii«ran  (llyati  v.  Adams.  l(i  Mich. 
180);  in   Indiana    (Lonj;  v.   .Monisdii.   II    hid.  51)5;   iJailroad  Co. 
V.  Kcclcy.  2;>   Ind.   \'.V.^)  :  in  Cdiiiifd  icut    (Iiisuranoo  Co.  v.  Kail- 
rontl  Co..  "J.")  Cdim.  27'J)  ;  in  llu'  sni)rt'iii('  coiirt  of  tlu'  riiitcd  States 
(hisurancf  Co.  v.  hraiiu\  95  V.  S.  754);  in  California   (Kramor 
V.  Kailroad  Co..  '25  Cal.  434);  in  IMaino  (Nickcrson  v.  TIarriiiian. 
38  Ml'.  1'77)  ;  in  I'l'iinsvlvania   Hxailroad  Co.  v.  Adams.  55  l*a.  St. 
45)!));  and  in  (i("or«ria  "(Hailroail  Co.  v.  Laccy.  4!)  Ca.  l()(i).     The 
case  of  recont  date  above  referred  to  is  Sullivan  v.  Railroad  Co.. 
3  Dill.  :VM.  Fed.  Cas.  \o.  13.5!>!).     The  adion  washy  a  parent  for 
the  loss  of  the  services  of  his  son.  claimed  to  have  been  killed  by 
the  nejjligenee  of  the  defendant.     It  was  admitted  that  there  was 
no  existintr  statute  upon  which  the  action  could  rest.     After  a  re- 
view of  the  English  ea.ses.  Dillon.  J.,  reached  the  conclusion  tliat 
the  plaintifV  miuht  I'ecovcr.     The  decision  indicates  the  opinion  ol' 
that  able  judire  to  be  that  the  common  law.  a.s  administered  here. 
does  not  prohibit  such  actions.     But  T  have  found  no  other  federal 
court  following  the  ease,  and  the  supreme  court  of  the  United 
States  in  Insurance  Co.  v.  Branie.  supra,  declares  the  pro])osition 
that  by  the  conniion  law  no  civil  action  lay  for  an  injurv'  which  re- 
sults in  death  to  be  one  not  open  to  question. 

Lord  Campbell's  Act.  as  we  have  seen,  gave  an  action  in  favor 
of  a  husband  and  parent,  as  well  as  of  a  wife  and  child,  for  an 
injury  occasioned  by  death.  In  the  earliest  period  the  common  law 
had  given  to  the  widow  and  to  the  heir  an  action  against  the 
slayer  of  the  husband  and  ancestor.  Such  actions,  known  as  ap- 
peals of  death,  had  fallen  into  disuse,  and  after  the  celebrated  case 
of  Ashford  v.  Thornton.  1  Barn.  &  Aid.  405.  which  exhibited  to 
compai'atively  modern  times  two  relics  of  ancient  law,  viz.,  plead- 
ings ore  tenus  and  wager  of  battel,  were  abolished  by  statute.  As 
I  have  interpreted  the  common  law,  thenceforth  an  injury  oc- 
casioned by  death  was  absolutely  without  redress.  Parliament 
thereuiton.  by  Lord  Campbell's  Act.  provided  for  redress  for  such 
injuries,  etc.  It  gave  an  action  in  favor  of  the  widow  and  of  the 
children  of  the  deceased.  It  also  gave  an  action  in  favor  of  thi^ 
husband  and  the  parent.  When  the  legislature  of  New  Jersey 
passed  the  "Act  to  provide  for  the  recovery  of  damages  in  eases 
where  the  death  of  a  person  is  caused  by  wrongful  act,  neglect,  or 
default."  approved  March  3,  1848.  the  lines  of  Lord  Campbell's 
Act  were  not  followed.  An  action  was  thereby  given  in  favor  of 
the  widow,  but  not  in  favor  of  the  husband;  and  the  action  was 
not  limited  to  the  children,  but  extended  for  the  benefit  of  the  next 
of  kin.  The  omission  of  the  husband  does  not.  however,  in  my 
judtrment.  indicate  a  legislative  declaration  that  he  already  had  a 
right  of  action.  x\s  we  have  seen,  no  recognition  of  any  such  right 
has  been  discovered.  The  omission  may  rather  be  assumed  to  indi- 
cate a  legislative  intent  to  j)rovide  redress  for  those  who.  in  gen- 
eral, had  been  dependent  upon  the  deceased,  and  who  for  that  rea- 


Sec.   1.]  PERSONAL    SECURITY,   LIBERTY,    ETC.  373 

son  might  be  presumed  to  be  peculiarly  injured  by  his  death.  The 
conclusion  I  have  reached  is  that  the  rule  of  the  common  law  was 
that  no  action  would  lie  to  recover  damages  for  the  killing  of  a 
human  being;  that  the  rule  has  become  so  solidified  that  whatever 
its  original  reason  was,  and  however  such  reason  may  have  ceased 
to  exist,  it  cannot  be  judicially  disregarded  or  annulled,  but,  if 
injurious,  its  further  modification  nnist  be  sought  from  legislative 
action.  This  result  excludes  the  whole  action  disclosed  in  the  dec- 
laration. The  demurrer  was  therefore  properly  sustained,  and 
the  .judgment  below  should  be  affirmed. 

If  the  killing  be  justifiabla — in  self-defense — no  recovery  can  be  had. 
Suell  V.  Derricolt  (Ala.),  49  So.  895,  23  L.  R.  A.  (N.  S.)  996,  and  note. 

That  the  law  of  the  principal  case  is  contained  in  the  maxim  "actio  per- 
sonalis moritiu-  ciun  persona,"  see  Broom's  Legal  Maxims,  6S1-G91.  For  a 
very  elaborate  note  on  the  subject  discussed  in  the  principal  case,  see  41 
L.  R.  A.  807-817;  see  also  11  L.  R.  A.  (N.  S.)  1157;  8  Ibid.  384.  That  a 
father  cannot  recover  for  the  negligent,  etc.,  killing  of  his  minor  child, 
see  Killian  v.  R.  R.,  128  N.  C.  261,  38  S.  E.  873,  where  it  is  said:  -Lord 
EUenborough  tersely  stated  the  doctrine  of  the  common  law  to  be:  'In 
a  civil  suit,  the  death  of  a  human  being  cannot  be  complained  of  as  an 
injury.'  Where  the  injury  subsequently  resulted  in  death,  the  action 
abated — actio  personalis  moritur  cum  persona;"  but  under  the  statute 
of  North  Carolina,  Rev.  §§  59,  60,  the  administrator  of  a  person  whose 
death  resulted  from  the  wrongful  act  of  another,  may  recover  damages 
even  though  the  person  killed  was  only  five  months  old.  Russell  v.  R.  R., 
126  N.  C.  961,  36  S.  E.  191.  The  North  Carolina  statute  corresponding 
with  Lord  Campbell's  Act,  though  differing  therefrom  in  several  material 
particulars,  is  the  act  of  1868-69,  now  Rev.  §§  59,  60.  The  most  excellent 
notes  to  these  sections  in  Pell's  Revisal  enable  the  student  to  find  every 
important  point  decided  in  North  Carolina  upon  the  subject  embraced 
in  the  principal  case,  or  arising  under  these  sections — and  thus  can  be 
accomplished  within  a  few  minutes  as  much  as  would  consume  many 
hours  of  diligent  search,  but  for  the  pains-taking  labor  of  that  author  in 
analyzing,  condensing,  and  conveniently  arranging,  the  decisions. 

Statutes  of  like  character  with  Lord  Campbell's  Act  exist,  perhaps,  in 
all  the  states,  though  the  provisions  of  such  statutes  differ  in  important 
particulars.  For  rulings  upon  such  statutes,  see  2  L.  R.  A.  (N.  S.)  640, 
and  note  (action  for  the  death  of,  or  for  the  benefit  of,  illegitimates); 
11  lb.  623,  and  note  (what  damages  recoverable  by  collateral  kin);  1  lb. 
1161,  and  note  (what  damages  recoverable  by  parents) ;  3  lb.  473,  and  note 
(for  death  of  an  alien);  4  lb,  814,  and  note  (what  law  governs  distribu- 
tion of  recovery— that  of  the  domicile  of  the  decedent  or  that  of  the  state 
in  which  the  cause  of  action  arose?);  9  lb.  1078,  and  note  (when  injury 
suffered  in  one  state  but  death  occurs  in  another);  11  lb.  1157,  and  note 
(does  the  action  abate  upon  the  death  of  the  wrong-doer?) ;  2  lb.  905,  and 
note  (rules  as  to  recovery  ui)on  circumstantial  evidence);  8  lb.  384,  and 
note  (.several  distinct  actions  for  the  same  wrongl'ul  act  resulting  in 
death).  See  "Death."  Century  Dig.  §§  35-46;  Decennial  and  Am.  Key  No. 
Series  S  31. 


;{74  I'KKSONAL    SIHMKITV.    I.IMKKTY,    KTC.  \(']l. 


!Sec.  2.     I'reventive  Remedies. 

STATIC  V.  LYON,  93  N.  C.  575.     1885. 
J'lttic  Warrant. 

I  Proceedings  on  a  Peace  Warrant  by  which  Lyon  was  required  to  give 
sureties  to  keep  the  peace,  etc.  The  proceedings  were  In  the  court  of  a 
justice  of  the  i)eace,  from  whose  judgment,  rcciuiring  him  to  give  bond, 
etc.,  Lyon  appealed  to  the  superior  court.  In  tlie  superior  court  the  mat- 
ter was  heard  de  novo,  and  the  decision  was  in  favor  of  Lyon.  Judgment 
for  costs  was  rendered  against  those  who  instituted  the  proceedings — 
their  names  do  not  ai)i)ear  anywhere  in  the  case  as  reported— and  they 
api)ealed  to  the  supreme  court.  Reversed.  The  opinion  explains  the  na- 
ture of  a  Peace  Warrant  as  a  remedy. 1 

]\lERKiiMON.  J.  Tlie  counsel  for  the  present  defendant  insisted, 
on  the  ai'iziniient  l)et'()i-e  lis.  that  no  apjteal  lay  in  favor  of  the  de 
fendaut  in  the  peace  warrant,  from  the  order  of  the  justice  of  the 
jieace  requiring  liini  to  enter  into  a  recognizance  to  the  state,  con- 
ditioned that  lie  would  keep  the  peace  and  ))e  of  good  behavior, 
etc.  AVe  are  of  that  opinion,  and  think  that  the  superior  court 
should  have  dismissed  the  supposed  appeal. 

A  "peace  warrant"  is  denominated,  in  the  code,  a  criminal  ac- 
tion, but  it  is  no  part  of  its  purpose  to  charge  a  party  with  a  crim- 
inal offense,  try  him  for  the  same,  and,  if  found  guilty,  impose  a 
punishment  upon  him.  It  is  a  })roceeding  in  the  administration  of 
preventive  justice,  the  purpose  of  which  is  to  oblige  a  person,  who. 
there  is  probable  ground  to  believe,  will  commit  some  criminal 
offense,  or  do  some  unlawful  act.  to  stipulate  with  and  give  satis- 
factory assurance  to  the  ])ublic.  that  such  apprehended  offense 
will  not  happen;  that  he  will  keep  the  peace  and  be  of  good  be- 
havior generally,  and  in  such  cases,  specially  toward  a  person,  or 
persons  named.  The  party  recognized  is  only  required  to  do  what 
a  good  citizen  ought  to  do  without  compulsion.  Sir  "William 
Blackstone  says:  "This  preventive  jastice  consists  in  obliging  a 
person  whom  there  is  probable  ground  to  suspect  of  future  mis- 
behavior, to  stipulate  with,  and  give  full  assurance  to  the  public, 
that  such  offense  as  is  apprehended  shall  not  happen ;  by  finding 
pledges  or  securities  for  keeping  the  peace,  or  for  their  good  be 
havior.  This  requisition  of  securities  has  been  several  times  men- 
tioned before,  as  part  of  the  penalty  inflicted  upon  such  a.s  have 
been  guilty  of  certain  gross  misdemeanors;  but  these  must  also  be 
understood  rather  as  a  caution  against  the  repetition  of  the  of- 
fen.se  than  any  immediate  pain  or  punishment."    4  Blk.  252. 

The  nature  of  the  purpose  to  be  so  sul)served.  suggests  and  re- 
quires that  the  action  of  the  officer  requiring  such  security  of  a 
party  must  be  conclusive,  and  not  subject  to  the  right  of  appeal, 
ordinarily.  An  appeal,  in  the  absence  of  any  statutory  regulation 
to  the  contrary,  would  vacate  the  order  requiring  security  to  keep 
the  peace,  and  the  persons,  from  whom  danger  is  apprehended, 
might,  without  such  restraint,  commit  the  offense  pending  the  ap- 


Sec.    -.]  PERSONAL    SECURITY,    LIBERTY.    ETC.  375 

peal.  Hence,  Justice  Dick  said  in  State  \.  Locust.  6:5  N.  C.  o7-i, 
that  such  proceedings  must  be  summary  and  conclusive  to  render 
them  effectual  for  the  protection  of  the  complainant,  and  to  se- 
cure the  public  peace,  and  generally  there  is  no  appeal  from  the 
action  of  the  justice  of  the  peace  in  the  matter.  This  view  is  not 
in  conflict  with  the  provision  of  the  constitution  (Art.  18,  see.  27), 
and  the  statute,  the  Code,  sec.  900,  allowing  appeals  from  justices 
of  the  peace  in  criminal  eases.  These  provisions  have  reference  to 
criminal  cases  wherein  the  magistrate  gives  judgment  against  a 
party  charged  with  a  criminal  offense,  and  imposes  on  him  a  pun- 
ishment by  tine  or  imi)risonment.  This  is  apparent  from  the 
nature  of  the  matter,  and  as  well  from  the  language  employed  in 
the  Code,  sees.  900.  901.  903.  They  refer  to  the  conviction  and 
sentence  of  the  defendant. 

It  is  asked:  "Is  there  no  remedy,  if  the  action  of  the  justice  of 
the  peace  is  manifestly  erroneous,  or  if  he  shall  prostitute  his 
powers?"  It  is  not  to  be  presumed  that  he  will  be  in  error,  or 
prostitute  his  powers;  but  if  he  should,  the  law  does  not  provide 
that  such  wrong  shall  be  coi-rected  by  appeal,  and  for  the  reasons 
already  stated.  It  may  be  that  the  action  of  the  justice  of  the 
peace  in  such  a  case  as  that  suggested,  might  be  taken  to  the  su- 
perior court  by  certiorari ;  or  if  the  party  complaining  should  be 
in  close  custody,  he  might  obtain  relief  by  habeas  corpus,  but  we 
are  not  called  upon  to  decide  any  question  in  this  respect. 

There  is  error.  The  judgment  of  the  superior  court  reversing 
the  order  of  the  justice  of  the  peace,  must  be  reversed,  and  the 
appeal  to  that  court  dismissed. 

See  Rev.  §  3173,  which  now  provides  for  an  appeal.  This  section  was 
adopted  in  1901.  The  principal  case  was  approved  in  State  v.  Walker,  94 
N.  C.  857,  and  State  v.  Gregory,  118  N.  C.  1199.  24  S.  E.  712.  See  "Breach 
of  the  Peace,"  Century  Dig.  §§  7,  12,  15;  Decennial  and  Am.  Dig  Key  No. 
Series  §§  16,  21;  "Criminal  Law,"  Century  Dig.  §  567;  Decennial  and  Am. 
Dig.  Key  No.  Series  §  260. 


EX  PARTE  WARFIELD,  40  Texas  Cr.  413,  50  S.  W.  933,  76  Am.  St.  R. 

724.     1899. 

Injunction. 

[Original  application  for  writ  of  habeas  corpus.  Applicant  remanded 
to  prison. 

W.  R.  Morris  .sued  Warfield  for  damages  for  alleged  alienation  of  the 
affwtions  of  Morris'  wife.  In  the  action  he  also  prayed  for  an  injunction 
against  Warflfld's  visiting  or  assofiating  with  Mrs.  Morris,  and  that  he 
If  rf'Htraliu'd  from  writing  or  speaking  to  her.  A  writ  of  injunction  was 
isBiifd  as  pravf'd  for.  Warfifld  violatod  this  ordor  and  was.  in  ronse- 
r|Uf'n<p.  fined  and  imprisoned  for  fontempt.  Thereupon  he  sued  out  this 
writ  of  habeas  corpus  and,  among  other  things,  contended  that  the  writ 
of  Injunftion  was  void  borause  the  rourt  had  no  power  or  authority  to 
••njoin  him  from  spoaking  to,  or  talking  with.  Mrs.  Morris:  "that  the 
exerrise  of  said  power  was  l)eyond  tho  jurisdiftion  of  a  rourt  of  Ofpilty 
and  wafl  not  merfly  irregular,  but  void,  and  imposed  upon  him  no  duty  to 
obey  the  same." 


37i)  i'EKt;oNAi.  si:irKrr\,  mkkutv,  etc.  [CIi.  J. 

Alter  passins;  on  the  questions  of  jurisdiction  of  tho  supreme  court  in 
the  matter  of  habeas  corpus,  and  the  power  of  the  lower  court  to  enforce 
obedience  to  its  orders,  the  opinion  proceeds:] 

11eni>euson.  J.  .  .  .  The  ]>o\ver  of  coiirls  of  equity  to  grant 
writs  of  injuiiftidii  lias  a  wide  raiiiie  ol'  subjects.  Courts  and  text 
writers  have  sonietimes  attempted  to  eniniierate  them,  but  we  be- 
lieve thai  the  matter  is  of  such  a  eharaeler  as  to  escape  th'si^iia- 
tion ;  and,  where  the  attempt  has  been  made,  the  text-books  say 
that  it  would  indeed  be  dil^eult  to  enumerate  all,  for,  in  the  end- 
less variety  of  eases  in  which  a  ])laintitf  is  entitled  to  eipiitable 
relief,  if  that  relief  consists  in  restraining?  the  conniiission  or  con- 
tinuance of  some  act  of  the  defendant,  a  court  administers  it  by 
means  of  the  wfit  oi  injtinetion.  See  1  Spell.  Extr.  Relief,  §  5. 
Indeed,  the  interposition  of  courts  of  equity  by  restraining?  orders 
is  a  nuitter  of  errowth.  aiul  keeps  pace  with  advancing:  civilization, 
and  coiu-ts  are  continually  tindini?  new  subjects  for  the  interposi- 
tion of  equitable  relief  by  writs  of  injunction.  Formerly,  it 
seemed  to  be  the  rule  that  courts  would  only  interfere  where  some 
property  rifjht  or  interest  was  involved ;  but  now  it  seems  the  writ 
will  be  applied  to  an  iniuimerable  variety  of  eases,  in  which  really 
no  property  right  is  involved.  While  in  some  of  the  cases  the 
courts  appear  to  adhere  to  the  old  rule,  yet  when  we  look  at  the 
case  it  is  difficidt  to  see  any  qiiestion  of  property  right,  but  a  vain 
endeavor  on  the  part  of  the  court  to  adhere  to  the  old  doctrine, 
while  it  reaches  out  for  the  protection  of  some  personal  right.  In 
the  note  to  Chai^pell  v.  Stewart,  reported  in  37  Lawy.  Rep.  Ann. 
783  (S.  C.  82  :\Id.  323.  33  Atl.  542).  the  learned  annotator  attempts 
to  classify  the  cases,  where  courts  have  interfered  for  the  i)rotec- 
tion  of  merely  personal  rights,  as  rights  relating  to  physical  life, 
and  rights  relating  to  the  intellectual,  moral  and  emotional  life, 
and  we  refer  to  the  cases  einbraced  in  the  note  to  said  case.  We 
quote  from  the  conclusion  of  the  annotator,  as  follows:  "The  va- 
riety of  cases  above  referred  to,  in  which  personal  rights  are  really 
protected  by  courts  of  equity,  shows  that,  while  it  is  a  commonly 
accepted  theory  that  their  jurisdiction  nuist  rest  upon  rights  of 
propert}^  there  are.  at  least,  many  exceptions  to  the  rule,  among 
them,  cases  of  contract,  trust,  or  breach  of  confidence,  relating  to 
personal  rights,  cases  respecting  the  education  and  custody  of 
children,  and  eases  relating  to  privacy  and  reputation,  such  as 
these  restraining  the  publication  or  exhibition  of  ])liotographs  or 
other  representations  of  persons,  and  the  publication  of  private 
letters.  In  addition  to  this  are  the  cases  relating  to  the  security  of 
the  person  and  the  ]ii-t)tecti(jn  of  health  and  physical  comfort. 
While,  in  many  of  these  cases,  the  jurisdiction  is  nominally  based 
on  an  alleged  property  right,  it  is  plain  that  the  observance  of  the 
rule  that  equity  will  be  limited  to  rights  of  property  is  little  more 
than  nominal.  In  all  tliis  class  of  cases  equity  does  concern  itself 
about  personal  rights  as  the  real  subject  of  <'onsideration.  Eng- 
land relieved  its  courts  of  equity  from  any  necessity  for  searching 
for  rights  of  ju-operty  on  which  to  ba.se  its  jurisdiction  by  Act 


Sec.    2.]  PERSONAL    SECURITY,    LIBERTY.    ETC.  377 

]S73.  §  25,  subd.  8,  which  gave  power  to  grant  an  injuiirtiun  in  all 
eases  in  which  it  shall  appear  to  the  court  to  be  just  that  such 
order  should  be  made.  Under  such  a  statute,  the  English  courts 
are  entirely  free  to  grant  in.iunctions  to  jn-otect  personal  rights, 
including  the  right  of  rei)Utation.  and  injunctions  against  libels 
are.  in  fact  granted."  Under  this  increased  exercise  of  power, 
courts  of  equity  grant  injunctions  to  restrain  one  set  of  employees 
or  servants  of  a  railroad  company  from  interfering  with  or  molest- 
ing another  set  of  employees,  especially  Avliere  the  road  is  in  the 
hands  of  a  receiver.  See  In  re  Wabash  R.  Co.  (C.  C).  24  Fed 
217;  U.  S.  V.  Debs  (C.  C).  64  Fed.  724.  And  so  one' who  has 
learned  the  business  secrets  of  another  by  virtue  of  liis  employ- 
ment will  be  restrained  from  interfering  with  the  business  of  such 
former  employer  by  writing  letters,  soliciting  trade,  etc.  See 
Loven  v.  People  (111.  Sup.).  42  N.  E.  82.  And  equity  will  inter- 
fere to  restrain  a  husband  from  interfering  with  a  wife  or  children 
after  an  agreed  separation.  Sanders  v.  Rodwav.  16  Beav.  207; 
Swift  V.  Swift.  34  Beav.  266 ;  Hamilton  v.  Hector.'  L.  R.  6  Ch.  App. 
701 ;  Aymar  v.  Roff.  3  Johns.  Ch.  48.  49. 

While  equity  will  interfere  in  matters  of  contract  involving  per- 
sonal services,  a  distinction  is  taken  between  affirmative  and  neg- 
ative stipulations.  P^quity  will  not  compel  a  servant  to  perform  an 
act.  but  will  restrain  that  servant  from  performing  a  negative 
sti{)ulation.  or  some  act  negative  in  its  character,  involved  or  im- 
plied in  the  affirmative  stipulation.  See  1  Spell.  Extr.  Relief, 
§  11 ;  2  High.  Inj.  §§  1164.  1165.  Under  this  authority,  it  has  been 
held  that  where  an  opera  singer  or  actor  has  contracted  to  sing  or 
[)lay  for  i)laintiff  at  his  theater,  and  nowhere  else,  witliout  his  pei- 
mission,  an  injunction  will  be  granted  to  restrain  the  party  from 
singing  elsewhere ;  the  court  thus  preventing  a  breach  of  the  neg- 
ative covenant,  although  it  cannot  specifically  enforce  the  affirm- 
ative agreement  bv  compelling  defendant  to  sine  or  act  for  plain- 
tiff. See  Lumley  v.  Wagner,  1  De  Gex,  I\r.  &  G.  604 ;  Daly  v. 
Smith,  38  N.  Y.  Super.  Ct.  158.  And  see  other  authorities  cited 
in  2  High.  luj.  p.  902.  note  2.  From  these  cases  will  be  seen  some- 
what of  the  growth  and  application  of  the  uuxlcni  doctrine  of 
efjuity  in  granting  writs  of  injunctioiL  We  might  cite  a  number 
of  other  ca.ses  illustrative  of  this  vie\v,  but  do  not  deem  it  neces- 
sary.    If  we  refer  to  the  i Icni  cases   (especially  under  lil)ei-al 

statutes  on  tlie  sub.ject  of  granting  wi-its  of  injunction  I.  the  old 
doctrine  of  tlie  freedom  of  speeeji  juid  of  the  |)ress.  and  that  courts 
will  only  j)unish  after  an  act  which  is  violative  of  one  or  the  other, 
appears  to  be  overthrown  in  England,  as  we  have  seen,  by  statute. 
And  see  Kiteat  v.  Shai-p.  r)2  Eaw.  J,  Ch.  l.'U.  Our  statute,  ns  we 
shall  hr-reafter  see,  is  as  lil)ei-al  as  the  l-'nglish  statute  on  the  same 
subject.  So.  the  ca.ses  of  Peoy)le  v.  Durrani.  116  C;il.  179.  48  Pac. 
75,  and  .\.ssoci;it ir)n  v.  I'.oogher  flMo.),  4  ('ent.  Law  J.  40.  wouM 
seem  to  have  no  applicntion. 

fThe  opinion  then  rjiseusses  "t he  (|ui'stion  as  to  whether  or  not, 
.     .     .     the  action  of  the  court  here  complained  oT  was  absolutely 


378  I'KK'soN Ai.  sKcrurrv.  i,ii!Kim'v.  ktc.  |r//.  ,7. 

void;"  luul,  after  I'ovicw  iiii;  ;i  miiiilicr  of  ;mt  liui'it  ics.  i)r(H'oetls  :  | 
We  deduce  i'nmi  the  t'i)re«;oiiijr  autlKirities  and  (ttlicrs  that  might 
be  citt'd.  tlu'st'  pi-oposit ions:  h'iist.  'IMiat  courts  of  ft|uity  i-an  au- 
thorize the  issuance  i»L'  writs  oi'  injunction  in  all  cases  oi'  e(iuitable 
eoguizanee.  where  tlie  party  shows  hiniseil"  entitled  to  the  issuance 
of  the  wi-it  under  the  weiUknown  rules  of  equity.  As  ancillary  to 
this,  that  tlu'  i;rowtli  oi'  the  |)rinciples  of  e(|uily  in  this  rejjard  have 
been  greatly  eidarged.  so  that  it  may  be  said  that  where  a  court  of 
equity  has  jurisdiction  of  the  case,  and  a  party  shows  tliat  he  is 
lialtle  to  suffer  injui'v  liy  sonic  ad  Ihi'eatened  or  that  may  be  done 
pending  the  litigation,  whether  this  lias  regard  to  pr()]»ei'ty  in 
issue  or  to  some  personal  right  dependent  upon  some  personal  act 
or  conduct,  the  court  will  grant  the  will.  In  such  case,  it  cannot 
be  said  that  the  court  lacks  the  power,  although,  in  doubtful  cases, 
it  may  refrain  from  the  exercise  of  such  power.  Second.  That 
in  actions  ])urely  legal,  of  which  the  law  courts  have  exclusive 
cognizance,  there  is  no  authority  to  issue  a  writ  of  injunction. 
Third.  In  a  case  (and  there  have  been  many  such)  where  it  is 
doubtful  whether  the  action  is  one  at  law  or  of  equitable  cog- 
nizance, as  a  general  rule,  where  the  case  is  brought  in  an  equity 
court,  the  chancellor  has  the  same  power  to  issue  the  writ  as  if 
there  "was  no  question  of  the  jurisdiction,  and  as  long  as  tlic  writ 
continues  it  must  be  obeyed. 

So  far  we  have  spoken  of  the  matter  as  if  the  jurisdictions  were 
entirely  separate,  as  is  the  case  in  England  and  in  most  of  our 
states.  But  in  Texas  we  have  a  blended  system  of  law  and  equity, 
there  being  but  one  jurisdiction  for  both.  and.  by  a  stronger  rea- 
son, the  writ  of  injunction  will  he  authorized  in  a  doubtful  case. 

Now,  recurring  to  the  subject-matter  of  this  litigation,  as  set 
forth  in  plaintiff's  petition,  we  think  there  can  be  no  question  that 
applicant  sets  forth  a  cause  of  action  for  the  partial  alienation  of 
his  wife's  affections.  The  marital  relation  existing  l)etween  these 
parties  was  a  civil  contract,  bindini":.  until  it  should  be  abrogated, 
upon  both  of  the  spouses.  "He  is  entitled  to  the  society  of  his  wife, 
and  may  sue  for  damages  any  person  enticing  her  away  from  him  ; 
and,  whenever  a  wife  is  not  justified  in  abandoning  her  husband. 
he  who  knowingly  and  intentionally  assists  her  in  thus  violating 
her  duty  is  guilty  of  a  wrong  for  which  an  action  will  lie."  See 
2  Lawson.  Rights.  Rem.  &  Prac.  §  714.  "It  is  a  legal  presumption 
that  a  wife's  services  and  the  comfort  of  her  society  are  fully 
equivalent  to  any  obligations  which  the  law  imposes  upon  her  hus- 
band because  of  the  marital  relation,  and  her  obligation  to  render 
family  service  is  coextensive  with  that  of  her  husband  to  support 
her  in  the  familv.  Id.  ^  715;  Schouler.  Dom.  Rel.  §  41 ;  Bennett 
V.  Smith.  21  Barb.  439 ;  Barnes  v.  Allen.  80  Barb.  663.  A  hus- 
band, from  time  immemorial,  has  an  interest  in  the  .services  of  his 
wife,  springing  from  the  marital  relation.  Tn  this  state,  suits  for 
personal  injuries  to  her  must  be  maintained  by  the  husband 
predicated  upon  this  idea.  The  suit  here  was  brought  for  dam- 
ages on  an  alleged  partial  alienation  of  the  affections  of  his  wife. 


Sec.    2.]  PERSONAL    SECURITY.    LIBERTY.    ETC.  379 

and  it  was  averred  that,  on  account  of  the  past  conduct  of  the  de- 
fendant in  that  suit,  phiintilf  was  apprehensive,  and  had  just 
grounds  to  fear.  that,  b}''  a  continuance  thereof,  the  wife's  alfee- 
fions  would  be  entirely  alienated.  There  would  consequently  be  a 
breach  and  destruction  of  the  matrimonial  contract  existing  be- 
tween the  parties,  by  which  plaintiff  would  entirely  lose  the  affec- 
tions and  services  of  his  said  wife.  These,  it  must  be  conceded, 
were  of  a  peculiar  value  to  plaintiff';  and  it  would  seem  that,  if 
the  court  had  the  power  to  maintain  this  suit  for  damages  on  ac- 
count of  a  partial  alienation  of  the  affections  of  his  said  wife,  he 
would  have  a  right  to  invoke  the  restraining  power  of  a  court  of 
equity  to  prevent  the  utter  alienation  of  his  wife's  affection  and 
the  utter  destruction  of  the  marital  agreement.  We  believe  this 
would  be  so  under  the  lil)eral  rules  of  equity,  as  now  practiced  in 
the  courts,  but  much  more  so  under  the  provisions  of  our  statute 
on  the  subject  of  injunctions.  Article  2989.  Rev.  St.,  provides 
that  the  judges  of  the  district  courts  may  grant  writs  of  injunc- 
tions in  the  following  cases:  "  (1)  "Where  it  shall  appear  that  the 
party  applying  for  said  writ  is  entitled  to  the  relief  demanded, 
and  such  relief  or  any  part  thereof  re(iuires  the  restraining  of 
some  act  prejudicial  to  the  applicant."  This  provision  shows  that 
it  Avas  intended  to  be  broader  than  the  ordinary  authority,  be- 
cause, in  the  third  subdivision  of  the  act,  the  court  is  authorized 
to  grant  the  writ  in  all  other  cases  where  the  applicant  for  said 
writ  may  show  himself  entitled  thereto  under  the  ])rinciples  of 
equity.  For  a  construction  of  these  provisions,  see  the  able  opin- 
ion of  Judge  Denman  of  the  supreme  court  in  Sumner  v.  Craw- 
ford. 91  Tex.  129.  41  S.  W.  994.  After  reciting  the  provisions  of 
the  statute,  the  learned  judge  uses  this  language:  "It  will  be  ob- 
sen^ed  that  the  latter  portion  of  the  article  requires  the  case  to  be 
brought  within  the  rules  of  equity,  and  does  not  undertake  to  state 
the  circumstances  entitling  the  applicant  to  the  writ,  and  there- 
fore, under  it,  it  nuist  appear  that  there  is  no  'adef|uate  remedy 
at  law,'  as  that  term  has  always  been  understood.  I  Jut  the  first 
portion  of  the  article  does  state  what  facts  will  justify  the  issu- 
ance of  the  writ  thereunder,  and  does  not  require  that  there  shall 
be  no  adequate  remedy  at  law."  And  we  would  further  suggest 
that  tiie  f|iiestion  decided  in  said  case  is  very  much  in  point  in  this 
case,  as  showing  the  liberality  of  our  courts  in  granting  writs  of 
injunction.  The  court  below,  it  will  be  conceded,  had  jurisdiction 
and  authority  to  maintain  the  suit,  and  it  caimot  be  seriously 
questioned  tliat  the  prineij)al  object  of  the  suit  was  to  ])reserve  the 
marital  relations  existing  between  pl;iiiitirt'  and  liis  spouse,  and  to 
cojiserve.  as  far  as  may  be.  and  rehabilitate,  her  affeclions  for  the 
plaintiff.  Tt  was  claimed,  by  the  continued  conduct  and  interfer- 
ences of  the  defendant  in  that  suit,  that  the  integrity  of  the  marital 
relation  was  threati^ned.  ami.  if  his  course  of  conduct  was  suffered 
to  continue,  that  the  marital  relation  woidd  be  destroyed.  Among 
other  tilings,  it  was  alleged  that  said  defendant  exercised  an  un 
due  innuenee  over  the  wife  of  the  jdainliff.  and.  if  suffered  to  as- 


380  ri:us(iNAi,  skciivI  i'\ .  i,iiii;i;i'\ .  ktc.  [Ch.  5. 

sociato  with  her  and  \  isil  licr.  il  was  Ncry  likely  lie  would  i-nlirely 
corniiU  ami  lead  her  astray,  and  tlH'rclorc  tlii'  power  of  the  court 
was  invoked  to  an-i'st  these  iiiterieivnees.  and  delVndaiit  was  eu- 
joiiu'd  fi'oni  speakiiiir  1<>  or  lalkiii.i,'  with  her.  ov  visitin<;'  tlie  lioijse 
wliei'e  slie  was  stayiiiii-.  It  occurs  to  us.  if  the  suit  was  maiiitaiii- 
ahle.  that  tlie  aets  eomi'lamed  of  wei-e  |)re,iudicial  to  tlie  phlintiil'; 
iudeed.  tliat,  hy  their  eontiiuiat ion,  the  leal  object  of  the  suit 
woidd  he  entii'ely  fi'ustrated;  and  thai  tiie  court  conseiiuently  had 
the  power  and  authority  to  inliihit  said  defendant  from  interfer- 
ing with  plaintitf 's  wife,  and  thai  this  was  no  interference  with  the 
inalienable  rights  of  the  citizen  to  go  where  he  pleased,  and  to 
associate  witli  whom  he  ])leased,  and  to  pursue  his  own  happiness 
in  his  appointt'd  way.  provided  such  course  of  conduct  did  not 
interfere  with  another's  right.  "He  had  a  perfect  right  to  so  use 
his  own  as  not  to  abuse  another's."  Nor  is  there  any  inconsistency, 
when  thus  construed,  between  the  ft-eedom  of  speecli  and  of  th(! 
press  and  the  integrit\'  of  llie  marital  rehdion.  The  hiw  is  as  much 
bound  to  protect  the  one  as  the  other,  and  when  both  can  be  con- 
strued in  harmony,  it  is  the  duty  of  the  courts  to  protect  both. 

It  has  been  said  that  the  ap])licant  was  not  shown  to  have  vio- 
lated the  spirit  of  the  injunction,  inasmucli  as  no  conversation  was 
shown  of  a  character  calculated  to  persuade  or  lead  away  the  wife 
of  plaintifif;  but  his  conduct  was  certainly  in  violation  of  the  letter 
of  said  injunction,  and  we  cannot  say  that  the  court  did  not  have 
the  right  and  authority  to  make  the  injunction  as  broad  as  it  did, 
as,  under  the  allegations  of  the  petition,  it  is  shown  that  the  de- 
fendant was  not  to  be  trusted  in  the  society  of  ]\Irs.  ^lorris,  or  to 
speak  with  her. 

But.  even  if  it  be  conceded  that  the  act  of  the  court  in  this  re- 
gard is  of  doubtful  validity. — that  is.  that  it  may  or  may  not  be 
void. — still  we  do  not  feel  inclined  to  interfere.  The  defendant  in 
that  suit  had  his  right  to  invoke  the  action  of  that  court  to  dis- 
solve that  injunction.  He  did  not  do  so.  but  he  saw  fit  to  wilfully 
disregard  it.  and  he  now  claims  before  this  court  that  the  same 
was  absolutely  void,  and  that  he  had  the  right  to  defy  it  and  set 
it  at  naught.  It  occurs  to  us  that  the  injunction  could  have  been 
obeyed  easily,  without  infringing  upon  any  of  the  fundamental 
rights  of  the  applicant.  We  accordingly  hold  that  the  applicant 
does  not  show  himself  entitled  to  be  relieved.  It  is  therefore  or- 
dered that  he  be  remanded  to  the  custody  of  the  sheriff  of  Dallas 
county,  and  undergo  the  sentence  imposed  upon  him  by  the  judge 
of  the  Forty-fourth  judicial  district  court.  It  is  further  ordered 
that  the  costs  incurred  in  this  court  be  taxed  against  the  applicant. 

That  there  is  no  equitable  jurisdiction  to  enjoin  thp  commission  of  a 
crime,  see  Harpett  v.  Bell,  134  N.  C.  395,  46  S.  E.  749,  inserted  at  ch.  10, 
S  5,  post.  See  "Injunction,"  Century  Dig.  §§  165-175;  Decennial  and  Am. 
Dig.  Key  No.  Series  §§  94-101. 


Sec.    3.]  PERSONAL    SECURITY.    LIBERTY.    ETC.  381 


Sec.  3.    Threats. 

GRIMES  V,  GATES.  47  Vt.,  594,  19  Am.  Rep.  129.     1874. 
What  Threats  are  Actionahle. 

[Action  on  the  ease  for  writing  a  scandalous  or  threatening  letter  to 
plaintiff.  Demurrer  by  defendant.  Demurrer  sustained,  and  judgment 
against  the  plaintiff,  from  which  she  appealed.     Reversed. 

The  first  count  in  the  declaration  alleged  a  threat  to  injure  plaintiff, 
but  did  not  state  the  character  of  the  injury  threatened.  The  other 
counts  alleged  threats,  of  arrest  and  imprisonment  and  to  accuse  plaintiff 
of  crimes  punishable  by  imprisonment,  and  to  take  measures  to  have  her 
arrested  and  imprisoned  in  the  penitentiary.  The  supreme  court  holds 
that  the  demurrer  should  have  been  overruled  as  to  all  counts  except  the 
first — that  is,  that  all  the  counts  set  up  a  cause  of  action  except  the  first.] 

Wheeler,  J.    Threats  of  bodily  hurt  which  occasion  such  inter- 
ruption or  inconvenience  as  is  a  pecuniary  damage,  are  actionable. 
Not  the  threats  alone,  but  the  threats  and  consequent  damage  to- 
gether.    3  Hlk.  Com.  120;  2  Com.  Dig.  Battery.  D;  Jacob's  Law 
Diet.  tit.  Threats;  Bouv.  Law  Diet.  tit.  Menace;  1  Swift's  Dig. 
477.    The  extortion  of  money  or  property  by  means  of  such  threats 
is,  at  conniion  law.  indictable.    The  Queen  v.  Woodward,  11  Mod. 
137,  6  East.  133;  3  Chit.  Crim.  Law,  607.    The  threats  make  the 
cause  of  action,  by  producing  fear  which  causes  damage ;  and  the 
crime,  by  producing  fear  which  compels  the  giving  over  of  money 
or  property.     A  mere  vain  fear  is  not  sufficient.     It  must  be 
founded  upon  an  adequate  threat.     Co.  Lit.  253b;  The  King  v. 
Southerton.  6  East.  126;  Taft  v.  Taft  et  ux.,  40  Vt.  229.    A  threat 
of  imprisonment  is  a  threat  of  bodily  hurt,  and  would  seem  to  be 
sufficient.    Co.  Lit.  2r)8b ;  The  King  v.  Southerton.  supra.     In  de- 
daring  for  .such   Jill    injury,  the  pleader  nuist  "show  some  just 
cause  of  feare,  for  feare  of  itself  is  internall  and  secret."    Co.  Lit. 
2r)3b.     In  indictments  for  such  threats,  it  is  not  necessary  to  set 
forth  the  words  in  which  the  threats  were  made,  but  only  the  sub- 
stance of  the  threat.    3  Chit.  Crim.  Law.  607.    No  reason  for  any 
greater  particularity  in  civil  cases  is  apjiarent.     In  actions  for 
slander,  the  injury  is  occasioned  wholly  by  tlie  words,  and  the 
words  nnist   be  set  forth,  .so  as  t<t  sbow  lliat   tliey   were  such  as 
would  occasion  an  actionable  injuiy.  or  no  cause  of  action  Avould 
be  set  forth.     So  in  indictments  on  statutes  for  sending  threaten- 
ing letters  of  certain  kinds,  the  letters  must  be  set  out,  so  that 
thev  mav  ;ippe;ir  to  l)e  such  as  the  stat\ites  were  directed  against. 
2  East.  i'.  C.  1122.     Tbe  gist  of  this  ;i(li(ui  is  iml  tlie  use  of  weirds 
to  the  injury  of  reputation,  nor  the  writing  of  anything  prohibited 
by  a  i);irtieiilMr  statute.  Init   is  the  tbrejitening  so  as  to  cause  pe- 
cuniary d;iMi;ige.      It   wouhl  seem  to  lie  sulTK-ient.  as  to  this,  to  set 
fortli  in  substane<'  tlie  making  of  sudi  ii  threat   as  would  be  ade- 
quate  to  the  result.     The  only  threat  alleged  in  the  first  count  is, 
that  the  defendants  did  tlireiiten  Ibe  i)laiiitifT  with  great   injury. 
This  may  have  meant  an  injury  to  pro|)erty.  and   not   to  person, 


'Si>2  I'KRSONAl.   StXTKirV.    I.IHK1M">,    KTC.  [(7/.    5. 

;iiul  soiiK'lhiu'j  rciiiiiti'  mid  r;mi'il'iil,  ;iii(l  imt  any  tliiiij,'  direct  and 
tan«j:iblo.  Sudi  idlcirat ions  ai-c  lo  In-  taken  nuist  strongly  against 
tlie  ploadiM*.  Such  llii-<'als  would  nol  ln'  sufficioiit  to  awe  i)ersons 
lit"  oi-dinary  tininirss.  And  llu'  cnuid  does  not  set  Foi'lh  Ihat  the 
defendants  knew  of  any  reason  \\ii\'  the  ])laintilV  eonhl  not  with- 
stand as  much  and  as  severi'  threatening-  as  ordinai-y  persons.  If 
thei'e  was  sneli  a  i'eas(tn  thai  the  delendants  knew  of,  and  took  ad- 
\antatre  of.  and  tliei-ehy.  and  l>\-  making  the  threat  aUeged.  they 
injured  the  phiiiitilV.  and  all  these  facts  were  alleged,  the  count 
would.  prohai)ly.  he  sufticient.  Hut  such  laets  not  heing  alleged, 
cannot  be  presumed  to  exist.  There  seems  to  be  a  lack  of  any 
threat  sufticient  of  itsidf,  and  of  any  threat  made  sufficiiMit  by  ac- 
companying circumstances,  alleged  in  this  count,  to  make  it  sufti- 
cient. Taft  V.  Taft  et  ux..  supra.  In  each  of  the  other  counts,  a 
threat  to  imprison  the  plaintift'.  or  to  cause  her  to  be  imprisoned, 
is  distinctly  all(\<;v(l.  In  each  one  of  all  the  counts  it  is  alleged  that 
the  defendants  made  the  thn-ats  intending  to  frighten,  terrify, 
and  injure  the  ])laintilT.  and  that  by  means  of  the  threats  she  was 
terrified,  frightened,  and  made  sick,  and  rendered  unable  to  at- 
tend to  her  usual  business  and  i^erform  her  usual  work,  and  was 
thereby  put  to  expense  and  made  to  suft'er  loss.  These  are  suffi- 
cient allegations  of  pecuniary  damage.  Underbill  v.  Welton,  32 
Vt.  40.  All  the  counts,  except  the  first,  seem  to  set  forth  sufficient 
facts  when  admitted  by  dennirrer  oi-  found  l)y  a  jury,  to  constitute 
good  ground  of  recovery. 

The  pro  forma  judgment  that  the  declaration  was  insufficient  is 
reversed  as  to  all  the  counts  but  the  first,  and  the  cause  is  re- 
manded, with  leave  to  the  parties  to  move  foi-  amendment  or  re- 
pleader, in  the  county  court. 

■  See  28  Am.  &  Eng.  Enc.  Law.  140  et  seq.;  Revisal,  §  3428.  See 
"Threats,"  Centiuy  Dig.  S  14;  Decennial  and  Am.  Dig.  Key  No.  Series 
§  10. 


Sec.  4.    Ass.vtlt  .vxd  Battery. 

SCOTT  V.  SHEPHERD,  2  Wm.  Blackstone,  892,  898.    1773. 
What  Arts  Amount  to  a  Direct  Assault  or  Trespass. 

[Scott,  an  Infant  by  his  next  friend,  brought  an  action  of  trespass  vi  et 
arniis  against  Shepherd,  an  infant  who  defends  by  his  guardian  ad  litem. 
Verdict  against  defendant  subject  to  the  opinion  of  the  court  as  to  whether 
this  action  would  lie.  The  decision  was  that  the  action  did  lie,  and  judg- 
ment was  entered  against  the  defendant. 

The  defendant  threw  a  lighted  squib  into  a  market  house  wherein  a 
large  concourse  of  people  were  assembled.  The  squib  fell  upon  the  stand 
of  Yates,  a  seller  of  gingerbread.  Willis,  to  save  himself  and  Yates' 
gingerbread,  threw  the  squib  across  the  market  house.  It  fell  on  the 
gingerbread  stand  of  Ryall  who  threw  it  to  another  part  of  the  building. 
The  squib  when  thrown  by  Ryall  fell  in  the  face  of  the  plaintiff  and  put 
out  one  of  his  eyes.  The  question  presented  is:  Under  the  circumstances 
stated,  did  Shepherd's  act  of  throwing  the  squib  into  the  crowded  market 
house,  constitute  a  direct  assault  or  trespass  upon  Scott?] 


JSeC.    -i.]  PERSONAL    SECURITY,    LIBERTY,    ETC.  383 

De  Gray.  C.  J.  .  .  .  The  real  question  certainly  does  not 
turn  upon  the  hiwfulness  or  unh^wi'ulness  of  the  original  act.  For 
actions  of  trespass  will  lie  for  legal  acts  when  they  become  tres- 
passes by  accident.  As  in  the  cases  cited  of  cutting  thorns, 
lopping  of  a  tree,  shooting  at  a  mark,  defending  oneself  by  a  stick 
which  strikes  another  behind,  etc.  They  may  also  not  lie  for  the 
consequences  even  of  illegal  acts,  as  that  of  casting  a  log  in  the 
highway,  etc.  But  the  true  question  is.  whether  the  injury  is  the 
direct  and  immediate  act  of  the  defendant,  and  I  am  of  opinion 
that  in  this  case  it  is.  The  throwing  of  the  squib  was  an  act  unlaw- 
ful and  tending  to  affright  the  bystanders.  So  far.  mischief  was 
originally  intended;  and  not  any  particular  mischief,  but  mis- 
chief indiscriminate  and  wanton.  Whatever  mischief  therefore 
follows,  he  is  the  author  of  it;  egreditur  personam,  as  the  phrase 
is  in  criminal  eases.  And  though  criminal  cases  are  no  rule  for 
civil  ones,  yet  in  trespass  I  think  there  is  an  analogy.  Every  one 
who  does  an  unlawful  act  is  considered  as  the  doer  of  all  that  fol- 
lows: if  done  with  a  delil)crate  intent,  the  consequences  may 
amount  to  nuirder;  if  incautiously,  to  manslaughter.  Post.  261. 
So  too  in  Ventr.  295.  A  person  breaking  a  horse  in  Lincoln's  Inn 
Fields  hurt  a  man.  held  that  trespass  lay:  and  2  Lev.  172.  that  it 
need  not  be  laid  scienter.  I  look  upon  all  that  was  done  subse- 
quent to  the  original  throwing  as  a  continuation  of  the  first  force 
and  first  act.  which  will  continue  till  the  squib  was  spent  by  burst- 
ing. And  I  think  that  any  innocent  person  removing  the  danger 
from  himself  to  another  is  justifiable;  the  blame  lights  upon  the 
first  thrower.  The  new  direction  and  new  force  flow  out  of  the 
first  force,  and  are  not  a  new  trespass. 

The  writ  in  the  Kegister.  Ooli.  for  trespass  in  maliciously  cutting 
down  a  hc;id  of  water,  which  thereupon  llowed  down  to  and  over- 
whelmed another's  pond,  shows  that  the  immediate  act  need  not  be 
instantaneous,  but  that  a  chain  of  effects  connected  together  will 
be  sufficient. 

It  ha.s  been  urged  that  the  intervention  of  a  free  agent  will  make 
a  difference :  Init  I  do  not  consider  Willis  and  Ryall  as  free  agents 
in  the  present  case,  but  acting  under  a  compulsive  necessity  for 
their  own  safety  and  self-preservation.  On  these  reasons  I  concur 
with  l)r()lhers  (iould  and  Xarcs  that  liie  i)rcsent  action  is  main- 
tainable. 

See  "Negligence."  Centurv  Dig.  §§  74-79;  Decennial  and  A\u.  Dig. 
Key  Xo.  Series  §§  01,  62. 


CLARK  V.  DOWNIXG.  f,.',  Vt.,  259,  45  Am.  Rep.  612.     1882. 

What  Constitutes  an  Assault.  i 

fPlaintilT  Bues  for  an  assault  anrl  battery.  The  proof  was  that  defend- 
ant sMiirk  tho  hor.se  that  plaintiff  was  diiviiip:.  .Tndgnient  against  the 
plaintiff,  and  he  ai)|iealcd.     Reversed,! 


.■^*^4  I'KKsox  \i.  si:ci  K-rr\.  mhkim'n-.  f/it.  \('Ji.  5. 

\\o\cv..  (\  J.  .  .  .  Did  111!'  strikiiiii'  (if  tlic  i)l;iintiff 's  liorso 
I'onstituto  an  assault  upon  llic  plaiutill" .'  It  is  uol  ueoossary  to  con- 
stitute ail  ass.iult  that  aii\  artual  \  idlcucc  he  douc  to  the  person. 
If  the  parly  thrcaleuiuir  tlie  assault  have  the  a])ility,  uieans,  and 
apiKU'ent  iuteutiou  to  carry  liis  thi-cat  iuto  exceutiou.  it  may  in  law 
I'oustitute  au  assault.  The  disposilioii.  aecompanicd  with  a  present 
ability  to  use  violeuee.  has  hccu  held  to  aniouid  to  au  assault. 
^Vhere  violeui-e  is  usetl  it  is  not  iiidisix-usahly  neeessary  that  it 
should  he  to  the  ])ei'sou.  Tt  was  decided  in  irop])er  v.  Reeve,  7 
Taunt.  (i!)S.  lliat  the  upsettinjjc  of  a  chair  oi-  cariiage  in  which  a 
person  was  sitting  was  an  a.ssault ;  in  INIartin  v.  Shopp,  3  C.  &  P. 
'M'.\.  that  ridiuj;  after  a  persou  at  a  <|uick  pace  and  compelling  him 
to  run  into  his  «>ai-(l(>n  to  avoid  i)ein<r  beaten  was  au  assault;  that 
the  striking  of  the  horse  ujxju  which  the  wife  of  the  i)laintilf  was 
riding  was  an  assanll  upon  the  wile.     1  Stei)hen,  N.  P.  210. 

An  assault  is  detined  in  Hays  v.  People,  1  Hill,  .351,  to  be  an 
attempt  with  force  or  violence  to  do  a  cni-poral  injury  to  another. 
The  striking  of  the  jdaintiff's  horse  in  the  manner  that  his  evi- 
dence tended  to  show,  would  probably  resnlt  in  a  corporal  injury 
to  him :  hence  the  requests  should  have  been  complied  with. 
.     Judgment  reversed. 

For  what  acts  constitute  an  assault  as  distinguished  from  a  battery, 
see  State  v.  Martin,  159  Am.  Rep.  711,  and  note.  See  "Assault  and  Bat- 
tery," Century  Dig.  §§  1-4;  Decennial  and  Am.  Dig.  Key  No.  Series  §S  1-7. 


TUBERVILLE  V.  SAVAGE,  1  Modern,  3.    1670. 
What  Does  Not  Constitute  an  Assault. 

Action  of  a.ssault.  battery,  and  wounding.  The  evidence  to 
prove  a  provocation  was,  that  the  plaintiff  put  his  hand  upon  his 
sword  and  said:  "If  it  were  not  assize-time,  I  would  not  take  such 
language  from  you."  The  question  was,  if  that  were  an  assault? 
The  court  agreed  that  it  was  not;  for  the  declaration  of  the  plain- 
tiff w-as.  that  he  Avould  not  assault  him,  the  judges  being  in  town; 
and  the  intention  as  well  as  the  act  makes  an  assault.  Therefore 
if  one  strike  another  upon  the  hand,  or  arm.  or  breast  in  discourse, 
it  is  no  assault,  there  being  no  intention  to  assault;  but  if  one,  in- 
tending to  assault,  strike  at  another  and  miss  him.  this  is  an  as- 
sault:  so  if  he  hold  up  his  hand  against  another  in  a  threatening 
manner  and  say  nothing,  it  is  an  assaidt.  Tn  the  principal  case 
the  plaintiff  had  judgment. 

See  State  v.  :\ryerfield,  61  N.  C.  108.  See  "Asaault  and  Battery,"  Century 
Dig.  §§  1-4;   Decennial  and  Am.  Dig.  Key  No.  Series  §§  1-7. 


Sec.    4.]  PERSONAL    SECURITY.    LIBERTY.    ETC.  385 


LEWIS  V.  HOOVER,  3  Blackford,  407.     1834. 
Assault  Without  Battery  or  Special  Damage. 

[Action  of  trespass.  Verdict  and  judgment  against  plaintiff,  and  he 
carried  the  case  to  the  supreme  court  by  writ  of  error.  Reversed.  The 
error  assigned  was  this:  The  judge  charged  that  if  defendant  struck  at 
the  plaintiff  in  an  angry  and  violent  manner,  but  no  damage  resulted 
therefrom,  they  ought  to  find  for  the  defendant.] 

Stevens.  J.  .  .  .  The  only  question  to  be  determined  is, 
whether  that  latter  and  additional  charge  of  the  court  was  correct? 
An  assault  is  an  attempt  or  offer  with  violen(?e  to  do  a  corporal 
hurt  to  another,  as  if  one  lift  up  his  cane  or  list  at  another  in  a 
threatening  manner,  or  strike  at  him  with  a  stick,  his  fist,  or  any 
weapon,  Avithin  striking  distance,  but  miss  him.  This  is  called  an 
unlawful  setting  upon  one's  person,  and  is  an  inchoate  violence 
for  which  the  party  assaulted  may  have  redress  by  an  action  of 
trespass  vi  et  armis.  and  shall  recover  damages  as  compensation, 
although  no  actual  injury  or  suffering  is  proved.  The  damages 
are  not  a.sscssed  for  the  mere  corporal  injury  or  pecuniary  loss, 
Ijut  for  the  malicious  and  insulting  conduct  of  the  defendant. 
3  Blk.  Com.  120;  1  Bac.  Abr.  242;  1  Saund.  on  PI.  &  Ev.  103,  104. 
From  this  it  appears  that  the  above  additional  and  latter  charge 
of  the  circuit  court  to  the  jury  is  incorrect,  and  should  not  have 
been  given.    Judgment  reversed. 

See  "Assault  and  Battery,"  Century  Dig.  §§  1-4;  Decennial  and  Am. 
Dig.  Key  No.  Series  §§  1-7. 


NEWELL  V.  WHITCHER.  53  Vt.,  589,  38  Am.  Rep.  703.     1880. 
Assault.  What  Amounts  to.     Assault  Without  Physical  Injury.     Fright. 

[Plaintiff,  who  was  a  blind  girl  and  a  guest  at  defendant's  house,  sued 
the  dffendant  in  trespass  with  three  counts — Trespass  vi  et  armis,  Tres- 
|)ass  q.  c.  f.,  and  Trespass  on  the  Case — for  entering  her  room,  sitting  on 
iier  bed,  and  soliciting  her  to  sexual  intercourse.  .Judgment  against  the 
defendant,  and  he  appealed.  Aflfirmed.  The  plaintiff  suffered  no  direct 
physical  injury;  but  was  so  excited,  alarmed,  frightened,  and  outraged 
in  her  feedings,  that  she  was  made  sick.  The  judge  instructed  the  jury 
that  they  might  give  punitive  damages.] 

KKDKiELn.  J.  ...  1.  It  is  claiiiifd  Ihat  Ihc  ciilfv  into  the 
lilaiiitiff's  |)riva1('  ai)art iiients  did  not  supiiorl  Hif  adion  of  tres- 
|ia.s.s  (iiiarc  (•hiiisum  :  but  we  think  that  her  right  to  licr  [irivate 
If'cping  rodiri  during  the  night  imder  the  circumstances  of  this 
ca.sf'.  was  as  aiiijtlc  and  cx'-liisivc  against  tlio  inmates  of  the  house 
as  if  llif  entry  had  been  made  into  her  pi-ivatc  dwelling  house 
tliriiugh  tli(!  outer  door.  Ibr  right  of  (|uiet  occupancy  and  privacy 
was  abs(»bite  and  e.Nelnsive:  and  \\\r  iiili\  by  stealth  in  the  night 
into  such  a|)art  nieiits.  wilhonl  license  or  justifiable  cause,  wa.s  a 
trespass;  and  if  with  felonious  intent,  was  a  critne.  State  v. 
Clark.  42  Vt.  (VM), 

Remrdies — 25. 


oS(J  I'KKSONAI.    SKCI   \iW\.    l.llU'.lv'l '^  .    i:i"('.  \('ll.    .'>. 

LV  The  ;ip[>r(t;ifli  to  lirr  [xTsdii  in  llir  m.-miicr  Iht  tcsliinoiiy 
ti'iuls  to  prove — sitting;  on  tlio  bed  .iiid  Ix'dclollics  that  I'ovored  hci" 
person,  and  Icaninir  o\rr  lirr  with  the  prolVcr  of  criminal  sexnal 
inti'ri'oursi'.  so  near  as  to  i-xriti'  the  I'l-ar  ami  ap[)reliension  of  I'oree 
in  the  exi-ention  of  his  felonious  pur[)ose.  was  an  assault.  Tlu' 
whole  act  and  motive  was  unlawful,  sinister  and  wieked.  The  aet 
of  stealinix  stealthily  into  the  bedroom  of  a  virtuous  woman  at 
midni^dit  to  seek  j^ratilieat it)n  oi"  criminal  lust,  is  sulTiciently  dis- 
honorable and  base  in  purpose  and  in  act;  but  especially  so,  when 
the  intended  vii-tim  is  a  jioor.  blind  liirl  under  the  protecting  care 
of  the  very  man  who  would  violate  every  injunction  of  hospitality, 
that  he  niijiht  dishonor  and  ruin  at  his  own  h("art_listone  this  un- 
fortunate child,  who  had  the  ri^ht  to  appeal  to  him  to  defend  her 
t'l-om  such  outrage.    Alexander  v.  lilodgett,  44  Vt.  476. 

3.  The  court  chai-ged  the  jury  that  if  the  i)laintin*  was  so  fright- 
ened and  shocketl  in  her  feelings  as  to  injure  her  health  by  defend- 
ant's conduct  as  described  in  her  testimony,  she  could  recover 
damages  for  such  injury.  The  defendant's  counsel  asked  the  court 
to  charge,  in  substance,  that  if  defendant's  acts  and  conduct  would 
not  have  injured  a  person  of  ordinaiy  nerve  and  courage,  then 
tliei'c  could  be  no  recovery.  When  the  acts  of  the  party  com- 
plained of  arc  of  themselves  innocent  an<l  liaiinlcss.  and  may  be- 
come wrongful  by  the  manner  in  which  they  are  done,  then  a  man 
is  to  be  judged  by  the  common  and  ordinaiy  eifect  of  such  acts. 
l>ut  when  a  married  man  breaks  into  the  bedroom  of  a  chaste  and 
honest  woman  at  midnight,  and  proposes  to  her  sexual  and  crimi- 
nal conunerce  with  bin-,  the  act  is  wholly  wrongful ;  the  aim  and 
puj'pose  is  wi'ongful  and  the  act  if  perpetrated  is  criminal;  and  the 
party  offending  must  answer  in  damages  for  all  actual  injuries. 
And  we  think  in  this  case,  if  all  the  facts  claimed  by  the  plaintiff 
in  her  testimony  were  found  to  l)e  true,  the  plaintiff  had  a  right  to 
recover.  And  the  charge  of  t\w  court  as  to  exem])lary  damages 
was  sound.     Judgment  affirmed. 

See  Mitchell  v.  Rochester  R.  Co..  151  N.  Y.  107,  §  5,  post.  A  railroad 
company  is  liable  in  damages  to  a  female  passenger  for  improper  pro- 
posals made  to  her  by  its  conductor.  Strother  v.  R.  R.,  123  N.  C.  197,  31 
S.  E.  386.  For  when  an  action  will  and  will  not  lie  for  pain  and  injury 
resulting  from  fright  caused  by  the  unlawful  act  or  negligence  of  an- 
other, see  Ewing  v.  R.  R.,  23  Atl.  340,  14  L.  R.  A.  666;  Hill  v.  Kimbell,  13 
S.  W.  59,  7  L.  R.  A.  618;  Huston  v.  Fi-eemansburg,  61  Atl.  1022,  3  L.  R.  A. 
(X.  S.)  49.  and  elaborate  note.  See  also  sec.  .5,  post;  Rasor  v.  Quails,  4 
Blackf.  286,  and  Brame  v.  Clark,  148  N.  C.  364,  62  S.  E.  418,  both  inserted 
at  ch.  3,  §  12,  ante;  and  Craker  v.  R.  R.,  36  Wis.  675,  inserted  post  in  this 
section.  See  "Assault  and  Battery,"  Century  Dig.  §§  1-4;  Decennial  and 
Am.  Dig.  Key  No.  Series  §§  1-7. 


FULLERTOX  v.  WARRICK.  3  Blackford,  219.     1833. 
Provocation  as  a  Defense  to  an  Action  for  Assault,  etc. 

[Action  for  damages  for  an  alleged  assault  and  battery.  In  mitigation 
of  damages  the  defendant  proved  frequent  slanders  of  himself  by  the 
plaintiff;   but  there  was  no  proof  that  such  slanders  were  uttered  on  the 


Sec.    4.]  PERSONAL    SECL-RITY.    LIBERTY.    ETC.  387 

occasion  of  the  assault  and  battery.     Verdict  and  judgment  against  de- 
fendant, and  he  appealed.     Reversed.] 

Stevens,  J.  .  .  .  The  ouly  question  before  the  court  is, 
whether  the  evidence  set  out  in  the  record  was  correctly  permitted 
to  go  to  the  jury,  in  mitigation  of  damages. 

The  law,  in  tenderness  to  himian  frailties,  distinguishes  between 
an  act  done  delil)erately  and  an  act  proceeding  from  a  sudden  heat. 
As.  if  upon  a  sudden  (|uarrel  two  persons  fight  and  the  one  kills 
the  other,  this  has  been  adjudged  only  manslaughter.  So,  if  a  man 
be  greatly  provoked,  as  by  pulling  his  nose,  or  other  great  indig- 
nity, ancl  inmiediately  kills  his  aggressor,  though  this  is  not  ex- 
cusable, the  offense  is  mitigated  homicide.  But  in  every  case  of 
homicide  upon  provocation,  if  there  be  any  time  intervening  be- 
tween the  insult  and  the  killing,  sufficient  for  passion  to  subside 
and  reason  to  interpose,  the  offense  becomes  murder.  In  analogy 
to  this  principle,  evidence  in  civil  actions  for  assault  and  batter.y 
is  admitted,  in  mitigation  of  damages,  to  show  a  provocation  on 
rhe  part  of  the  person  complaining  of  the  injury.  lint  the  provo- 
cation must  be  so  recent  as  to  induce  a  fair  presumi)tion  that  the 
violence  done,  was  committed  during  the  continuance  of  the  feel- 
ings and  passions  excited  by  it.  before  the  blood  has  had  time  to 
cool;  a  different  rule  would  greatly  encourage  breaches  of  the 
peace,  rencounters,  and  brutal  force.  For  the  purpose  of  illus- 
tration, we  will  notice  two  or  three  leading  eases. 

First,  the  case  of  Aver>'  v.  Ray  et  al.,  1  Mass.  12.  This  was  an 
action  of  trespass,  assault  and  battery,  tried  on  the  plea  of  not 
guilty.  The  dcfcndanis  offered  to  prove,  in  mitigation  of  damages, 
that  the  plaintiff  reported  that  the  sister  of  Ray,  one  of  the  de- 
fendants, had  openly  solicited  the  plaintiff  to  have  carnal  connec- 
tir)n  with  her;  that  Ray.  having  heard  that,  called  on  liim  to  know 
whether  he  had  or  had  not  said  so,  and  that  he  refused  to  confess 
or  deny  it ;  that  the  defendant  then  told  him  that  he  would  chastise 
him  for  it,  and  did  so;  and  for  that  chastisement  the  action  was 
brought.  The  court  said  that  the  admission  of  such  evidence  is 
contrary  to  all  rule;  that  immediate  provocations  are  admitted  in 
mitigation  of  damages.  Init  when  time  for  reflection  has  intervened, 
.so  as  to  give  the  blood  time  to  cool,  they  are  not  admitted. 

Secondly,  the  Tji-se  of  Lee  v.  AVoolsey,"  10  Johns.  '-W.).  This  was 
an  action  of  trespa.ss.  assault  and  batlei-y.  also,  tried  on  Ihi;  plea 
of  not  guilty,  in  the  month  of  July.  1S2(>.  The  defendant  was  a 
post-eajttain  in  the  navy,  and  the  |)l;iiiililf  was  an  attoi'uey  at  law. 
On  the  trial  the  dej'endant  olVered  to  ]»roV(\  in  mitigation  of  dam- 
.'iges.  that  in  the  month  of  Felniiars  preceding,  the  plaintitV  had 
addi-essed  to  the  secretary  of  the  nav_\'  a  scandalous  and  defaniM- 
tory  letter  i-especting  the  defendant,  charging  him  with  having  em- 
ltc//.led  the  pnblic  j»roper'ty  under  his  care  as  a  post-ca|)tain.  and 
that  tliat  letter  had  been  circulated  among  the  citi/ens  of  the  place 
vhcre  the  parties  resirled.  and  had  been  known  to  the  defendant 
•tdy  ;i  few  hours  before  the  time  of  cominitting  tlw  violence  com- 
plained of:  ;ind   that   at   the  time  ..f  coimnitting  the  vioieiice.  and 


3S8  TKUSUNAli   SEIM   KlI'V,    l.lHKinV,    KTC.  [Cll.    5. 

lu'l'itn'  tlu'  coimiu'iu'iMiii'iil  of  tlir  attack,  the  (IdViulaiit  asked  the 
plaiutilV  wlu'tluT  he  was  tlif  autluii-  ol'  I  hat  scandalous  and  de- 
famatory ('onmuuiiealion  or  not.  and  lie  admillcil  that  he  was,  but 
stateil  tliat  he  wrote  it  iu»  an  attorney,  and  was  paid  for  it.  The 
cK'fendant  also  olVered  to  pi'ovc  tliat  on  the  day  Ix'fore  the  attack 
was  made  by  him  on  the  plaintill",  the  plaintilV  had  made  scandal- 
ous insinuations  against  him  respecting;  bis  having  embezzled  the 
public  property.  The  court  said  that  the  evidence  was  not  ad- 
missible in  mitiiration  of  daniafres,  there  havinpr  be(>n  time  between 
the  pi'ovoealions  and  the  assault  for  delihei'ate  retlection. 

We  will  notice  one  other  case  only,  and  that  is  the  case  of 
Roelu'ster  v.  Anderson.  1  Bibb,  428.  In  that  case  the  defendant 
otfered  to  i>rove.  in  mitigation  of  damafjes.  that  the  plaintiff  had 
circulated  slanderous  reports  about  him.  and  for  that  he  had  as- 
saulted him.  The  court  refused  the  evidence  on  account  of  the 
time  which  intervened  between  the  time  of  giving  the  insult  and 
the  time  of  making  the  assault.  The  court  in  that  case  says  that 
sueli  oi)prot)rions  language,  if  used  at  the  time  of  the  battery,  and 
especiall\  if  used  \\ith  an  intent  of  provoking  a  quarrel,  would  be 
legal  evidence  in  mitigation  of  damages ;  but  if  there  have  been 
time  foi-  deliberation,  the  peace  of  society  requires  that  men  should 
suppress  their  passions. 

There  is  nothing  upon  the  record  before  us  which  authorizes 
us  to  presume  that  the  evidence  in  question  was  correctly  per- 
mitted to  go  to  the  jury.     The  judgment  is  reversed. 

For  the  general  subject  of  provocation  as  a  defense  or  mitigation,  see 
1  L.  R.  A.  (N.  S.)  137:  11  Ibid.  670.  See  "Assault  and  Batten%"  Century 
Dig.  §§  10.  48;  Decennial  and  Am.  Dig.  Xo.  Series  §§  12.  34. 


PALMER  V.  R.  R.  and  ELECTRIC  CO.,  131  N.  C.  250,  42  S.  E.  604.    1902. 
Provocation  as  a  Defense  to  an  Action  for  Assault,  etc. 

[Action  for  damages  caused  by  an  assault  and  battery  upon  the  plaintiff 
by  an  alleged  employee  of  the  defendant.  Only  so  much  of  the  opinion  as 
discusses  provocation  as  a  defense,  is  here  inserted.! 

Clark.  J.  The  plaintiff,  while  a  passenger  on  the  street  car  of 
the  defendant,  and  somewhat  intoxicated,  used  grossly  insulting 
words  to  the  motorman.  Ari'ived  at  his  destination,  the  plaintiff 
got  out.  deposited  his  bundles  on  the  sidewalk,  returned  to  the  car. 
again  got  into  an  altercation  with  the  motorman,  turned,  and  left 
the  car.  whereupon  the  motorman  followed  him  up.  and.  two  or 
three  steps  from  the  car.  struck  the  plaintiff  on  the  back  of  the 
head  with  the  lever  which  controlled  the  car.  knocking  him  down. 

The  fact  that  the  plaintiff  invited  the  assault  by  insulting  lan- 
guage or  provoking  conduct  woidd  not  bar  recovery  in  a  civil 
action,  not  even  when  the  parties  fight  bv  consent.  Bell  v.  TTansley. 
48  X.  C.  131 ;  Williams  v.  Gill.  122  X.  C.  067.  29  S.  E.  879 ;  Cooley, 


:<iC.    4.]  PERSON.VL    SECURITY,    LIBERTY,   ETC.  389 

Torts  (2d  ed.),  pp.  183,  187,  190.  The  rule  iu  eriniinai  actions  is 
that  no  words,  however  violent  and  insulting,  justify  a  blow,  but, 
if  a  blow  follows,  both  are  guilty,  though  the  party  giving  the 
insult  strikes  no  blow.  The  insult  is  not  a  defense,  but  matter  in 
mitigation  of  punishment.  In  a  civil  action,  if  the  provocation  is 
great,  the  jury  will  usually'  see  lit  to  return  nominal  or  small  dam- 
ages ;  and,  if  the  amount  is  less  than  $50,  the  plaintiff  recovers  no 
more  costs  than  damages.  Code,  §  525  (4).  In  the  civil  as  in 
the  criminal  action,  the  provocation  is  a  mitigation,  not  a  defense. 

See  "Carriers,"  Century  Dig.  §  1121;  Decennial  and  Am.  Dig.  Key  No. 
Series  §§  283,  341. 


STOUT  V.  WREN,  8  N.  C.  420.    1821. 
Mutual  Assaults.     Volenti  non  fit  Injuria,  as  a  Defense. 

[Action  for  damages  resulting  from  assault  and  battery.  Plaintiff  and 
defendant  fought  by  agreement.  The  court  charged  that  if  plaintiff 
agreed  to  fight  he  could  not  recover,  unless  he  was  too  drunk  to  know 
what  he  was  doing.  Verdict  and  judgment  against  plaintiff,  and  he  ap- 
pealed.   Reversed.] 

Taylor,  C.  J.  It  is  equally  reasonable  and  correct,  that  a  man 
shall  not  recover  a  recompense  for  an  injury  received  by  his  own 
consent ;  but  the  rule  must  necessarily  be  received  with  this  qualifi- 
cation: that  the  a',-t  from  whence  the  injury  })roceeded  be  lawful. 
Hence,  in  those  manly  sports  and  exercises  which  are  thought  to 
qualify  men  for  the  use  of  arms,  and  to  give  them  strength  and 
activity,  if  two  i^layod  by  consent  at  cudgels,  and  one  hurt  the 
other,  no  action  would  lie.  But  where  in  an  action  for  assault  and 
battery,  the  defendant  offered  to  give  in  evidence  that  the  plaintiff 
and  he  boxed  by  consent,  from  wiience  the  injury  proceeded,  it 
was  held  to  be  no  bar  to  the  action  -,  for,  as  the  act  of  boxing  is 
unlawful,  the  consent  of  the  parties  to  fight  could  not  excuse  the 
injury.  Boulter  v.  Clark.  Buller  N.  P.  16.  The  consequence  of 
this  distinction  is  apparent  also  in  the  law  of  homicide;  for  if 
death  ensue  from  innocent  and  allowable  recreations,  the  case  will 
fall  witliin  the  rule  of  excusable  homieidt^;  Imt  if  the  sport  be  un- 
lawful, and  endanger  the  peace,  and  death  ensue,  the  party  killing 
is  guilty  of  n)anslaughter.  P^st.  259.  It  is  laid  down  in  IMatlu-r 
V.  Ollerton.  Comberd.  218.  that  if  one  license  another  to  l)eat  him, 
sueh  license  is  void,  because  it  is  ag,iinst  the  peace;  and  the  plain- 
tiff recovered  a  verdict  and  judgment.  The  case  was  very  fairly 
put  to  the  jury,  as  to  the  evidence  of  tlie  plaintiff's  intoxication, 
but  T  think  tlie  law  was  misconceived  in  stating  to  tliem.  that  if 
the  plaintiff  was  sober  and  as.sented.  he  was  not  entilbd  to  recover. 
TluTc  must  be  a  new  trial. 

TTaf.l.  J.  T'''pon  principle  unconnected  with  municipal  law,  or 
[)oliey.  I  fidiibt  how  far  a  persftn  is  entitled  to  I'ecovcr  dauia'^'es. 
after  havini;  agreed  to  take  liis  diance  in  a  combat,  and  after  the 


;{!)»»  I'KKSdNAi.  si;ri  wfi '^ .   l.Il!l■:ln'^ .   irrc.  \('h.  .). 

v\vu\  liiul  i»r(i\i'(l  tlu'  iiiiscalculal  ion  lie  liiid  iiuulc  upon  his  own 
striMij^lli :  foiisidcriii*;  i(  ninclv  ;is  ;i  violiition  of  ;i  in-iv.-itc  i-i<f|il, 
I  slioulil  say.  voU'iiti  iion  lit  iiijuiia.  Wlicic  tlu'  state  is  a  party 
liy  way  o\'  indict  incut,  the  consent  ol'  the  party  does  not  stand  \\\ 
tlie  way  of  conviction.  Ixv  anse  the  line  ^'oes  to  the  state  for  the 
injury  done  her,  by  a  breaeh  of  the  peace.  However,  the  authority 
in  Buller's  N.  1*.  16,  is  the  other  way,  and  1  am  inclined  to  be- 
lieve lias  i)olicy  for  its  support ;  for  tliese  n-asons.  I  ac(piiesce  and 
aijree  that  the  i-ule  for  a  ni'W  ti'ial  shall  he  made  absolute. 

See  Bisljop.  .\on-Com.  Law.  §  l!Hi;  20  L.  R.  A.  (X.  S.)  907.  and  note. 
See  "Assault  and  Battery,"  Centuiy  Dig.  §  9;  Decennial  and  Am.  Dig.  Key 
No.  Series  5  11. 


STATE  V.  WILLIAMS,  75  N.  C.  134.     1876. 
Volenti  non  fit  Injuria,  as  a  Defense.     Ceremonies  in  Secret  Society. 

[Indictment  lor  assault  and  battery.  Defendant  was  convicted,  and  aj) 
pealed.  Affirmed.  Defendant  aided  in  suspending  a  woman  from  the  wall 
by  means  of  a  cord  fastened  around  her  waist.  The  woman  resisted  to  the 
extent  of  her  ability.  The  actings  of  the  defendant  were  in  accordance 
with  the  rules  of  the  "Good  Samaritans,''  a  benevolent  society  of  which 
both  the  woman  and  the  defendant  were  niembei's.  Defendant  insisted 
that  if  he  only  intended  to  i)erform  the  usual  ceremony  of  expulsion  and 
was  actuated  by  that  motive  alone — with  no  intention  to  hurt  the 
woman — he  was  not  guilty.  The  judge  charged  that  such  was  not  the 
law,  but  that  defendant  was  guilty  if  he  tied  the  cord  around  the  woman 
against  her  consent,  j 

Bynum.  J.  "When  the  pro.secutrix  refused  to  submit  to  the  cere- 
mony of  expulsion  established  by  this  benevolent  society,  it  could 
not  be  lawfully  inflicted.  Rules  of  discipline  for  this  and  all  vol- 
untary associations  nuist  conform  to  the  laws.  If  the  act  of  tyinjj: 
the  woman  would  have  been  a  battery  had  the  parties  concerned 
not  been  members  of  the  society  of  "Good  Samaritans,"  it  is  not 
the  less  a  l)attery  because  they  were  all  members  of  that  humane 
institution.  The  puni.shment  inflicted  upon  the  person  of  the 
prosecutrix  was  wilful,  violent  and  against  her  consent,  and  thus 
contained  all  the  elements  of  a  wanton  breach  of  the  peace.  Bell 
V.  Hansly.  48  N.  C.  I'U.     Judgment  affirmed. 

For  a  discussion  of  the  civil  liability  of  fraternal  societies  for  injuries, 
etc.,  inflicted  upon  members  during  initiation  or  expulsion  ceremonies,  see 
13  L.  R.  A.  (N.  S.)  314,  and  note.  See  "Assault  and  Battery,"  Century 
Dig.  §§  68-74;  Decennial  and  Am.  Dig.  Key  No.  Series  §§  47-53. 


PAUL  V.  FRAZIER,  3  Mass.  71.     1807. 
Volenti  non  fit  injuria,  as  a  Defense  to  Seduction. 

[Action  of  trespass  on  the  case  wherein  a  woman  seeks  to  recover  dam- 
ages for  her  own  seduction.  Verdict  for  plaintiff;  defendant  moved  in 
arrest  of  judgment;  and  judgment  was  arrested.  Plaintiff  appealed.  Af- 
firmed.   The  facts  appear  in  the  opinion.] 


^Sffc-.    i.]  PERSONAL    SECURITY.    LIBERTY.    ETC.  391 

Parsons,  C.  J.  This  is  an  action  on  the  ease  to  recover  damages 
against  the  defendant  for  seducing  the  plaintitf  under  a  false  pre- 
tense of  courtship  and  intention  of  marriage,  and  for  getting  her 
with  child,  whereby  her  reputation  has  suffered,  and  her  peace  of 
mind  been  injurt^^l.  After  a  verdict  for  the  plaintiif  on  the  issue 
of  not  guilty,  the  defendant  moves  to  arrest  the  judgment.  And 
we  are  of  opinion  that  the  judgment  must  be  arrested.  An  action 
of  this  nature  is  not  given  Ijy  statute :  and  there  is  no  principle  of 
the  common  law  on  which  it  can  be  sustained.  Fornication  and 
adultery  are  offenses  in  this  commonwealth  created  by  statute. 
And  the  declaration  amounts  to  a  charge  against  the  defendant 
for  deceiving  the  plaintiff,  and  persuading  her  to  commit  a  crime, 
in  consequence  of  which  she  has  suffered  damage.  She  is  a  par- 
taker of  the  ci  ime.  and  eannot  couie  into  court  to  obtain  satisfac- 
tion for  a  supposed  injury  to  which  she  was  consenting.  It  has 
been  regretted  at  the  bar  that  the  law  has  not  provided  a  remedy 
for  an  unfortunate  female  against  her  seducer.  Those  who  are 
competent  to  legislate  on  this  subject  will  consider,  before  they 
provide  this  remedy,  whether  seductions  will  afterwards  be  less 
frequent,  or  whether  artful  women  may  not  pretend  to  be  seduced, 
in  order  to  obtain  a  pecimiary  compensation.  As  the  law  now 
stands,  damages  are  recoverable  for  a  breach  of  promise  of  mar- 
riage: and  if  seduction  has  been  iiracticed  under  color  of  that 
promise,  the  jury  will  undoubtedly  consider  it  as  an  aggravation 
of  the  damages.  So  far  the  law  has  provided;  and  we  do  not  pro- 
fess to  be  wiser  than  the  law. 

Action  for  seduction  brought  by  divorced  woman  or  widow,  see  21  L. 
11.  A.  (X.  S.)  265. 

In  Hood  V.  Sudderth,  111  X.  C.  215,  16  S.  E.  397,  the  rule  of  volenti  non 
fit  injuria  was  set  aside  in  cases  of  seduction — "a  ruling  since  followed 
in  Missouri,  Arkansas  and  other  states."  Willeford  v.  Bailey,  132  X.  C. 
at  p.  404,  43  S.  E.  928.  In  the  oi)inion  and  the  dissenting  opinion  in  Hood 
V.  Sudderth,  supra,  will  be  found  a  thorough  discussion  of  both  sides  of 
the  question.  See  also  Scarlett  v.  Norwood,  115  N.  C.  284,  20  S.  E.  459: 
Mordecai's  Law  Lcct.  :588.  See  ch.  6.  i?  2  (c).  i)Ost.  See  123  X.  C.  mid. 
p.  199.  See  'Seduction,"  Century  Dig.  §  17;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  9. 


COLE  V.  TURNER.  6  Modern.  149.     1705. 
What  Constitutes  a  Battery. 

IIoLT.  Chief  Justice,  upon  evidence  in  trespass  for  assault  and 
battery,  dcfhircd:  First.  That  tlie  lea.st  touching  of  another  in 
anger  is  a  battci-y.  Secondly.  If  two  or  more  meet  in  a  narrow 
|»a.s.sage.  and  without  any  vioh-nce  or  design  of  hai-m.  the  one 
touches  the  otlit-r  jrt'nll\.  it  will  be  no  battery.  Thirdly.  Tf  any 
of  them  use  violence  against  the  f>tlier.  to  force  his  way  in  a  rude 
inonlinate  irianner,  it  will  be  a  bjittery;  or  any  struggle  about  the 
Ii;Ks;i(/f  to  fli;it  dctrifc  ;is  may  do  liiut.  will  be  a  battery. 


■.\\)'2 


PIOUSONAL   SECTKITV.    LIBKUTV,    KTC. 


r7(. 


.J. 


It  was  an  ai'tion  of  battt'ry  by  liushaiul  ami  wifo,  Tor  a  l)attery 
ui>ou  tlie  hushaiid  and  wiie,  ad  damnum  ipsoruin;  and  lliough  the 
plaint  ill"  had  a  verdict,  yet  the  ehief  justice  said,  he  shoidd  never 
have  judgment.  And  the  judgment  was  after  arrested  above  upon 
that  exception. 

Administering  iioton  oil,  in  jest,  is  a  battery.  State  v.  Monroe,  121 
N.  C.  G77,  2S  X.  C.  347,  inserted  at  ch.  5,  §  G,  post.  That  laws  excluding  un- 
vairinated  children  from  the  public  schools  are  valid,  and  that  a  refusal  to 
be  vaccinated  may  be  made  criminal,  see  .Tacobson  v.  Mass.,  197  U.  S.  11, 
25  Sup.  Ct.  358,  183  Mass.  242;  Hutchins  v.  Durham,  137  N.  C.  68,  49  S.  E. 
46;  State  v.  Hay.  126  N,  C.  999,  35  S.  E.  459,  49  L.  R.  A.  588;  Morris  v.  Col- 
umbus. 30  S.  E.  850,  42  L.  R.  A.  175;  People  ex  rel.  .Jenkins  v.  Bd.  of  Ed., 
84  N.  E.  1046,  17  L.  R.  A.  (N.  S.)  709,  and  note.  For  whether  or  not  it 
can  be  made  lawful  to  vaccinate  one  forcibly  against  his  will,  see  Levin 
V.  Burlington,  129  X.  C.  184;  People  v.  Bd.  of  Ed.  supra— in  the  note  to 
which  case  it  is  said  that  no  American  case  can  be  found  which  holds  the 
affirmative,  though  it  is  practiced  in  England.  See  "Assault  and  Battery," 
Century  Dig.  §§  1-4;  Decennial  and  Am.  Dig.  Key  No.  Series  §§  1-7. 


CRAKER  V.  C.  &  N.  W.  R.  R.  Co.,  36  Wis.  657,  677.     1875. 
Measure  of  Damages  in  Actions  for  Personal  Insult,  Injury,  and  Fright. 

[Action  for  insulting,  violent,  and  abusive  acts  alleged  to  have  been 
done  to  the  plaintiff  by  the  conductor  of  defendant's  train  while  plaintiff 
was  a  passenger  thereon.  Verdict  and  judgment  against  defendant  for 
$1,000,  and  defendant  appealed.    Affirmed. 

The  proof  was  that  the  conductor  put  his  arms  around  the  plaintiff  ana 
kissed  her  five  or  six  times.  The  judge  charged  that  the  measure  of 
plaintiff's  damages  would  be  such  compensation  as  the  jury  might  see  fit 
to  award  for  the  injury  sustained,  including  injury  to  the  feelings,  "the 
elements  of  ^\hich  are,  such  insult,  indignity,  contumely  and  the  like,  as 
she  may  have  suffered; "  that  they  could  not  give  vindictive  damages. 
This  charge  is  approved  by  the  supreme  court  which  classes  mental  suf- 
fering as  an  element  of  compensatory,  as  distinguished  from  punitory, 
damages.  Only  that  part  of  the  opinion  which  bears  directly  and  author- 
itatively on  the  question  of  damages,  is  here  inserted.! 

Ryan,  C.  J.  .  .  .  In  giving  the  elements  of  damages,  Mr. 
Sedgwick  distinguishes  between  "the  mental  suffering  produced 
by  the  act  or  omission  in  question :  vexation :  anxiety : ' '  which  he 
holds  to  be  grounds  for  compensatory  damages:  and  the  "sense  of 
wrong  or  insult,  in  the  sufferer's  breast,  from  an  act  dictated  by 
a  spirit  of  wilful  injustice,  or  by  a  delibei-ate  intention  to  vex,  de- 
grade or  insult."  which  he  holds  to  be  ground  for^xemplary  dam- 
ages only.  Sedgwick's  Meas.  Dam.  35.  Mr.  Sedgwick  himself 
says  that  the  rule  in  favor  of  exemplary  damages  "blends  to- 
gether the  interests  of  society  and  the  aggrieved  individual,  and 
gives  damages  not  only  to  recompense  the  sufferer,  but  to  ptmish 
the  offender"  Clb.  38)  ;  and  following  him.  this  court  held  in  the 
leading  case  of  INTcWilliams  v.  Bragg,  3  Wis.  424,  and  has  often 
since  reaffirmed,  that  exemplary  damages  are  "in  addition  to  ac- 
tual damages." 

In  actions  of  tort,  as  a  rule,  when  the  plaintiff's  right  to  re- 


Sec.    i.]  PERSONAL    SECURITY.    LIBERTY,    ETC.  393 

cover  is  established,  he  is  eiititled  to  full  compensatory  damages. 
When  proper  ground  is  established  for  it,  he  is  also  entitled  to  ex- 
emplary damages,  in  addition.  The  former  are  the  compensation 
of  the  plaintiff;  the  latter,  for  the  punishment  of  the  defendant 
and  for  example  to  others.  This  is  Sedgwick's  blending  together 
of  the  interest  of  society  and  the  interest  of  plaintiff.  And  it  is 
plain  that  there  cannot  well  be  common  ground  for  the  two.  The 
injur^^  to  the  plaintiff  is  the  same,  and  for  that  he  is  entitled  to 
full  compensation,  malice  or  no  malice.  If  malice  be  established, 
then  the  interest  of  society  comes  in.  to  punish  the  defendant  and 
deter  others  in  like  eases,  by  adding  exemplary  to  compensatory 
damages. 

We  need  add  no  authority  to  ]Mr.  Sedgwick 's  that,  in  actions  for 
personal  tort,  mental  suffering,  vexation  and  anxiety  are  subjects 
of  compensation  in  damages.  And  it  is  difficult  to  see  how  these 
are  to  be  distinguished  from  the  sense  of  w^ong  and  insult  arising 
from  injustice  and  intention  to  vex  and  degrade.  The  appearance 
of  malicious  intent  may  indeed  add  to  the  sense  of  wrong;  and 
equally,  whether  such  intent  be  really  there  or  not.  liut  that  goes 
to  mental  suffering,  and  mental  suffering  to  compensation.  So  it 
seems  to  us.  But  if  there  be  a  subtle,  metaphysical  distinction 
which  we  cannot  see,  what  human  creature  can  penetrate  the  mys- 
teries of  his  own  sensations,  and  parcel  out  separately  his  mental 
suffering  and  his  sense  of  wrong — so  much  for  compensatory,  and 
.so  much  for  vindictive  damages?  And  if  one  cannot  scrutinize  the 
anatomy  of  his  own.  how  impossible  to  dissect  the  mental  agonies 
of  another,  as  a  surgeon  does  corporal  muscles.  If  pos.sible.  juries 
are  surely  not  metaphysicians  to  do  it.  And  we  must  hold  that  all 
mental  suffering  directly  consequent  upon  tort,  irrespectively  of 
all  such  inscrutable  distinctions,  is  ground  for  compensatory  dam- 
ages in  an  action  for  the  tort.  With  these  views,  we  can  see  no 
rror  in  the  charge  of  the  court  below  on  the  subject  of  damages. 

The  respondent  appears  to  be  of  respectable  rank  in  life,  and  of 
sufficient  culture  to  qualify  her  for  teaching  in  public  schools.  In 
the  painful  trial  of  character  and  temper  of  the  scene  which  cul- 
minated in  the  assault,  in  her  action  and  demeanor  following  upon 
it,  in  the  interview  intruded  upon  her  by  the  appellant,  and  in  the 
embarrassment  of  her  examination  on  the  trial,  she  api)ear.s  to  have 
acted  with  great  propriety,  free  from  all  exaggeration  and  affecta- 
tion. She  appears  in  the  record  lo  be  a  person  wlio  would  feel 
-Jiich  wrong  keenly.  She  was  entitled  to  liberal  diiniagcs  for  Ikm' 
tf-rror  and  anxiety,  her  outraged  feelings  and  insulted  virtue,  for 
;ill  her  mentfd  liuiiiilialioii  ;iiid  snlTeriiig.  We  caniKit  say  that  the 
damages  are  excessive.  We  might  have  been  better  satisfied  with 
a  verdict  for  less.  Rut  it  is  not  for  us,  it  was  for  the  jiny.  to  fix 
the  ammint.  .\nd  Ibey  are  not  so  larcre  tbat  we  can  say  tliat  they 
;ire  iirirea.sonable.  Who  e;m  be  foiui<l  to  say  that  such  an  amount 
would  be  in  excess  of  compensation  to  his  own  or  bis  neighbor's 
wife  or  sister  or  daughter?  Hewlett  v.  rruebley,  ii  Taunt.  277. 
We  cannot  say  tliat  it  is  to  the  respondent.    Judgment  affirmed. 

See  notp  to  Srott  v.  Shepherd.  2  Wni.  nik.  802.  and  Newell  v.  Wliltrher, 


;i*)4  IMMvSON.M.    SKCl   UI'I'N'.    1 .1  l!i:iM" V.    KTC.  \('ll.    .^. 

f.?  Vt.  r.(i7.  iHilh  insprtoil  ante  hi  this  sertion.  See  "Carriers."  Ceiiliuy 
Dii?.  S  i:''44;  Uereniiial  ami  Am.  Dij;-  Kfv  No.  Series  §  :519,  "Damages," 
(\M>tury  Dip.  §  iTiTi;   DtHfiiiiial  and  .\m.  Dig.  Key  No.  Series  §  102. 


Sec.  5.     1n.ii  kiks  to  the  Person  resulting  pkom  Negligence. 

I.l^lAMl-:  V.  HRAY.  ;!  East.  ,->na.     180:'.. 
U7i(  /)   Trespass  ri  ct  annis.  and  ivhvn   Trespass  an   the  Vase  Lies. 

I  Trespass  vi  ei  armis  for  defendant's  colliding  with  iilaintiff's  curricle, 
causing  plaintiff's  horses  to  run  away,  whereby  plaintiff  had  to  leap  from 
the  curricle  in  self-preservation,  fiacturing  his  collar  bone  in  consequence. 
The  evidence  showed  negligence  on  the  defendant's  part  rather  than  wil- 
fiil  Tniscondu(  t:  for  the  only  blame  imputed  to  him  was  driving  on  the 
wrong  si<le  of  the  road  on  a  dark  nighl  when  his  carriage  could  not  be 
seen.  The  defendant  insisted,  therefore,  that  if  plaintiff's  injury  resulted 
from  the  negligence  of  the  defendant,  this  action  would  not  lie.  but  tres- 
pass on  the  case  was  the  i)roper  remedy.  .Judgment  of  nonsuit  was  en- 
tered against  the  plaintiff,  who  moved  to  set  aside  the  nonsuit.  The  non- 
suit was  set  aside  in  this  court  upon  the  ground  that  trespass  vi  et  armis 
icas  the  proper  remedy.] 

Lord  Ellenborougii.  C.  J.  Tlie  true  criterion  seeiihs  to  ])e  ac- 
cording to  Avhat  Lord  C.  J.  De  Grey  .says  in  Scott  v.  Sliepherd. 
wliether  the  phiiiilift'  received  an  injury  by  force  from  the  defend- 
ant. If  the  injurious  act  be  the  inunediate  result  of  the  force 
originally  applied  by  the  defendant,  and  the  plaintiff  be  injured 
by  it,  it  is  the  subject  of  an  action  of  trespa.ss  vi  et  armis  by  all  the 
cases  both  ancient  and  modern.  Tt  is  immaterial  whether  the  in- 
jury be  wilful  or  not.  As  in  flie  case  alluiied  to  by  my  Hrothei' 
Grose,  where  one  shooting  at  butts  for  a  trial  of  skill  with  the  bow 
and  arrow,  the  weapon  then  in  use.  in  itself  a  lawful  act,  and  no 
unlawful  ])urpose  in  view ;  yet  having  accidentally  wounded  a 
man,  it  was  holden  to  be  a  trespass,  being  an  immediate  injury 
from  an  act  of  force  by  another.  So  also  was  the  ea.se  of  AVeaver 
V.  Wood,  in  Hob.  134.  where  a  like  unfortunate  accident  happened 
whilst  persons  were  lawfully  exercising  themselves  in  arms.  So  in 
none  of  the  cases  mentioned  in  Scott  v.  She])herd  did  wilfulness 
make  any  difference.  If  the  injury  were  received  from  the  per- 
sonal act  of  another,  it  wa.s  deemed  sutflcient  to  make  it  a  trespass. 
In  the  case  of  Day  v.  Edwards,  the  allegation  of  the  act  having 
been  done  furiously  was  understood  to  imply  an  act  of  force  imme- 
diately proceeding  from  the  defendant.  As  to  the  case  of  Ogle  v. 
Barnes.  I  incline  to  think  it  was  rightly  decided ;  and  yet  there  are 
words  there  which  imply  force  by  the  act  of  another;  but.  as  was 
observed,  it  does  not  appear  that  it  must  have  been  the  personal 
act  of  the  defendants;  it  is  not  even  alleged  that  they  were  on 
l>oard  the  ship  at  the  time:  it  is  said  indeed  that  they  had  the  care, 
direction,  and  management  of  it;  but  that  might  be  through  the 
medium  of  other  persons  in  their  employ  on  board.  That  there- 
fore might  be  sustained  as  an  acticm  on  the  ca.se.  because  there 


Sec.    5.]  PERSON.VL    SECURITY.    LIBERTY,    ETC.  39o 

were  no  words  iu  the  declaration  which  necessarily  implied  that 
the  damage  happened  from  an  act  of  force  done  by  the  defendants 
themselves.  I  am  not  a^vare  of  any  case  of  that  sort,  \vhere  the 
party  himself  sued  having  been  on  board,  this  question  has  been 
raised.  But  here  the  defendant  himself  was  present,  and  used  the 
ordinary  means  of  impelling  the  horse  forward,  and  from  that  the 
injury  happened.  And  therefore  there  being  an  immediate  injury 
from  an  immediate  act  of  force  by  the  defendant,  the  proper  rem- 
edy is  trespass ;  the  wilfulness  is  not  necessary  to  constitute  the 
trespass. 

Grose.  J.  I  am  of  the  same  opinion.  Looking  into  all  the  eases 
from  the  year  book  in  the  21  Hen.  7.  down  to  the  latest  decision 
on  the  subject.  I  find  the  principle  to  be,  that  if  the  injurj^  be 
done  by  the  act  of  the  party  himself  at  the  time,  or  he  be  the  im- 
mediate cause  of  it.  though  it  happen  accidentally  or  by  misfor- 
tune, yet  he  is  answerable  in  trespass.  The  case  mentioned  from 
Strange,  that  in  Hobart,  and  those  in  the  Term  Reports,  all  agree 
in  the  principle. 

See  'Action,"  Century  Dig.  §§  236-255;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  30. 


BALT.  CITY  PASS.  RY.  CO.  v.  KEMP,  61  Md.  619,  48  Am.  Rep.  134.     1883. 
Remedy  of  a  Passenger  Injured  by  Negligence  of  Carrier. 

i  Kemi)  anc!  his  wife  sued  for  damage?  resulting  to  the  wife  from  the 
negligence  of  the  railway  company.  The  case  went  to  the  supreme  court 
and  was  decided  for  Kemp  and  his  wife,  and  this  is  a  motion  for  re-argu- 
ment.    The  court  overruled  the  motion. 

The  wife  v.aK  a  passenger  at  the  time  of  the  injury.  This  action  is  one 
in  tort.  The  railway  company  insisted  that,  while  the  form  of  the  action 
is  tort,  the  real  ground  of  the  right  to  recover  is  the  hreach  of  the  con- 
tract to  carry  the  passenger  safely:  and,  that  being  so,  no  recovery  can 
be  had  except  for  such  injury  as  may  fairly  be  taken  to  have  been  contem- 
I'h'ted  as  the  possilde  result  of  the  breach  of  the  contract.  The  court, 
.ftPi-  annoimcing  that  it  cannot  approve  of  that  proposition,  proceeds:! 

Alvey.  f.  J.  ...  A  conunon  carrier  of  passengers,  who 
iiccepts  a  party  to  be  carried,  owes  to  that  party  a  duty  to  be  care- 
ful, irrespective  of  contract;  and  the  gravamen  of  an  action  like 
the  present  is  the  negliirence  of  the  defendant.  Tlic  right  to  main- 
fain  the  action  does  not  depend  ui)on  contract,  but  the  action  is 
founded  upon  the  common-law  duty  to  carry  safely;  aiul  the  negli- 
gent violation  of  that  duty  to  the  damage  of  the  pbiintifT  is  a  tort 
or  wrong  which  gives  rise  t(t  the  i-ight  of  action.  P>i'cth('rton  v. 
Wood.  ;}  I'>.  &  I'.iiig.  54.  If  this  were  not  so.  the  pa.ssciigci-  would 
oecnpy  a  more  unfavorable  position  in  reference  to  the  extent  of 
his  right  to  recover  for  injuries  than  a  stranger;  for  llic  latter, 
for  any  neglitrent  injnn-  or  wrong  comniit1<'d.  cnii  oni>'  sue  as  for 
;i  tort,  and  the  iiicasnrc  of  tin-  recovery  is  not  oidy  for  llie  actual 
suffering  endured.  ImiI  for  all  aggravation  that  may  attend  the 
commission  of  thr*  wrong;  whereas  in  the  e;ise  of  a  passenger,  if 


80G  I'KUSON'.M,    SK(M   Iv'll'N-.    1  .IHKH'PV ,    KTC.  \Ch.    .7. 

till'  ('(iiili'iit  ion  ol'  ihf  (Icrciulanl  Iw  suiiportcd.  lor  tlir  saiiio  charac- 
ter of  injury,  tlic  ri<i:ht  of  rccovory  would  he  more  restricted.  Tlie 
l>riiieiple  of  these  actions  a«j:ainst  eomuioii  carriers  of  pas.sengers 
is  well  illusli'ated  hy  the  ea.se  of  a  servant  whose  fare  has  been 
paid  hy  the  master;  or  the  ease  of  a  child  for  whom  no  fare  is 
eharfreil.  In  both  of  the  cases  mentioned,  thou<ih  there  is  no  con- 
tract as  between  the  carrier  and  the  servant,  or  as  between  the 
carrier  and  the  child,  yet  both  the  servant  and  the  child  are  pas- 
sengers, and  for  any  i)ersonal  injuries  suffered  by  them,  through 
the  negligence  of  the  carrier,  it  is  clear  they  could  sue  and  re- 
cover ;  but  they  could  only  sue  as  for  a  tort.  The  authorities  would 
seem  to  be  clear  upon  the  subject,  and  leave  no  room  for  doubt  or 
question. 

In  the  case  of  Marshall  v.  Yoi-k.  Newcastle  &  Berwick  R.  Co., 
11  C.  B.  655,  in  discussing  the  ground  of  action  against  a  common 
carrier.  Jervis.  C.  J.,  said:  "But  upon  what  princij^le  does  the 
action  lie  at  the  suit  of  the  servant  for  his  personal  suffering?  Not 
by  reason  of  any  contract  between  him  and  the  company,  but  by 
reason  of  a  duty  implied  by  law  to  carry  him  safely."  And  in  the 
same  case  IMr.  Justice  "Williams  said:  "The  case  was,  I  think,  put 
upon  the  right  footing  by  JNIr.  llill.  when  he  said  that  the  question 
turned  upon  the  inquiry  whether  it  was  necessary  to  show  a  con- 
tract between  the  plaintiff  and  the  railroad  company.  His  prop- 
osition was,  that  this  declaration  could  only  be  sustained  by  proof 
of  a  contract  to  carry  the  plaintiff  and  his  luggage  for  hire  and  re- 
ward to  be  paid  by  the  plaintiff'  and  that  the  traverse  of  that  part 
of  the  declaration  involves  a  traverse  of  the  payment  by  the  plain- 
tiff. I  am  of  opinion  that  there  is  no  foundation  for  that  proposi- 
tion. It  seems  to  mo  that  the  whole  current  of  authorities,  begin- 
ning with  Govett  v.  Radnidge,  3  East.  62,  and  ending  with  Pozzi 
v.  Shipton,  8  Ad.  &  El.  963.  establishes  that  an  action  of  this  sort 
is,  in  substance,  not  an  action  of  contract,  but  an  action  of  tort 
against  the  conjpanv  as  carrier."  And  in  the  subsequent  ease  of 
Austin  V.  Great  Western  R.  Co.,  L.  R.  2  Q.  B.  442.  Mr.  Justice 
Blackburn,  now  Lord  Blackburn,  in  delivering  his  judgment  in 
that  case  said :  "T  think  that  what  w^as  said  in  the  case  of  Marshall 
V.  York,  Newcastle  &  Berwick  R.  Co.,  11  C.  B.  655,  was  quite  cor- 
rect. It  was  there  laid  down  that  the  right  which  a  passenger  by 
railway  has  to  be  carried  safely  does  not  depend  on  his  having 
made  a  contract,  but  that  the  fact  of  his  being  a  passenger  casts 
a  duty  on  the  company  to  cany  him  safely."  And  to  the  same 
effect  and  with  full  approval  of  the  authorities  just  cited,  are  the 
eases  of  Foulkes  v.  Met.  Dis.  R.  Co.,  4  C.  P.  Div.  267 ;  30  Eng.  Rep. 
536.  and  the  same  case  on  appeal,  5  C.  P.  Div.  157;  30  Eng.  Rej;. 
740 ;  and  Fleming  v.  Manchester,  etc..  R.  Co..  4  Q.  B.  Div.  81 .  The 
case  of  Bretherton  v.  Wood.  3  Bro.  &  Bing.  54.  is  a  direct  authority 
upon  the  question. 

A  pas.senger  may,  without  doubt,  declare  for  a  breach  of  con- 
tract, where  there  is  one :  but  it  is  at  his  election  to  proceed  as  for 
a  tort  where  there  has  been  personal  injury  suffei-ed  by  the  negli- 


Sec.    5.]  PERSONAL    SECIRITY.    LIBERTY,    ETC.  397 

gence  or  wrongful  act  of  the  carrier,  or  the  agents  of  the  company; 
and  in  such  action  the  phiintiff  is  entitled  to  recover  according  to 
the  principles  pertaining  to  that  class  of  actions,  as  distinguished 
from  actions  on  contract.  And  this  is  the  settled  doctrine  and  prac- 
tice in  this  state.  Stockton  y.  Frey.  4  Gill.  406 :  Bait.  &  Ohio  R. 
Co.  V.  Blocher.  27  Ud.  277,  287 ;  Bait.  «S:  Yorktown  Turnpike  Co. 
V.  Boone,  45  Md.  344;  Stokes  v.  Saltonstall.  33  Pet.  181.  The 
motion  for  reargument  must  be  overruled. 

See  Bowers  v.  R.  R.,  107  N.  C.  721,  12  S.  B.  452,  inserted  at  ch.  4,  §  1, 
ante,  and  other  cases  cited  in  that  section.  Bowers  v.  R.  R.,  supra,  and 
Purcell  V.  R.  R.,  108  X.  C.  414,  at  p.  422,  12  S.  E.  954,  956,  fully  sustain  the 
principal  case.  See  also  14  L.  R.  A.  (N.  S.)  526,  and  note  (passenger  trav- 
eling under  illegal  contract);  14  lb.  464,  and  note  (passenger  to  whom 
wrong  ticket  has  been  sold  by  carrier's  agent);  9  lb.  1060,  and  note  (pas- 
senger submitting  to  ejection  to  lay  the  foundation  for  an  action);  5  Tb. 
1(112,  and  note  (failure  to  furnish  berth  on  a  boat);  8  lb.  880,  and  note 
(failure  to  stop  train  for  intending  passenger);  7  lb.  188,  9  lb.  1218,  21 
lb.  850,  and  notes  (loss,  etc.,  of  baggage). 


RAILROAD  CO.  v.  JONES,  95  U.  S.  439,  441-443.     1877. 
Negligence  and  Contri'btitory  Negligence  Defined. 

[Action  by  .Jones  to  recover  damages  resulting  from  the  alleged  negli- 
gtnce  ol  the  railroad  company.  Verdict  and  judgment  against  the  rail- 
road company,  and  it  carried  the  case  to  the  supreme  court  by  writ  of  er- 
ror.   Reversed. 

Jones  was  employed  as  a  laborer.  The  laborers  were  in  the  habit  of 
riding  on  the  pilot  of  the  engine,  when  they  chose  to  do  so.  although  there 
was  a  box-car  provided  for  them.  Jones,  while  riding  on  the  pilot,  was 
hurt  by  a  collision  with  some  box-cars  in  a  tunnel.  Jones  had  been  cau- 
tioned against  riding  on  the  pilot.  There  was  room  for  him  in  the  box 
car,  and,  if  he  had  been  in  that  car,  he  would  not  have  been  hurt.  The 
judge  was  requested  to  charge  that  Jones  could  not  recover  if  he  knew 
that  riding  on  the  pilot  was  dangerous  and  that  the  box-car  was  the 
proper  place  for  him.  The  refusal  to  give  this  instruction  is  the  point  in 
the  case.l 

Mr.  Justice   Swayne \s   to  contributory  negligence 

on  the  part  of  the  plaintiff. 

Negligence  is  the  failure  to  do  what  a  reasonabh;  and  prudent 
person  would  ordinarily  have  done  under  the  circumstances  of  the 
situation,  or  doing  what  such  a  person  under  the  existing  circum- 
stances would  not  have  done.  The  essence  oP  tlu'  fault  may  lie  in 
(unissinn  or  coiiimissioiL  The  duty  is  dictalt'd  and  measured  by  th(^ 
exigencies  of  Die  ocejision.  See  "Wharloii  (Ui  Xegligencc.  §  1,  and 
notes. 

One  who  by  liis  negligence  has  brought  an  injury  upon  liimself 
cannot  recover  damages  for  it.  Such  is  the  rule  of  tlie  civil  and  of 
th<'  eornnidn  law.  .\  pbiinlifT  in  such  cases  is  entitled  to  no  relief. 
But  where  the  defendant  has  been  guilty  of  negligence  also,  in  the 
same  connection,  the  result  depends  upon  the  facts.  The  question 
in  such  eases  is :   1 .   AVbefbir  the  ibimage  was  occasioned  entirely 


;{«)S  I'I'IK'SONAI,    SKCIKITN.    1 .1  Itl'.K'l' V  .    KTC.  \  (' ll .     'i . 

h\  the  lU'Lrlii^t'iicc  (ir  iiiipr(i[ti'i'  ('(iiidiii't  ol'  the  (Ii'IcikImiiI  ;  or. 
•J.  Wlu'tluM-  llif  phiiiililT  liiinsolf  so  fur  coiit  liluili'd  to  the  iiiist'or- 
tmu'  l)y  his  own  iic^liLrt'iicc  or  \\;iii1  of  onliiuiiy  ciU'c  ;iii(l  ciiution. 
that  l>ut  for  such  nct^lii^ciu'c  or  Wiiiil  of  (•;in'  mikI  ('nulioii  on  his 
part  tlu'  iiiisfoi-tuiit'  would  not  liavc  hapix'iicd.  In  I  lie  foi-mor 
oaso,  the  phiintitf  is  (MititUnl  to  rocovcr.  In  the  lattci-.  he  is  not. 
Tutr  V.  Waruian.  .")  ('.  li.  (X.  S.)  alii;  Huttcrlirl.l  v.  Forrester.  11 
Hast.  58;  Hriil^'o  v.  Grand  Junction  H.  Co..  'A  M.  &  W.  244;  Davis 
V.  .Alann.  10  lb.  'AVy-  CMavards  v.  Dothick.  12  Q.  ]i.  43!);  Van  Lien 
V.  Seoville  Manufacturing  Co..  14  Abh.  (X.  Y.)  Pr.  (X.  S.)  74; 
Inco  V.  Ea.st  lioston  Ferry  Co..  lOG  ]\Iass.  140. 

It  remains  to  apply  those  tests  to  tiie  case  before  us.  The  facts 
with  respect  to  the  ears  left  in  the  tunnel  are  not  fully  disclosed 
in  the  record.  It  is  not  shown  when  they  were  left  there,  how  long 
they  had  l)een  there,  when  it  was  intended  to  remove  them,  nor 
why  they  had  not  been  ivmoved  before.  It  does  a])pear  that  there 
was  a  watchman  at  the  tunnel,  and  that  he  and  the  conductor  of 
the  train  from  which  they  w'ere  left,  and  the  conductor  of  the  train 
which  carried  the  ])laintiflF.  were  all  well  selected,  and  coiiiix'tent 
for  their  places.  For  the  pui'poses  of  this  case,  we  assume  that  the 
defendant  was  guilty  of  negligence. 

The  plaintitf  had  been  warned  against  liding  on  the  pilot,  and 
foi-bidden  to  do  .so.  It  was  next  to  the  cowcatchei-.  and  obviously 
a  place  of  peril,  especially  in  case  of  collision.  There  was  room  for 
him  in  the  box  car.  Tie  should  have  taken  his  place  there.  He 
could  have  gone  into  the  box  car  in  as  little,  if  not  less,  time  than 
it  took  to  climb  to  the  pilot.  The  knowledge,  assent,  or  diivction  of 
the  company's  agents  as  to  what  he  did  is  immaterial.  If  told  to 
get  on  anywhere,  that  the  train  was  late,  and  that  he  must  hurry, 
this  w^as  no  .iustification  for  taking  such  a  i-isk.  As  well  might  he 
have  obeyed  a  suggestion  to  ride  on  the  cowcatcher,  or  ])ut  himself 
on  the  track  befoi'e  the  advancino;  wheels  of  the  locomotive.  The 
company,  though  bound  to  a  high  degree  of  care,  did  not  insure 
his  safety.  He  was  not  an  infant  nor  non  ccmipos.  The  liability 
of  the  company  was  conditioned  upcm  the  exercise  of  reasonable 
and  proper  care  and  caution  on  his  part.  AVithout  the  latter,  the 
former  could  not  arise.  lie  and  another  who  rode  beside  him  were 
the  only  persons  hurt  upon  the  train.  All  those  in  the  box  car, 
where  he  should  have  been,  were  unin.jured.  lie  would  have  es- 
caped also  if  he  had  been  there.  His  injury  was  duo  to  his  own 
lecklessness  and  folly.  lie  was  himself  the  ;inthor  of  his  misfor- 
tune. This  is  shown  with  as  near  an  approach  to  a  d(Miionstration 
as  anything  short  of  mathematics  will  permit.  The  case  is  thus 
clearly  brought  within  the  second  of  the  pi'cdicates  of  nnitual  neg- 
liyeiice  we  have  laid  down.  llick(y  v.  lioston  &  Lowell  H.  Co..  14 
Allen  (.Mass.)  420  -.  Todd  v.  Old  Colony  R.  Co.,  3  Id.  18 ;  K.  C.  7  Id. 
207;  Gavett  v.  M.  \:  L.  R.  Co..  If,  Gray  (Mass.).  501;  Lucas  v. 
X.  P..  &  T.  K.  Co.  (;  Id.  <;4:  Ward  v.  R.  Co..  2  Abb.  (X.  Y.)  I'r.. 
(X.  S.)  411  :  Gal.'na  i-  Chic.  Cn.  R.  Co.  v.  Yarwood.  15  111.  KiS ; 
Doggc-tt  V.  111.  Cent.  K.  Co..  :U  Iowa.  2S4. 


Sec.    J.]  PERSON.VL    SECURITY.    LIBERTY,    ETC.  399 

The  plaintiff  was  not  entitled  to  reeover.  It  follows  that  tlie 
court  erred  in  refusing  the  instruction  asked  upon  tliis  subject.  If 
the  companj'  had  prayed  the  court  to  direct  the  jury  to  return  a 
verdict  for  the  defendant,  it  would  luive  been  the  duty  of  the 
court  to  give  such  direction,  and  error  to  refuse.  Gavett  v.  ]\I.  & 
L.  R.  Co.,  supra;  Merchants'  Bank  v.  State  Bank.  10  Wall.  604; 
Pleasant  v.  Fant,  22  Wall.  121.    Judgment  reversed. 


't?' 


In  North  Carolina  the  defense  of  contributory  negligence  must  be  set 
up  by  answer.  Pell's  Revisal,  sec.  483,  and  notes;  Dorsett  v.  Mfg.  Co., 
131  X.  C.  at  p.  261,  42  S.  E.  612.  See  "Xegligence,"  Century  Dig.  §§  1,  3, 
4,  84;  Decennial  and  Am.  Dig.  Key  No.  Series  §§  1,  2,  80;  "Master  and 
Servant,"  Centurv  Dig.  §§  703,  786;  Dec.  and  Am.  Dig.  Kev  No.  Series 
§§  233,  245. 


DEAXS  V.  RAILROAD,  1U7  X.  C.  686,  12  S.  E.  77.    1890. 
Xegligence.     Contributory  Xegligence.    "Last   Clear  Chance."' 

[Plaintiff,  as  administratrix  of  B.  F.  Deans,  sued  for  damages  result- 
ing from  the  death  of  her  intestate,  caused  by  the  alleged  negligence  of 
the  defendant.  In  deference  to  an  intimation  from  the  judge,  the  plain- 
tiff submitted  to  a  nonsuit  and  ajjpealed.     Reversed. 

The  evidence  tended  to  prove  that  B.  F.  Deans  was  lying  upon  the 
track;  that  he  could  have  been  seen  by  the  engineer  in  time  to  stop  the 
train  before  reaching  him;  that  the  engineer's  attention  was  called  to 
Deans'  i)osition  in  time  to  have  stoi)ped  the  train,  etc.  The  judge  in- 
timated that  the  plaintiff  could  not  recover.  The  question  pi-esented  is: 
If  B.  F.  Deans  was  guilty  of  contributory  negligence,  but,  notwithstand- 
ing that  fact,  the  accident  could  have  been  avoided  if  the  railroad  com- 
jiany  had  exercised  proper  precaution,  can  the  plaintiff  recover?] 

AvERV.  J.  When  this  court,  in  the  case  of  Gimter  v.  Wicker,  85 
X.  C.  812.  adopted  the  rule  laid  down  in  Davies  v.  ^lann.  10  Mees. 
&  W.  04").  that  "notwithstanding  the  previous  negligence  of  the 
|)!aintiff.  if  at  the  time  when  the  injury  was  eommitled  it  might 
have  been  avoided  by  the  exercise  of  reasonable  care  and  prudence 
on  the  part  of  the  defendant,  an  action  will  lie  for  damages,"  it  was 
thenceforth  aligned  with  one  of  two  classes,  holding  widely  diver- 
trent  views  as  to  the  effect  of  contributory  negligeiK-e  on  the  part  of 
;i  jilaintitf.  under  certain  circumstances,  upnu  bis  right  of  recovery, 
riiat  ruling  has  been  expressly  appi-oved  in  a  laruc  inniil)er  of 
later  cases,  and  is  now  firmly  groimded  as  a  p.irl  of  <Mir  system,  in 
~>o  far  as  it  is  distinct  from  that  of  any  other  courts  where  the  com- 
nK)n  law  of  Kngland  prevails.  I^'ai-mi  r  v.  I\ailr(tad  Co.  KS  N.  C. 
"ttil;  Tui-reiitine  v.  Railroad  Co..  92  .X.  C.  (ioS  ;  .\\-eo('k  v.  Raih-oad 
Co..  H!)  \.  (•  :',i'l  :  Trov  v.  Railroad  Co..  99  N.  (".'2!IS.  (I  S.  Iv  Rep. 
77;  MeA(|o(.  V.  b'ailroad  Co..  10.",  X.  ('  1  10.  11  S.  Iv  K'ep.  I^C; 
Dailv  V.  Railroad  (Jo..  l()(i  X.  ('.  :;ol.  11  S.  Iv  K'ep.  :'.•_'();  Lav  v. 
liiiiir.^ad  Co..  1()()  N.  C.  404.  11  S.  Iv  Rep.  412;  liullock  v.  Rail- 
vn:u\  Co..  10.1  N.  C.  IKO.  10  S.  Iv  l{ep.  !)SS ;  C;irlton  V.  Railroad 
<•.,.  Kit  X.  (\  .805.  10  S.  K.  Rep.  51(1;  Wilson  v.  Railroad  Co..  !>0 
N'  ('.  ti!>.  S.-e.  al.so.  Wevmire  v.  W(»ire  52  Iowa.  5:i:r  :\  \.  W. 
K<'p.  5-11;  Railroad  Co.  v.  Kellam.  !I2  111.  2-15;  Meeks  v.  Railroad 


4U0  l'i;Kt^^t\  \i,  si'ci  ivi  i'\ .  i.inKiM'v,  ktc.  [Cli.  5. 

Co..  .'»ti  ("ill.  r>l;>:  l\('ii>(in  \.  Kiiilroiul  Co..  ,")  I  Inn.  \1\).  In  tho.se 
states  wlu'i-f  the  \('i\  opposite  view  was  lakm,  il  \v;is  iield  that 
wliere  one  went  u|>on  the  track  of  a  raili'oad  e(ini|)any  at  a  point 
other  than  a  i-rossini:.  w  here  the  pnl)lic  have  a  I'iiiht  of  way,  withouL 
special  lieeuse.  hf  was  a  trespasser  ami  conld  not  recover  for  any 
injui-y  intlieteii  upon  liini  thro\i«rh  the  ne<;liii:enee  of  sneh  eoiii- 
l^any's  airents  or  employes,  unless  it  was  wanton.  Mnlhei'rin  v. 
Kailroail  Co..  SI  Pa.  St.  ;{(i(i:  lu.unds  v.  liailroad  Co..  04  N.  Y.  129; 
reini.sylvania  Co.  v.  Sinclair.  (i'J  hid.  301:  Donaldson  v.  Railroad. 
Co..  21  Minn.  2!»3 ;  Keaeh.  Contrih.  Xeg.  5;  (i7  et  seq. ;  Express  Co.  v. 
Niehols.  WW  N.  J.  j^aw,  \W\.  In  deliverins;  tlie  oj^inion  in  ^lanly  v. 
Kailroad  Co..  74  N.  C.  655.  Justice  livNUM,  fort'shadowcd  by  an 
intimation  tlie  subsequent  adoption  by  this  court,  in  (Junter  v. 
^Vicker.  supra,  of  the  principle  stated  in  Davies  v.  ^Mann.  and  after 
it  had  been  ajiproved  in  so  many  well-eonsidercMl  opinions,  it  be- 
came appai-i'ut  that  it  would  l)e  illogical  and  inconsistent  to  adhere 
to  the  rule  laid  down  in  Herring  v.  Railroad  Co.,  10  Ired.  402.  or 
the  interpi'ctation  generally  given  to  Judge  Pe.\rson',s  language 
by  the  leading  text  writers  of  this  country.  In  that  ca.se.  the  en- 
gineer might  have  seen  two  little  negroes  who  Avere  lying  on  the 
track  asleep,  according  to  conflicting  testimony,  from  200  yards  to 
a  half  mile.  l)efore  his  engine  reached  them.  Pie  did  not  actually 
discover  that  the  children  were  asleep  till  he  was  within  twenty- 
five  or  tliirty  yards  of  them.  The  testimony  showed  also  that  the 
train  could  have  been  stopped  by  the  engineer  within  from  seven- 
ty-five to  one  hundred  yards.  The  judge  below  charged  the  jury 
that  the  railroad  company  was  not  liable  for  the  neglect  of  the  en- 
gineer to  keep  a  lookout  ahmg  the  track,  except  when  he  was  ap- 
proaching a  crossing  of  a  public  road  over  the  railway,  and  was 
not  responsible  for  his  failure  to  use  the  appliances  at  his  com- 
mand to  stop  the  train,  until  he  actually  saw  the  children  asleep 
on  the  track,  at  a  distance  of  twenty-five  or  thirty  yards.  This  in- 
struction was  sustained  by  the  court  in  the  face  of  the  fact  that 
counsel  for  the  plaintiff  cited  and  relied  upon  Davies  v.  Mann, 
supra,  and  the  court  failed  even  to  advert  to  the  doctrine  laid 
down  in  that  case.  It  must,  therefore,  have  been  the  settled  pur- 
pose of  this  court,  when  the  doctrine  of  Davies  v.  Mann  was  ap- 
proved, to  modify  this  rule,  whenever  the  point  should  be  plainly 
presented,  and  that  contingency  has  7iever  arisen  until  the  present 
time.  We  have  reiterated  the  ])rinciple  that,  where  an  engineei- 
sees  a  human  being  walking  alone:  or  across  the  track  in  front  of 
his  engine,  he  has  a  right  to  assume  without  further  information 
that  he  is  a  reasonable  ]x»rson.  and  will  step  out  of  the  way  of 
harm  before  the  engine  reaches  him.  .McAdoo  v.  Railroad  Co..  105 
N.  C.  153.  11  S.  E.  Rep.  316:  Daily  v.  Railroad  Co..  supra;  Parker 
V.  Railroad  Co.,  86  N.  C.  221.  It  is  not  negligence  in  an  engineer 
tri  act.  in  th(^  absence  of  specific  information,  on  the  presumption 
that  a  man  who  is  apparently  awake  and  is  moving,  is  in  full 
possession  of  all  of  his  senses  and  faculties.  But  it  has  been  re- 
peatedly held  liy  this  court  that  it  is  the  duty  of  an  engineer,  while 
running  an  engine,  to  keep  a  careful  outloolc  ahmg  the  track  in 


Sic.    5.]  PERSONAL    SECURITY.    LIBERTY.    ETC.  401 

order  to  avoid  or  avei-t  danger,  in  case  he  sliall  discover  any  ob- 
struction in  his  front,  whether  at  a  crossing  or  elsewhere.  Bul- 
lock V.  Railroad  Co..  supra;  Carlton  y.  Railroad  Co..  supra;  "Wil- 
son V.  Raili'oad  Co..  supra.  If  the  engineer  diseoYer.  or  by  rea- 
sonable watchfulness  may  discover,  a  person  lying  upon  the  track 
asleep,  or  badly  intoxicated,  or  see  a  human  being  who  is  kno\\Ti 
by  him  to  be  insane,  or  otherwise  insensible  to  danger,  or  unable  to 
avoid  it.  upon  the  track  in  his  front,  it  is  his  duty  to  resolve  all 
doubts  in  favor  of  the  preservation  of  life,  and  inunediately  use 
every  available  means,  short  of  imperiling  the  lives  of  passengers 
on  his  train,  to  stop  it.  Railroad  Co.  v.  ^Miller.  25  Mich.  279; 
Railroad  Co.  y.  St.  John.  5  Sneed.  524:  Railroad  Co.  v.  Smith.  52 
Tex.  ITS;  Isbell  v.  Railroad  Co..  27  Conn.  393;  Meeks  v.  Railroad 
Co.,  56  Cal.  513.  For  similar  reasons  we  have  held  that  the  test 
of  negligence,  where  live  stock  are  killed  or  injured  by  a  train,  is 
involved  in  the  question  whether  the  engineer,  by  keeping  a  proper 
lookout,  could  have  discovered  the  animal  in  time  to  have  pre- 
vented the  injury.  Carlton  v.  Railroad  Co.  and  Wilson  v.  Rail- 
road Co..  supra.  In  Bullock  v.  Railroad  Co.  the  same  criterion  was 
applied,  where  it  was  alleged  that  an  engineer  might  have  discov- 
ered that  a  wagon  was  stalled  at  a  crossing  in  time  to  prevent  in- 
jury by  stopping  his  train. 

We  think  that  his  honor  erred  in  declaring  the  testimony  in- 
sufficient in  any  aspect  of  it  to  warrant  the  inference  on  the  part 
of  the  jury  that  the  defendant  might  have  prevented  the  injurj- 
by  the  exercise  of  ordinary  care.    There  must  be  a  new  trial. 

The  principal  case  is  approved  in  Daniel  v.  R.  R.,  145  N.  C.  51,  58  S. 
E.  601.  The  doctrine  of  the  case  is  called  the  doctrine  of  the  "last  clear 
chance,"  in  McLamb  v.  R.  R.,  122  N.  C.  at  mid.  p.  873,  29  S.  E.  894.  ^^^lat 
are  the  proper  issues  to  be  submitted  to  the  jury  when  this  doctrine 
arises  in  a  case,  is  discussed  in  Baker  v.  R.  R.,  US  N.  C.  at  p.  1021,  24  S. 
E.  415,  and  Curtis  v.  R.  R.,  130  X.  C.  437,  41  S.  E.  929.  See  also  Pickett 
V.  R.  R.,  117  N.  C.  616,  23  S.  E.  264,  30  L.  R.  A.  257,  52  Pac.  92,  40  L. 
R.  A.  172,  7  L.  R.  A.  (N.  S.)  132,  17  lb.  707,  for  further  discussion  of  the 
doctrine  of  the  last  clear  chance.  See  "Railroads,"'  Century  Dig.  §§  1324, 
1325;    Decennial  and  Am.  Dig.  Key  No.  Series  §  390. 


MITCHELL  V.  ROCHESTER  R.  CO.,  151    X.  Y.  KiT,  45  X.  E.  354.  34  L. 

R.  A.  781.     1896. 

Actiotis  for  Fright  Caused  by  'Negligenre. 

I  Plaintiff,  Annie  Mitchell,  sued  to  recover  damages  caused  by  the  al- 
leged negligence  of  the  defendant.  .Judgment  against  dcfcndnnt  De- 
fendant apit*>aled.     Reversed. 

The  pvidfncc  tended  to  prove  that  )h<  plaintiff  came  near  to  l)Ping 
run  over  in  the  street  by  the  defendants  team;  that  the  defendant  was 
negligent;  that  the  i)laintiff  was  greatly  frightened  and  suffered  a  mis- 
carriage in  consequence  of  such  fright — that  the  mental  shock  she  re- 
ceived i)rodu<ed  the  miscarriage  and  attendant   illness.] 

^r.MJTlN.    J.      .      .      .      vXssumiiiL'    lliaf     tin-    evidence    tended    to 
show  that  the  defendant's  servant   was  neir!i<r<'nt    iit  the  inanage- 
RemrdiPS— 26. 


402  I'KHSDNAi,  si'XM  Kii"! .  i.iniavr\.  i;tc.  |(7/.  ."i. 

liu'iit  til'  llif  f;ir  ;iiul  horses,  jiiid  IIkiI  tlic  |)l;iiiit  ilT  \\;is  I'rcc  IVom 
i-(iMtril)iit(iry  ncirliiit'iicr.  ilw  siiitrlc  (|iu'slioii  prcsciilcd  is  wlicllicr 
till'  pl.'iint  itV  is  I'litilicd  to  rccovi'i"  i'of  the  (Icrciulaiit 's  iiPfi-lijit'iicc 
whii'li  ooi'.isioiuHl  litM"  fright  .iiid  ;d;iiMn.  ;ind  ri'sidlcd  in  llir  injiirit's 
alreatly  iiicutioiicil.  While  I  he  .nil  liorit  ies  ;ire  nol  iianiionious 
upon  this  (|iu'stioii.  \\i'  tliiiik  tlie  most  relial)ie  and  hettei'-consid- 
erod  oases,  as  well  as  puhlie  ])olie\'.  iHlly  justify  us  in  lioliliuf^  that 
the  plaintifY  eannot  rei-ovec  I'nr  injuries  oeeasioned  by  frifilit,  as 
tliere  was  no  innnodiate  personal  injury.  Lehman  v.  Railroad  Co., 
47  Nun,  355;  Connnissioners  v.  Coultas,  13  App.  Cas.  222;  Ewin<; 
V.  Kailway  Co..  147  Pa.  St.  40.  2;{  Atl.  ;U(».  'the  learned  counsel 
for  the  respondent  in  his  brief  very  ])roperly  stated  that  "the  con- 
sensus of  oi>inion  would  seem  to  be  that  no  recovery  can  be  had  for 
mere  fright. "as  will  be  I'eadily  seen  by  an  examination  ot  tin;  fol- 
lowing additional  anthorities:  Ilaile  v.  Kailroad  Co..  GO  Fed.  557, 
9  C.  C.  A.  134;  Joeh  v.  Daidvwardt,  85  III.  331 ;  Canning  v.  Inhabit- 
ants of  Williamstown.  1  Cush.  451  ;  Telegraph  C'o.  v.  Wood,  6  C. 
C.  A.  432,  57  Fed.  471 ;  Renner  v.  Canfield.  3G  :\Iinn.  90,  30  N.  W. 
435;  Allsop  V.  Allsop.  5  Hurl.  &  N.  534;  Johnson  v.  Wells  Fargo  cSi 
Co.,  6  Nev.  224;  Wyman  v.  Leavitt,  71  Me.  227.  If  it  be  admitted 
that  no  recovery  can  be  had  for  fright  occasioned  ])y  the  negligenc(! 
of  another,  it  is  somewliat  difficult  to  understand  how  a  defendant 
would  be  liable  for  its  consequences.  Assuming  that  fright  cannot 
form  the  basis  of  an  action,  it  is  obvious  that  no  recovery  can  be 
had  for  injuries  resulting  therefrom.  That  the  result  may  be  nerv- 
ous disease,  blindness,  insanity,  or  even  a  nusearriage.  in  no  way 
changes  the  principle.  These  results  merely  show  the  degree  of 
fright,  or  the  extent  of  the  damages.  The  right  of  action  must 
still  depend  upon  the  question  whether  a  recovery  may  be  had  for 
fright.  If  it  can.  then  an  action  may  be  maintained,  however  slight 
the  injury.  If  not,  then  there  can  be  no  recovery,  no  matter  how 
grave  or  serious  the  conse<iuenees.  Therefore  the  logical  result  of 
the  respondent's  concession  would  seem  to  be,  not  only  that  no  re- 
covery can  be  had  for  mere  fright,  but  also  that  none  can  be  had  for 
injuries  which  are  the  direct  consequences  of  it.  If  the  right  of  re- 
covery in  this  cla.ss  of  cases  should  be  once  established,  it  would  nat- 
urally result  in  a  flood  of  litigation  in  cases  where  the  injury  com- 
plained of  may  be  easily  feigned  without  detection,  and  where  the 
danuiges  nuist  rest  upcm  mere  conjecture  or  speculation.  The  dif- 
ficulty which  often  exists  in  cases  of  alleged  physical  injury,  in  de- 
termining whether  they  exist,  and,  if  so.  whether  they  were  caused 
by  the  negligent  act  of  the  defendant,  would  not  only  be  greatly  in- 
creased, but  a  wide  field  would  be  opened  for  fictitious  or  specula- 
tive claims.  To  establish  such  a  doctrine  would  be  contrary  to 
principles  of  public  policy.  Moreover,  it  eannot  be  properly  said 
that  the  plaintiff's  miscarriage  was  the  proximate  result  of  the  de- 
fendant's negligence.  Proximate  damages  are  such  {is  are  the  or- 
dinaiy  and  natural  results  of  the  negligence  charged,  and  those 
that  are  usual,  and  may.  therefore,  be  expected.  It  is  quite  obvious 
that  the  plaintiff's  injuries  do  not  fall  witbiti  llie  rule  as  to  proxi- 


Sec.    5.]  PERSONAL    SECURITY.    LIBERTY,    ETC.  403 

]iiate  damages.  The  injuries  to  the  plaintiff  were  phiinly  the  re- 
sult of  an  accidental  or  unusual  combination  of  circumstances, 
which  could  not  have  been  reasonably  anticipated,  and  over  which 
the  defendant  had  no  control,  and  hence  her  damages  were  too  re- 
mote to  justify  a  recovery  in  this  action.  These  considerations 
lead  to  the  conclusion  that  no  recovery  can  be  had  for  injuries  sus- 
tained by  fright  occasioned  by  the  negligence  of  another,  where 
there  is  no  immediate  personal  injury.  The  orders  of  the  general 
and  special  terms  should  be  revei*sed,  and  the  order  of  the  trial 
term  granting  a  nonsuit  affii-mod.  with  costs. 

For  whether  or  not  a  recovery  can  be  had  although  no  injury  result 
except  that  caused  by  fright,  see  Nowell  v.  Whitcher,  53  Vt.  589,  and  note, 
inserted  at  sec.  4,  ante;  Mack  v.  R.  R.,  29  S.  E.  905,  40  L.  R.  A.  679.  See 
also  on  this  subject  the  elaborate  note  in  3  L.  R.  A.  (N  S.)  49,  and 
Armour  v.  Kollmeyer,  88  C.  C.  A.  242,  16  L.  R.  A.  (N.  S.)  1110.'  See 
•Damages,"  Century  Dig.  §  1000;  Decennial  and  Am.  Dig.  Kev  No.  Series 
§  52. 


SO  RELLE  V.  WESTERN  UNION  TEL.  CO.,  55  Tex.  308,  40  Am.  Rep 

805.      1881. 

Mental  Anguish  Doctrine. 

[Plaintiff  sued  for  damages  resulting  from  the  negligence  of  defendant 
in  not  delivering  a  telegram  which  announced  the  death  of  the  plain- 
tiffs mother.  Judgment  against  plaintiff.  Plaintiff  appealed.  Reversed. 
The  facts  appear  in  the  opinion.] 

W.VTTS.  J.  The  question  presented  by  the  record  is  as  to  the  lia- 
bility of  a  telegraph  company  for  injury  resulting  to  the  feelings 
of  a  person  from  the  wilful  neglect  of  the  agents  of  the  company 
to  transmit  and  deliver  a  message  announcing  the  death  of  such 
person's  mother,  and  ref|uesting  his  presence  at  the  funeral,  etc. 
This  question  results  fi-om  the  I'uling  of  the  court  below  in  sus- 
taining exceptions  to  tlie  petition. 

[FACTS.]  The  allegations  contained  in  the  petition  are,  in  ef- 
f<;ct,  that  appelhint's  mother  died  on  the  Ifith  day  of  January, 
1874,  near  the  town  of  (Jiddings;  that  on  that  day.  W.  M.  Scallorn, 
a  near  relaliv  i)repared  tin  message  and  drlivcicd  the  same  to  the 
company's  agent  at  said  towiL  to  be  i))'<)iiii»jly  ti'ansmitted  and  de- 
livered to  appellant  at  Austin,  and  that  the  chai'gc*  foi'  such  sim'v- 
••e  was  then  paitl  tn  sueli  agent;  that  the  agents  of  this  company 
did  not  transmit  and  e;iuse  smdi  message  to  be  delivereil  lo  apjx'l- 
Jant  v.'ithin  a  reji.sonable  time,  notwithstanding  he  was  in  the  city 
"f  Austin  and  at  his  usual  place  of  l)usiness;  hut  wilfully  neglected 
I'ld  failr-d  so  to  do  for-  several  days  after  the  date  aforesaid,  and 
liaf  liy  rejison  of  siidi  wilful  neglect  and  failure  he  was  prevented 
Iroiii  being  [tresent  at  the  funeral  services  of  his  mother  and  pro- 
vidimr  foi-  hei'  remains  being  properly  cared  fni*.  and  fi-om  paying 
to  lier  the  hist  tr-ibule  of  respect,  etc..  claiming  that  he  was  thereby 
injured  ;m«l  dania^cd  in  the  sum  of  ^oO.OOO. 

Actual   damages   ai'e  either   general    or   special,    the    forniei-   are 


404  I'KKsoNAi,  yKcrini'v.  i.ii!i:iv"i'n  .  I'/rc.  \Ch.  5. 

s\w]\  ;is  iiittufallv  result  I'l-diu  the  ;ii't  (■onipl.-iiiici]  ol'.  oi  uhicli  tli(> 
law  iinplii's  tluM-i'I'i-oiii.  ;iiul  need  not  Itc  spcri.illy  |)lc;i(l('(l,  hut  may 
bo  rofovorcd  luidcr  the  <r»'nrial  avci  iiicnl  ol'  daniaffcs.  'J  Scd^.  ou 
DiUii.  <>()().  It  appears  to  Itr  the  settled  rulr  in  this  state,  that  in- 
jury to  tlie  t'eelinirs.  eaused  l)y  the  wilful  )ie^deet  oi'  i'ault  of  an- 
other, constitutes  sueli  aetual  daniaj^es  Tor  which  a  i-eeovery  may  bo 
bad.  Hays  v.  11.  &  G.  N.  R.  Co..  4()  Tex.  27!) ;  11.  &  G.  N.  R.  Co.  v. 
Randall.  50  Tex.  2(il.  Tn  the  last  edition  of  Shearman  &  Redfield 
on  Xe<rlit:ence.  at'tiM*  fully  considei-iuii-  th(>  measun^  of  dama^'es. 
etc..  in  telei^raph  eases,  tlie  authors  ^ivi'  it  as  their  opinion,  that 
"in  ca.se  of  delay  or  total  failure  of  delivery  of  messages  relating 
to  matters  not  eonnoeted  with  business,  sneb  as  personal  or  do- 
mestic matters,  we  do  not  tbiidc  that  the  company  in  fault  ouglit 
to  escape  with  mere  nominal  damages,  on  account  of  tlu;  want  of 
strict  eonnneroial  value  in  such  mes.sages.  Delay  in  the  announce- 
ment of  a  death,  an  arrival,  the  straying  or  recovery  of  a  child, 
and  the  like,  may  often  be  ])roduetive  of  an  injury  to  the  feelings 
■which  cannot  be  easily  estimated  in  money,  but  for  which  a  jury 
should  be  at  liberty  to  award  fair  damages." 

It  appears  to  us  that  the  natural  conseciuences  of  a  failure  to 
promptly  transmit  and  deliver  a  message  like  that  in  this  case,  and 
under  the  circumstances  shown  in  appellant's  ]>etition,  is  to  j)i'o- 
duce  the  keenest  .sense  of  grief  incident  to  a  disai)j)ointment.  For 
it  is  a  principle  of  our  nature,  implanted  in  the  bosom  of  evei-y 
reasonable  being  not  devoid  of  human  sensibilities,  to  promptly 
pay  the  last  tribute  of  respect  to  the  mother  who  boi-e  and  fostered 
us.  And  to  be  thwarted  in  the  discharge  of  this  duty,  ])romi)ted 
as  it  is  by  natural  desire,  by  the  wilful  fault  or  neglect  of  one 
whose  business  it  is  to  communicate  the  news,  and  who  has  received 
his  comi)ensatioii  therefor,  in  the  very  natui'c  of  tliijigs  is  calcu- 
lated to,  and  will  inflict  upon  the  mind  the  sorest  sum  of  disap- 
pointment and  sorrow.  This  being  the  natural  result  of  such  neg- 
lect, the  damages  resulting  therefrom  are  general,  as  contradistin- 
guished from  special  damages,  and  may  be  recovered  under  the 
general  averment  of  damages.  Tn  the  case  of  Phillips  v.  IToyle. 
4  Gray.  568.  it  was  held  that  injury  to  the  feelings  of  a  parent  in 
conser|uence  of  the  seduction  of  his  daughter  constituted  gener-rd 
damages  luitui'ally  I'esulting  from  the  act.  and  need  not  be  spe- 
cially pleaded.  A  similar  doctrine  is  asserted  by  the  Supreme 
Court  of  the  United  States,  in  the  ca.se  of  Roberts  v.  Graham,  6 
Wall.  578. 

This  being  the  natural  result  of  such  neglect,  it  must  be  held  to 
have  been  contemplated  by  the  company  when  its  agent  received 
the  message,  and  agreed,  for  a  compensation  then  paid,  to 
promptly  transmit  and  cause  the  same  to  be  delivered.  For  all  the 
importance  that  the  message  imports  is  fairly  shown  \n  its  terms. 

Telegraph  companies  exercise  and  enjoy  special  franchises  and 
privileges  under  the  law;  the  very  purpose  of  their  organization 
is  to  furnish  for  compensation  the  means  of  rapid  and  prompt 
comnnmcation  ;  its  use  is  expensive,  and  is  rarely  resorted  to  except 


Sec.    5.]  PERSONAL    SECURIXr.    LIBERTY,    ETC.  405 

in  matters  of  importance  to  the  parties.  Hence  the  resort  to  this 
mode  of  transmitting  information  should  of  itself  he  held  suffi- 
cient notice  to  the  company's  agents,  that,  as  between  the  sender 
and  the  party  to  whom  sent,  the  message  is  deemed  to  be  of  some 
importance,  unless  the  contrary  is  made  known  by  strict  informa- 
tion or  strong  implication,  as  time  is  the  usual  consideration  that 
prompts  the  parties  to  the  use  of  the  wire. 

The  law  will  not  permit  any  one  to  impose  with  impunity  upon 
another,  by  his  wilful  fault  or  neglect,  such  injury  to  his  feelings  as 
is  the  natural  result  from  the  disappointment  shown  by  the  allega- 
tions of  appellant's  petition,  and  then  protect  himself  under  the 
plea  of  damnum  abs(|ue  injuria.  Injury  to  the  feelings,  resulting 
from  such  disappoint  inent.  in  our  o])inion  constitutes  general  dam- 
ages, recoverable  under  a  general  averment  of  damage;  and  the 
court  erred  in  sustaining  the  exceptions  to  appellant's  petition. 
Tt  should  be  nMuarked  that  great  caution  ought  to  be  observed  in 
the  trial  of  cases  like  this;  as  it  will  be  so  easy  and  natural  to  eon- 
found  the  corroding  grief  occasioned  by  the  loss  of  the  parent  or 
other  relative  with  the  disappointment  and  regret  occasioned  by 
the  fault  or  neglect  of  the  company;  for  it  is  only  the  latter  for 
which  a  recovery  may  be  had;  and  the  attention  of  juries  might 
well  be  called  to  that  fact.  It  is  our  conclasion  that  the  proper 
disposition  of  this  appeal  is  to  reverse  the  judgment  and  remand 
the  case.     Reversed. 

For  authorities  sustaining  the  doctrine  of  the  principal  case,  see 
Young  V.  Tel.  Co.,  107  X.  C.  370,  11  S.  E.  1044;  Green  v.  Tel.  Co.,  136  N. 
C.  489,  49  S.  E.  165.  For  the  opposite  ruling,  see  West.  Un.  Tel.  Co.  v. 
Ferguson,  157  Intl.  64,  60  X.  E.  674,  where  all  the  authorities  on  the  sub- 
ject are  cited  in  the  opinion  and  dissenting  opinion,  and  43  S.  W.  96o, 
39  L  R  A.  463.  Green  v.  Tel.  Co.,  supra,  reviews  all  the  cases,  by  states. 
See  also  8  U  R.  A.  (X.  S.)  249,  11  lb.  497,  12  lb.  886.  14  lb.  499.  927, 
15  lb.  277,  19  lb.  374,  475,  575,  23  lb.  648,  and  notes  (in  telegram  cases); 
12  lb.  184,  and  notes  (expulsion  of  passenger  from  vehicle);  3  lb.  225, 
and  note  (lo.ss  of  intended  bride's  trunk);  6  lb.  883,  and  note  (mutilation 
of  corpse);  2  lb.  898,  7  lb.  518,  and  notes  (of  parents  for  injur.v  or  death 
of  child);  14  lb.  1242,  and  note  (exclusion  from  place  of  amusement);  16 
lb.  674,  and  note  (of  husband  in  cases  of  crim.  con.);  17  lb.  594,  and  note 
(Injurv-  to  pregnant  woman);  13  lb.  159,  and  note  (verbal  abuse  of  pas- 
senger); 19  lb.  409,  and  note  (how  proven);  19  lb.  500,  and  note  (on 
account  of  another's  sufferings);  19  lb.  564,  and  note  (for  breach  of  con- 
tract to  transport  a  corpse);  19  lb.  575,  and  note  (failure  of  telegraph 
oompan.v  to  transmit  money  for  preparing  a  corpse  for  burial);  15  lb. 
775,  and  note  (contemplation  of  mutilated  cori)se);  20  lb.  458,  and  note 
(passenger's  apprehension  of  consumption  from  silting  in  a  cold  receii- 
tlon  room  at  a  railroad  station).  See  "Telegrai)hs  and  Telephones," 
Century  Dig.  §5  55,  69,  70;  Decennial  and  Am.  Dig.  Key  No.  Series 
55  65.  68. 


400  PERSONAL    SECrUllV.    I.IUKIM'V.    ETC.  [Cll. 


ISki'.  (i.     iN.irinKsTo  IIkai.tii. 

Injuries  affecting'  a  iiiiiiis  hcnllli  iiro  wrongs  or  injuries  iniac- 
coiupanied  by  force,  I'or  whii-li  there  is  ;i  vi'iiu'dy  in  (laina}j;es  l)y 
special  artitui  on  th(>  case.     3  HIk.  *122. 


STORY  V.  HAMMOND.  4  Ohio,  376.     1831. 
Sickness  of  an  Individual  Caused  hy  a  Public  Nuisance. 

[Action  on  the  case  to  recover  special  damages  sustained  by  the  i)lain- 
tiff  in  consequence  of  defendant's  mill  pond.  Verdict  against  defendant. 
Defendant  moved  for  a  new  trial,  and  it  is  upon  that  motion  the  opinion 
is  written.    The  motion  was  overruled.    The  facts  appear  in  the  opinion.] 

By  the  Court.  ...  No  other  evidence  was  admitted  on 
the  trial  than  to  show  the  sickness  of  tlie  plaintitf,  and  that  of  his 
wife  and  children  whom  lie  was  bound  to  .support.  It  appeared 
upon  the  trial,  that  not  <mly  the  plaintilf  and  his  family,  but  the 
neighborhood,  generally,  siift'ered  much  sickness  and  disease,  oc- 
casioned by  the  defendant's  milldam,  and  it  is  insisted  that  this 
general  injury  is  a  legal  bar  to  the  recovery  of  individual  damages. 
We  consider  it  unnecessary  to  determine  whether  the  injury  com- 
plained of  belongs  to  the  class  of  public  or  private  nuisances,  as 
defined  by  the  connnon  law.  Every  member  of  society  is  bound, 
by  the  principles  of  natural  justice,  so  to  use  his  own  property  as 
not  to  injure  the  rights  of  others.  If  an  individual  erects  a  mill- 
dam  which  creates  disease  and  sickness,  he  mnst  be  responsible  for 
the  consequences. 

The  defense  set  up  is  entirely  without  foundation.  If  a  man 
were  to  sally  forth  into  the  public  streets  of  a  town  and  connnit  an 
assault  and  battery  upon  every  person  he  met,  it  would  hardly  be 
competent  for  him,  in  a  suit  by  an  individual  for  special  damages, 
to  set  np  as  a  defense  that  he  had  not  only  beat  the  plaintiff,  but 
had  also  beat  the  whole  town.  Or,  if  a  man  were  to  poison  a  reser- 
voir of  water,  for  the  supply  of  a  city,  and  thereby  create  a  general 
sickness  among  the  inhabitants,  it  would  not  be  seriously  con- 
tended that  the  magnitude  of  the  offense  was  a  bar  to  a  private 
action;  or.  in  other  words,  that  the  defendant  might  excidpate 
himself  by  pi-oving  that  he  had  not  only  poisoned  the  plaintiff,  but 
had  poisoned  all  the  inhabitants  of  the  city.  There  is  no  founda- 
tion in  the  objection  that  the  civil  action  Avas  merged  in  the  indict- 
ment. In  England,  actions  of  trespass  or  tort,  in  certain  cases, 
were  held  to  be  merged  in  the  felony.  But  this  rule,  it  seems,  did 
not  operate  after  the  offender  was  brought  to  justice.  1  Bac.  Abr. 
99;  4  Term,  333.     :\rotion  overruled. 

For  instances  of  recovery  in  cases  similar  to  the  principal  case,  see 
Downs  V.  High  Point.  11.5  N.  C.  182.  20  S.  E.  385;  McManus  v.  R.  R.,  150 
N.  C.  655,  64  S.  E.  766.  See  ch.  3,  sec.  12.  See  "Nuisance,"  Century  Dig 
§§  164-169,  185;  Decennial  and  Am.  Dig.  Key  No.  Series  §§  72.  76. 


Sec.    6.\  PERSONAL    SECURITY,    LIBERTY.    ETC.  407 


STATE  V,  MONROE,  121  X.  C.  677,  28  S.  E.  547,  43  L.  R.  A.  861.     1897. 
Administering  Croton  Oil  in  Jest. 

[Indictmeut  for  assault  and  batte^J^  Defendant  convicted,  and  he  ap- 
pealed. Affirmed.  The  defendant  sold  a  drop  of  croton  oil  to  a  cus- 
tomer knowing  that  it  was  to  be  administered  to  another  in  jest.] 

Faircloth,  C.  J.  Will  Horn  administered  to  Ernest  Barrett  a 
dose  of  croton  oil,  and  the  oil  had  an  injtirious  effect  on  Barrett. 
Defendant  admits  he  sold  the  oil  to  Horn,  and  at  his  request 
dropped  it  into  a  piece  of  candy,  but  says  he  did  not  Imow  that 
these  parties  were  playing  practical  jokes  on  each  other,  and  did 
not  know  for  what  purpose  Horn  wanted  the  oil.  Another  witness 
testified  that  defendant  said  that  Horn  said  he  wanted  the  oil  ' '  for 
a  fellow."  Defendant  denied  saying  this.  Another  witness  testi- 
fied to  the  (luinine  ei)isodc.  and  to  Barrett's  and  Horn's  tricks  with 
each  other.  Defendant  testified  that  he  knew  that  a  daj^  or  two 
before  Horn  had  given  I^arrett  a  dose  of  quinine  as  a  joke,  in  lem- 
onade. There  were  other  witnesses  on  these  matters.  Defendant 
is  indicted  for  an  assault  on  Barrett.  If  guilty,  he  must  be  so  as  a 
principal,  not  as  an  accessory.  His  guilt,  then,  depends  upon 
whether  he  knew,  or  had  reason  to  believe,  that  the  dose  was  in- 
tended for  ]5arrett  or  some  other  person  as  a  trick,  and  not  for 
medicinal  pui-poses.  The  whole  evidence  was  submitted  to  the 
jury,  who  rendered  a  verdict  of  guilty.  His  honor  instructed  the 
jurj'  that  when  the  defendant  sold  the  oil,  if  he  "knew  or  had 
every  reason  to  believe,  and  did  believe,  that  it  Avas  intended  for 
Barrett  or  some  otlier  person  by  way  of  a  trick  or  a  joke,  and  not 
for  a  medicinal  purpose,  the  defendant  would  be  guilty  of  assault 
and  battery."  He  also  charged  that  it  was  not  necessary  that  it 
should  be  a  poisonous  or  deadly  dose ;  that  it  was  sufficient  if  it  was 
;m  uiuisual  dose,  likely  to  produce  serious  injury.  To  this  instruc- 
fion  we  se(;  no  objection,  and  we  think  it  covers  the  substance  of 
the  defendant's  prayers  proper  to  go  to  the  jury.  There  was  no 
exception  to  the  evidence.  For  duties  of  druggists,  see  Code, 
^5  3143  3145.    Affirmed. 

See  L3  L.  R.  A.  (X.  S. )  646,  and  note.  See  "Assault  and  Battery,"  Cen- 
iiiry  Dig.  §§  68-74;  Decennial  and  Am.  Dig.  Key  No.  Series  §  48. 


RISFIOP  V.  WEBER.  139  Mass.  411,  1  N.  E.  154.     1885. 
lintl  Provisions  Sold' at  a  Public  Function.    Want  of  Privity. 

[Action  of  tort  fnr  damages  resulting  from  bad  provisions  t'liniislicd 
hy  the  defendant  as  caterer  at  a  |)ublic  ball.  Demurrer  by  defendant  sus- 
tained,    .ludgmcnt  against   plaintiff,  and  he  appealed. 

The  romplaitit  alleged:  That  defendant  was  employed  to  act  as  caterer 
at  a  public  ball  and  ditl  act  as  such;  that  plaintiff  was  rightfully  at  the 
hnll  and  bongbt  from  fbo  defendant,  and  priid  tlierefor,  certain  provisions 
wbich  made  the  i)]aintiff  sicl<:  that  the  food  was  unwholesome,  improperly 
find  negligently  prepared,  jjoisonoiis,  dangerous,  and  unfit  to  be  eaten.  The 


4()^>  rKKsd.NAi.  sl•xM■^'lT^ .  i.iHKirrv.  ktv.  \('Ii.  .". 

prhicipal  ground  of  deimnrer  was,  that  the  roini)hiint  failed  to  allege  any 
duty  or  lolation  of  tlio  defendant  to  the  plaintiff  for  the  l)reach  of  which 
the  plaintiffs  action  wouhl  lie;  thai  it  failed  to  allege  any  wrongful  act  or 
omission  of  duty  i)y  the  defendant  for  which  lie  could  he  held  liahie  to 
the  plaint  itr.  I 

Allex,  J.  If  one  who  lioUls  hiinscll"  out  to  the  public  as  a  ca- 
terer, skilled  ill  providiiiiz'  ami  i)fepariii^  food  for  eiitcrtaiinnents, 
is  employed  as  such  by  those  who  ai-raiijre  for  an  enterlainmcnl,  1o 
furnish  food  and  drink  for  all  wlm  may  attend  it.  and  if  he  umlcr- 
takes  to  j^erform  the  services  accordingly,  he  stands  in  such  a  rela- 
tion of  ihity  towards  a  person  who  lawfully  attends  the  entertain- 
ment and  partakes  of  the  food  furnisiied  by  him  as  to  be  liable  to 
an  action  of  tort  for  negligence  in  furnishing  tmwholesome  food 
whereby  such  person  is  injured.  The  liability  does  not  rest  so 
umch  upon  an  implied  contract  as  upon  a  violation  or  neglect  of  a 
duty  vohuitarily  assumed.  Indeed,  where  the  guests  are  enter- 
tained without  pay.  it  would  be  hard  to  establish  an  implied  con- 
tract with  each  individual.  The  duty,  however,  arises  from  the  re- 
lation of  the  caterer  to  the  guests.  The  latter  have  the  right  to 
assume  that  he  will  furnish  for  their  consumption  provisions  which 
are  not  unwholesome  and  in.jiu'ious  through  any  neglect  on  his 
part.  The  furni.shing  of  provisions  which  endanger  human  life  or 
health  stands  clearly  upon  the  .same  ground  as  the  administering 
of  improper  medicines,  from  which  a  liability  springs  irrespective 
of  any  privity  of  contract  between  the  parties.  Norton  v.  Sewall, 
106  Mass.  U4:  Longmeid  v.  Holliday,  6  Exch.  767;  Pippin  v. 
Sheppard,  1 1  Price,  400. 

The  plaintiff's  action  was  originally  entitled  "in  an  action  of 
tort."  The  plaintiff  obtained  leave  to  amend  by  adding  the  words 
"or  contract,  the  plaintiff  being  doubtful  to  which  class  of  actions 
this  action  belongs."  This  amendment  was  unnecessary,  and  may 
be  disregarded,  all  the  amended  eoimts  upon  which  the  plaintiff 
relies  being  in  tort.  It  is  not  necessary  to  sustain  the  demurrer  on 
account  of  the  lack  of  literal  precision  in  entitling  the  action. 

The  defendant  relies  on  .several  other  extremely  fine  points  of 
objection,  but,  without  dwelling  on  them  in  detail,  it  may  be  .said 
in  general  terms  that  the  .several  counts  sufficiently  set  forth  the 
facts  from  which  the  duty  of  the  defendant  towards  the  i)laiiitifF 
springs,  and  it  is  not  necessary  to  state,  formally  and  in  terms. 
that  the  defendant  occupied  such  a  relation -towards  the  plaintiif 
that  Ihc  law  cast  upon  him  the  duty.  They  also  sufficiently  aver 
that  the  defendatit  neglected  that  duty,  and  that  the  plaintiff  was 
injured  by  reason  thereof.  It  is  not  necessary  to  aver  that  the  de- 
fendant knew  of  the  injurious  (luality  of  the  food.  It  is  sufficient 
if  it  appear  that  he  ought  to  have  known  of  it,  and  was  negligent  in 
furnishing  unwholesome  food,  by  reason  of  which  the  plaintiff  was 
injured.    Judguu'nt  reversed. 

See   "Food,"    Century    Dig.    §    18;    Decennial    and    Am.    Dig.    Key   No. 
Series  §  25. 


Sec.    6.]  PERSON.VL    SECURITY,    LIBERTY.    ETC.  409 


WELLINGTON  v.  DOWNER  KEROSENE  OIL  CO.,  104  Mass.  64.     1870. 
Liability  of  Wholesaler  to  Consumer,  for  Dangerous  Commodities.     Want 

of  Privity.    Duty  to  the  Public. 

LTort  for  injury  to  plaintiff's  person  and  property  by  the  explosion  of 
a  lamp.  Verdict  and  judgment  against  plaintilf.  Plaintiff  excepted  and 
appealed.     Exceptions  sustained. 

The  plaintiff  sued  upon  two  counts:  (1)  Tliat  defendant  sold  a  barrel 
of  naphtha  to  a  retail  dealer  contrary  to  the  provisions  of  a  statute;  that 
the  retailer  sold  to  plaintiff  some  of  the  naphtha  under  the  name  of  oil 
for  illuminating  purposes;  that  the  naphtha  exploded  a  lamp  and  injured 
plaintiff's  person  and  i)roperty;  (2)  That  defendant  was  a  manufacturer 
and  dealer  in  oils,  and,  knowing  that  Chase  was  a  retailer  of  illuminating 
oils,  sold  to  him  a  barrel  of  dangerous  fluid  for  the  purpose  of  being  re- 
tailed to  consumers  for  burning  in  lamps;  that  the  defendant  knew  of 
the  dangerous  character  of  the  fluid,  but  that  Chase  did  not;  that  plain- 
tiff purchased  from  Chase  and  was  injured,  etc.  The  question  presented 
is:  As  the  plaintiff  did  not  buy  the  oil  from  the  defendant  and  had  no 
dealings  whatsoever  directly  with  the  defendant  in  connection  with  the 
oil,  can  the  plaintiff  maintain  this  action  against  the  defendant?] 

Gray.  J.  This  is  an  action  of  tort.  Both  counts  of  the  declara- 
tion are  framed,  not  upon  any  supposed  privity  between  the  pai'- 
ties,  but  upon  a  violation  of  duty  in  the  defendants,  resulting  in  an 
injury  to  the  plaintiff.  The  tirst  count  is  upon  the  St.  of  1867, 
c.  286.  and  the  second  upon  the  common  law.  It  will  be  convenient 
to  consider  the  general  question  of  the  liability  of  the  def<Midants 
at  common  law.  before  examining  the  construction  and  effect  of  the 
statute. 

It  is  well  settled  that  a  man  who  delivers  an  article,  wliicli  he 
knows  to  be  dangerous  or  noxious,  to  another  person,  without  no- 
tice of  its  nature  and  qualities,  is  liable  for  any  injury  wliicli  ma\' 
rea,soiiably  be  cont(;inphited  as  likely  to  result,  and  which  docs  in 
fact  result,  therefrom,  to  that  person  or  any  other  who  is  not  him- 
self in  fault.  Thus  a  person  who  delivers  a  carboy,  whicli  he' 
knows  to  contain  nitric  acid,  to  a  carrier,  without  infoi-ming  him 
of  the  nature  of  its  contents,  is  liable  for  an  injiiiy  occasioned  by 
the  leaking  out  of  the  acid  upon  another  carrier  to  wliom  it  is  de- 
livered by  the  first,  in  the  ordinary  course  of  l)usiiiess.  to  l)e  cai-ried 
to  its  destination.  Farrant  v.  Barnes.  11  C.  B.  (X.  S.)  5').'^.  So  a 
chemist  who  sells  a  bottle  of  licjuid.  made  up  of  ingredients  known 
only  to  him.self.  representing  it  to  be  fit  to  be  used  for  washing  the 
hair  and  knowing  that  it  is  to  be  used  l)y  i)in-chaser's  wife,  is  liable 
for  an  injury  occasioned  tf)  her  by  using  it  for  wasliing  her  hair. 
George  v.  Skivington.  L.  H.  .")  Ex.  1.  And  a  druggist  who  negli- 
gently labels  a  dearlly  poison  as  a  harnilcss  medicine,  and  sells  i(  so 
labelled  to  dealers  in  such  articles,  is  liable  foi*  an  injury  to  any 
one  wlio  afterwards  purchases  and  uses  it.  if  there  is  no  negligence 
on  the  part  oi"  the  inlernMdiafe  sellers  or  of  tlie  |tcrs(»n  injiu'cl. 
Thomas  v.  Winchester.  2  Seldcn.  nf)7 ;  Davidson  v.  Xic-hols.  11 
Allen.  oU).  520;  McDonald  v,  Snelling.  14  .Mien.  2!)0.  2!»r>. 

The  second  cf)nnt  of  the  declaration  cxpi-cssly  avers  that  the  de- 
fendant sold  naphtha  to  Chase  for  the  purpose  of  being  i-i-tailcd 


41(1  ri:Kso.\.\i.  SKCMurrv.  iJiiKirrv.  ktv.  [CIi.  .1. 

jind  rosoKl  to  \h'  hunifil  in  a  lainp  I'nr  illiimiiiat  iiii;'  |>iii'|>(isi's.  kiiow- 
iiiir  it  \o  lu-  (.'xplosivc  ami  ilaii<,'ciMiis  to  lite  when  sn  iisnl,  aiitl 
knowinij:  C'liasc's  Imsiiu'ss  to  bo  thai  of  a  rt'tailci-  and  liis  purpose 
to  rotail  ami  resell  the  same  to  the  public  to  be  so  used;  that  ("Iiase 
re.sold  a  part  tlu'i-eol"  to  the  i)laiiitiir  to  be  so  sued.  and.  while  he 
was  so  usiiii;  it.  it  ijruited  and  exphxh'd.  and  injured  his  |)ei'son 
aiul  pi-opert y  ;  and  that  both  Chase  and  the  ijlaintifV  wei'e  iirnorant 
of  its  daiiirerous  ([ualilies.  Proof  of  the  facts  thus  alle^'ed  woidd 
show  that  the  defemlants  were  jruilty  of  a  violation  of  tluty  in  sell- 
ingr  an  article  which  they  knew  to  be  (•xi)losive  and  dangerous,  for 
the  pnrpose  of  beinu'  resold  in  the  market,  witliout  irivin^'  infoi-ma- 
tion  of  its  nature,  and  wei'c  therefore  bound  to  contemplate,  as  a 
natural  and  probable  eonseqnenoe  of  their  uidawful  act.  that  it 
miirht  explode  or  ignite,  and  injure  an  innocent  i)urc'Iia.ser  or  his 
jtroperty.  and  to  answer  in  damages  foi-  s\ich  a  conse(iuenct.'  if  it 
should  come  to  pass.  The  ruling  of  the  learned  judge  who  pre- 
sided at  the  trial  was  therefore  erroneous,  and  the  exceptions  nnist 
be  sustained. 

In  Carter  v.  Towne.  98  ]\la.ss.  oHT.  cited  foi'  the  defendants,  a 
declaration  alleging  that  the  defendants  negligently  and  indaw- 
fully  sold  and  delivered  gunpowder  to  the  plaintiff,  a  boy  eight 
years  old.  having  neither  experience  nor  knowledge  in  the  use  of 
gunpowder,  and  being  an  unfit  jiersoji  to  be  intrusted  with  it.  all  of 
which  the  defendants  well  knew,  and  that  the  child,  in  ignorance 
of  its  etfects.  and  nsing  that  care  of  which  he  was  capable,  ex- 
ploded the  gunpowder  and  was  burned  thereby,  was  held  good 
upon  denmri'ei-.  Tn  that  case,  no  (juestion  was  raised  of  the  de- 
fendants' liability  to  any  other  person  than  the  one  to  whom  they 
delivered  the  article.  The  plaintiff  was  afterward  held  not  en- 
titled to  recover  of  the  defendants,  because  it  appeared  that  the 
gunpowder  had  been  carried  home  by  the  child,  and  put  in  the 
custody  of  his  parents,  and  a  part  of  it  been  fircnl  off  by  him  with 
their  permission,  before  the  explosion  by  which  he  was  injured  : 
and  as  the  gunpowder  had  passed  into  the  custody  of  adult  per- 
sons who  knew  its  dangerous  qualities  and  had  allowed  him  to  use 
it.  and  was  retaken  by  the  child  from  their  custody,  before  the  acci- 
dent sued  for.  the  sale  by  the  defendants  Avas  not  the  direct,  prox- 
imate or  efficient  cause  of  the  injury.  S.  C.  103  Mass.  507.  We 
cannot  accede  to  the  suggestion  inade  by  the  counsel  for  the  de- 
fendants in  the  case  at  bar.  in  opposition  to  the  proof  offered  at 
the  trial  that  Chase  and  the  plaintiff  must  be  deemed  to  have 
known  the  dangerous  qualities  of  naphtha.  .  .  .  Exceptions 
sustained. 

For  similar  ruling  as  to  unwholesome  provisions  and  medicines,  see 
10  U  R.  A.  fN.  S.)  923.  and  note.  1  lb.  1178.  See  2  lb.  303.  and  note  (de- 
fective tools);  5  lb.  1103  (defective  machinery);  13  lb.  382  (dangerous 
stove  polish);  13  lb.  646,  and  note  (druggists'  liability  to  third  persons  i. 
See  "Explosives,"  Century  Dig.  §  6;  Decennial  and  Am.  Dig.  Key  No. 
Series  §  9. 


8eC.    6.]  PERSONAL    SECURITY.    LIBERTY,    ETC.  411 


MINOR  V.  SHARON,  112  Mass.  477.     1873. 
Letting  a  House  Infected  With  Smallpox. 

[Action  of  tort  for  damages  sustained  from  smallpox  contracted  by 
occupying  a  house  demised  to  plaintiff  by  the  defendant.  The  defend- 
ant, having  knowledge  that  the  house  was  infected,  concealed  that  fact 
from  the  plaintiff  who  had  no  knowledge  thei-eof.  Verdict  and  judgment 
against  defendant,  and  he  excepted.  The  opinion  is  upon  such  exceptions, 
and  they  are  overruled.     The  facts  appear  in  the  opinion.] 

Morton.  J.  It  must  be  assumed  that  the  jury  found,  under  the 
instructions  given  them,  that  the  defendant,  being  the  o\vner  of  a 
tenement,  knowing  that  it  was  so  infected  by  the  smallpox  as  to 
be  imfit  for  occupation  and  to  endanger  the  health  and  lives  of  the 
occupants,  and  concealing  this  knowledge  from  the  plaintiff  to  in- 
duce him  to  hire  it,  leased  it  to  the  phiintiff ;  that  the  plaintiff  and 
his  children  took  the  disease  by  reason  of  the  infection  of  the  tene- 
ment ;  that  the  plaintiff'  was  ignorant  of  its  dangerous  condition. 
and  that  no  negligence  of  his  contributed  to  their  taking  the  dis- 
ease. Upon  these  facts  the  defendant  is  guilty  of  actionable  negli- 
gence, and  is  liable  for  whatever  injury  the  plaintiff  has  sustained 
by  reason  thereof. 

*  In  Sweeney  v.  Old  Colony  &  Newport  R.  R.  Co..  10  Allen.  ^GS, 
'412.  the  rule  is  stated  to  be,  that  ''in  order  to  maintain  an  action 
for  an  injurj^  to  person  or  property  by  reason  of  negligence  or 
want  of  due  care,  there  nnist  be  shown  to  exist  some  obligation  or 
duty  towards  the  ]ilaintiff'.  which  the  defendant  has  left  undis- 
charged or  uni'uliillcd.  This  is  the  basis  on  which  the  cause  of  ac- 
tion rests."  Negligence  consists  in  doing  or  omitting  to  do  an  act 
in  violation  of  a  legal  duty  or  obligation.  In  this  case  the  defend- 
ant knew  that  the  tenement  was  so  infected  as  to  endanger  the 
health  and  life  of  any  person  who  might  occupy  it.  It  was  a  plain 
duty  of  humanity  on  his  part  to  inform  the  plaintiff  of  this  fact,  or 
to  refrain  from  leasing  it  until  he  had  used  proper  means  to  dis- 
infect it.  If  the  defendant  had  invited  any  person  to  enter  his 
tenement,  knowing  that  there  was  a  dangei'ous  obstruction  or  pit- 
fall in  it,  Jie  would  be  liable;  the  negligence  was  no  less  gross  be- 
eause  the  danger  was  a  secret  one  which  could  not  be  detected  bj' 
inspection  or  examination.  Carleton  v.  Franeonia  Iron  &  Steel  Co.. 
Of)  Mass.  21  r,:  French  v.  Vining.  102  :\rass.  132. 

The  defendant  contends  that  the  injury  complained  of  is  not  of 
s\K'h  n  nature  as  to  give  a  right  of  action,  "because  in  diseases 
which  arc  usually  dcsignnterl  ns  contagious,  the  connection  between 
the  origin  of  the  disea.sc  mikI  the  disea.se  itself  is  not  a  matlci-  cog- 
nizable })y  our  senses."  and  "the  source  from  which  and  the  man- 
ner in  which  the  contagion  is  communicated  is  too  uncertain  and 
unsusceptible  of  proof  to  form  tlie  foundation  for  nn  action."  In 
the  trial  of  cases,  as  in  tbe  ordinary  affairs  of  life,  it  is  often  im- 
]»ossible  to  estiiblisli  the  connection  between  cause  and  effect  with 
absolute  certainty,  But  evidence  which  produces  a  moral  convic- 
tion is  sufficient.     Tt  is  upon  sncb  convictions  that  men  net  in  the- 


41'J  I'KKSON.M,    SIXM   KITV.    I.IIJKKTV.    KTC.  [(7/.    .7. 

important  foiircins  oi'  lire,  and  no  'jrcatrr  ccrtainlv  is  ro([uiivd  or 
attainahlf  in  tlic  administration  ol'  the  law.  The  dt'icndant 's  neg- 
li»renct'  was  an  adt'(|nalf  cansc  of  the  injui'v  to  the  |)laintilT.  The 
i'viili'n«*t'  roast>nal)ly  satislicd  tlir  minds  of  tlu'  jnry  tliat  it  was  tlio 
oiu'rating  canst',  and  llu'  di't'cndant  oannol  escape  tlie  cons  Minences 
of  his  iu\i!:li«!:cnee  npi»n  the  pK'a  tliat  tlie  eonnedion  Ix'lwcen  eansu 
and  effect  cainiot  l>e  |)i'o\-e(l  heyond  the  possibility  ol"  donht. 
Exceptions  ovcrruli'd. 

See  •Landlord  and  Tenant,"  Century   Dig.  §  636;   Decennial  and  Am. 
Dig.  Ke.v   Xo.  Series  S  164. 


SLATER  V.   BAKER  and  STAFLP:tON,  2  Wilson,  359,  362.     1767. 

Malpractice. 

[Special  action  on  the  case  against  a  surgeon  and  an  apothecary  tor 
malpractice.  Verdict  against  defendants,  who  moved  to  set  the  verdict 
aside.  Motion  overruled  and  judgment  against  defendants.  The  opinion 
is  on  the  motion;  and  only  so  much  of  the  o])inion  as  discusses  the  rem- 
edy is  inserted  here. 

Plaintiff  employed  defendants,  Baker  being  a  surgeon  and  Stapleton  an 
apothecary,  "to  cure  his  leg,  which  had  been  broken  and  set,  and  the 
callous  of  the  fracture  formed."  The  declaration  sets  out  the  contract  of 
employment,  and  alleges  that  the  defendants  "ignorantly  and  unkilfully 
treated  the  plaintiff."  in  that  they  unskilfully  and  ignorantly  broke  and 
disunited  the  callous  of  the  leg  after  it  was  set  and  the  callous  formed, 
whereby  plaintiff  was  damaged.  Several  surgeons  testified  that  the  treat- 
ment was  not  according  to  the  method  of  the  profession.  It  was  shown 
that  defendants  experimented  with  some  new  instrument.! 

CiRiA.  [Wir^MOT.  Lord  Chief  Jii.stice.l  .  .  .  It  is  objected 
that  this  is  not  the  ]iroper  action,  and  that  it  ought  to  have  been 
trespass  vi  et  armis;  in  answer  to  tliis.  it  appears  from  the  evidence 
of  the  surgeons  that  it  was  improper  to  disunite  the  callous  with- 
out consent,  this  is  the  usage  and  law  of  surgeons;  then  it  was  igno- 
rance and  unskilfulness  in  that  very  ])artieular,  to  do  contrary  to 
the  rule  of  the  i)rofession,  what  no  surgeon  ought  to  have  done; 
and  indeed  it  is  reasonable  that  a  patient  should  be  told  what  is 
about  to  be  done  to  him.  that  he  may  take  courage  and  put  him- 
self in  such  a  situation  as  to  enable  him  to  undergo  the  operation ; 
it  was  ob.ieeted  this  verdict  and  recovery  cannot  be  pleaded  in  bar 
to  an  action  of  trespass  vi  et  armis  to  be  brought  for  the  same  dam- 
age: but  we  are  clear  of  opinion  it  may  be  pleaded  in  bar.  That 
the  plaintiff  ought  to  receive  a  satisfaction  for  the  injury,  seems 
to  be  admitted ;  but  then  it  is  said  the  defendants  ought  to  have 
been  charged  as  trespassers  vi  et  armis;  the  court  will  not  look 
with  eagle's  eyes  to  see  whether  the  evidence  applies  exactly  or  not 
to  the  case;  when  they  can  see  the  plaintiff  has  obtained  a  verdict 
for  such  damages  as  he  deserves,  they  will  establish  such  verdict 
if  it  be  pos.sible.  For  any  thing  that  appears  to  the  court  this  was 
the  first  experiment  made  with  this  new  instrument,  and  if  it  was. 
it  was  a  rash  action,  and  he  who  acts  rashly  acts  ifrnorantly;  and 
although  the  defendants  in  general  may  be  as  skilful  in  their  re- 


Sec.    7.]  PERSONAL    SECL'RITY.    LIBERTY.    ETC.  413 

spective  professions  as  any  two  tientlemon  in  Entrland.  yet  the 
court  cannot  help  saying  that  in  this  particuhu-  ease  they  have 
acted  ignorantly  and  unskilfully,  contrary  to  the  known  rule  and 
usage  of  surgeons.    Judgment  for  the  plaintiff  per  totam  curiam. 

Under  the  code  practice  the  action  for  malpractice  may  be  in  tort  or 
in  contract,  at  the  election  of  the  plaintiff.  Goble  v.  Dillon,  86  Ind. 
at  p.  340,  which  was  also  a  case  against  two  defendants  for  malpractice 
in  setting  a  broken  leg.  For  an  interesting  case  of  alleged  malpractice 
by  a  dentist,  see  McCracken  v.  Smathers,  122  N.  C.  799,  29  S.  E.  354,  where 
the  question  of  contributory  negligence  of  the  patient  is  discussed,  as 
well  as  the  degree  of  skill  that  the  law  requires  of  professional  men.  See 
further  as  to  degree  of  skill  required,  97  X.  W.  882,  G4  L.  R.  A.  126,  and 
note.  The  case  in  97  N.  W.  882,  64  L.  R.  A.  126,  is  an  interesting  one  on 
malpractice  in  the  use  of  "Roentgen's  X-rays,"  Christian  Scientists,  etc. 
There  is  a  conflict  of  authority  as  to  the  liability  for  malpractice  where 
treatment  of  disease  is  undertaken  by  Christian  Scientists,  Magnetic 
Healers,  Clairvoyants,  etc.  See  1  L.  R.  A.  719;  64  lb.  969;  68  lb.  432.  See 
also  9  L.  R.  A.  (N.  S.)  524,  12  lb.  1005,  and  notes  (malpractice  of  attor- 
neys at  law);  12  lb.  449.  15  lb.  160,  and  notes  (of  title  abstractors);  20  lb. 
1003,  1030,  and  notes  (of  physicians  and  surgeons).  See  "Physicians  and 
Surgeons,"  Century  Dig.  §  31;  Decennial  and  Am.  Dig.  Key  No.  Series 
§  16. 


Sec.  7.     Injuries  to  Reputation. 

"Case  is  the  pro])er  remedy  where  the  I'ight  affected  is  not  tan- 
gible and  eonse(|uently  cannot  be  alfected  by  force — as  reputation 
and  health — the  injuries  to  which  are  always  remediable  by  action 
on  the  ease;  as  libels  and  verbal  slanders."     1  ('bitty  PI.  *137. 


COMMONWEALTH  v.  CLAP,  4  Mass.  163,  168.     1808. 
Criminal  Libel  Defined,  etc.    Justification.    Jitstiflcahle  Purpose. 

[The  defendant  was  indicted  foi-  libel.  Verdict  of  guilty.  Motion  for 
a  new  trial.    The  opinion  is  upon  this  motion.     IMotion  refused. 

The  defendant  posted  up  in  several  public  places  the  following:  "Caleb 
Hayward  is  a  liar,  a  scoundrel,  a  cheat,  and  a  swindler.  Don't  pull  this 
down."  Hayward  was  an  auctioneer.  The  other  fads  aiipiar  in  the  be- 
Kinning  of  the  opinion.] 

Parsons,  f.  J.  The  dcfciulant  has  been  convicted,  by  the  ver- 
<lict  fif  a  .jury,  of  publishing  a  libel.  On  the  trial,  he  moved  to  give 
in  evidence,  in  bis  (b-fense.  tbat  Ibe  contents  of  the  publication 
were  true.  Tliis  evidence  the  judge  rejected,  and  for  tbat  rea.son 
tlie  defendant   moves  for  ;i  new  trial. 

It  is  neeessary  to  considei'  wliat  |iiililir;i1  ion  is  libellous,  and  the 
re;)son  why  a  libellons  pnblic;it  ion  is  ■,\\\  (ilVense  against  the  eom- 
nionwciiltli.  A  libel  is  a  malicious  |)nblicat  ion.  <'Npressed  either  in 
T»rintinrr  or  writing,  or  by  signs  ;nid  i>ii'tures.  tending  either  to 
bbicken  the  memory  of  on"  de;id.  or  the  reputation  of  one  who  is 
alive,  juid  expose  bini  to  pnlplic  bati'rd.  cnntenipt.  or  ri<licule.     The 


414  PKUsoxM,  sKciKiTN.  1  .ii!i:irpv .   i/rc.  \('li.  j. 

cause  \\ii,\  lilu'llous  piihlicatiiiiis  ;ii-i'  oil'discs  iiii'iiiiist  tlir  slate,  is 
their  direet  It'iulciicx  In  i\  Iji-t-adi  of  I  he  |)i'at'c.  Iiy  provoking  the 
pai'ties  injureii.  and  their  Irieiuls  and  families,  to  acts  ef  rcNcngje. 
whieh  it  would  not  l>e  easy  to  ri'strain.  wcit  olVeiuses  oi'  this  kind 
not  severely  punislied.  Ami  every  day's  expi'rience  will  justify 
tlio  hiw  in  attril)utinti'  to  libels  that  tiMuh'iiey  which  renders  the 
puhlieation  of  them  an  olVeuse  aiiainsl  the  stale.  The  essence  of 
the  otVense  consists  in  the  maliee  ol"  the  pnl)lication,  or  the  intent 
to  defame  the  reputation  ol  anolliei-.  in  the  definition  of  a  lihel,  as 
an  offense  aiiainsl  the  law.  it  is  not  consi(h'i-ed  whetliei-  the  |)uhli- 
caliou  he  true  oi'  false;  i)ecause  a  man  may  malicio>isly  |»ul»lish  the 
truth  atraiusf  another,  with  intent  tu  (.Ud'ame  liis  cliaracter.  and  if 
the  pid)lication  he  line,  the  tendi'ucy  of  it  to  inflame  the  passions, 
and  to  excite  revenije.  is  not  diminished.  l)ut  may  sometimes  be 
sti'enii'thened.  Tlie  inference  is.  thcM-efoi-e.  very  cl(>ar.  tliaf  the  de- 
fendant caiuiot  justify  himself  for  jMihlisliinii'  a  lil)el,  merely  by 
proving  tlie  truth  of  the  puhlieation.  and  that  the  direction  of  the 
judge  was  right,  if  the  law  admitted  the  truth  of  the  woi-ds  in 
this  case  to  he  a  justification,  the  efil'ect  would  he  a  greater  injury 
to  the  party  libelled,  lie  is  not  a  party  to  the  prosecution.  \n\v  is 
he  put  on  his  defense;  and  the  evidence  at  the  trial  might  more 
cruelly  defame  his  eharacter  than  the  origiiud  libel. 

Altiiough  the  tiaith  of  the  woi'ds  is  no  justification  in  a  ci'imiiial 
prosecution  for  lii)el.  >-cf  the  dc'fendant  may  re|)el  the  chai-ge,  by 
proving  that  the  publication  was  for  a  justifiable  purpose,  and  not 
malicious,  nor  with  the  intent  to  defame  any  man.  And  there  may 
be  cases,  where  tlie  defendant,  having  pi'oved  the  purposi'  justifi- 
able, may  give  in  evidence  the  truth  of  the  words,  wIkmi  such  evi- 
dence will  tend  to  negative  the  malice  and  intent  to  defame.  Upon 
this  principle,  a  man  may  apply  by  complaint  to  the  legislature  to 
remove  an  unworthy  officer;  and  if  the  complaint  be  true,  and 
made  with  the  honest  intention  of  giving  usefid  information,  and 
not  maliciously  or  with  intent  to  defame,  the  complaint  will  not  be 
a  libel.  And  when  any  man  shall  consent  to  be  a  candidate  for  a 
public  office  cotd'erred  by  the  election  of  the  people,  he  nuist  be 
considered  as  i)utting  his  character  in  issue,  so  fai-  is  if  may  respect 
his  fitness  and  (|ualifications  for  the  office.  And  publications  of  the 
truth  on  this  subject,  with  the  honest  intention  of  informing  the 
people,  are  not  a  libel;  for  it  would  be  unreasonable  to  conclude 
that  the  publication  of  truths,  which  it  is  the  interest  of  the  people 
to  know,  should  lie  an  offense  against  their  laws.  And  every  man 
holding  a  ])ublie  elective  of^ce  may  be  considered  as  within  this 
principle;  for  as  a  re-election  is  the  only  way  his  constituents  can 
manifest  their  approbation  of  his  conduct,  it  is  to  be  presumed  that 
he  is  consenting  to  a  re-election,  if  he  does  not  disclaim  it.  For 
evers'  good  man  would  w  isb  the  approbation  of  his  constituents  for 
meritorious  conduct. 

For  the  same  rea.son,  the  publication  of  falsehood  and  calumny 
against  public  officers,  or  candidates  for  public  offices,  is  an  offense 
most  dangerous  to  the  people,  and  de.serves  punishment,  because  the 


Sec.    7.]  PERSONAL    SECURITY,   LIBERTY,    ETC.  415 

people  may  be  deceived,  and  reject  the  best  citizens,  to  their  great 
injury,  and  it  may  be  to  the  loss  of  their  liberties.  But  the  publi- 
cation of  a  libel  maliciously  and  with  intent  to  defame,  whether  it 
be  true  or  not,  is  clearh^  an  offense  against  law,  on  sound  princi- 
ples which  must  be  adhered  to.  so  long  as  the  restraint  of  all  ten- 
dencies to  the  breach  of  the  public  peace,  and  to  private  animosity 
and  revenge,  is  salutary  to  the  commonwealth. 

The  defendant  took  nothing  by  his  motion,  and  was  afterwards 
sentenced  to  two  months'  imi)risonment.  with  costs. 

In  North  Carolina  the  defendant  may  justify  when  indicted.  Rev.  sec. 
3267.  See  "Libel  and  Slander,'"  Century  Dig.  §§  402,  414;  Decennial  and 
Am.  Dig.  Key  No.  Series  §§  141-150. 


VILLERS  v.  MONSLEY,  2  Wilson,  403.     1769. 
Civil  Action  for  Libel.     Libel  and  Slander  Distinguished. 

[Action  upon  the  case  against  the  defendant  for  maliciously  writing 
and  publishing  a  libel  upon  the  plaintiff  in  the  words  following,  viz.: 

Old  Villers,  so  strong  of  brimstone  you  smell, 
As  if  not  long  since  you  had  got  out  of  hell. 
But  this  damnable  smell  I  no  longer  can  bear, 
Therefore  I  desire  you  would  come  no  more  here; 
You  old  stinking,  old  nasty,  old  itchy  old  toad, 
If  you  come  any  more,  you  shall  pay  for  your  board, 
You'll  therefore  take  this  as  a  warning  from  me. 
And  never  more  enter  the  doors,  while  they  belong  to  J.  P." 

The  defendant  pleaded  not  guilty,  and  a  verdict  was  found  for  the 
plaintiff  and  sixpence  damages.  The  defendant  moved  in  arrest  of  judg- 
ment, for  that  this  was  not  such  a  libel  for  which  an  action  would  lie.] 

WiLMOT.  Lord  C.  J.  I  think  this  is  such  a  libel  for  which  an  ac- 
tion well  lies;  we  must  take  it  to  have  been  proved  at  the  trial  that 
it  was  published  by  the  defendant  maliciously;  and  if  any  man  de- 
lilieratcly  or  inaliciously  publislics  anything  in  writing  concern- 
ing another  which  renders  him  ridiculous,  or  tends  to  hinder  man- 
kind from  associating  or  having  intercoui'se  with  him.  an  action 
well  lies  against  sucli  publishei':  T  see  no  differenc(^  between  this 
and  tbe  eases  of  ihe  leprosy  or  plague,  and  it  is  admitted  that  an 
action  lies  in  lliose  cases.  The  writ  de  lepi-oso  amovendo  is  not 
taken  away,  although  the  distenipei-  is  almost  (lii\(ii  away  by 
cleanliness,  or  new  invented  remedies;  tlie  party  iiiusi  liave  tlie  dis- 
tfiii|)ei-  to  sucli  a  degrcM!  before  tbe  writ  sliiill  be  granted,  wliich 
eonniiands  the  .sheriff  to  remove  him  wiilioiil  delay  ad  locum  foli- 
tariuiii  ad  haliitandiun  ibidem  proiil  moris  est.  ne  per  coiminineip. 
coii\'iTsat ionein  siiam  liomiiiibus  (laiiiiniiii  vel  ])ericuliiiii  eveniat 
'|iio\  isiiiodo.  'I'll!'  degree  of  leprosy  is  not  iiuiterial.  il"  \()U  say  he 
lias  the  leprosy  it  is  sufTicient.  and  tlie  aeti(ui  lies;  the  reason  of  that 
ea.se  applies  to  this;  I  <l<i  iiol  know  uliellicr  llie  ilcli  may  not  be 
commiuiientr-d  by  the  air  witlioiil  contact,  it  is  said  to  be  occasioned 
by  aniniajcnla  in  the  skin,  and  must  be  cured  l)y  outward  api)li<'a- 


41  li  I'KKsoNAi.  siXTKii'N ,  l.lm:ln'^.  kiw  [Ch.  5. 

lioii:  nolxuly  will  i-nt.  di'iiik.  or  liiiNc  inlricouisc  willi  ;i  pfrsoii 
\vlu>  lijis  the  il<-li  ami  slinks  oi'  hiiiiistdiic.  t  licrrrori'  1  think  this 
libi'l  iU't  itmithlc.  and  that  jndirnicnt  nmsl  he  Inr  the  plaintilV. 

(iori.i>.  .1,  What  my  Uidthcr  Uathrnst  has  said  is  vci'V  material 
lioro ;  tluTf  is  a  distinction  hctwccn  libels  and  wm-ds:  a  libel  is  |)iin- 
isbable  both  eriminallv  and  l)y  action,  when  s|)eaUin^  the  words 
W()nld  not  be  piuiishable  in  either  way;  for  speaking  the  words 
roirne  or  rascal  of  any  one.  action  will  not  lie;  bnt  if  those  worcis 
were  written  and  pnblished  of  any  one.  I  doubt  not  an  action  would 
lie;  if  one  should  say  of  anothei"  that  he  has  the  it<-h,  witliont  more, 
an  action  would  not  lie;  but  if  he  should  write  those  words  of  an- 
othei-.  and  publish  them  maliciously,  as  in  the  i)resent  ease,  I  have 
no  doidtt  at  all  but  the  action  well  lies.  Wliat  is  tlie  reason  wliy 
saying:  a  man  has  the  leprosy  or  ])lajiue  is  actionable/  It  is  be- 
cause the  bavinir  of  either  cuts  a  man  off  from  society.  So  the 
writing  and  publishinir  maliciously  that  a  man  has  the  itch  and 
stinks  of  brimestone  cuts  him  ofT  from  society.  1  think  the  pub- 
lishing: anxtbing:  of  a  man  that  renders  liim  I'idiculous  is  a  libel 
and  actionable,  and  in  the  jiresent  case  I  am  of  opinion  for  the 
l)laintift'.  Judg:ment  for  the  plaintiff  per  tot'  cur.  without  granting 
any  rule  to  show  cause. 

As  to  what  publications  are  libelous,  see  66  L.  R.  A.  266,  and  note 
(calling  a  man  a  eunuch  or  a  woman  a  hermaphrodite);  6  L.  R.  A.  (N. 
S.)  919,  and  note  (publishing  the  photograph  of  A  as  that  of  B,  in  an 
article  iminiting  a  crime  to  B) ;  7  lb.  274,  and  note  (placing  photograph  of 
an  accused  but  unconvicted  person  in  "Rogue's  Gallerj").  See  "Libel 
and  Slander,"  Century  Dig.  §§  3-90;  Decennial  and  Am.  Dig.  Key  No. 
Series  §§  6-10. 


SHAFER  V.  AHALT,  48  Md.  171,  30  Am.  Rep.  456.     1877. 

Slander  of  Women  by  Imputations  of  Unchastity,  when  Not  Actionable 

per  se. 

[Action  by  husband  and  wife  for  the  slander  of  the  wife  by  charging 
her  with  adultery.  Verdict  and  judgment  against  the  defendant,  and  he 
appealed.  Reversed.  The  question  presented  is:  Can  damages  be  re- 
covered for  orally  charging  a  woman  with  adultery  in  the  absence  of 
l)roof  of  actual  damage  resulting  from  such  slander?  In  other  words, 
is  such  a  charge  actionable  per  se?l 

Robinson.  J.  Tn  suits  for  slander,  pecuniary  loss  to  the  plain- 
tiff is  the  gist  of  the  action.  "Whether  it  was  necessary  at  first  to 
prove  in  all  cases  such  pecuniary  loss,  it  is  not  now  necessary  to  in- 
<iuire.  The  courts,  at  an  early  time,  recognized  a  distinction  be- 
tween Avords  actionable,  and  words  not  actionable  in  themselves. 
Tn  the  former,  the  law  presumed  pecuniary  loss,  while  in  the  latter, 
it  was  necessarv.  in  addition  to  the  words,  to  prove  special  damage 
to  the  plaintiff'.  AYhatever  difficulty  there  may  be  in  defining  the 
precise  line  of  demarcation  between  these  actions,  it  is  well  settled, 
that  where  one  charges  another  with  the  commission  of  an  offense. 


Sec.    7.]  PERSONAL    SECURITY,    LIBERTY.    ETC.  J:17 

it  must  be  such  an  offense  as  subjects  the  part.y  to  corporal  pun- 
ishment, in  order  to  render  the  words  actiona])le  per  se. 

Now,  adultery  was  a  spiritual  offense  cognizable  by  the  spiritual 
courts,  and  the  punishment  was  confined  to  the  infi'iction  of  pen- 
ance, "pro  salute  animae.''  And  hence  it  was  held  that  to  charge 
one  with  adultery  was  not  actionable  per  se.  and  in  order  to  main- 
tain the  action,  the  plaintifi"  must  proYe  special  damage.  In  this 
state,  adultery  is  made  punishable  by  a  i^eeuniary  fine,  and  to 
charge  one  with  the  commission  of  the  oft'ense  is  not  therefore  ac- 
tionable per  se. 

This  is  a  suit  by  tlie  husband  and  wife  to  recover  damages  of  the 
defendant  for  charging  the  plaintiff's  wife  with  adultery,  and  the 
question  is.  whether  the  sickness  of  the  wife  resulting  from  this 
slanderous  charge  is  sulificient  to  prove  special  damage.  In  cases 
of  this  kind  special  damage  is  that  which  is  naturally  the  conse- 
quence of  the  words  spoken.  Allsop  v.  Allsop,  2  L.  T.  R.  (X.  S.) 
290.  Now  it  cannot  be  said  that  sickness  is  the  natural  conse- 
(pience  of  defamatoiy  or  slanderous  words.  Such  might  or  might 
not  be  the  result,  depending  in  a  great  measure  upon  the  sensibili- 
ties and  temperament  of  the  person.  The  rule  of  law  in  regard  to 
special  damage  was  adopted  with  reference  to  common  and  usual 
effects  and  not  such  as  are  occasional  and  accidental.  And  hence 
in  Allsop  V.  Allsop.  above  referred  to,  the  defendant  said  that  the 
l»laintiff 's  wife  had  committed  adultery  with  him,  and  the  declara- 
fion  alleged  that  in  consequence  of  said  charge,  the  wife  became 
and  was  ill  for  a  long  time  and  unable  to  attend  to  her  business. 
and  the  plaintiff  was  put  to  and  incui'red  much  expense  in  and 
about  the  endeavoring  to  cure  her  of  her  illness,  and  it  was  held, 
upon  demuiTcr  that  the  declaration  disclosed  no  cause  of  action. 

Pollock.  C.  B..  said :  "I  can  find  no  authority,  nor  has  any  been 
'•itcd  in  the  history  of  the  law  of  this  countiy,  for  any  such  special 
damage  as  that  .stated  in  fliis  case,  being  made  the  ground  of  an 
action,  or  to  make  actionable  that  which  otherwise  would  not  be 
so.  The  important  distinction  in  this  case,  although  not  the  only 
one,  is.  that  the  mischief  done  dei)cnds  entirely  on  the  tempera- 
ment of  the  individual  affected  by  the  words  spoken,  whether  any 
damage  would  result  or  not." 

]\I.\RTix.  B.  "The  s]iocial  damage  is  that  which  is  uatni-ally  the 
consef|uence  of  the  act  doue.  and  fhe  peculiai-  tciiiiiei-amciit  of  the 
]>arty  in.jured  would  be  a  b;id  sfandard  by  wbicli  tn  csliiiiate  dam- 
age." Bramwcll.  1'...  and  AVilde.  R.,  were  of  the  same  opinion. 
See  also  Tcrwilliircr  v.  AVaiids.  17  N.  Y.  54.  and  Wilson  v.  Goil, 
Id.  442.  where  tlic  question  was  considerr-d  and  decided  as  in 
Allsop  v.  All.so|».     .     .     .     Judgment  reversed. 

See  "LlbPl  and  Slander."  Centiirv  Dip.  ?§  18,  72,  i)?;   Decennial  and  Am. 
Dig.  Key  No.  Series  §5  7,  12. 
Remedies— 27. 


418  I'EKyoXAL    SKCl  KirV,    I,IHKK'|•^•.    KTC,  [Ch.    J. 


BOiy  V.  HOIS,  1  Levinz,  134.     1665. 

Siamltr    of    W'umfn    by    Imputations    of    Unchastili/.     When    Actionable 

per  se. 

Case  for  calliiiii  a  widow,  wlio  licld  an  estate  while  sole  and 
ehaste.  whore,  falsely  and  nialieiousl\',  witii  iideiit  to  oust  her  ol" 
her  estate,  and  sayinii'  lie  would  oust  her  thereof;  and  at  anotlier 
time  callinir  her  whore.  After  verdiet  for  the  plaintiff  on  the  issue 
not  guilty,  it  was  moved  in  arrest  of  judt'iuent,  that  no  special 
damage  heinir  laid,  the  words  were  not  aetionai)le:  But  by  tiu; 
court,  tliey  import  damage  in  themselves  in  this  case,  in  respect 
of  her  estate;  as  for  calling  a  man  a  thief,  an  action  lies  without; 
special  damage,  because  the  words  im])ort  it  in  themselves.  But 
for  the  last  words  spoken  at  anotlun-  time,  which  are  not  action- 
able in  themselves,  and  the  damage  being  entire,  the  judgment  was 
therefore  stayed  till  the  matter  be  examined,  whether  the  damages 
were  given  entirelj'  or  not.  For  on  the  l)aek  of  the  writ  wiiere  the 
damages  are  entered,  there  seemed  to  have  been  some  alteration. 

In  Pollard  v.  Lyon,  91  U.  S.  225,  is  an  exhaustive  discussion  of  the  law 
governing  both  oral  and  written  imputations  of  unchasteness  to  women, 
married  and  single.  The  decision  with  regard  to  oral  slanders  of  this 
kind  is:  (1)  Unless  there  is  some  statute  rendering  fornication,  adultery, 
etc.,  by  women,  a  crime,  oral  slanders  of  this  kind  are  not  actionable  per 
se;  (2)  In  actions  for  such  slanders  there  must  be  allegation  and  proof 
of  special  loss  or  injury  sustained  by  the  idaintiff.  A  declaration  or 
complaint  which  merely  alleges  that  the  jjlaintiff  "has  been  damaged 
and  injured  in  her  name  and  fame,"  is  not  good  on  a  motion  in  arrest  of 
judgment. 

For  the  crime  of  slandering  an  innocent  woman  in  North  Carolina,  see 
Pell's  Revisal,  sec.  3640,  and  notes. 

"WTiere  there  is  merely  an  accusation  of  immorality,  in  words  which 
might  be  spoken  of  any  one,  whether  having  any  particular  occupation  or 
not,  it  has  been  held  that  a  charge  of  special  damages,  from  loss  of  cus- 
tom  or  society,  must  include  the  names  of  those  who  have  cut  off  from 
the  plaintiff  in  consequence  of  the  imputation.  This  rule  has  not  been 
strictly  held  in  cases  where  the  accusation  has  been  made  for  the  express 
purpose  of  injuring  the  plaintiff  in  his  trade  or  profession  and  has  had 
that  effect;  and  in  various  cases  and  for  different  reasons  the  rule  in 
such  cases  has  been  relaxed  and  a  general  averment  of  loss  of  customers 
has  been  held  sufficient.  Evans  v.  Harries,  1  H.  &  N.  251;  Riding  v. 
Smith,  1  Ex.  D.  91;  Clark  v.  Morgan,  38  L.  T.  (N.  S.)  354;  Hapwood  v. 
Thorn,  8  C.  B.  293,  308,  309;  Weiss  v.  Whittemore.  28  Mich.  366;  Trenton 
Ins.  Co.  v..  Perrine,  3  Zab.  402,  415.  See  also  Hargrave  v.  Le  Breton, 
4  Burr.  2422;  Hartley  v.  Herring,  8  T.  R.  130."  Morasse  v.  Brochu,  151 
Mass.  567.  25  X.  E.  74.  See  4  L.  R.  A.  (N.  S.)  560.  See  "Libel  and  Slan- 
der," Centurv  Dig.  §§  71-78;  Decennial  and  Am.  Dig.  Key  No.  Series 
§7. 


SKINNER  V.  WHITE,  18  N.  C.  471.     1836. 
Words  which  Are  and  Are  Not  Actionable  per  se. 

[Action  of  slander.  Verdict  for  plaintiff  subject  to  the  opinion  of  the 
court.  The  judge  ruled  that  the  words  were  not  actionable  per  se,  and 
there  was  judgment  against  the  plaintiff,  and  he  appealed.  A-fRrmed.  The 
facts  appear  in  the  beginning  of  Iho  opinion. 1 


Sec.    /.]  PERSONAL    SECLRITV,    LIBERTY,    ETC.  419;      I 

Daniel,  J.  An  act  of  Assembly  passed  in  the  year  1821  (Tay- 
lor's Rev.  ell.  1120),  declares,  that  if  any  person  shall  harbor  or 
maintain  any  runaway  slave,  such  person  shall  be  subject  to  in- 
dictment for  such  offense,  and  being  convicted,  shall  be  fined  not 
exceeding  $100.  and  be  imprisoned  not  exceeding  six  months.  The 
declaration  states,  that  the  defendant  said  of  the  plaintiff,  that 
"he  harbored  a  runaway  negro  belonging  to  Jonathan  Reddick; 
and  he  could  prove  it;  and  he  should  be  prosecuted  for  it."  The 
question  is.  whether  the  words  spoken  are  slanderous,  and  in  them- 
selves actionable.  From  the  contradictory  decisions  in  England, 
it  is  not  easy  to  say  what  is  now  the  rule  to  determine  what  words 
are  actionable  of  themselves,  and  what  not.  In  Ogden  v.  Turner, 
2  Salk.  696,  Lord  Holt  said,  to  render  words  actionable,  it  is  not 
sufficient  that  the  party  may  be  fined  and  imprisoned  for  the  of- 
fense, if  true;  for,  says  he,  there  must  not  only  be  imprisonment, 
but  an  infamous  punishment.  This  decision,  which  seemed  to  es- 
tablish a  fixed  rule,  was  shaken  and  materially  contradicted  by 
what  fell  from  De  Grey.  Chief  Justice,  in  giving  judgment  in  the 
case  of  Onslow  v.  Home.  3  "Wils.  177.  Mr.  Starkie,  in  his  Treatise 
on  Slander,  p.  41,  says,  from  all  the  British  authorities,  perhaps, 
it  may  be  inferred  generally,  that  to  impute  any  crime  or  misde- 
meanor for  which  corporal  punishment  may  be  inflicted  in  a  tem- 
poral court,  is  actional)Ie  without  proof  of  special  damage.  Any 
objection  to  the  extent  of  the  above  rule,  he  says,  is  in  a  great  meas- 
ure obviated  by  th(^  statute,  which  enacts  that  when  the  damage 
does  not  amount  to  forty  shillings,  the  costs  shall  be  limited  to  the 
amount  of  the  damages.  In  Chitty's  Gen.  Prac.  44,  the  same  rule 
appears  to  be  laid  down.  He,  in  cla.ssing  slanderous  words,  says, 
"nor  can  any  action  be  sujiported,  unless  the  words  either,  first, 
impute  the  guilt  of  some  temporal  offense,  for  which  the  party 
slandered,  if  guilty,  might  be  indicted  and  punished  in  the  tem- 
poral courts,  and  which  words  are  technically  said  to  endanger  a 
man  in  law:"  he  then  ])roc('eds  to  give  the  other  classes  of  slander, 
wliich  are  not  apjjlicablc  to  this  case.  The  rule,  as  to  the  extent  of 
words  actiona])lc  in  tiiemselves,  has  never  been  carried  in  this 
countiy  a.s  far  as  the  above  respectable  connnon-jdace  aii11i(ii's  state 
it  to  be  in  Knghind.  In  scvei-al  of  llic  states,  it  seems  to  he.  that 
wliere  the  chai-gc  if  true,  will  suhjccl  the  party  to  an  iiidirliiu  iit 
inrolriiifi  moral  I iirpilvflt ,  or  siihjrcl  hint  lo  an  infamous  pioiish- 
iinnl.  linn  llir  irords  ar(  aclionahh  in  Ihemmlvi  a.  olJnrivisc  not. 
I'.rookrr  V.  CofTin.  5  John.s.  188;  ^Vi(lrig  v.  Over.  13  Johns.  121; 
2  liihl).  473:  Shaffer  v.  Kintzer,  1  P.inn.  542;  K'oss  v.  .McCling.  Id. 
2lH;  C'ha|>mjin  \-,  <lilli1t.  2  Oonn.  .')!.  hi  .Vndrcas  v.  IIo])p('n- 
hcatfcr.  3  Sn-g.  &  Rawle.  2^}^).  tlu'  jiidges  concurred  In  n|iiiii(iii, 
that  it  must  he  eithci-  a  felony,  or  a  misdemeanor  affecting  reputa- 
tion, and.  therefore,  to  charge  a  man  with  having  connnitted  an 
a.s.saMlt  and  battery,  a  iniisanee,  or  the  f)ffens»>  of  forcibl(>  entiy 
and  detainer,  thongh  the  party  would  be  subject  to  indii-l  nieiit  and 
iniprisoiHiient .  \v»add  not  be  aetionalile.  See  also  ll*  Johns.  'Mu. 
In  Shipp  V.  M<-('r;iw.  7  N.  ('.  46(1.  it   was  held.  th;il   the  gravamen 


4l'0  I'KKsoN.M-  SI-XT I{l■r^■,   l.ll!l;K••l•^ .   ktc,  \('h.  ,'>. 

in  an  ai-lion  ol"  shnulfc  is  tlic  social  tlci^radat  ion  aiisini;'  from  tlio 
imputation  of  an  infamous  olVcnsf,  and  tlic  inl'amy  of  llic  otl'cnst.' 
is  tosti'd  1>>  tlial  of  tli<'  pnnishmcnl  wliidi  loliows  on  conviction — 
the  loss  of  the  lihci-a  lox  :  no  otlici-  (lc>rra(lation  will  ^'ivc  an  action. 
for  no  otluM-  dcirradation  is  a  social  loss.  In  Brady  v.  Wilson,  11 
N.  ('.  !U.  the  court  said,  "inasnuicli  as  llic  words  did  n()t  impute  to 
the  plaintitV  any  felony  or  other  crime,  llic  temporal  ])enalty  of 
which  would  he  lejially  infamous,  the  action  could  not  he  suj)- 
portetl.""  In  the  other  states,  when  the  co)U'ts  .say.  Ihe  words  are 
aetionahlc  if  tlu'y  suhject  the  parly  P.  iiidid  menl  and  infamous 
piuiishment.  jtrovided  Ihey  he  true,  we  clearly  nndei'stand  wluit  is 
the  extent  of  the  laile:  hut  when  they  ^o  further  to  say.  "or  sub- 
ject the  ]>arty  to  an  indictment  involving  moral  turpitude,"  we 
are  left  in  dnuhi  what  eluirges  are  embraced  within  the  sentence — 
it  lacks  precision  ;  we  are  eomi)elled  to  search  moral  and  etliical 
authors,  rathei-  than  le<ial  wi'iters.  in  order  to  aseci-tain  whether 
the  ease  made  h(^  within  the  rule.  Tt  seems  to  us,  that  the  i-ule  l«id 
down  hy  Lord  Holt.  IIkiI  Hie  tvords.  if  ifn< ,  rmist  not  oiih/  subject 
tJtc  partji  to  iniprisoiinu  nl,  hut  an  iiifdiiious  pioiishmcnt,  is  the  sfl- 
thd  rule  of  low  in  this  state.  The  I'ule  being  thus  precisely  de- 
fined, gentlemen  of  the  pi'ofession  can  never  be  at  a  loss  how  to  ad- 
vise their  clients,  nor  can  a  judge  be  at  a  loss  how  to  charge  the 
jury.  In  this  case,  the  charge  made  by  the  defendant  im]>oited  an 
offense  punishable  with  line  and  imprisomnent ;  but  the  judgment 
would  not  render  the  person  guilty  of  such  an  offense,  infamous. 
He  still  would  retain  his  liberani  legem,  and  belong  to  the  boni  et 
legales  homines  of  society,  which  ai')])ears  to  be  the  test  by  which 
to  ascertain  whether  words  of  this  class  be  actionable  or  not.  T!ie 
judgment  nuist  be  aftii-med. 

"Words  are  held  to  be  actionable  per  se,  which  convey  an  imputation 
upon  one  in  the  way  of  his  j^rofession  or  occupation.  In  such  cases  there 
need  be  no  averment  of  sjiecia]  damages."  Morasse  v.  Brochu,  151  Mass. 
at  mid.  p.  .575,  25  N.  E.  74.  Tt  is  sometimes  said  that  words  not  defama- 
torj',  though  malicious  and  false  and  uttered  with  intent  to  injure  one, 
will  not  support  an  action,  even  though  the  words  were  calculated  to 
cause  damage  and  do.  in  fact,  have  that  effect.  But  the  better  rule  is, 
that  such  an  imi)utation,  whether  defamatory  or  not,  will  sui)i)ort  an  ac- 
tion under  the  above  circumstances.  Such  words  may  not  support  a 
technical  action  of  slander,  but  they  will  support  an  action  of  some  kind — 
the  name  of  the  action  is  of  no  consequence.  To  illustrate:  To  call  a 
man  a  dissenter  is  not  defamatory;  but  to  do  so  in  a  small  prejudiced 
community,  with  intent  to  injure  his  trade,  is  actionable  if  such  injury 
results  therefrom.     Ibid,  at  p.  574. 

For  what  words  are  and  are  not  actionable,  see  2  L.  R.  A.  (N.  S.)  691, 
3  lb.  1139.  and  notes  (charging  public  officials,  witnesses,  and  others,  with 
briberv  and  accepting  bribes);  5  lb.  498,  15  lb.  497,  and  notes  (charging 
public  official  with  "graft");  2  lb.  741,  ?,  lb.  339,  4  lb.  973.  977,  8  lb. 
783,  and  notes  (words  damaging  to  credit  and  business;  and  black-list- 
ing); 4  lb.  861,  and  note  (pseudo  praise  and  irony);  18  lb.  622,  and  note 
(matter  capable  of  a  double  meaning).  For  actions  by  and  against  a 
corporation  for  libel  and  slander,  see  2  L.  R.  A.  (N.  S.)  741,  21  Tb.  873. 
For  liability  of  an  editor  for  a  libel  published  without  his  knowledge,  see 
10  Tb.  332.  For  liability  of  telegraph  company  for  sending  a  libelous  mes- 
sage, see  9  Th.  140.  See  "Libel  and  Slander,"  Century  Dig.  §§  10.  19;  De- 
cennial and  Am.  Dig.  Key  No.  Series  §§  6,  7. 


StC.    7.]  PERSONAL    SECURITY,    LIBERTY,    ETC.  421 


WATSOX  V.  TRASK,  6  Ohio,  532.     1834. 
When  Damage  Must,   and  Xeed  Not,   be  Shown. 

[Action  for  libel.  Verdict  for  plaintiff.  Defendant  moved  in  arrest  of 
judgment,  and  upon  that  motion  the  opinion  is  written.  Motion  overruled 
and  judgment  against  the  defendant.  The  plaintiff  manufactured  and 
sold  bark  mills.  The  defendant  published  a  notice  to  the  effect  that  plain- 
tiff was  guilty  of  infringing  upon  another's  patent,  in  making  and  selling 
bark  mills.     Infringing  upon  a  patent  is  indictable.] 

Wright,  J.  Where  one,  falsely  and  maliciously,  orally  charges 
another  with  anything  involving  moral  turpitude,  which,  if  true, 
will  subject  him  to  infamous  punishment,  or  that  tends  to  exclude 
him  from  society,  or  to  prejudice  him  in  his  office,  profession, 
trade,  or  business,  the  parties  accused  may  seek  redress  by  a  suit 
in  slander,  and  recover  without  proof  of  actual  damage.  '  Where 
the  words  are  false,  the  law  infers  malice,  and  where  their  natural 
tendency  is  to  injure,  the  law  presumes  damages.  6  Bac.  Abr.  205 ; 
Starkie  on  Slander.  11.  12,  100-110;  5  Johns.  188,  476;  17  Johns. 
217.  Where  the  slander  is  written  and  published,  it  is  denominated 
libel.  A  libel  in  reference  to  individual  injury  may  be  defined 
to  be  a  false  and  malicious  publication  against  an  individual,  either 
in  print  or  writing,  or  by  pictures.  Avith  intent  to  injure  his 
reputation,  and  expo.se  him  to  public  hatred,  contempt,  or  ridicule. 
4  ^la.ss.  ]  ti'-i ;  3  Johns.  Ca.s.  354 ,  !»  Johns.  214.  Whatever  charge  will 
su-stain  a  suit  for  slander  where  the  words  are  merely  spoken,  will 
sustain  a  suit  for  libel,  if  they  are  written  or  printed  and  pub- 
lished, and  it  will  be  seen,  at  one  glance,  that  many  charges,  which, 
if  merely  spoken  of  another,  would  not  sustain  a  suit  for  slander, 
will,  if  written  or  printed  and  published,  sustain  a  suit  for  libel. 
Words  of  ridicule  only,  or  of  contempt,  which  merely  tend  to  lessen 
a  man  in  public  esteem,  or  to  wound  his  feelings,  will  support 
a  suit  for  libel,  because  of  their  being  embodied  in  a  more  perma- 
nent and  enduring  form ;  of  the  increased  deliberation  and  malig- 
nity of  their  publication,  and  of  their  tendency  to  provoke  breaches 
of  the  public  j)eac('.  This  we  understand  to  be  the  settled  law  of 
libel  in  this  slate,  sustained  by  the  uniform  decisions  of  our  courts, 
without  a  single  exception  within  our  knoweldge. 

Subject  the  publication  in  question  to  the  test  of  the  definitions 
given.  The  [Jiiblicalifm  is  declared  to  be  of  the  i)laiTilin'  in  liis 
business  of  maker  and  vender  of  bark  mills.  It  impules  lo  liini  the 
infraction  of  another's  patent.  This,  if  true,  would  subject  him. 
and  those  purcliasing  and  using  his  mills,  to  ]>rosecution.  Nothing 
conid  liav<'  a  more  direct  tendency  to  tlie  entire  dc^struction  of  his 
bnsiiK'ss.  It  denies  the  |)laintin"s  right  to  deal  in  the  snbiect  of  his 
occupation,  and  asserts  an  adverse  inconsistent  right  whicli  he 
know  and  acknowledged.  It  thns  imputes  to  him  falsehood,  fraud, 
the  want  of  cfipjicity  to  confer  a  legal  right  by  tli(>  sale  of  his  man- 
ufactures. It  does  not  sto|>  here.  It  asserts,  nioi'eovei-,  in  dii'cct 
terms,  that  he  perseveres  in  this  fraudulent  and  pirating  trade 
upon  the  ritrht  of  the  Trasks,  because  he  is  "shieldetl  from  |>i-osecu- 


422  PKKSONAL    SKCIKITV.    1 .1  ItllK'I'V.    K'I'C.  [(,'/(.    .' 


tion  by  liis  \v;iiit  of  rcspoiisihilit  v. "  IT  iri'cspoiisihlt'  to  llic  in- 
ventor \vlu)st'  riji:lil  lit'  was  cliai'iit'd  with  iiirrinj;iii«i.  lie  was  ('(|ually 
so  to  those  wlio  sliould  |)Ufcliasi'  of  him.  Tlic  I'harjic  is,  if  you  (h-al 
with  this  mail  you  im-ur  tlie  risk  of  hiwsuits  I'or  vioiatiuji;  tlic  rij^lils 
of  others,  aiul  he  is  insolvent,  irresponsible  to  indemnify.  Would 
not  sueh  a  (•harjj:e,  if  true,  blaekeii  a  man's  reputation,  injure  his 
busint'ss.  t'X|)ose  him  to  hatred  and  (•(intcmpt  .'  In  <Mir  undci'.stand- 
inii.  the  i)ublieation  is  unetiuivoeally  libelous.      .     .     . 

Mailing  a  postal  card  on  which  libellous  matter  is  written,  is  action- 
able. Logan  V.  Hodges.  14G  N.  C.  38,  5'.)  S.  E.  349.  See  "Ubel  and 
Slander."  Century  Dig.  §§  80-90;   Decennial  and  Am.  Dig.  Key  No.  Series 


RAMSEY  V.  CHEEK,  109  N.  C.  270,  13  S.  E.  775.    1891. 
PiiviJeged  Commitnications.     Absolute  and  Qualified  Privilege.     Malice. 

[Action  for  libel.  In  deference  to  an  intimation  of  the  judge,  the 
plaintiff  submitted  to  a  nonsuit  and  appealed.    Reversed. 

The  alleged  libel  consisted  of  a  letter  w^ritten  by  defendant  to  the 
superintendent  of  the  United  States  census,  in  which  letter  the  character 
of  the  plaintiff  was  attacked.  The  answer  admits  that  defendant  sent  the 
letter,  and  that  his  object  in  so  doing  was  to  secure  the  removal  of  the 
plaintiff  from  office.  Plaintiff  offered  evidence  tending  to  show  that  the 
charges  against  him  were  untrue,  and  that  his  character  was  good;  but 
the  only  proof  of  defendant's  express  malice  was  the  letter  itself.  Defend- 
ant insisted  that  the  letter  was  a  privileged  communication,  and  that 
plaintiff  could  not  recover  unless  he  proved  express  malice,  which,  he 
contended,  the  plaintiff  had  failed  to  do.  The  plaintiff  insisted  that  the 
letter  itself  was  evidence  of  express  malice.  The  substance  of  the  letter 
and  other  facts  appear  in  the  opinion.] 

Clark.  J.  The  words  used  charged  the  plaintiff  with  an  indiet- 
ahle  offense,  and  also  were  ealenhited  to  di.sparage  him  in  his  of- 
fice. They  were  actionable  per  se.  The  defendant  introduced  no 
evidence,  neither  to  prove  the  truth  of  the  allegations,  nor  to  show 
that  he  had  written  the  letter  for  an  honest,  bona  fide  purpose ; 
but  contended  that  the  letter  was  a  privileged  communication,  and 
that  tlie  burden  was  on  the  i)laintiff  to  show  express  malice,  wdiich 
he  had  failed  to  do.  The  court  l)eing  of  opinion  with  the  defend- 
ant, the  plaintiff'  took  a  nonsuit  and  a])pealed.  Ordinarily,  in  libel 
and  slander,  if  the  words  are  actionable  per  se,  the  law  presumes 
malice,  and  the  burden  is  on  the  defendant  to  show  that  the  charge 
is  true.  It  is  otherwi.se  if  the  comnuuiication  is  privileged.  Privi- 
leged communications  are  of  two  kinds:  (1)  Absolutely  privi- 
leged.— which  are  restricted  to  cases  in  which  it  is  so  much  to  the 
public  interests  that  the  defendant  should  speak  out  his  mind  fully 
and  freely  that  all  actions  in  respect  to  the  words  used  are  abso- 
lutely forbidden,  even  though  it  be  alleged  tTiat  they  were  used 
falsely,  knowingly,  and  with  express  malice.  This  complete  immu- 
nity obtains  only  where  the  public  service  or  the  due  admini.stra- 
tion  of  justice  rerjuires  it.  e.  g..  words  used  in  debate  in  congress 
and  the  state  legislatures,  reports  of  military  or  other  officers  to 


S(C.    7.]  PERSONAL    SECURITY.    LIBERTY.    ETC.  423 

their  superiors  in  the  Hue  of  their  duty,  everything  said  by  a  judge 
on  the  bench,  by  a  witness  in  the  box,  and  the  like.    In  tJiese  cases 
tlie  action  is  absolutely  barred.     13  Anier.  &  Eng.  Eue.  Law.  406. 
{'2)  (Qualified  privilege.    In  less  important  matters,  where  the  pub- 
lic interest  does  not  require  such  absolute  immunity,  the  plain- 
tiff will  recover  in  spite  of  the  privilege  if  he  can  prove  that  the 
words  were  not  used  bona  fide,  but  that  the  defendant  used  the 
privileged  occasion  artfully  and  knowingly  to  falsely  defame  the 
plaintiff.    Odger.  Sland.  &  L.  184.    In  this  class  of  eases  an  action 
will  lie  only  where  the  party  is  guilty  of  falsehood  and  express  mal- 
ice.   13  Amer.  &  Eng.  F.ne.  Law.  su]n'a.     Express  malice  is  malice 
in  fact,  as  distinguished  from  imi)lied  malice,  which  is  raised  as  a. 
matter  of  law  by  the  use  of  words  libelous  per  se.  when  the  occasion 
is  not  privileged.    Whether  the  occasion  is  privileged  is  a  question 
of  law  for  the  court,  subject  to  review,  and  not  for  the  .jury,  un- 
less the  circumstani-es  of  the  publication  ai'e  in  dispute,  when  it  is 
a  mixed  question  of  law  and  fact.    The  present  case  is  one  of  qual- 
ified privilege.    The  plaintiff'  was  not  in  government  enqiloy  under 
Porter.     He  was  not  called  upon  by  any  moral  or  legal  obligation 
to  make  the  repoit.  and  it  was  not  made  in  the  line  of  official  duty. 
It  was  not  absolutely  i)iivileged.    But  lie  was  an  American  citizen, 
interested  in  the  proper  and  efficient  administration  of  the  public 
service.     He  had.  therefore,  the  right  to  criticise  public  officers; 
and  if  lie  honestly  niu\  liona  fide  believed  and  had  pi'obable  cause 
to  believe  that  the  character  and  conduct  of  the  plaintiff  were  such 
that  the  public  interests  demanded  his  removal,  he  had  a  right  to 
make  the  eonnuunieation  in  questioiL  giving  his  rea.sons  therefor, 
to  the  head  of  the  department.     The  presumption  of  law  is  that  he 
acted  bona  fide,  and  the  liurden  avrs  on  the  plaintiff  to  show  that 
he  wrote  the  letter  with  malice  or  without  probable  cause.    Briggs 
V.  Garrett,  111   Pa.  St.  4(»4.  2  Atl.  Rep.  513;  Bodwell  v.  Osgood.  3 
I^ick.  371).     "Malice."  in  this  connection,  is  defined  as  "any  indi- 
rect and  wicked  motive,  which   induces  the  defendant  to  defame 
the  plaintiff.     If  malice  be  proved,  the  privilege  attaching  to  the 
occasion  is  lost  at  once."    Odger.  Sland.  &  L.  267;  Clark  v.  :Moly- 
neux,  3  Q.  B.  Div.  246;  Bromage  v.  Prosser.  4  Barn.  &  C.  247; 
Hooper  v.  Tniscott.  2  Bing.  N.  C.  457;  Dickson  v.  Earl  of  Wilton, 
1  Fost.  &  F.  410.     The  rules  applicable  to  an  ordinary  action  for 
libel  apply  in  such  cases  wlienevei-  malice  is  proved.     Proof  that 
Ihe  words  are  false  is  not  suHieient  evidence  of  malice,  unless  there 
is  evidence  that  the  defendant  knew  at  the  time  of  using  them  that 
Ihey  were  false.     Fountain   v.  Boodle.  43  E.  C.  L.  605;  Odger, 
Slmid.  &  L.  275.     That  the  defendant  was  inistaken  in  the  words 
used  by  him  on  such  coididcntiai  or  i)rivileged  occ.-isions  is.  taken 
alone,  no  evidence  of  malice.     Kent  v.  Bongartz.  15  K.  T.  72.  22 
.\tl.  Kep.  1023.  and  cjises  cited 

We  do  not  a.ssciit  to  the  o(»posite  doctrine,  which  would  seem  to 
be  laid  down  by  I'kakso.v.  J.,  in  Wakefield  v.  Smitliwick.  4  Jones 
(\.  C),  327.  which  is  not  supported  by  the  aulhorily  he  cites  and 
doubtless  intended  to  f<.Ilow:  for.  if  the  words  are  true,  a  defend- 


124  PEKSOX.VL   SECUKITV,    LIBEUTV,    ETC.  [Cli.    J. 

ant  doos  not  iitvd  the  protoi-tiun  of  privil('«i:e.  It  is  when  tliey  are 
false  that  he  ehiiins  it.  To  sti'ip  him  of  sucli  protection  there  must 
bo  both  falsehood  and  maliee.  To  hold  lliat  faiseliood  is  itself  proof 
of  malice  in  such  eases  reduces  the  protection  to  depend  on  the  pre- 
sumption of  the  liMith  of  the  ehar<Tes.  If,  however,  there  wen* 
means  at  hand  for  aseertaininii;  the  Iruth  of  the  matter,  of  which 
the  defemlant  neglects  to  avail  himself,  and  chooses  rather  to  re- 
main in  iirnoran^-e  when  he  might  have  obtained  full  information, 
there  will  be  no  pretense  for  any  claim  of  privilej;e.  Odger,  Sland. 
(fc  L.  199.  "To  entitle  matter  otherwise  libelous  to  the  jirotection 
[of  qualified  privilege]  which  attaches  to  communications  made  in 
the  fuHillment  of  duty,  bona  tides,  or,  to  use  our  own  equivalent, 
honesty  of  purpose,  is  essential ;  and  to  this  again  two  things  are 
necessaiy :  ( 1  "i  That  it  be  made  not  merely  on  an  occasion  which 
would  justify  making  it.  but  also  fi-om  a  sense  of  duty;  (2)  that  it 
be  made  with  a  belief  of  its  truth."  Cockburn,  C.  J.,  in  Dawkins 
V.  Lord  Paulet.  L.  R.  5  Q.  B.  at  page  102.  The  malice  may  be 
proved  ])y  some  extrinsic  evidence,  such  as  ill  feeling,  or  personal 
hostility,  or  threats,  and  the  like,  on  the  part  of  the  defendant  to- 
wards the  plaintiff;  but  the  plaintiff  is  not  bound  to  prove  malice 
by  extrinsic  evidence.  He  may  rely  on  the  words  of  the  libel  itself, 
and  on  the  circumstances  attending  its  publication,  as  affording 
evidence  of  maliee.  Odger.  Sland.  &  Ij.  277-288;  13  xVmer.  &  Eng. 
Ene.  Law.  481. 

[FACTS.]  In  the  present  case,  the  letter  charged  the  plaintiff 
with  murder,  and  with  having  cheated  the  defendant  out  of  his 
election.  There  was  evidence  tending  to  prove  that  these  charges 
Avere  untrue,  and  that  the  character  of  plaintifT'  was  good.  There 
Avas  no  evidence  in  replj'.  and  the  answer  admits  that  the  object  of 
the  communication  was  to  secure  the  removal  of  plaintiff  from  the 
office  he  held.  There  was  evidence  on  the  face  of  the  letter  tending 
to  show  that  the  motive  of  the  plaintiff  was  ill  wall  to  the  plaintiff 
by  reason  of  his  alleged  action  in  defrauding  defendant  of  his 
election,  and  spleen  on  account  of  his  fthe  defendant's)  not  having 
had  his  reeonnnendation  more  considered,  and  his  friends  ap- 
pointed to  the  offices  to  which  Ramsey  and  others,  named  in  the 
letter,  had  been  appointed.  There  being  evidence  tending  to  prove 
malice  as  above  defined  (wliich  need  not  be  personal  ill  will  to  the 
plaintiff),  his  honor  erred  in  not  subn)itting  the  ease  to  the  jury. 
If  the  defendant  made  the  communication,  not  recklessly  or  ma- 
liciously, but  bona  fide,  and  out  of  a  desire  to  benefit  the  public 
serA'ice.  the  plaintiff  cannot  recover,  though  the  charges  made  by 
the  defendant  may  be  untrue.  That  the  plaintiff  was  of  a  different 
political  party  from  himself  gave  him,  however,  no  license  to  make 
to  the  appointing  power  false  and  defamatory  charges  against  him 
maliciously  or  without  ]>robable  cause,  simply  to  secure  his  re- 
moval from  office.  If  tlie  defendant  thought  the  plaintiff  should  be 
removed  from  office  because  belonging  to  a  different  political 
party,  and  therefore,  in  his  judgment,  unsuitable  or  unfit  to  hold 
the  office,  he  should  have  put  his  letter  oii  that  crround.  and  there 


iStC.    ?.]  PERSONAL    SECLRITY,    LIBERTY,    ETC.  425 

could  have  been  uo  complaint.  He  hcicl  no  right  to  iuake  defama- 
tory charges,  if  false,  to  secure  defendant's  removal,  the  motive 
not  being  a  bona  tide  one  to  purge  the  public  service  of  a  felon  and 
ballot-box  stuft'er.  but  merely  to  remove  one  who  was  objectionable 
to  him  either  as  being  of  an  opposite  party  or  by  having  injured 
him  personally,  or  from  having  been  appointed  in.stead  of  his  own 
recommendee  for  the  place.  If  the  defendant's  motive  was  to  in- 
jure Hawkins,  and  to  do  that  he  recklessly  made  false  and  defama- 
tory allegations  against  the  plaintilf.  that  is  maliee  which  would 
entitle  the  plaintiff  to  damages.  It  is  to  the  public  interest  that 
the  unfitness  or  derelictions  of  public  officials  should  be  reported 
to  the  authority  having  the  power  of  removal,  and  any  citizen  bona 
fide  making  such  report  does  no  more  than  his  duty,  and  is  pro- 
tected by  public  policy  against  the  recovery  of  damages,  even 
though  the  charge  should  prove  to  be  false.  But  public  justice  will 
not  permit  the  government  archives  to  be  made  with  impunity  the 
receptacle  of  false  and  defamatory  charges,  made  to  secure  the  re- 
moval of  an  officer,  whereby  the  maliee  of  the  party  making  such 
charge  may  be  gratified,  or  that  some  benefit  or  advantage,  direct 
or  indirect,  may  come  to  him.  Proctor  v.  Webster.  16  Q.  B.  Div. 
112  QSS.j).  If  the  party  knows  the  charge  to  be  false,  or  makes 
it  without  probable  cause,  this  is  evidence  of  malice.  Wakefield 
V.  Smithwick,  -t  Jones  (X.  C),  327.  If  the  charge  in  such  cases  is 
false,  the  law  looks  to  the  motive.  If  the  defendant,  not  moved  by 
the  public  welfare,  but  by  some  wicked  and  indirect  motive,  such 
as  to  gratify  his  malice,  or  his  love  of  patronage,  to  assert  his  own 
influence,  or  the  like,  by  false  charges  has  wilfully  or  recklessly  de- 
famed the  plaintiff',  the  latter  is  entitled  to  recover  (hiniaiics  at  the 
hands  of  the  jury.    Error. 

See  further  as  to  privilege,  Xissen  v.  Cramer,  104  X.  C.  574,  10  S.  E. 
t;76:  Logan  v.  Hodges.  146  N.  C.  at  p.  41,  59  S.  E.  349;  Krebs  v.  Oliver, 
12  Gray,  at  p.  243;  Rice  v.  Coolidge,  121  Mass.  393,  23  Am.  Rep.  279; 
Kirkpatrick  v.  Eagle  Lodge,  40  Am.  Rep.  316;  25  C.vc.  376  et  seq.;  18  Am. 
&  Eng.  Enc.  L.  1023  et  seq.  See  also  Sweeney  v.  Baker,  13  W.  Va.  158. 
in.serted  post,  in  this  section.  See  4  L.  R.  A.  (N.  S. )  1126,  16  lb.  1017, 
and  notes  (character  of  servant);  5  lb.  163,  and  note  (official  repoits); 
14  lb.  565  and  note  (hospital  records);  16  lb.  953,  and  note,  19  lb.  862 
(publication  of  charges  contained  in  pleadings  and  other  court  i)roceed- 
ings);  19  lb.  862,  and  note  (publication  of  the  proceedings  of  corporation 
meeting);  21  lb.  33,  and  note  (letter  from  defendant  to  ])laintiffs  coun- 
.sel ) ;  20  lb.  361,  and  note  (as  alfected  by  extent  of  iiublication — e.xcessive 
publication).  See  "Libel  and  Slander,"  Century  Dig.  §§  124.  363;  De- 
'fnnial  and  Am.  Dig.  Key  No.  Series  §§  39,  123. 


COOMBS  V.  ROSE,  8  Blackf.   155.     1846. 
Privilege.     Church  Trials. 

[Action  for  lit)el,  l)rought  by  Coombs  against  Rose.  .Tudgmcnt  against 
r'oombH,  who  carried  the  case  to  the  supreme  court  by  writ  of  error.  R<'- 
vcrsed. 

Defendant  pleaded  sper  ially,  that  he  and  plaintiff  were  members  of  the 
.Methodist  (hurch,  and  that  the  alleged  libel  consisted  of  charges  preferred 


-iL'ti  l'KKSt)NAL    yiOCl'Kll'N  .    1 ,1  lUlKl'N  .    KTC.  \('ll.     'i. 

against  plaiiUilY  by  lU'lVmlant  uiulor  tlu'  rules  ol"  tho  church;  that  the 
I  lunges  were  uuuie  in  goiul  taitli  and  tor  the  imrpose  of  ha\iug  them  in- 
vestigated according  to  the  rules  ol'  tlie  church;  that  he  deeiiiod  such  a 
lourse  necessary  to  sustain  ilu>  character  of  the  church;  and  tliat  he  did 
not  maliciously  publish  the  rliarges. 

Alter  deciding  that  the  iiublicalion  coniiilaineil  of  was,  if  unexplained, 
clearly  libelous,  the  opinion  proceeds:  | 

Dkwkv,  .1,  11    remains   lo  iiKiiiirc  wiiclhei'  Ihc  sptM-ial 

plea  is  a  bar  lo  tin.'  action. 

It  is  fonti'iulocl  tliat  tiie  occasion  of  making  the  i)ublication  com- 
plained of  sliows  that  it  was  a  pi'ixilcged  coimmmicalion,  and  n-- 
Imts  the  prima  facie  malice  inrerahlr  Ifom  the  Ian<_rna<;('  used.  We 
have  no  doiiht  that  words  spoken  or  wiitten.  in  the  rc^nlar  eonis' 
of  church  discipline,  to  or  ol  mciiilicrs  of  the  chtireh,  have,  as 
among  the  members  themselves,  very  properly  been  held  to  be 
priviU^ged  eonnniuiieations.  and  not  actionable  nid(^ss  express  mal- 
ice be  shown  in  the  si)eaki'r  or  publisher.  The  King  v.  Hart.  1 
Blacks.  386;  Jarvis  v.  Hathaway.  8  Joluis.  180;  Remington  v. 
Congdon,  2  Pick.  310.  But.  witli  a  good  deal  of  hesitation,  we  have 
come  to  the  conclusion  that  it  is  not  proper  to  extend  the  protec- 
tion to  a  member  of  the  church,  when,  on  such  an  occasion,  he  nn- 
plicates  the  character  of  a  stranger  to  the  rules  of  the  church,  wdio 
is  not  amenable  to  its  authority,  and  who  has  no  opportunity  to  re- 
pel an  o]>probrious  accusation  before  the  tribunal  which  is  to  try 
it.  AVe  are  aware  that  the  restriction  of  the  privilege  (o  actions 
between  the  members  of  a  church,  may  sometimes  embarrass  the 
enforcement  of  wholesome  rules  of  discipline;  hut  it  is  equally  ob- 
vious, that  to  extend  it  beyond  such  actions  may  sometimes  occa- 
sion irreparable  injury  to  the  character  of  innocent  i)ersons.  On 
the  whole,  we  think  that  an  accusation  made  by  a  member  of  a 
church,  in  the  regular  course  of  church  discipline,  against  a  person 
not  a  member,  cannot,  as  to  him,  be  considered  as  a  i>rivileged 
conununication.  The  special  plea  being  no  bar  to  the  action,  the 
judgment  should  have  been  for  the  plaintiff'.    Judgment  reversed. 

But  see  Etchison  v.  Pergerson,  88  Ga.  620,  15  S.  E.  680,  cited  in  18  Am. 
&  Eng.  Enc.  L.  1036,  where  the  point  covered  by  the  principal  case  is 
treated.  See  also  25  Cyc.  390.  The  principal  case  is  apparently  approved 
in  Kleizer  v.  Symmes,  40  Ind.  562;  and  it  is  fully  approved  in  Nix  v. 
Caldwell,  81  Ky.  293,  50  Am.  Rep.  163.  See  "Libel  and  Slander,"  Century 
Dig.  §  114;    Decennial  and  Am.  Dig.  Key  No.  Series  §  36. 


FITZGERALD  v.  ROBINSON,  112  Mass.  371,  378-381.    1873. 
Privilege.     Excommunication. 

r  Action  of  slander.  Demurrer  by  defendant.  Demurrer  sustained,  and 
plaintiff  appealed.  In  the  supreme  court  the  demurrer  was  sustained  as 
to  some  of  the  counts  and  overruled  as  to  others.  Only  so  much  of  the 
opinion  as  relates  to  the  question  of  privilege  and  excommunication  is 
here  inserted.] 

Amer,  J.  .  .  .  Taking  the  whole  count  together,  it  is  ap- 
parent that  it  is  intended  to  charge  more  than  a  mere  slander  upon 


Sec.    7.]  PERSONAL    SECURITY.    LIBERTY.    ETC.  42  ( 

the  plaintiff's  good  name.  His  complaint  is  in  substance,  and  when 
relieved  of  all  unnecessary  averments,  that  the  defendant  made  a 
charge  against  him  which  (whether  criminal  in  its  nature  or  not) 
was  wholly  false  and  malicious;  that  for  the  alleged  reason  con- 
tained in  that  false  charge  he  proceeded  on  a  certain  Sunday,  in 
the  presence  of  the  congregation  and  during  service,  in  his  official 
character  as  a  priest,  to  pronounce  an  anathema  upon  the  plaintiff'. 
and  to  go  through  a  ceremonial  which  was  understood,  and  was 
intended  to  be  understood,  as  a  formal,  authoritative,  ecclesiastical 
sentence  of  excommunication,  depriving  him  of  all  his  rights  and 
privileges  as  a  member  of  the  Roman  Catholic  Church ;  and  which 
had  the  effect  of  injuring  him  in  his  business  as  a  trader  by  de- 
priving him  of  the  custom  and  trade  of  a  large  number  of  persons, 
enumerated  in  the  declaration. 

As  the  question  of  the  sufficiency  of  this  count  in  the  declaration 
is  raised  on  a  dennirrer.  we  are  to  inquire  whether,  assuming  the 
facts  averred  to  be  true,  they  are  sufficient  as  a  matter  of  law  to 
enable  the  plaintiff  to  maintain  this  action.    As  a  member  of  that 
commmiion.  he  was  subject  to  its  discipline  in  matters  spiritual,  as 
administered  by  its  proper  officers,  and  in  accordance  with  its  rules. 
The  power  of  excommunication  resides  somewhere  in  that  church, 
and  if  the  defendant,  in  virtue  of  his  priestly  office,  was  vested 
with  that  power,  as  the  declaration  seems  to  imply,  the  exercise  of 
it  was  in  the  nature  of  a  judicial  act.     The  declaration  does  not 
distinctly  inform  us  what  his  authority  was  in  that  respect,  but  if 
the  act  tlone  amounted  to  a  valid  excdniniuiiieation.  it  is  not  for  llir 
civil  courts  to  inquire  into  the  rea.sonableness  or  propriety  of  the 
act.     If  the  defendant  was  competent  to  pass  sentence  of  excom- 
iiuinication,  we  cannot  inciuire  into  the  grounds  and  regularity  of  ■ 
the  proceedings.    Remington  v.  Congdon.  2  Pick.  310;  Rouldin  v. 
Alexander.  15  Wall.  181  :  Shannon  v.  Fi-ost.  8  B.  :^ron.  253;  Farns- 
worth  V.  Storrs.  5  Cush.  412;  Gregg  v.  :Mass.  Med.  Soc.  Ill  Mass. 
18.").     AVc  say  that  the  declaration  seems  to  imply  that  the  charge 
made  by  the  defendant,  if  true  in  fact,  would  have  rendered  the 
plaintiff  liable  to  spii-itual  censure,  according  to  the  discipline  of 
that  church.     There  is  no  other  view  of  tlie  case,  in   which  the 
falsity  of  the  cliargc  cnii  be  .said  to  be  material.     Tlie  i)laintiff  ap- 
parently rests  his  case  on  Ihe  falsity  and  not  on  tlic  trivinl  ;nid 
frivolous  nature  of  the  charge. 

liul  if.  on  tlie  otiicr  band,  the  defendant  had  no  authority  to 
liionrinncr  sudi  a  sentence.  ;ind  liis  act  in  doing  so  was  a  mere  bald 
a.s.suinption  ol'  i)0wer  not  intrusted  to  liim.  the  plaintiff  has  nol 
been  oxconiMinnicated  at  all.  Tt  is  not  for  us  to  decide  what  remedy 
he  has.  or  whetlier  he  has  any  whatever  in  such  ease,  as  to  his 
spiritufd  riglits.  Tt  iiinst  ;il\\ays  be  remembered  that  in  a  court  of 
law  the  only  inquiry  is  as  t'o  civil  rights.  If  the  declaration  is  to 
be  understood  as  presenting  the  pl;iintiff"s  case  in  this  aspect,  the 
amount  of  bis  grievanc<-  is  that  the  effect  of  the  language  iind  cere- 
)nonies  conq)l;iined  of  wns  to  indtiee  certain  persons  to  consider  him 
as  laid  uimIit  ini   intcfdii-t.  ;ind  to  iivoid  ;ill   inlercourse  :ind  busi- 


428  I'EK^ONAL    SECLKITV.    LIHKKTV,    KTC.  [C  h .    J. 

iioss  with  liiiii  lor  thai  irasoii.  lint  as  the  words  coinphiiued  of  do 
not  charge  the  plaint  ill  with  any  nnsi-oiidiu-t  wliieh  tlie  law  cau 
take  notice  ol".  thi'  luiseonsti-uction  ol"  those  words  by  such  persons 
is  not  suflieient  to  I'liinish  a  liiound  lor  an  action  at  law.  'I  lie  dc"-- 
laratiou  does  not  charire  an  intent  to  injure  the  plaintift'  in  any  oi; 
his  business  i-eiations. 

The  dilliculty  of  the  i)lainlill"s  case  as  [)res(.'ntt'd  in  tliis  count 
lies  in  the  fact,  that  in  this  country  aud  in  tliis  ago,  a  sentence  of 
exeonmuuiication.  even  if  pronounced  by  competent  authority, 
aud  still  more,  if  in)ssiblr.  when  pronounced  without  authority,  is 
incapable  of  impairing-  or  all'ecting  a.  man's  civil  rights.  There 
Uius  a  lime  when  excouuaunication  was  attentled  with  many  seri- 
ous temporal  inconveniences;  the  object  of  it  was  excluded  from 
the  society  of  all  Christians,  and  disabled  to  do  any  act  reciuired 
to  be  doue  by  one  that  is  probus  et  legal  is  homo.  He  could  not 
serve  on  juries,  nor  be  a  witness  in  any  court,  and,  which  is  still 
more  serious,  he  could  not  bring  an  action,  real  or  personal,  to  re- 
cover lands,  or  money  due  him.  He  was  further  liable  to  the  writ 
de  excommunicato  f-apiendo.  liy  which  the  sheriff  was  directed  to 
take  the  offender,  and  imprison  him  in  the  county  jail,  until  he  was 
reconciled  to  the  church.  On  these  grounds,  says  Mr.  Starkie.  the 
case  of  Barnabas  v.  Traunter,  1  Vin.  Abr.  396,  may  perhajjs  be 
considered  as  authority  consistent  witli  the  general  rule.  Starkie 
on  Slander  {'Svd  ed.)  10-4.  This  case  is  cited  and  relied  upon  by 
the  plaintiff,  but  it  is  hardly  necessary  to  say  that  none  of  the  rea- 
sons suggested  by  Mr.  Starkie  as  being  "perhaps"  suificient  to 
sustain  it,  have  any  existence  under  our  laws.  That  was  a  case  in 
which  the  rector  of  a  parish,  under  pretense  of  written  directions 
from  the  ordinary,  falsely  and  maliciously  announced  from  his 
pulpit  that  the  plaintiff'  had  been  exconnnunicated.  The  plaintiff's 
action  was  sustained :  l)ut  it  is  clear  that  this  case  Is  not  law  in  this 
commonwealth.  The  result  of  this  examination  is  that  the  demur- 
rer to  the  first  count  must  be  sustained.  The  second  and  third 
counts,  which  i)resent  the  same  cause  of  action  in  other  forms,  are 
liable  to  substantially  the  same  objections,  and  must  also  be  ad- 
judged bad  on  denmrrer.     .     . 

See  further  as  to  excommunication  as  a  basis  for  an  action  for  defama- 
tion, Landis  v.  Campbell,  79  Mo.  433,  49  Am.  Rep.  239.  See  "Libel  and 
Slander,"  Century  Dig.  §  114;  Decennial  and  Am.  Dig.  Key  No.  Series  §  36. 


SWEENEY  V.  BAKER,  13  W.  Va.  1-58,  31  Am.  Rep.  757.     1878. 
Privilege.     ''Freedom  of  the  Press."     "Liberty  of  the  Press."    Criticism 

of  Candidates. 

[Action  for  libel.  Plaintiff  was  a  candidate  for  the  House  of  Dele- 
gates. Defendants  were  proprietors  of  a  newspaper.  .Judgment  against 
defendants.     Aflfirmed. 

The  defendants  i)ublished  many  artifles  against  the  plaintiff.  Some 
contained  charges  libelous  per  se.  while  others,  though  very  abusive,  did 
not  rearh  that  point.  Only  so  much  of  the  opinion  as  bears  upon  the 
question  of  privilege  is  here  inserted.! 


Sec.    r.]  PERSON.VL    SECURITY.    LIBERTY.    ETC.  429 

Greex.  Pres.  Before  eoiisidorino-  direetly  the  (|iiestioiis  in- 
volved in  this  ea.se.  I  will  hrietly  L-ctnsider  the  riglit.s  and  duties  of 
the  parties  to  this  a(^-tion.  arising  from  their  relations  to  each  other. 

The  plaintiff  was  a  candidate  to  represent  the  county  of  Ohio  in 
the  House  of  Delegates  of  the  state  of  West  Virginia-,  and  the  de- 
fendants were  proprietors  of  the  AVheelini>:  Daily  Kegister,  a  news- 
]iai)er  published  in  said  county.  A  newspaper  proprietor  is  just  as 
liable  for  what  he  publishes  in  his  newspaper  as  any  other  person; 
and  he  is  liable  in  the  same  inanner  and  to  the  same  extent.  The 
law  takes  no  cognizance  of  newspapers;  and  there  is  no  distinction 
between  the  publication  by  the  proprietors  of  a  newspaper,  and  a 
publication  by  any  other  person.  The  terms  "freedom  of  the 
])ress"  and  "liberty  of  the  press'"  have  misled  some  to  suppose 
tliat  the  proprietors  of  a  newspaper  had  a  right  to  publish  that 
with  impimity.  for  the  publication  of  which  others  would  have 
been  held  responsible.  But  the  proper  signification  of  these 
phrases  is.  if  so  understood,  misapprehended.  The  "liberty  of  the 
press"  consists  in  a  right  in  the  conductor  of  a  newspaper  to  print 
whatever  he  chooses  icithoui  any  previoxis  license,  but  subject  to 
be  held  responsible  therefor  to  exactly  the  same  extent,  that  any 
one  else  would  be  responsible  for  the  publication. 

In  the  ca.se  of  Stebbins  v.  ]\rerritt.  10  Cush.  25.  the  instruction 
given  by  the  court  below,  and  approved  by  the  supreme  court, 
was:  "It  ha.s  been  urged  upon  you.  that  conductors  of  the  public 
]»ress  are  entitled  to  peculiar  indulgence,  and  have  especial  rights 
and  privileges.  The  law  recognizes  no  such  peculiar  rights,  privi- 
leges, or  claims  to  indulgence.  They  have  no  rights  but  such  as 
are  conmion  to  all.  They  have  just  the  same  rights  that  the  rest  of 
the  community  have,  and  no  more.  They  have  the  right  to  pub- 
lish the  truth,  but  no  right  to  publish  falsehoods  to  lho  injury  of 
others  with  impunity."  In  Davidson  v.  Duncan.  7  Kl.  &  Bl.  231 
(00  E.  C.  L.),  Coleridge.  J.,  says:  "There  is  no  difference  in  laAv 
whether  the  publir-ation  is  by  the  ]u-oprietor  of  a  newspaper  or  by 
some  one  else.  There  is  no  legal  duty  on  either  to  jniblish  what  is 
injurious  to  another;  and  if  any  person  does  do  so.  he  nuist  defend 
himself  on  some  legal  ground." 

But  the  fact  Ihat  one  is  a  candidate  for  an  office  in  the  gift  of 
the  i»eople  affords  in  many  instances  a  legal  excuse  for  jniblisliing 
language  concerning  him  as  such  candidafe.  for  which  publication 
ihere  would  be  no  legal  excu.se.  if  he  did  not  occupy  the  position  of 
siieji  eaiididale.  whether  fhe  ])ublieaiir»ji  be  made  by  the  ]n'0]U'ie- 
tors  of  a  newspaj)er.  or  by  a  voter.  (»)•  oilier  ])ei'son  having  an  in- 
terest in  the  eledion.  The  conduct  and  actions  of  such  candidate 
may  be  freely  eoiiiinented  upon  :  his  acts  may  be  canvassed,  and  his 
coiidiict  boldly  censured.  \oi'  is  it  material  thai  such  criticism  of 
condnct  should  in  llie  estimate  of  a  jiii-y  be  Just.  The  right  to 
'  riticise  the  action  ot  ci  ndu'l  of  the  candidate  is  a  right,  on  the 
part  of  the  party  making  tlie  publication,  to  Judj^e  himself  of  the 
justness  of  the  criticism.  If  he  was  liable  foi-  damages  in  an  action 
of  libel  for  a  ])ublication  criticising  the  condni't  or  action  of  such  a 


4oU  I'KRSONAl.   SKCIKI'I'V.    i.i  ki:ki"v,   ktc.  \('Ii.   J. 

fiiiuliilalf.  ir.i.jiiiy  nIioiiIiI  luiKl  his  fi'il  icisiii  to  he  luijusl,  his  riy;lit 
(if  i-rif ii'isin  would  he  a  ilclusioii.  a  iih'I'c  ti'ap.  The  only  limitation 
to  tho  riirht  of  critirisiu  dl"  the  ad  nr  coiuluct  ol"  a  candidate  tor  an 
onifc  in  the  iiilt  ul  the  |)('iti)lc  is,  tiiat  the  criticism  l)c  bona  fide. 
As  this  riirht  of  i-i-iticism  is  coniiiu'd  to  the  acts  (ir  conduct  of  such 
candidate,  whcncxt'i-  the  facts  wiiich  constitute  the  act  or  conduct 
i-riticisetl.  arc  nul  adniitlcd.  ihc\'  iiiiisl.  df  course,  be  proven,  liut 
as  respects  his  person  there  is  no  such  larii'c  lU'ivilejje  of  ci'iticism. 
tlumirli  lie  be  a  eantliilate  for  such  oftice.  Tiiis  large  i)riviU'<i:e  of 
criticism  is  contined  to  liis  acts.  The  publication  of  dt'famatory 
huiiruajre.  atfectiiii:'  his  moral  cliaractcr,  can  never  be  justilied  on 
the  iri'onnd  tiiat  it  was  published  as  a  criticism.  His  talents  ami 
ipialitication  mimtally  and  physically  for  the  oftice  he  asks  at  tht 
iunids  of  the  jH'ople.  may  be  freely  coiuiiieuted  on  in  i)ublications 
in  a  newspaper,  and  1  hough  sncli  comments  be  harsh  and  unjust, 
no  malice  will  bi'  imi)iied  :  for  these  are  mattei's  of  opinion,  of 
which  the  voters  are  the  only  judges;  but  nt)  one  has  a  right  by  a 
])ublication  falsely  to  impute  crimes  to  such  a  candidate,  or  pub- 
lish allegations  falsely  affecting  his  character.     .     .     . 

It  is  ]iroi)er  to  say.  that  what  I  have  said  with  reference  to  the 
right  to  publish  certain  remarks  in  a  newspapcn-  relative  to  a  can- 
didate for  office,  within  the  gift  of  the  people,  should  be  under- 
stood as  contined  to  candidates  for  office  to  be  elected  by  the  peo- 
l)le.  and  cainiot  be  extended  to  candidates  for  an  oftice.  the  ap- 
pointment to  which  is  made  by  a  board  of  limited  members,  such 
as  a  city  council.  The  right  to  make  unjust  and  false  connnen- 
taries  on  the  qualifications  of  a  candidate  for  an  office  of  this  de- 
scriptiim  is  much  more  limited.  See  Ki'cn  v.  Bennett.  If)  X.  Y. 
IT-!.     Judgment  allirmed. 

See  20  L.  R.  A.  (X.  S.)  3(;i,  and  note.  See  Ramsey  v.  Clieek,  109  X.  C. 
270,  inserted  ante  in  this  section.  See  'Libel  and  Slander,"  Century  Dig. 
§  146;   Decennial  and  Am.  Dig.  Key  No.  Series  §  48. 


KNOTT  V.  BURWELL,  96  X.  C.  272,  277-280,  2  S.  E.  588.     1887. 
Mutual  lyibels.     Retaliation. 

[Action  for  libel.  Verdict  and  judgment  against  defendant,  and  he  ai)- 
pealed.  Reversed.  Defendant,  in  his  answer,  set  u]),  by  way  of  defense 
and  counterclaim  that  the  libel  complained  of  was  i)iiblished  because  of 
certain  slanders  uttered  against  him  by  the  plaintiff,  and  explains  the 
circumstances  which  iirovoked  him  to  publish  the  article  complained  of  as 
a  means  of  self-vindication.  The  i)roof  offered  to  sustain  these  allegations 
and  show  the  circumstances  etc.,  was  not  admitted.  Such  i)roof  was  of- 
fered in  mitigation  of  damages.  The  substance  of  the  rejected  evidence 
appears  in  the  opinion,  and  only  that  part  of  the  opinion  which  bears 
upon  the  exclusion  of  this  evidence,  is  here  inserted. 1 

Smit/t.  C,  J.     .     .     .     The  rulings  of  the  court  in  refusing  the 

pn»ffeTed  evidence  deprive  the  defendant  of  the  means  of  showing 

the  provocation  given  by  the  i)laintiff  for  the  retaliatory  and  vin- 

'cffcating  titterance  of  the  words  penned  in  the  form  of  an  appeal  to 


Sec.   7.]  PERSONAL    SECURITY,    LIBERTY,   ETC.  431 

the  public,  and  deny  him  the  oppoi'tuuity  of  showing  the  facts  oi 
the  plaintiff's  own  misconduct  which  are  set  out  in  the  cards.  This 
leaves  him  with  no  shadow  of  excuse  for  what  he  uttered  in  a  mo- 
ment of  irritation,  and  smarting  under  a  sense  of  injury,  and  under 
the  imputation  of  being  influenced  solely  by  a  feeling  of  malignity 
towards  the  iilaintift'.  and  a  revengeful  spirit  excited  by  no  just 
cause.  It  cannot  be  that  the  same  punitory  consequences  are  to  be 
measured  out  in  the  one  case  as  in  the  other,  nor  is  such  the  law. 
It  is  true,  under  former  technical  rules  of  pleading  applicable  to 
actions  for  defamation,  it  was  held  that  the  general  issue  did  not 
let  in  evidence  ort'ered  to  sustain  it  to  be  considered  in  mitigating 
damages,  as  is  decided  in  Smith  v.  Smith,  8  Ired.  29 :  but  this  has 
been  superseded  by  the  more  equitable  provision  found  in  the  code 
(§  266).  which  allows  in  the  answer  "both  the  truth  of  the  matter 
charged  as  defamatory  and  any  mitigating  circumstances  to  re- 
duce the  amount  of  the  damages;"  and  whether  the  defendant 
"prove  the  justiiication  or  not.  he  may  give  in  evidence  the  miti- 
gating circumstances. 

As  malice  is  involved  in  the  utterance  of  false  defamatory  words, 
and  separate  proof  of  it  is  not  essential  to  the  maintenance  of  the 
action,  it  is  a  material  element  in  aggravating  damage;  and  es- 
pecially so,  whenever  the  jury  are  at  liberty  to  make  them  exem- 
plar}', it  is  but  rea.sonable  to  allow  the  defendant  to  disprove  its 
presence,  and  lessen  its  intensity  in  reducing  the  damages.  "Even 
in  states  where  truth  of  the  words  is  not  permitted  in  mitigation 
under  the  genei-al  i.ssue.  yet  proof  tending  to  show  that  the  i)lain- 
tirt'  might  be  guilty  of  such  acts  as  are  charged  may  be  given  to  dis- 
prove malice,  and  thus  reduce  the  damage,  as  that,  prior  to  the 
speaking  of  the  words,  a  conunon  report  or  saspiciou  existed  that 
the  plaintiff  had  committed  the  act  charged." — with  numerous 
ii-fercnces  in  the  footnote,  found  on  page  111  of  Folkard  &  Starkia 
iin  Slander  iiiid  LUk'I.  Irinii  the  note  to  which,  inserted  by  the  edi- 
tor (Woods),  till'  extract  is  taken.  Among  the  cases  cited  is  that 
of  Nelson  V.  Kvans.  1  I)ev.  !).  where  it  is  .said  a  prevalent  general 
report  of  thf  truth  of  the  words  spoken  may  be  proved  in  mitiga- 
tion, but  not  in  justification. 

"In  ca.ses  of  libel."  we  quote  from  Wood's  ^layne  on  Damages 
'  ;;  122).  "the  defendant  may  give  any  evidence  in  reduction  of 
damages  which  goes  to  prove  the  absence  of  malice,  or  he  may  show 
l>revioas  provocation  received  from  the  ]daintiff.  This  provoca- 
tion ought  to  originate  in  the  .same  subject-matter,  or  be  closely 
iTiiiiieeted  with  it.  out  of  which  the  defeiid;iiit 's  slander  arose." 
.May  V.  lirown.  :\  P.ani.  .V:  (".  11:'..  1(»  K.  C.  !,.  124. 

[FACTS.]  Now  to  a|i|)ly  tlic  i-iile  lu  tlir  facts  of  llie  present 
liise.  The  defendant,  in  a  forbearing  spii'it.  on  hearing  that  a  .seri- 
ous iharg*'  had  I ii   made  at:ains1   him  for  false  weighing,  sends 

liis  brother  to  Hk-  plaint  ill'  to  ascertain  from  him  if  he  was  not  in 
error  in  hi.s  statements  about  the  defendant's  short  weighing,  and 
to  obtain  from  him  a  written  cf»n-eetion.  The  interview  takes 
place.     The  ciirreiit  re|i((rl.  so  prejnilicial  to  llie  defriKlant .  is  com- 


■l:i-  I'KKSONAl,    SKCnUTV.    l.lHKlv'I'V.    KTC.  \  C It . 


u. 


iiiimicjiti'd  111  ilir  iihiiiit  ilV.  will)  .s;iys  ii  \\;is  a  mislaki'  of  his,  and 
that  lir  wtiuM  III  tlu'  iiioi'nin<;  sii>ii  a  cai'd  to  that  effect.  It  was 
prepared  l>\  the  editoi- of  anol  her  new  spapri' ;  and.  when  pi'esenled 
to  the  phiiiititV.  he  pereiiiptofdy  rcl'iises  lo  juit  his  iiaiiu'  thereto, 
nor  does  \w  sni;t;:est  any  niodilieation  in  its  form  which  would  be 
acceptahk'.  'Phis,  wlitii  reported  to  the  (h'fendant.  was  followed 
very  soon  by  the  aUeticd  libel.  Ouiiht  not  these  facts  to  have  been 
lieard  by  tlie  jnry.  and.  if  aeeejited  as  true,  ou^lit  they  not  to  have 
been  considered  in  deterniininj;  the  punishment  to  be  suffered  by 
the  defendant  in  driving  expression  to  his  resentment  in  the  form 
atlopted  .'  Was  it  to  be  expected  tliat  he  would  i-est  silent  under  so 
injurious  a  charge,  and  repress  all  resentment  at  the  plaintiff's  re- 
fusal of  any  coi-ieetion  /  Was  it  without  any  palliating  cii-cinii- 
stances  that,  in  repelling  the  charge,  he  struck  back  at  his  assail- 
ant ?  Certainly,  one  feeling  himself  so  ^vrouged,  and  with  correc- 
tion refused  by  tlie  wrongdoer,  does  not  stand  in  the  same  light  as 
one  who  so  acts  with  no  provocation  and  from  sheer  malignity;  and 
yet  the  exclusion  of  the  evidence  leaves  him  equally  defenseless 
before  the  jury  as  would  be  the  other. 

So,  too,  we  tliink  the  statements  in  tlu^  depositions,  with  the  in- 
formation possessed  by  tlie  defendant,  should  have  been  heard  by 
the  jury  in  mitigation,  because  the  evidence  shows  that  the  charge 
about  the  "nested  tobacco"  was  not  a  mere  fabrication  of  the  de- 
fendant, and  hence  the  damages  should  not  be  as  great  as  if  it  was 
the  unsupported  coinage  of  the  defendant 's  own  brain,  and  con- 
ceived and  brought  out  from  a  malicious  and  wicked  heart. 

For  these  reasons  the  verdict  must  be  set  aside,  and  a  venire  de 
novo  awarded  in  the  superior  court. 

See  further  as  to  mutual  libels,  retaliation,  etc.,  Jauch  v.  Jauch,  .50 
Indiana,  13.5,  which  holds  that  defendant  may  show  that  he  spoke  the 
slanderous  words  in  a  moment  of  heat  and  passion  under  the  provocation 
from  the  plaintiff  immediately  preceding  his  utterances.  Under  such  cir- 
cumstances all  acts,  etc.,  constituting  parts  of  the  res  gestae  are  admissi- 
ble in  mitigation  of  damages.  Heat  and  passion  alone  do  not  mitigate; 
but  when  such  emotions  are  directly  attributable  to  contemporaneous  pro- 
vocation by  the  i)laintiff,  they  do  mitigate  the  damages.  See  25  Cyc.  421, 
.518;  18  Am.  &  Eng.  Enc.  L.  1108.  See  "Libel  and  Slander,"  Century  Dig. 
§§  164.  318;  Decennial  and  Am.  Dig.  Key  No.  Series  §  63. 


CHILD  v.  HOMER,  13  Pickering,  (Mass.),  503,  510.     1833. 
Mutual  Libels.     Retaliation. 

[Action  on  the  case  for  alleged  libels  by  the  publishers  of  a  newspaper. 
Verdict  and  judgment  against  defendants,  and  they  moved  for  a  new  trial 
because  of  the  ruling  out  of  evidence  offered  by  them.  It  is  upon  this 
motion  that  the  i)ortion  of  the  opinion  here  inserted,  was  written.  The 
court  sustained  the  motion  and  ordered  a  new  trial. 

The  matter  complained  of  was  admitted  to  be  libellous  and  the  con- 
test was  over  the  amount  of  damages,  and  that  was  the  only  question 
argued  before  the  jury.  Plaintiff  and  defendants  had  been  publishing 
poems,  etc.,  about  each  other  in  the  newspapers.    These  skits  were  begun 


S(C.    7 .]  PERSONAL    SECURITY,    LIBERTY,    ETC.  433 

in  jjleasantry,  but  became  (austic  and  finally  degenerated  into  abusive 
epithets  which  culminated  in  libel.  The  evidence  ruled  out  was  to  show 
the  articles  published  by  the  plaintiff  concerning  tlie  defendants.  The 
judge  ruled  that  it  was  not  competent  to  prove  a  separate  and  independent 
libellous  attack,  made  by  the  plaintiff  on  the  defendants,  either  in  justifi- 
cation or  in  mitigation  of  damages,  unless  such  publications  were  referred 
to  in  the  libel  sued  upon.  Defendants  insisted  that  the  publications  were 
so  referred  to.  After  reference  to  the  contents  of  the  various  articles 
written  by  the  plaintiff  and  the  defendants,  the  opinion  proceeds:] 

Wilde,  J.  .  .  .  On  both  sides,  it  is  apparent,  they  were  in- 
tended to  be  abusive  and  provoking,  to  wound  the  feelings,  and  to 
exasperate  the  jmssions  of  each  other.  Botli  parties  were  in  the 
wrong,  both  viohited  the  hiw ;  how  then  can  either  of  them  be  en- 
titknl  to  any  considerable  damages?  On  the  3rd  of  July  the  plain 
tiff  throws  out  a  challenge  or  defiance  to  the  other  party  to  con- 
tinue the  contest,  which  Ix'fore  appears  to  have  been  conducted  in 
a  liarmless  manner:  certainly  it  was  not  very  offensive.  If  one 
challenges  another  to  strike  him.  and  afterwards  brings  his  action 
for  a  consequent  assault,  there  can  be  no  doubt  that  such  challenge 
may  be  proved  in  mitigation  of  damages;  but  as  the  defendants 
are  not  prosecuted  for  the  publication  of  the  4-th  in  reply,  this  part 
of  the  controversy  is  not  perhaps  of  nnich  importance.  But  on  the 
f)th  the  plaintiff  follows  up  his  challenge,  and  then  followed  a  con- 
tinued combat  until  the  13th  ;  a  war  of  words  and  abusive  epithets, 
of  reproach  and  ridicule.  These  pu])lications,  we  think,  ought  to 
go  to  the  jury  in  connection,  as  ex})]anatory  of  each  other,  and  to 
show  a  provocation.  This  course  of  administering  justice  we  can- 
ufit  think  will  violate  any  settled  ride  of  law;  and  it  may  have  a 
salutary  effect  in  discouraging  that  licentious  abuse  of  the  liberty 
of  the  j^ress,  which  has  l»ccome  a  great  and  growing  evil,  and  ought 
to  be  diminished.  If  parties  will  engage  in  newspaper  controver- 
sies, and  yielding  to  their  angry  passions,  will  lavish  abuse  and 
slanderous  imj^utatinns  on  each  othci'  with  an  unsparing  hand,  let 
thrill  be  prosecuted  and  piniished,  if  the  public  good  requires  it; 
Itut  when  both  parties  are  in  pari  delicto,  neither  of  them  should 
be  encouraged  in  a  claim  for  damages  and  indemnity.  Such  a 
claiin  must  be  brought  foi'ward  with  a  very  bad  grace,  especially 
wlien  the  party  comi)laiiiing  was  the  one  who  commenced  the  con- 
1 roversy. 

But  we  must  not  be  understood  in  too  broad  a  sense.  "We  do  not 
admit  the  doctrine,  that  disliiiet  and  independent  libels  nuiy  be 
.set  off  against  eacii  other;  or  tliat  in  an  action  for  ojie.  tlu'  other 
may  lie  triveii  in  evidence  in  miti^Mtion  of  daiiiages.  This  would 
uiidoMl)tedly  Iciid  In  confusion  and  ciiib.irrassiiM'iil .  I  couline  my 
rctiiarks  to  eases  of  recent  provticat  ions,  and  1o  those  whei'e  the 
liliels  offered  ill  evidence  fire  ex|)hinat(trv  (»f  the  iiieaniiig  of  the 
bliels  c<iiii|»hiined  of.  and  of  the  oeension  of  writing  tliein  ;  all  being 
parts  of  a  coiiiicctrd  ;iiid  conl  imu'd  roiit  rovcr,s\  .  In  ;dl  sui-h  cases 
such  evidence  of  |>rovocat  ion.  or  explaiiatorv  iiiallii'.  may  be  re- 
ceived in  evideijcf.  as  we  think,  without  violating  any  |irinci])le  of 
law,  or  establi.shed  rule  of  evidence.  New  trial  granted. 
Remedies — 28. 


For  a  full  ilisfussion  of  the  principles  luinomued  in  the  principal  case, 
SCO  Hi  South.  r.t2.  2S  L.  R.  A.  721.  Sec  "Libel  and  Slander,"  Century  Dig. 
§§  If.l.  ;?1S;    Decennial  and  Am.  Dig.  Key  No.  Scries  §  G3. 


IMTTOCK  V.  O'NEILL,  li:5  Penn.  St.  253,  3  Am.  Rep.  544.     1870. 
Province  of  the  Jury   in  Libel.      Lord  Krskiiie's     Victory.      Distinction 
Beticecn   Criminal  and  Civil  Proceed iiiiis  for  Libel,  as  Kegardu  the 
Powers  of  the  Judge  and  Jury. 

[O'Neill  sued  PittocU  for  libel.  Verdict  and  judgment  against  Pittoclc 
and  he  appealed.  Affirmed.  The  action  was  against  Pittock  and  IMills, 
the  editor  and  publisher,  respectively,  of  a  newspaper,  for  publishing  an 
article  alleged  to  be  libellous.  The  publication  was  admitted.  The  judge 
assumed  the  power  of  determining,  as  a  matter  of  law,  whether  or  not 
the  article  published  was  libellous,  and  he  instructed  the  jury  that  it  was, 
without  doubt,  "libellous  and  grossly  so."  To  this  Pittock  and  Mills 
excepted.] 

SiiARSWooD.  J.  As  tlio  rnlo  is  well  oxprossed  by  an  olcmentary 
writer,  "the  quality  of  the  alleged  libel  as  it  stands  on  the  record, 
either  simple  or  as  explained  by  averments  and  innuendoes,  is 
purely  a  (|n(>stion  of  law  for  the  consideration  of  the  court." 
2  Starlde  on  Slander  and  Libel.  281.  That  this  was  the  law  in 
Ensrland.  both  in  eivil  and  criminal  proceedings,  up  to  1792,  was 
maintained  so  rigidly  that  nothinp;  was  submitted  to  the  jury  in 
such  cases  but  the  fact  of  publication  and  the  truth  of  the  innuen- 
does. Rex  V.  Woodfall.  5  Burr.  2661  :  The  King  v.  The  Dean  of  St. 
Asaph.  3  T.  Jl.  428.  note:  The  King  v.  Withers.  Td.  428.  In  con- 
sequence of  these  decisions  the  statute  of  32  Geo.  Ill,  ch.  60.  com- 
monly loiown  as  IMr.  Fox's  act,  was  passed.  This  statute  is  con- 
fined in  terms  to  trials  of  indictments  or  informations  when  an  is- 
sue oi-  issues  are  joined  between  the  king  and  the  defendant  or  de- 
fendants on  the  plea  of  not  guilty  pleaded,  in  which  case  it  is  de- 
clared and  enacted  that  the  jury  may  give  a  general  verdict  of 
guilty  or  not  guilty  upon  the  whole  matter  put  in  issue,  and  should 
not  be  required  or  directed  to  find  the  defendant  guilty  merely  on 
proof  of  the  publication,  and  of  the  sense  ascribed  to  the  same  in 
the  indictment  or  information.  By  the  second  section  it  was  pro- 
vided "that  on  eveiy  such  trial  the  court  or  judge,  before  whom 
such  indictment  or  information  shall  be  tried,  shall,  according  to 
their  or  his  discretion,  give  their  or  his  opinion  and  direction  to  the 
jury  on  the  matter  in  issue  between  the  king  and  the  defendant  or 
defendants,  in  like  manner  as  in  other  criminal  cases."  It  has 
never  been  pretended  that  this  statute  had  any  application  to  civil 
actions  (Levi  v.  Milne.  4  Bing.  105).  and  its  obvious  intention  was 
merely  to  restore  to  juries  their  common  law  right  to  give  a  gen- 
eral verdict  in  cases  ol'  lilxl.  just  as  in  other  criminal  cases,  of 
which  they  had  been  unconstitutionally  deprived.  Hence  the  law 
was  carefully  made  declaraloiy.  The  7lh  section  of  the  9th  article 
of  the  constitution  of  Pennsylvania  has  expressed  the  same  consti- 
tutional doctrine    and    incorporated    it    with    the    declaration    of 


Sec.    7.]  PERSOXAI.    SECURITY.    LreERTY,    ETC.  435 

riglits:  "111  all  uulictincnts  i'or  libels  the  jury  shall  have  a  right  to 
determine  the  law  and  the  facts,  under  the  direction  of  the  court, 
a.s  in  other  cases."  There  can  be  no  doubt  that  both  in  criminal 
and  civil  cases  the  court  may  express  to  the  jury  their  opinion  as 
to  whether  the  publication  is  libelous.  The  difference  is.  that  in 
criminal  cases  they  are  not  bound  to  do  so.  and  if  they  do.  their 
opinion  is  not  binding  on  the  juiy.  who  may  give  a  general  verdict 
in  opposition  to  it.  and  if  that  verdict  is  for  the  defendant,  a  new 
trial  cannot  be  granted  against  his  consent.  As  our  declaration  of 
rights  .succinctly  expresses  it.  the  jury  have  the  right  to  determine 
the  law  and  the  facts  in  indictments  for  libel  as  in  other  cases.  But 
in  civil  cases  the  court  is  liound  to  insti*uct  the  jnry  as  to  whether 
tlie  publication  is  libellous  supposing  the  innuendoes  to  be  true, 
and  if  that  instruction  is  disregarded,  the  verdict  will  be  set  aside 
as  contrary  to  law. 

In  England  the  courts  have  recently  disregarded,  to  some  extent, 
this  plain  distinction  between  criminal  and  civil  proceedings.  It 
appears  to  be  upon  the  ground  that  ^Nlr.  Fox's  act.  though  limited 
in  terms  to  indictments  and  informations,  was  declaratory  of  the 
law  in  all  cases  of  libel :  upon  what  principle  of  construction,  how- 
ever, it  is  not  very  easy  to  understand.  It  is  there  the  approved 
practice  for  the  judge  in  civil  actions,  after  explaining  to  the  jury 
the  legal  definition  of  a  libel,  to  leave  to  them  the  question  whether 
the  publieation  upon  which  the  action  is  founded  falls  within  that 
definition.  Folkard's  Sifark.  202;  Baylis  v.  Lawrence.  11  Ad.  & 
El.  920:  Parmiter  v.  Coupland.  6  M.  &  W.  105;  Campbell  v.  Spot- 
tiswoode.  3  B.  &  G.  781 ;  Cox  v.  Lee.  4  Exch.  L.  R.  284.  These 
cases  were  followed  in  Shattuek  v.  Allen.  4  Gray.  540. 

Yet  it  is  clearly  held  that  a  verdict  for  the  defendant  upon  that 
issue  will  be  set  aside  and  a  new  trial  granted.  Ilakewell  v.  In- 
irram.  28  Eng.  Law  &  Eq.  413.  "Though  in  criminal  proceedings 
for  libel."  said  Jervis.  C.  -T..  "there  may  be  no  review,  in  civil 
inatters  there  are  cases  in  which  verdicts  for  the  defendant  are  set 
nsidc  upon  the  ground  that  the  matter  was  a  libel,  though  the  jury 
foiuid  it  was  not."  This  must  be  conceded  to  be  an  anomaly;  and 
it  will  be  best  to  avoid  a  practice  which  leads  to  such  a  result.  The 
law.  indeed,  may  be  considered  as  .settled  in  this  state  by  long  prac- 
tiee.  never  qnestionerl.  but  ineidentally  eon  firmed  in  IMeCorkle  v. 
Binns.  5  Binn.  340.  .-uhI  Hays  v.  Brierly.  4  Watts.  302.  It  was 
held  in  the  case  last  eiled  that  where  words  of  a  dubio\is  import 
are  used,  the  plaintiff  has  a  I'ight  to  aver  their  meaning  bv  innu- 
f'lido.  and  the  trnlli  of  su<'h  innuendo  is  for  Ihe  jury.  In  New 
York,  sinee  the  reecnt  English  cases.  Ihe  cjuestion  has  been  ably 
diseussed  and  fnllv  eonsidercd  in  Snvder  v.  Andrews,  fi  Barb.  43; 
Grcon  V.  Telfair.  20  Id  11  :  Hunt  v.  Bennett.  19  N.  Y.  173.  and  the 
law  established  on  its  old  foundations. 

Thp  D^an  of  St.  Asaph's  rasp  is  thp  ransp  rplpbro  out  of  wlil<li  prpw 
Mr.  Fox's  ar-t.  Tn  tliat  rasp  If  was  Insistprl  l)v  tlip  nrosociition  Ihat 
whpfhfT  or  nof   n    publication  was  a  libd   was  no  qiu'stion   for  tlio  jury, 


436  PKKSt)NAI,    SlXl  KITV.    I.IHKUIV.    K'I'C.  \('h.    ■'> . 

aiul  that  thoy  woro  bouuil  to  lonviti  the  (l(>rt>ii(l:inl  in  a  ciiiiiinal  prosecu- 
tion for  lil)ol  if  they  belioviHl  that  lie  eaiised  tlie  inil)lii:ili()n  of  tlio  article 
alleged  to  be  libellous.  8  Camp-  Lives  L.  C.  273.  Ix)rd  lOisUine,  who 
appeared  for  the  Dean  of  St.  Aaaph.  took  the  opposite  ground  and  argued 
to  the  jury  that  they  were  to  pass  on  the  question  of  libel  or  no  libel  as 
well  as  ui)on  the  question  of  |)ubliiation.  "Mr.  .lustice  I?i  i.i.kk,  however, 
began  his  summiuK  up  by  telling  the  jury  that,  there  being  no  doubt  as 
to  the  innuendoes,  the  only  question  they  had  to  decide  was,  whether 
the  defendant  was  or  was  not  proved  to  have  published  the  pamphlet? 
He  overruled  all  that  had  been  contended  for  on  this  subject  by  the  de- 
fendant's counsel,  saying.  How  this  doctrine  ever  comes  to  be  now  seri- 
ously contended  for  is  a  matter  of  some  astonishment  to  me,  for  1  do  not 
know  any  one  question  in  the  law  which  is  more  thoroughly  established; 
and.  after  a  great  many  similar  observations,  he  thus  concluded:  There- 
fore, I  can  onlv  say  that,  if  you  are  satisfied  that  the  defendant  did 
publish  this  pamphlet,  and  are  satisfied  as  to  the  truth  of  the  innuendoes, 
vou  ought  in  point  of  law  to  find  him  guilty. 

"The  jury  withdrew,  and  in  about  half  an  hour  returned  into  court 
When  their  names  had  been  called  over,  the  following  scene  was  enacted. 
Clerk.      Gentlemen  of  the  jury  do  you  find  the  defendant  guilty  or  not 
guilty?'     Foreman.  'Guilty  of  publishing  only.'     Erskine.  'You  find  him 
guilty  of  publishing  only?'    A  Juror.    'Guilty  only  of  publishing.'    Buller, 
J.     'I  believe  that  is  a  verdict  not  quite  correct.     You  must  explain  that 
one  wav  or  the  other.     The  indictment  has  stated  that  G  means  'Gentle- 
man.' F,  Farmer,'  the  King,    the  King  of  Great  Britain,'  and  the  Parlia- 
ment, 'the  Parliament  of  Great  Britain.'    .luror.    'We  have  no  doubt  about 
that.'    Buller,  J.     'If  you  find  him  guilty  of  publishing,  you  must  not  say 
the  word    "only."  '     Erskine.     'By  that  they  mean  to  find  there  was  no 
sedition."     .Turor.    'We  only  find  him  guilty  of  publishing.    We  do  not  find 
anvthing  else.'     Erskine.    'I  beg  your  Lordship's  pardon;  with  great  sub- 
mission, I  am  sure  I  mean  nothing  that  is  irregular.     I  understand  they 
say,  "We  only  find  him  guilty  of  i)ublishing."  '     .Juror.    'That  is  all  we  do 
find."     Buller,  .1.    'If  you  only  attend  to  what  is  said,  there  is  no  question 
or  doubt.'    Erskine.    'Gentlemen,  I  desire  to  know  whether  you  mean  the 
word  "only"  to  stand  in  your  verdict?'     Juiymen.     'Certainly.'     Buller, 
J.     'Gentlemen,  if  you  add  the  word  "only,"  it  will  be  negativing  the 
innuendoes.'     Erskine.     'I   desire  your  Lordship,  sitting  here  as  judge, 
to  record  the  verdict  as  given  by  the  jury.'     Buller,  .1.     'You  say  he  is 
guilty  of  publishing  the  pamphlet,  and  that  the  meaning  of  the  innuendoes 
is  as  stated   in   the  indictment.'     .Juror.     'Certainly.'     Erskine.     'Is  the 
word  "onlv"  to  stand  as  part  of  the  verdict?'   .Juror.  'Certainly.'    Erskine. 
'Then  I  insist  it  shall  be  recorded.'    Buller.  .J.    'Then  the  verdict  must  be 
misunderstood;    let   me  understand  the  jury.'     Erskine.     'The  jury   do 
understand   their  verdict.'     Buller,  J.     'Sir,   I  will   not  be  interrupted.' 
Erskine.     'I  stand  here  as  an  advocate  for  a  brother  citizen,  and   I  de- 
sire that  the  word  only  be  recorded.'     Buller,  J.    'Sit  down,  sir;   remem- 
ber your  duty,   or    I    shall   be  obliged    to    proceed    in    another   manner.' 
Erskine.     'Your  Lordshi|)  may  proceed  in  what  manner  you  think  fit;    I 
know  my  duty  as  well  as  your  Lordship  knows  yours.     I  shall  not  alter 
my  conduct.' 

"The  learned  judge  took  no  notice  of  this  reply,  and,  quailing  under  the 
rebuke  of  his  pupil,  did  not  rei)eat  the  menace  of  commitment.  This  noble 
stand  for  the  independence  of  the  Bar  would  of  itself  have  entitled  Ers- 
kine to  the  statue  which  the  profession  affectionately  erected  to  his  mem- 
ory in  Lincoln's  Inn  Hall.  We  are  to  admire  the  decency  and  propriety  of 
his  demeanor  during  the  struggle,  no  less  than  the  spirit  and  the 
felicitous  precision  with  which  he  meted  out  the  requisite  and  justifiable 
portion  of  defiance.  The  example  has  had  a  salutary  effect  in  illustrating 
and  establishing  the  relative  duties  of  judge  and  advocate  in  England. 

"The  jury,  confounded  by  the  altercation,  expressed  a  wish  to  with- 
draw, and  the  verdict  was  finally  entered,  'Guilty  of  publishing,  but 
whether  a  libel  or  not  we  do  not  find.'"     [At  an  ensuing  term,  Erskine 


Sec.    7.]  PERSONAL    SECUKITY,    LIBERTY,    ETC.  437 

made  a  motion  to  set  aside  the  verdict,  which  was  overruled  by  Lord 
Mansfield.  He  then  moved  in  arrest  of  judgment,  and  judgment  was 
arrested.] 

•"So  ended  this  famous  prosecution.  It  seemed  to  establish  forever  tlie 
fatal  doctrine,  that  libel  or  no  libel  was  a  pure  question  of  law,  for  the 
exclusive  determination  of  judges  appointed  by  the  Crown.  But  it  led  to 
the  subversion  of  that  doctrine,  and  the  establishment  of  the  liberty 
of  the  press,  under  the  guardianship  of  English  juries.  The  public  mind 
was  so  alarmed  by  the  consequences  of  this  decision,  that  Mr.  Fox's  Libel 
Bill  was  called  for,  which  declared  the  right  of  jurors  in  cases  of  libel; 
and  I  rejoice  always  to  think  that  it  passed  as  a  declaratory  act,  although 
all  the  judges  unanimously  gave  an  opinion  in  the  House  of  Lords,  that 
it  was  inconsistent  with  the  common  law.  1  have  said,  and  still  think, 
rhat  this  great  constitutional  triumph  is  mainly  to  be  ascribed  to  Lord 
Camden,  who  had  been  fighting  in  the  cause  for  half  a  century,  and 
uttered  his  last  words  in  the  House  of  Lords  in  its  support;  but  had  he 
not  received  the  invalualjle  assistance  of  Erskine,  as  counsel  for  the  Dean 
of  St.  Asaph,  the  Star  Chamber  might  have  been  re-established  in  this 
country."     CampbelTs  Lives  of  Lord  Chan.  vol.  8,  276-279. 

The  sum  and  substance  of  the  Libel  Act  is  as  stated  by  Lord  Erskine 
in  defense  of  Mr.  Cuthell,  before  Lord  Kenyon,  to  wit:  "An  indictment 
for  libel  is,  therefore,  considered  an  anomaly  in  the  law.  It  was  held  so, 
undoubtedly;  but  the  exposition  of  that  error  lies  before  me;  the  Libel 
Act  lies  before  me,  which  exi.ressly  and  in  terms  directs  that  the  trial 
of  a  libel  shall  be  conducted  like  every  other  trial  for  every  other  crime; 
and  that  the  jury  shall  decide,  not  upon  the  mere  fact  of  printing  and 
publishing,  but  upon  the  whole  matter  put  in  issue,  i.  e.  the  publication 
of  the  libel  with  the  intention  charged  by  the  indictment.  This  is  the 
rule  by  the  Libel  Act,  and  you,  the  jury,  as  well  as  the  court,  are  bound 
by  it."  To  this  statement  Lord  Kenyon  naively  replied,  that  the  passing 
of  the  Libel  Act  was  "a  race  for  popularity  between  two  seemingly  con- 
tending parties,  who  then  chose  to  run  amicably  together;"  and  under 
his  instruction  the  defendant  was  found  guiltj'.  Campb.  Lives  L.  C. 
vol.  8,  346.  When  Mr.  Cuthell  heard  the  sentence  imposed  upon  him  by 
Lord  Kenyon,  he  doubtless  thought  that  he  had  experienced  a  practical 
realization  of  his  peculiar  name. 

In  answer  to  an  inquiry  from  the  editors,  Chief  .Justice  Clark,  of  the 
Xorth  Carolina  supreme  court,  writes:  "It  is  not  my  understanding  that 
we  ever  enacted  Fox's  Libel  Bill.  We  have  acted  on  the  understanding 
that  as  our  statute  makes  the  truth  of  the  charge  a  full  defense,  the  act 
is  not  needed." 

The  same  battle  that  was  fought  by  Lord  Erskine  in  the  Dean  of  St. 
Asaph's  case  was  fought  in  America  by  Alexander  Hamilton  in  People 
v.  Croswell.  ?,  Johns.  Cas.  (N.  Y. )  337,  and  with  a  like  result.  Fox's 
Libel  Bill  was,  in  effect,  passed  by  the  legislature  of  New  York  in  conse- 
qupncp  of  Hamilton's  defeat.  The  act  was  introduced  and  advocated  by 
William  W.  Van  Xess,  Hamilton's  associate  counsel  in  the  Croswell  case. 
That  the  legislature  indorsed  Hamilton's  i)osition  is  shown  by  the  fact 
that  the  statute  is  declaratory  of  the  law.  I<"'or  a  full  history  and  elab- 
orate discussion  of  the  whole  matter,  see  People  v.  Croswell,  supra:  Slate 
V.  Croteau,  23  Vermont,  14;  Com.  v.  Ant  lies.  .")  Cray,  185;  Spaif  and  Han- 
Ben  V.  r.  S.,  ir)6  r,  S.  m,  77,  147,  if)  Sup.  Ct.  273,  and  the  instructive 
biography  of  Alexander  Hamilton  by  Mr.  Scott  in  Great  American  Law- 
yers, vol.  1  at  pp.  372  381.  Sec  "Libel  and  Slander,"  Century  Dig.  SS  356  - 
364.  443;   Decennial  and  Am.  Dig.  Key  No.  Series  §§  123,  158. 


4;^8  I'KHSONAL   SKCUKITV.    l^IHKKTV.    ETC.  [(Jll.    J. 


KRANLMS  ot  al.  v.  FLINN.  118  U.  S.  385,  G  Sup.  Ct.  1148.     1886. 
Injuintion  .[(Htiniit  Lihcl. 

[Bill  in  equity  by  Flinn  to  restrain  Francis  and  others  from  doing  cer- 
tain things — nialuny  certain  puljjications  in  ne\vsi)ai)ers — intended  to  in- 
jure Flinn's  business.  Demurrer  tiled  and  overruled.  An  injunction 
pendente  lite  was  granted  and  the  decree  of  the  court  below  made  the 
injunction  perpetual.  Francis  et  al.  appealed.  Reversed.  Among  other 
things  it  was  alleged  in  the  bill  that  Francis  and  others  had  combined  for 
the  purpose  of  destroying  the  business  and  property  of  the  plaintiff  by 
publications  in  the  newspapers.  What  the  publications  were  of  which 
Flinn  complained,  the  bill  failed  to  disclose.! 

Mr.  Jtistice  Field.  ...  11'  tin'  publications  in  llic  news- 
papers are  false  and  injurious,  he  can  prosecute  the  publishers  for 
libel.  If  a  court  of  o((ui1y  could  intcrfci'c  and  nse  its  roniedy  of 
injunction  in  such  cases,  it  wuukl  draw  to  itself  the  greater  part  of 
the  litigation  i>roperly  belonging  to  courts  of  law. 

We  think  the  court  below  shoidd  have  sustained  the  demurrer 
of  the  defendatits  for  want  of  equity  in  the  l)ill.  The  decree  must 
therefore  be  rever.sed,  and  the  cause  remanded,  with  instructions 
to  dismis.s  the  bill ;  and  it  is  so  ordered. 

See  "Injunction,"  Century  Dig.  §§  174-176;  Decennial  and  Am.  Dig. 
Key  No.  Series  §§  101,  102 


RAYMOND  V.  RUSSELL  et  al.,  143  Mass.  295,  9  N.  E.  544.     1887. 

Injunction  Against  Libel. 

[Bill  in  equity  to  restrain  defendants,  proprietors  of  a  mercantile 
agency,  from  publishing  the  plaintiff's  name  and  business  standing  in 
their  records  and  books.  Demurrer  filed,  and  the  case  heard  by  the  su- 
preme court  on  bill  and  demurrer.     Bill  dismissed.] 

!MoRTOX.  C.  J.  It  is  not  within  the  jurisdiction  of  a  court  of 
equity  to  restrain,  by  injunction,  representations  as  to  the  char- 
acter and  standing  of  the  plaintiff  or  as  to  his  property,  although 
such  representations  may  be  false,  if  there  is  no  breach  of  trust  or 
of  contract  involved.  Boston  Diatite  Co.  v.  Florence  Manuf 'g  Co., 
114  IMass.  60.  and  cases  cited:  Whitehead  v.  Kitson,  119  Mass. 
484;  Prudential  Assur.  Co.  v.  Knott.  L.  R.  10  Ch.  142.  The  bill 
before  us  alleges  that  the  defendants  have  published,  and  intend 
to  publish  in  the  future,  the  name  and  business  standing  of  the 
plaintiff  in  the  records  and  books  of  a  mercantile  agency.  It  does 
not  even  allege  that  the  representations  are  false  or  malicious.  If 
he  has  any  remedy,  -which  we  do  not  mean  to  intimate,  it  is  by  an 
action  at  law.  The  bill  does  not  state  a,  case  within  the  equity 
jurisdiction  of  the  court.     Bill  dismissed. 

The  English  practice  was  very  strict  in  former  times  against  granting 
injunctions  to  restrain  libels;  but  such  injunctions  are  granted  now,  by 
leason  of  an  act  of  parliament  passed  in  1873,  where  the  publication  would 


Sec.    S    a.]  PERSONAL    SECURITY.    LIBERTY.    ETC.  439 

injure  trade,  property,  or  reputation.  But  tlie  rule  in  America  may  be 
said  to  be  that  of  the  principal  cases.  Where  the  publication  is  not  a 
mere  libel  but  a  boycott,  injunction  will  issue.  18  Am.  &  Eng.  Enc.  Law, 
1120,  1121. 

For  injunctions,  etc.,  in  cases  of  publishing  a  picture  of  a  person — in- 
vading the  supposed  law  of  privacy,  such  as  printing  a  young  ladys  pic- 
ture on  sacks  of  flour  as  a  trade-mark  or  advertisement,  see  80  N.  W. 
285,  46  L.  R.  A.  219;  64  X.  E.  442,  59  L.  R.  A.  478,  and  cross-references 
in  both  cases;   7  L.  R.  A.  (X.  S.)  274. 

An  interesting  feature  of  the  law  of  injunction  against  publications  in 
newspapers,  arose  in  the  Buck  Stove  and  Range  case,  in  which  Samuel 
Gompers,  Frank  :\Iorrison,  and  John  Mitchell,  officers  of  the  American 
Federation  of  Labor,  were  sentenced  to  imprisonment  for  contempt,  be- 
cause they  were  held  to  have  violated  an  order  of  injunction  forbidding 
the  publication  of  the  Buck  Stove  and  Range  Co.  in  a  boycott  list.  The 
case  was  brought  in  the  supreme  court  of  the  District  of  Columbia  and 
the  ruling  of  that  court  was  affirmed  on  Nov.  2,  1909,  by  the  court  of  ap- 
peals of  the  District  of  Columbia.  The  case  will  go  to  the  supreme  court 
of  the  United  States.  See  'Libel  and  Slander,"  Century  Dig.  §§  169-171; 
Decennial  and  Am.  Dig.  Key  Xo.  Series  §  98. 


Sec.  8.    Deprivation  of  Liberty, 
(a)  Haheas  Corpus. 

SIMMOXS  V.  GEORGIA   IROX  &  COAL  CO..  117  Ga.   305,  43   S.  E.   780, 

61  L.  R.  A.  739.     1902. 

History  and  Nature  of  the  Remedy.    Practice  iti  Suc7i  Proceedings. 

[Winnie  Simmons  sued  out  a  writ  of  habeas  corpus  in  a  city  court  for 
the  discharge  of  her  husband.  Petition  dismissed,  and  she  carried  the 
case  to  the  supreme  court  by  writ  of  error.  Reversed.  The  petitioner 
alleged  that  her  husband  had  been  convicted  of  certain  offenses  and  sen- 
tenced to  fine  and  imprisonment,  and  that  he  was  unlawfully  detained  in 
Ijrison  by  the  Georgia  Iron  &  Coal  Co.,  a  private  corporation  doing  a 
mining  business.  Only  so  much  of  the  opinion  as  discusses  the  history 
and  nature  of  the  remedy  of  habeas  corpus  and  the  practice  in  such  pro- 
ceedings, Is  here  inserted.] 

Cobb,  J.  ...  1.  Questions  growings  out  of  an  allogccl  ille- 
iral  restraint  of  a  person's  liberty  are  always  questions  of  nuich 
•  lelicacy  and  importance.  They  impose  upon  the  judiciary  the 
duty  of  institutin^r  a  careful  and  painstakinj?  investifralion  into  the 
cause  of  the  dflfntion.  and,  if  it  be  shown  to  be  illcjral.  the  eoui'ls 
sliould  not  be  too  .istuti'  in  finding;  technical  objections  to  the  man- 
ner in  which  the  lepjality  (if  llie  restraint  is  called  in  question.  On 
aceount  of  the  character  and  importance  of  the  questions  made  by 
tlif  rf'cnrd.  it  is  necessary  to  make  some  inquiiy  into  the  nature  and 
obj(!ft  of  the  writ  of  habeas  corfuis.  and  the  ])roc('e(liii<,'s  upon 
which  it  i.s  issued.  Many  are  accustomed  to  regard  llie  writ  as  al- 
most obsolete  and  of  little  pi"ietical  value,  and  this  results,  doubt- 
less, from  the  fact  that  it  is  so  seldom  ealle<1  into  operation.  Rut 
tlie  writ  is  as  nnieh  a  palladium  of  liberty  to-day  as  it  was  during 
the  abuses  existing  in  the  days  of  the  ancient  English  .sovereigns. 


44ll  I'KUSON.M,    SECrUlTV,    l.lHKUrV,    ETC.  [C7l.    J. 

It  is  to  till'  credit  <<\'  ;in  ;i(l\  aiiccd  civiliziil  ion  tluit  the  necessity  Tor 
the  issuanec  o['  tlic  wiil  nuvly  ever  arises.  Imi  llu-  ('oiistitiition  oi' 
this  state  cl(H'hnu>s  tliat    the   privileije  of  Hie   writ   shall   never  be 
suspended,  anil   it   stands  to-day,  as   it   did  in  the  days  of   King 
Charles,  to  protect  and  .safeguard  the  liberty  of  the  citizen.     The 
origin  of  the  \\  ri(  has  been  left  in  some  obscurity.    There  is  ample 
evidence,  however,  thai    it    was  in   use  befoi-e  the  days  of  Magna 
Charta.     See  2  Spell.  Extra.  Kel.  $5^5  lir)4,  1157;  15  Am.  &  Kng. 
Euc.  L.  (2d  ed.).  128.  12i).    The  connnon-law  writ  became  so  little 
respected  that  it  no  longer  afforded  real  or  substantial  benefits  to 
English  subjects,  and  it  was  not  until  after  the  i)assage  of  St.  M, 
Chas.  II.  known  as  the  "Habeas  CV)ii)us  Act,"  that  the  writ  came 
to  be  thoroughly  reorganized  in  its  fullest  scope.    This  act,  by  vir- 
tue of  our  adopting  statute,  became  a  part  of  the  law  of  this  state. 
See  Schley's  Dig.  p.  2(32;  Cobb's  Dig.  p.  1131.    Numerous  changes 
have  since  been  made  in  the  act  by  statutes  passed  since  its  adop- 
tion.    See  Cobb's  Dig.  5-13;  Pen.  Code  18i)5,  §  1210  et  seq.    The 
writ  with  which  we  are  now  dealing  was  the  one  known  to  the  com- 
mon law  as  the  "habeas  corpus  ad  subjiciendum,"  and  was  issued 
in  cases  of  illegal  detention.    3  Bl.  Com.  p.  131.    The  proceeding  by 
habeas  corpus  was,  strictly  speaking,  neither  a  civil  nor  criminal 
action.     "It  was  not  a  proceeding  in  a  suit  but  was  a  summary 
application  by  the  person  detained.    No  other  party  to  the  proceed- 
ing was  necessarily  before  or  represented  before  the  .judge  except 
the  person  detaining,  and  that  person  only  because  he  had  the  cus- 
tody of  the  applicant,  and  was  bound  to  bring  him  before  the 
judge  to  explain  and  justify,  if  he  could,  the  fact  of  imprison- 
ment.    It  was,  as  Lord  Coke  described  it  'festinum  romedium.'  " 
Church.  Ilab.  Cor.  §  88.  i).  I-IO.    See,  also,  in  this  connection,  3  lU. 
Com.  p.  131 ;  2  Spelling.  Extra.  Rel.  §  1152.     The  act  of  Charles 
II  certainly  did  not  change  the  nature  of  the  proceeding,  or  the 
practice  of  the  coui'ts  in  granting  the  writ.     See  Church,  Ilab. 
Cor.  §  100.     On  the  contrary,  it  wa.s  designed  to  correct  the  im- 
perfections of  the  connnon-law  writ,  and  make  it  a  speedy  remedy 
for  a  person  to  regain  his  liberty  when  illegally  detained  by  an- 
other.   It  seems  to  have  been  doubted  whether,  under  the  common 
law.  the  writ  could  be  issued  in  vacation,  and  this  was  doubtless 
one  of  the  i-easons  which  brought  about  the  passage  of  the  act. 
See.  in  this  connection,  3  Bl.  Com.  131 ;  4  Bacon's  Ab.  pp.  568,  593 ; 
Church,  Ilab.  Cor.  i;  171;  15  Am.  &  Eng.  Enc.  L.   (2d  ed.).  129. 
The  great  purpose  of  this  act.  thei-efore.  was  to  make  the  remedy 
speedy  and  effective.     The  jiroceeding  is  sometimes  characterized 
as  a  "cause"  or  "action."  but  erroneously  so;  and  it  has  been 
called  a  civil  or  criminal  proceeding,  according  to  whether  the  per- 
.son  is  held  in  custody  on  ;i  criminal  charge,  ov  by  i)rivate  restraint. 
While   instances   iiia\'   arise  where   it   is  important   to  determine 
whether  it  is  a  civil  or  criminal  proceeding,  it  can  never  be  accu- 
ratelv  characterized  as  a  technical  suit  or  action.    See,  in  this  con- 
nection. 15  Am.  &  Eng.  Enc.  L.  pp.  157.  158;  2  Spell.  Extra.  Kel. 
§  1161.     It  may  be  analogized  to  a  proceeding  in  rem,  and  is  in- 


Sec.    ^    «.J  PERSONAL    .SKCrKITY.    LIBERTY.    ETC.  -i-il 

stituted  for  the  sole  purpose  of  having  the  person  restrained  of  his 
liberty  produced  before  the  judge,  in  order  that  the  cause  of  his 
detention  may  be  inciuired  into,  and  his  statu;-,  tixed.     The  person 
to  whom  the  writ  is  directed  makes  response  to  the  writ,  not  to  the 
petition.     9  Enc.  P.  &  P.  1035.     Wheu  an  answer  is  made  to  the 
writ,  the  responsibility  of  the  respondent  ceases.     See.  in  this  con- 
nection. Barth  V.  Clise.  12  Wall.  40U.  20  L.  Ed.  393.     The  court 
passes  upon  all  questions,  both  of  law  and  fact,  in  a  summary  way. 
The  person  restrained  is  the  central  tigure  in  the  transaction.    The 
proceeding  is  instituted  solely  for  his  benefit.    It  is  not  designed  to 
obtain  redress  against  anybody,  and  no  judgment  can  be  entered 
against   anyl)ody.     There  is  no  plaintirt'  and  no  defendant,   and 
hence  there  is  no  suit,  in  a  technical  sense.     The  judgment  simply 
fixes  the  status  of  the  person  for  whose  benefit  the  writ  was  issued; 
and.  while  any  one  disobeying  the  judgment  may  be  dealt  with  as 
for  a  contempt,  the  judgment  does  not  fix  the  rights  of  any  one  in- 
terested, further  than  to  declare  that  the  person  detained  must  be 
restored  to  liberty.     The  respondent,  in  his  answer  to  the  writ, 
seeks  simply  to  justify  his  conduct,  and  relieve  himself  from  the 
imputation  of  haying  iinpris(jned  without  lawful  authority  a  per- 
son entitled  to  his  liberty.    He  comes  to  no  issue  with  the  applicant 
for  the  ^v^it.     He  answers  the  writ.     The  applicant  may  traverse 
tin*  answer,  and  thus  take  issue  with  the  respondent  as  to  the  tnilh 
or  legal  effect  of  the  facts  which  he  sets  u]).       If.  upon  an  inves- 
tigation into  the  matter,  it  appears  that  the  detention  was  without 
color  of  authority  the   person  detained   will,   of   course,   be   dis- 
charged; and  he  may  bring  a  civil  action  foi-  damages,  or  prosecute 
the  person  by  wliom  he  was  restrained  of  his  liberty  for  false  im- 
prisonment.   Hut  the  proceeding  itself  is  not  in  any  sense  a  suit  be- 
tween the  apjdicant  and  the  respondent.    Our  habeas  corpus  law,  as 
above  stated,  is  made  uj)  partly  of  the  common  law  and  i)ai-tly  o£ 
the  statute  of  Charles,  with  the  changes  that  have  been  made  from 
time  to  time  by  the  General  Assembly.     Such  portions  of  this  law 
as  are  material  in  the  present  investigation  will  be  referred  to  in 
the  aj)i)ropriate  i)laces.     It  is  certain  that  there  is  nothing  in  the 
law  which  takes  away  any  of  the  substantial  beiiefits  of  the  Eng- 
lish statute,  or  modifies  it  in  any  material  respect. 

2.  Hut  while  the  wr-il  of  lial)c;is  coriius  is  a  "wril  of  I'ight."  it 
did  not.  either  under  the  common  law  oi-  the  statute  of  Charles, 
issue  ns  a  matter  of  course,  but  only  on  ])idbable  cause  sb.owiL  It 
was.  undi.-r  the  English  ])ractier,  incuiiiltent  upon  the  jtai'ty  moving 
for  the  writ  to  make  a  prima  facie  showing,  under  oatlu  authoriz- 
ing thi'  discliarge  of  the  person  restrained  of  his  libei'ty.  4  Bacon's 
Ab.  p.  r)f;H;  1  Tidd's  I'r.  p.  340.  .\iid  this  is  also  llie  rule  in  the 
•oui-ts  f)f  America.  Ciuirch.  I  lab.  Cor.  ;i  1)2:  2.")  .\m.  Dig.  (Cent. 
Kd.)  cols.  995.  996.  §  55;  2  Spell.  Extra.  Hel.  ?;(  1193.  1318.  Penn. 
Code.  §  1211.  pi'ovides  how  such  an  a])plication  shall  br  made,  and 
what  sliall  be  its  c<intenls.  and  the  application  nnist  state,  among 
other  things,  "the  cause  or  [ireten.se  of  the  restraint,  and.  if  under 
pretext  of  legal  proce.ss, "  a  coj)y  of  the  i>rocoss.  if  possible,  must 


44"-'  rKRSON'Al-    Sl-XrUlTV,    LIHKKTY.    KTf.  \('h.    .'). 

hi'  ;miu'\rtl  to  the  pot  ilion  :  ;iih1  the  ii|)|)lii';it  ion  iiiiisl  coiitaiii  "a 
ilistiiu't  .iviTiiifiit  ol"  tlu'  allcircd  illciialily  in  the  rcsh-iiinl.  or  the 
reason  why  the  writ  ol"  li.ilic.is  coi-iius  is  soiijilit."  Wlicn  Jiidyi! 
MontgoMUTv.  ill  liiooiiilicad  v.  Chisoliii,  47  (ia.  'AVi'2.  usi'd  tlie  liin- 
iiuairo  tliat  vwry  jiidirt'  whose  duty  it  is  1o  «>:rant  the  writ,  "must 
do  so  wlu'ii  any  |tcrson  shall  apply  lor  it,"  hi\  of  course,  did  not 
mean  to  say  that  the  ajiplication  need  not  state  sulTieicnt  facts  to 
authorize  the  writ  to  issue,  and  the  apidication  witli  which  tlie 
learned  jndire  was  dealiiiii'  in  that  ease  met  uiupiestionahly  the  I'e- 
nuireiiit'iits  of  the  rule  just  I'eferred  to.  iMi-.  Justice  l»leckley,  in 
l*erry  v.  .M(  i.eiidon.  dl'  (!a.  (i(i4,  says  that  the  writ  should  h  ■  issued, 
"provided  the  i)etition  contains  the  reciuisite  matter,  is  in  due 
form,  duly  authenticated,  didy  ])i'esented.  and  does  7iot  sliow  on  its 
face  that  the  iiiiprisoniiient.  th()U<ili  complained  of  as  illegal,  is  iu 
fact  legal.""  It  is  therefore  the  duty  of  the  court  in  every  case, 
hefore  issuing  the  writ,  to  inspect  the  application,  to  see  if  it  con- 
tains suflicient  averments  and  is  ])ropei'ly  verified.  Tf  it  lacks  these 
essential  KMpiisites.  he  should  decline  to  issue  the  writ.  If  it  does 
not,  it  is  "his  duty  to  grant  it."  and  for  a  failure  to  do  so  the  law 
imposes  a  ]K^nalty  upon  him.  Pen.  Code  1895,  §  1234.  The  pro- 
visions of  this  section  just  cited  as  to  the  imposition  of  a  ])enalty 
and  the  charactei-  of  the  penaltv  are.  in  sul)stance.  what  was  pro- 
vided in  the  act  of  Charles  II.  Cobb's  Dig.  p.  1181.  §  10;  Schley's 
Dig.  p.  275.  But  we  know  of  no  law  which  authorizes  either  the 
jjcrson  against  whom  the  writ  is  prayed,  or  any  one  else,  to  come 
into  court  and  object  to  the  issuance  of  the  writ.  There  is  no  prec- 
edent for  an  objection  of  this  character.  It  is  a  matter  to  be  de- 
termined solely  by  the  judge.  And  even  after  the  writ  has  issued, 
and  the  respondent  has  appeared  in  answer  to  it,  the  sufficiency  of 
the  petition  cannot  be  tested  by  a  denuirrer.  though  it  seems  that  a 
motion  mav  be  made  to  cpiash  the  writ  because  of  insufficient  aver- 
ments in  tile  petition.  9  Enc.  V.  &  P.  1021  ;  2  Spell.  Extra.  Rel. 
§  1335.  Mr.  Church,  however,  in  his  work  on  Habeas  Corpus. 
§  156.  p.  241.  states  that  a  motion  was  made  to  quash  the  writ  on  the 
ground  that  it  liad  been  issued  ini|)rovidently.  before  Justice  Wil- 
son, of  the  queen's  bench,  in  Canada,  and  the  justice  stated  :  "Even 
if  it  were  clear  to  me  that  I  have  the  power.  I  do  not  know  that  I 
would  exercise  it.  now  that  the  writ  has  been  returned  and  filed, 
and  the  prisoner  is  here  awaiting  my  judgment."  See  In  re  Ross, 
3  P.  R.  (Can.)  301.  So,  states  the  author,  instead  of  quashing  the 
writ  on  motion  made  for  that  purpose,  he  discharged  the  prisoner 
on  defects  in  the  warrant  returned.  This  pi-actice  commends  it- 
self very  strongly  to  our  minds.  "When  the  writ  lias  been  answered, 
and  the  prisoner  produced,  why  fritter  away  his  rights  with  tech- 
nical niceties  and  rules  of  pleading?  Let  it  be  granted  that  the 
writ  ought  not  to  be  issued  imtil  probable  cause  is  shown,  when  it 
is  issued,  even  though  improvidently.  if  it  accomplishes  its  pur- 
pose and  results  in  the  production  of  the  person  detained,  why 
remand  to  the  place  from  whence  he  came  a  man  deprived  of  his 
liberty  without  any  color  of  legal  authority,  because,  forsooth,  the 


aScC.    8   a.]  PERSON^VL    SECURITY.    LIBERTY.    ETC.  4-lo 

petition  is  defective  in  form,  or  even  in  substance .'  The  writ  of 
habeas  corpus  is  a  writ  of  right,  and  its  benelicent  effects  ought 
not  to  be  dissipated  by  subtle  objections  and  tccluiical  niceties.- 
Of  course,  if  the  petition  clearly  shows  on  its  face  that  the  deten- 
tion is  lawful,  there  is  nothing  to  investigate.  But  if  it  is  merely 
lacking  in  that  fullness  which  the  statute  and  good  pleading  re- 
quires, and  shows  that  a  claim  is  made  by  the  api)licant  that  the 
detention  is  illegal,  the  writ  ought  not  to  be  quashed  after  the 
person  detained  has  been  brought  into  court,  but  an  inquiry  into 
the  cause  of  the  detention  ought  to  be  instituted.  Especially  ought 
this  rule  to  be  applied  where  tlic  petition  is  made  by  a  person  other 
than  the  party  restrained  of  his  liberty.  Let  the  party  detained 
be  given  an  opportunity  to  show  that  his  detention  is  not  lawful. 
Tt  may  be  said  in  the  administration  of  the  law  due  forms  must  be 
ob.served.  This  is  true,  but  this  writ  was  framed  to  meet  an  emer- 
gency and  for  a  special  purpose,  and  was  intended  to  be  used  in  a 
summary'  and  .speedy  manner,  and  its  beneficent  purposes  and 
wholesome  effects  must  not  be  lessened  by  legal  refinements.  See, 
in  this  connection.  Broomhead  v.  Chisolm.  47  Ga.  390.     .     .     . 

There  is  one  other  point,  which,  though  not  made  in  the  record 
or  suggested  in  the  argument,  we  have  thought  it  proper  to  no- 
tice, for  the  benefit  of  those  who  may  in  the  future  apply  for  the 
writ  under  similar  circumstances  as  those  appearing  in  the  pres- 
ent proceeding.  The  petition  prayed  for  the  issuance  of  the  writ 
to  the  "Georgia  Iron  &  Coal  Company,  a  corporation,  .  .  . 
and  its  officers,  agents,  and  employes  who  have  the  charge  and 
custody  of  the  said  "Wess  Simmons."  The  writ  was  directed  to  the 
corporation,  "and  to  its  officers,  agents,  and  employes."  It  was 
served  upon  the  .superintendent  of  the  coi-poration.  The  writ 
must  be  directed  to  the  person  having  the  person  in  custody, 
■A-hether  he  be  an  officer  of  the  law  or  a  private  individual.  4  Ba- 
con's  Ab.  p.  581  ;  15  Am.  &  Eng.  Enc.  L.  (2d  ed.).  p.  194.  "If 
this  cannot  readily  be  determined,  it  may  be  addres55ed  to  any  one 
cfMintcnanfing  or  consenting  to  the  illegal  detention  or  restraint." 
rimrch.  Tlab.  Cor.  §  lOH.  p.  167.  "We  find  no  precedent  in  the 
bf)oks.  however,  for  directing  the  writ  to  a  corporation  ;  and.  from 
the  very  nature  of  the  case,  it  would  seem  to  be  dear  that  it  can- 
not be  so  directed.  See.  in  tliis  connection.  Hall  Machine  Co.  v. 
Barnes.  11.^)  Ga.  045.  046.  42  S.  E.  276.  A  corporation  is  an  arti- 
ficial being — an  enfity — and  it  is  not  conceivable  how  it  can  re- 
strain the  liberty  of  anybody.  Tt.  of  course,  could  authorize  the 
deten1if>Ti.  atiH  would  doubtless  be  lijible  in  a  cixil  ;ic1io)i  for  so  do- 
ing. But  how  eftuld  a  judgment  ordering  a  <'oi'porat ion  to  dis- 
charge a  person  wrongfully  held  in  custody  be  enforced?  The  cor- 
7)oration  crmld  not  be  altaclied  for  contempt,  and  we  do  not  think 
that  an  officer  or  servant  of  the  corporation  couM  be  attached  for 
refusing  to  obey  a  writ  directed  to  the  cor])orat ion.  TJest raining 
another's  liberty  is  necessarily  a  matter  of  indivi«lual  conduct  and 
responsiltility.  and  it  would  certainly  be  nf»  defense,  on  an  attacli- 
ment   for  contempt  against   an    individual.   Itiat    the  restraini    was 


\\\  I'KUSONAI.    SKCliniN  ,    l.lHKirPY.    KTC.  \(ll.    ."». 

urili'i'i'il  1>\  ;i  i'(ir|ii)i;it  ion,  ni-  cxm  Ity  iiiiotlicr  iiulivitliuil.  But 
those  views  .-iic  not  of  serious  luonicnt  now.  lor.  ;ipi)lyin^  the  rule 
ol"  lil>fral  const  iiicl  ion  hcrclororc  rcrciTcd  to.  wo  lliink  the  writ 
may  he  treated  as  direi'ted  to  the  individuals  concerned  in  thi'  ille- 
ii;al  resti'aiut  of  the  prisouei".  It  was  directi'd  to  the  agents  ol"  the 
corporation,  and  si-rved  upon  one  of  such  ajjents.  who  res[)onded, 
and  presuinalily  hrou^ht  the  prisoner  into  court  ;  and  lience  the 
irrejriUarity  in  tlie  aiklress  of  tlie  wi-it  pi-esented  no  ohstaele  to  an 
iiKpiiry  into  the  cause  of  the  ri'straint.  But  such  a  method  of  ad- 
dressing' a  writ  is  irreguhu'  and  iiuproi)er.  It  should  he  directed 
to  the  individual  having  the  actual  i)hysical  custody  and  control  of 
the  person  detained,  and  if  this  cannot  readily  be  done,  where  the 
application  is  made  l)y  a  thiid  party,  to  some  one  who  is  manifestly 
a  party  to  the  detention,  and  aids  and  abets  it.  Judgment  re- 
versed. 

That  liabeas  corpus  proceedings  are,  to  all  intents  and  piu-posfes,  civil 
actions,  both  under  the  common  law  and  Code  practice,  see  Ex  parte  Tom 
Tong,  108  U.  S.  556.  2  Sup.  Ct.  871;  also  85  N.  W.  1046,  62  L.  R.  A.  700. 
See  "Habeas  Corpus,"  Century  Dig.  §§  1,  46,  64;  Decennial  and  Am.  Dig. 
Key  No.  Series  §§  1,  48.  72. 


EX  PARTE  WATKIXS,  3  Pet.  (U.  S.)   193,  202,  203.     1830. 

Habeas  Corpus  When  Applicant  in  Custody  Under  Final  Judgment  of  a 
Court  of  Competent  Jurisdiction. 

[Habeas  corpus  in  the  supreme  court  of  the  United  States  to  inquire 
into  the  legalit.v  of  the  confinement  of  Tobias  Watkins,  who  was  con- 
fined in  prison  under  the  final  judgment  of  the  circuit  court  of  the 
United  States.  The  imprisonment  was  claimed  to  be  illegal  because  the 
indictment,  upon  which  the  conviction  was  had,  charged  no  offense  of 
which  the  court  had  jurisdiction.  After  stating  that  there  is  no  doubt 
of  the  power  of  the  supreme  court  to  award  a  writ  of  habeas  corpus  un- 
der the  14th  section  of  the  Judiciary  Act,  and  that  the  only  question  is. 
whether  this  be  a  case  in  which  that  power  ought  to  be  exercised,  the 
opinion  proceeds: 1 

Marshall,  C.  J.  .  .  .  The  writ  of  habeas  corpus  is  a  high 
prerogative  writ  known  to  the  common  law,  the  great  object  of 
which  is  the  liberation  of  those  who  may  be  imprisoned  without 
sufficient  cause.  It  is  in  the  nature  of  a  writ  of  error,  to  examine 
the  legality  of  the  commitment.  The  English  judges,  ])eing  orig- 
inally under  the  influence  of  the  crown,  neglected  to  issue  this  writ 
where  the  government  entertained  suspicions  which  could  not  be 
sustained  by  evidence;  and  the  writ,  when  issued,  was  sometimes 
disregarded  or  evaded,  and  great  individual  oppression  was  suf- 
fered in  consequence  of  delays  in  bringing  prisoners  to  trial.  To 
remedy  this  evil,  the  celebrated  habeas  corpus  act  of  the  31st 
Charles  II.  was  enacted,  for  the  puri)ose  of  securing  the  benefits 
for  which  the  writ  was  given.  This  statute  may  be  referred  to  as 
describing  the  cases  in  which  relief  is.  in  Pmgland.  afforded  by 
this  wiit  to  a  person  detained  in  custody.     It  enforces  the  common 


Sec.    S    a.]  PERSONAL    SECLRITY.    LIBERTY.    ETC.  445 

law.  This  statute  excepts  f'l'oin  those  who  are  entitled  to  its  bene- 
tits  persons  committed  for  felony  or  treason,  plainly  expressed  in 
the  Avarrant.  as  well  as  persons  convicted  or  in  execution. 

The  exception  of  persons  convicted  applies  particularly  to  the 
application  now  under  consideration.  The  petitioner  is  detained 
in  prison  by  virtue  of  the  judgment  of  a  court,  which  court  pos- 
sesses general  and  final  jurisdiction  in  criminal  cases.  Can  this 
judgment  be  re-examined  upon  a  writ  of  habeas  corpus?  This 
writ  is.  as  has  been  said,  in  the  nature  of  a  writ  of  error,  which 
brings  up  the  body  of  the  prisoner,  with  the  cause  of  commitment. 
The  court  can  undoubtedly  inquire  into  the  sufficiency  of  that 
cause;  but  if  it  be  the  judgment  of  a  court  of  competent  jurisdic- 
tion, especially  a  judgment  withdrawn  by  law  from  the  revision  of 
this  court,  is  not  that  judgment  in  itself  sufficient  cause?  Can  the 
court,  upon  this  writ,  look  beyond  the  judgment,  and  re-examine 
the  charges  on  which  it  was  rendered?  A  judgment,  in  its  nature, 
concludes  the  subject  on  which  it  is  rendered,  and  pronounces  the 
laAv  of  the  case.  The  judgment  of  a  court  of  record,  whose  juris- 
diction is  final,  is  as  conclusive  on  all  the  world  as  the  judgment  of 
this  court  would  be.  It  is  as  conclusive  on  this  court  as  it  is  on 
other  courts.  It  puts  an  end  to  inquiiy  concerning  the  fact,  by 
deciding  it. 

The  coun.sel  for  the  prisoner  admit  the  application  of  these  prin- 
ciples to  a  case  in  which  the  indictment  alleges  a  crime  cognizable 
in  the  court  by  which  the  judgment  was  ])ronounced:  but  they 
deny  their  application  to  a  case  in  which  the  indictment  charges 
an  offense  not  punishable  criminally,  according  to  the  law  of  the 
land.  Hut  with  what  ])i-opriety  can  this  court  look  into  the  indict- 
ment .'  "We  have  no  power  to  examine  the  proceedings  on  a  writ 
of  error,  and  it  would  l)e  strange,  if.  under  color  of  a  writ  to  lib- 
••rate  an  individual  from  unlawful  imprisonment,  we  could  sub- 
stantially reverse  a  judgiin'iit  which  the  law^  has  placed  beyond 
our  control.  An  imijrisoinuent  under  a  judgment  cannot  be  un- 
lawful, unless  that  judgment  l)e  an  absolute  nullity;  and  it  is  not 
a  nullity  if  the  court  has  general  jui'isdiclion  of  the  subject,  al- 
though it  should  be  erroneous.  The  circuit  court  for  the  District 
of  Colnmbia  is  a  court  of  record,  having  general  jurisdiction  over 
criminal  cases.  An  offense  cognizable  in  any  court,  is  cognizable 
in  that  court.  If  Ihe  ofVcnse  ])e  ]»uiiisliabl('  by  jaw,  that  coui't  is 
competent  to  iiiHict  the  punishment.  The  judgment  of  such  a 
tribunal  has  all  the  o])ligation  which  the  judgment  of  any  tribunal 
can  have.  To  (jelentiine  whether  tlie  offense  charged  in  th(»  indict- 
ment be  le^raily  punish;il)le  or  not.  is  among  the  most  unipiestion- 
able  of  its  y)owers  and  tlnfies.  The  decision  of  this  (piestion  is  the 
exercise  of  jurisdiction,  wlictlief  the  jiidgnirnt  be  Ww  or  against 
the  prisoner.  The  jud^'nient  is  e(|iially  binding  in  t]i(>  one  ca.se  and 
in  the  otlier;  and  must  I'einain  in  full  force  unless  rev(!rsed  regu- 
larly by  a  superif)r  court  capable  of  reversing  it.  .  .  .  With- 
out looking  info  the  indictments  iui<ler  which  tlie  prosecution 
against  the  petitioner  was  coiidueted.  we  ;ire  luianinidusly  of  oj)in- 


44H  I'KRSUNAL    SECIKITV.    I.IUKKTV,    ETC.  [Ck.    5. 

ion  that  till'  jiuli^iiu'iit  of  a  court  of  j;(Micral  I'l-iiiiinal  jurisdictiou 
justitios  liis  iiiiprisoimit'iit.  ami  that  the  writ  ol'  habeas  corpus 
oiitrlit  not  to  l)c  awarded. 

Tliat  one  uiult'i-  sentence  of  tlic  final  judgment  of  a  court  of  competent 
jurisdiction  will  not  lie  discharged  under  habeas  corpus  proceedings, 
see  in  re  Brit  tain,  !»:>  N.  C.  r>87;  but  if  there  be  a  naiit  of  jurisdiction  in 
the  court,  or  if  its  action  be  unconstitutional ;  or  in  execution  of  an  un- 
constitutional law;  or  if  it  he  voiil,  as  distinguished  from  erroneous  or 
voidaitle — one  may  he  discharged  though  in  custody  under  the  final 
judgment  of  a  court.  Ex  Parte  Siehold,  100  U.  S.  371;  State  v.  Queen,  91 
N.  C.  G59;  In  re  Boyett,  13G  N.  C.  415,  48  S.  E.  789  (this  case  involving 
the  detention  of  the  criminal  insane  under  an  unconstitutional  statute) ; 
Re  Tani.  91  Pac.  137,  13  L.  R.  A.  (N.  S.)  rjl8;  1  Ih.  r.40,  and  note.  See 
■■Hai)eas  Corpus,"  Century  Dig.  §  19%;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  22. 


IN  RE  SCHNEIDER.  Petitioner,  148  U.  S.  162,  13  Sup.  Ct.  572.  1892. 
Habeas  Corpus  as  a  Substitute  for  Writ  of  Error  or  Appeal. 

[Habeas  corpus  in  supreme  court  of  the  United  States.  The  i)etition 
set  out,  inter  alia,  that  the  prisoner  was  detained  under  the  judgment 
and  sentence  of  the  supreme  court  of  the  District  of  Columbia,  sentence 
of  death  having  been  passed  upon  him  by  such  judgment;  that  the  judg- 
ment was  unlawful,  void  and  unconstitutional,  in  that  the  prisoner  had 
not  been  allowed  a  proper  trial  by  jury,  because  certain  challenges  for 
cause  were  overruled  by  the  judge — setting  forth  the  causes  of  challenge 
assigned  at  the  trial.  1 

The  Chief  Justice  Fi'LLER:  Leave  to  file  petition  for  writs  of 
habeas  corpus  and  certiorari  is  denied.  The  ground  of  the  appli- 
cation does  not  go  to  the  .I'lirisdiction  or  authority  of  the  supreme 
court  of  the  district,  and  mere  error  cannot  be  reviewed  in  this 
proceeding.  Ex  parte  I'arks.  93  U.  S.  18;  Ex  parte  Bigelow,  113 
r.  S.  328.  5  Sup.  Ct.  542;  Ex  parte  Wilson.  114  IT.  S.  417.  5  Sup. 
Ct.  935 ;  Nielson.  pet.  131  U.  S.  176,  9  Sup.  Ct.  672. 

That  habeas  corpus  cannot  be  used  as  a  writ  of  error  or  as  an  appeal, 
to  correct  errors  in  criminal  cases,  see  In  re  Schenck,  74  N.  C.  G07;  Ter- 
linden  v.  Ames,  184  U.  S.  270,  278,  279,  22  Sup.  Ct.  484.  One  unlawfully 
confined  under  a  final  judgment — his  sentence  being  for  a  longer  term 
than  that  allowed  by  the  statute  prescribing  the  punishment — may  have 
relief  by  certiorari.  State  v.  Lawrence,  81  N.  C.  523.  See  "Habeas  Cor- 
pus," Century  Dig.  §  25;  Decennial  an  Am.  Dig.  Key  No.  Series  §  30. 


WALES  V.WHITNEY,  114  U.  S.  564,  571-575,  5  Sup.  Ct.  1050.     1884. 
What  Detentions  May.  and  What  May  Not,  Be  Relieved  by  Habeas  Cor- 
pus.    M'ives,  Children,  etc.     Physical  and  Moral  Restraint. 

[Appeal  from  a  judgment  of  the  supreme  court  of  the  District  of  Co- 
lumbia refusing  a  writ  of  habeas  corpus  to  Wales  from  an  order  of  ar- 
rest issued  by  the  secretary  of  the  navy.     Affirmed. 

The  petitioner,  Wales,  was  a  medical  director  in  the  United  States 
navy  and  was  i)laced  under  arrest  by  the  secretary  of  the  navy  by  an 
order  addressed  to  him,  as  follows:  ".     .     .     .     You  are  hereby  placed  un- 


Sec.  8  a.]  personal  security,  liberty,  etc.  447 

der  arrest,  and  you  will  confine  yourself  to  the  limits  of  the  city  of  Wash- 
ington." This  was  all.  There  was  no  physical  arrest  or  detention  of  the 
petitioner.] 

Mr.  Justice  ^Miller.  .  .  .  The  writ  of  habeas  corpus  is  not  a 
writ  of  error,  though  in  some  cases  in  wliich  the  court  issuing  it 
has  appellate  power  over  the  court  by  whose  order  the  petitioner 
is  held  in  custody,  it  may  be  used  with  the  writ  of  certiorari  for 
that  purpose.  In  such  case,  however,  as  the  one  before  us.  it  is  not 
a  writ  of  error.  Its  purpose  is  to  enable  the  court  to  inquire,  first, 
if  the  petitioner  is  restrained  of  his  liberty.  If  he  is  not.  the  court 
can  do  nothing  but  discharge  the  writ.  If  there  is  such  restraint, 
the  court  can  then  inquire  into  the  cause  of  it.  and  if  the  alleged 
cause  be  unlawful,  it  must  then  discharge  the  prisoner.  There  is 
no  very  satisfactory  definition  to  be  found  in  the  adjudged  cases 
of  the  character  of  the  restraint  or  imprisonment  sutfered  by  a 
party  applying  for  the  writ  of  habeas  corpus,  which  is  necessary 
to  sustain  the  writ.  This  can  hardly  be  expected  from  the  variety 
of  restraints  for  which  it  is  used  to  give  relief.  Confinement  under 
civil  and  criminal  proces.s  may  ])e  .so  relieved.  AVives  restrained 
by  husbands,  children  withheld  from  the  proper  parent  or  guard- 
ian, persons  held  under  arbitrary  custody  by  private  individuals, 
as  in  a  madhouse,  as  well  as  those  under  military  control,  may  all 
become  proper  subjects  of  relief  by  the  writ  of  habeas  corpus.  Ob- 
viously, the  extent  and  character  of  the  restraint  which  justifies 
the  writ,  nuist  vary  according  to  the  nature  of  the  control  which 
is  asserted  over  Ihc  parly  in  whose  behalf  the  writ  is  prayed. 

In  the  ca.se  of  a  man  in  the  military  or  naval  .service,  where  he 
is.  whether  as  an  officer  or  a  private,  always  more  or  less  subject 
in  his  movements,  by  the  very  necessity  of  military  rule  and  sub- 
ordination, to  the  oixlers  of  his  superior  officer,  it  should  be  made 
dear  that  some  unusual  restraint  upon  his  liberty  of  personal 
movement  exists  to  justify  the  issue  of  the  writ:  otherwise  every 
order  of  the  superior  officor  directing  the  movements  of  his  sub- 
ordinate, which  nec('?vsarily  to  some  extent  cui'tails  his  freedom  of 
will,  may  be  hold  1o  be  a  restraint  of  his  liberty,  and  the  party  so 
(•rdered  may  seek  i-cliof  fi-om  obedience  by  means  of  a  writ  of 
habeas  r-orpus. 

Sometliing  more  than  moral  restraint  is  necessary  to  make  a 
case  for  liabeas  corpus.  Thei-e  must  be  actual  confinement  or  the 
present  means  of  enforcing  it.  The  cla.ss  of  cases  in  which  a  sher- 
iff or  other  officer,  with  a  writ  in  his  hands  for  the  arrest  of  a  per- 
son wlinm  he  is  ref|uired  to  take  into  custody,  to  whom  Ihe  person 
to  be  arrested  submits  without  force  being  applied,  conies  under 
this  definition.  The  officer  has  the  authoi-ily  to  ai-resf.  ;uid  fhi> 
power  to  enforce  it.  If  the  party  named  in  the  writ  resists  or  at- 
tempts to  resist,  the  officer  can  sunnnon  ])v-standers  to  his  assist- 
;inc"'.  and  may  himself  use  personal  violence.  Here  the  force  is 
iinjiiincnt  and  the  party  is  in  pre.sence  of  if.  It  is  pliysienl  power 
which  controls  him.  thougli  not  called   info  demonsfrat ive  action. 


•44>5  PF.Rsowi,  SF,^^K1•|'^  ,   lll!llM•^.   i:i'c.  \('li.  5. 

It  is  said  ill  ai'Liiniiriil  tlial  sm-li  is  tlic  [xiwcr  cxcrcisi'd  dVcr  llic 
appi'llaiit  iiiulcr  llic  oidcr  of  the  scciclaiy  oi'  Ihc  iia\v.  l>ut  tliis 
is.  wf  lliiiik.  a  iiiistakr.  If  \)v.  Wales  had  clioscMi  lo  disobey  tliis 
(irdtT.  lie  had  iiotliiiii;'  to  do  l)iit  take  Ihc  next  or  any  stihscqucnt 
train  iVoni  tlic  city  and  h^avc  it.  'I'hcfc  was  no  one  at  hand  to  hin- 
der him.  And  thoiiirh  it  is  said  that  a  tile  of  marines  or  some 
])roi)ei-  ol"ti('cr  cdnld  ha\c  hccn  sent  to  aiTcst.  and  l)rinfi;  him  back, 
tliis  coidd  only  i)f  (h)n('  i)y  anolhei-  orihM-  ol'  the  seerctary.  and 
would  be  another  arrest,  and  a  real  imprisonment  luider  aiiothei" 
ami  distinct  order.  Here  woidd  be  a  iral  restraint  of  liberty,  (piiie 
difi'erent  fron:  the  first.  The  fear  of  this  latter  i)i'oeeedin<;.  which 
may  or  may  not  keep  Dr.  Wales  within  the  limits  of  the  city,  is  a 
moral  i-estraint  which  concerns  his  own  convenience,  and  in  re- 
trard  to  which  he  exercises  liis  own  will. 

The  ]>resent  case  bears  a  stron<i'  analo<iy  to  Dodfje's  Case  in  (i 
i\Ia.rt.  (La.)  560.  It  appeared  there  that  tlie  party  who  sued  out 
tlie  writ  had  been  cotnmitted  to  jail  on  execution  for  debt,  and  hav- 
ing given  the  usual  bond  b>-  which  he  and  his  sureties  were  bound 
to  pay  the  debt  if  he  left  the  prison  i)ounds,  he  was  admitted  to 
the  privilege  of  those  bounds.  The  plaintiff  in  execution  failing  to 
pay  the  fees  necessary  to  the  support  of  the  prisoner,  the  latter 
sued  out  a  writ  of  habeas  corpus.  That  eminent  jurist.  Chief  Jus- 
tice ]\Iartin.  said,  on  appeal  to  the  supreme  court:  "It  appears  to 
us  that  the  writ  of  habeas  corpus  w'as  improperly  resorted  to.  The 
appellee  Avas  luider  no  physical  restraint,  and  there  was  no  neces- 
sity to  recur  to  a  court  or  judge  to  cause  any  moral  i-cstraint  to 
cease.  The  sheriff  did  not  restrain  him,  since  he  had  admitted  him 
to  the  benefit  of  the  bounds ;  the  doors  of  the  jail  were  not  closed 
on  him,  and  if  he  was  detained  it  was  not  by  the  sheriff  or  jailor. 
If  his  was  a  moral  restraint  it  could  not  be  an  illegal  one.  The  ob- 
ject of  the  appellee  was.  not  to  obtain  the  removal  of  an  illegal  re- 
straint from  a  judge,  but  the  declaration  of  the  court  that  the 
plaintiffs  in  execution  had  by  their  neglect  lost  the  right  of  detain- 
ing him.  A  judgment  declaring  such  neglect,  and  pronouncing  on 
the  consequences  of  it.  was  what  the  api)ellee  had  in  view."  The 
judgment  awarding  the  wTit  was  reversed.  The  analogy  to  the  case 
before  us  is  striking. 

A  very  similar  case  was  passed  ujKin  by  the  supreme  court  of 
Pennsylvania  in  Kespublica  v.  Arnold.  8  Yeates,  263.  A  party 
who  had  been  indicted  for  arson,  and  had  given  bail  for  his  appear, 
anee  to  answer  the  indictment,  applied,  while  out  under  bail,  to  be 
discharged  by  writ  of  habeas  corpus,  on  the  ground  of  delay  in  th" 
prosecution.  The  court  held  that  the  statute  of  Pennsylvania, 
which  was  a  re-enactment  of  the  habeas  corpus  act  of  31st  Charles 
IT.,  e.  2,  spoke  of  persons  committed  or  detained,  and  clearly  did 
jiot  apply  to  a  person  out  on  l)ail.  And  Mr.  Justice  Ye.vtes  very 
pertinently  impiires,  "Would  not  a  habeas  corpus  directed  to  the 
bail  of  a  supi)Osed  offender  be  perfectly  novel?"  And  Rmith,  J., 
said  that  the  inclination  of  his  mind  was  that  habeas  corpus  could 
not  lie  to  the  bail. 


Sec.  8  a.]  personal  security,  liberty,  etc.  449 

In  a  note  to  the  cases  of  Rex  v.  Dawes  and  Rex  v.  Kessel,  1  Burr. 
638,  the  same  principle  is  stated,  though  by  whom  the  note  is 
made  does  not  appear.  Both  these  persons  were  brought  before 
Lord  IManslield,  in  the  king's  bench,  on  a  rule  against  the  commis- 
sioners to  enforce  an  act  of  parliament  to  increase  the  army.  In 
both  cases  the  ground  on  which  the  discharge  was  asked,  was  that 
they  were  illegally  pressed  into  the  service.  Lord  ^lansfield  dis- 
charged one  because  his  statement  was  found  to  be  correct,  and 
refused  the  other  because  his  statement  was  not  true.  The  note  to 
the  report,  apparently  in  explanation  of  the  fact  that  they  were 
not  brought  before  the  court  by  writ  of  habeas  corpus,  and  tliat 
no  objection  was  taken  to  the  rule  by  the  commissioner,  says ; 
'"Xeither  of  these  could  liave  Ijruugbt  a  habeas  corpus ;  neither  of 
them  was  in  custody.  Dawes  had  deserted  and  absconded,  and 
Kessel  had  been  made  a  corporal.  No  objection  was  made  by  the 
commissioner  to  the  propriety  of  the  method  adoi)ted."  Chief 
Baron  Comyn  cites  the  cases  as  showing  that  the  parties  could  not 
bring  habeas  corpus,  because  thev  were  not  in  custody.  4  Com. 
Dig.  313,  "Habeas  Corpus"  B.     .'     .     . 

All  these  provisions  contemplate  a  proceeding  against  some 
person  who  has  the  immediate  custody  of  the  party  detained,  with 
the  power  to  i)roduce  the  body  of  such  party  before  the  court  or 
judge,  that  he  may  be  liberated  if  no  sufficient  reason  is  shown  to 
the  contrary. 

In  case  of  a  person  who  is  going  at  large,  with  no  one  controlling 
or  watching  him.  or  detaining  him.  his  body  cannot  be  produced  by 
tile  person  to  whom  the  writ  is  directed,  unless  by  consent  of  the 
alleged  prisoner,  or  by  his  capture  and  forcible  traduction  into  the 
])rcsence  of  the  court.  The  record  in  the  present  case  shows  that 
no  such  thing  was  done.  The  secretary  denies  that  AA'alcs  is  in  his 
custody,  and  he  does  not  produce  his  body ;  but  "Wales,  on  the  direc- 
tion of  the  secretary,  appears  without  any  compulsion,  and  reports 
himself  to  the  coui^t  and  to  Justice  Cox.  as  he  did  to  the  court-mar- 
lial.  We  concur  with  the  suju'eme  court  of  the  district  in  tiie 
(»I)inion  that  the  record  docs  not  ]iresent  such  a  case  of  restraint  of 
personal  lilx-rty  as  to  call  for  discharge  by  a  writ  of  habeas  corpus. 
In  thus  deciding  we  are  not  leaving  the  appellant  without  remedy, 
il'  his  counsel  ai'c  right  in  believing  the  coui-t-iiiart ial  has  m*  juris- 
'liction  of  the  otfense  of  w^liich  he  is  charged.  lie  can  make  that 
objection  to  that  couij  Ix'fore  trial.  lie  can  mak(>  it  before  judg- 
ment after  the  facts  iwr  all  bi'fon-  thai  coni't.  ITc  can  make  it  be- 
I'ore  the  reviewing  tribunal.  If  tliat  (^oui't  linds  him  guilty,  and 
imposes  iniftrisoinnent  as  part  of  a  sentence,  he  can  then  have  a 
wi'it  to  I'elieve  biiii  nT  tjijit  imprisonment.  If  he  sluiuld  lie  de- 
jirived  (tf  ot'fjce.  he  cjin  sue  j'oi-  his  pay  and  have  the  (juestioii  (if  tht^ 
jui'isdiction  of  tiie  court  wliich  made  sueh  a?i  (trder  in<|uired  into 
in  that  suit.  TF  his  pay  is  stopped,  in  whole  or  in  |>;iit.  be  can  do 
the  same  tiling.  In  ;ill  these  modes  he  can  have  relief  if  the  court 
is  without  jurisdici  ion.  jinrl  the  intjuiry  into  thai  jurisdiction  will 
be  more  satisfactoiy  after  the  court  shall  have  di'cided  on  the  na- 
Remedles— 29. 


450  I'KKSONAI.    SIHMUM'I'V.    l.llU'.in'V.    KT(".  |  ( 7( .     '). 

turt*  o['  llu'  tilVi'iisi'  I'or  wiiicli  il  punishes  liiiii  tliiiii  it  <-im  hclorc. 
Aiul  Iliis  iiKiiiiu'i-  ol"  rolu>r  is  iiioiv  in  aiH-oril  with  the  orderly  jul- 
niinistralion  of  jiistiee  aiul  the  delieate  relations  ol"  the  two  classes 
of  courts,  civil  and  niilitai-y.  Ilian  the  assumption  in  advance  by  tlu' 
one  court  that  the  other  will  exercise  a  jurisdiction  which  does  not 
helonj;  to  il. 

The  jud^Miient  of  llie  supreme  court  of  tiie  District  of  Columbia 
is  alliruied. 

A  person  confined  under  arrest  and  bail  i)ioceedings  in  a  civil  action 
may  resort  to  habeas  corpus  to  test  the  legality  of  his  detention.  Clal'- 
lin  V.  t'ndorwood,  To  N.  C.  485;  Stewart  v.  Bryan,  121  N.  C.  46,  28  S.  E. 
18.  See  "Habeas  Corpus,"  Century  Dig.  §§  10-12;  Decennial  and  Am. 
Dig.  Key  No.  Series  §§  8-11. 


IN  RE  NEAGLE,  Petitioner,  135  U.  S.  1,  69,  75,  10  Sup.  Ct.  658.     1889. 

Potoer  of  United  States  Courts  to  Discharge  Those  in  Custody  Under  the 
Laws  and  Judicial  Proceedings  of  a  State. 

[Appeal  to  the  supreme  court  of  the  United  States  by  the  sheriff  of 
San  Joaquin  county,  California,  from  a  judRuient  of  the  circuit  court  of 
the  United  States,  discharging  Neagle  from  the  custody  of  the  sheriff. 
Affirmed.  At  the  time  such  order  was  made,  the  sheriff  held  Neagle 
under  process  of  the  courts  of  California  on  a  charge  of  murder. 

Under  orders  from  the  executive  department  at  Washington,  Neagle, 
a  deputy  United  States  marshal,  had  been  directed  by  the  United  States 
marshal  to  i)rotect  .Justice  Field  from  threatened  violence.  In  the  dis- 
charge of  this  duty  Neagle  had  killed  Terry  as  a  matter  of  necessity  to 
prevent  an  assault — apparently  with  intent  to  Idll — upon  Justice  Field. 
Thereupon  Neagle  was  confined  in  jail  under  a  commitment  duly  issued 
by  a  justice  of  the  peace  of  San  Joaquin  county,  upon  a  charge  of  mur- 
der. Neagle  then  sued  out  a  writ  of  habeas  corpus.  Only  so  much  of  the 
opinion  as  bears  upon  the  power  of  the  courts  of  the  United  States  in 
such  cases,  is  here  inserted.] 

Mr.  JiLstice  iMn.LER.  .  .  .  It  is  urged  against  the  relief 
sought  by  this  writ  of  habeas  corpu.s  that  the  question  of  the  guilt 
of  the  pri.soner  of  the  crime  of  nuirder  is  a  question  to  be  deter- 
mined by  the  laws  of  California,  and  to  be  decided  by  its  courts, 
and  that  there  exists  no  power  in  the  government  of  the  Ignited 
States  to  take  away  the  prisoner  from  the  custody  of  the  proper 
authorities  of  the  state  of  California,  and  carry  him  before  a 
judge  of  the  court  of  the  United  States,  and  release  him  without 
a  trial  by  jury  according  to  the  laws  of  the  state  of  California. 
That  the  statute  of  the  T'nited  States  authorizes  and  directs  such  a 
proceeding  and  such  a  judgment  in  a  ease  where  the  offense 
charged  against  the  prisoner  consists  in  an  act  done  in  pursuance 
of  a  law  of  the  Ignited  States,  and  by  virtue  of  its  authority,  and 
wliere  the  imprisonment  of  the  party  is  in  violaticm  of  the  constitu- 
tion and  laws  of  the  T'nited  States,  is  clear  by  is  express  language. 
The  enactments  now  found  in  the  Revised  Statutes  of  the  United 
States  on  the  subject  of  the  writ  of  habeas  corpus  are  the  result  of 
a  long  course  of  legislation  forced  upon  congress  by  the  attempt 
of  the  .states  of  the  T'nion  to  exercise  the  power  of  imprisonment 


Sec.  8  a.]  personal  secirity.  liberty,  etc.  -151 

over  officers  ftiid  other  persons  asserting  rights  under  the  federal 
government  or  foreign  governments,  which  the  states  denied. 
.  .  The  result  at  which  we  have  arrived  upon  this  examina- 
tion is  that,  in  the  protection  of  the  person  and  the  life  of  Mr.  Jus- 
tice Field  wliile  in  the  discharge  of  his  official  duties,  Neagle  was 
authorized  to  resist  the  attack  of  Terry  upon  him ;  that  Xeagle  was 
correct  in  the  belief  that,  without  prompt  action  on  his  part,  the 
assault  of  Terry  ujion  tlu-  judge  would  have  ended  in  the  death  of 
the  latter;  that,  such  heing  his  well-foimded  belief,  he  was  justi- 
fied in  taking  the  life  of  Terry,  as  the  only  means  of  preventing  the 
death  of  the  man  who  was  intended  to  be  his  victim ;  that  in  taking 
the  life  of  Terry,  under  the  circumstances,  he  was  acting  under  the 
authority  of  the  law  of  the  United  States,  and  was  justified  in  so 
doing ;  and  tliat  he  is  not  liable  to  answer  in  the  courts  of  Califor- 
nia on  account  of  his  part  in  that  transaction.  We  therefore  af- 
firm the  judgment  of  the  circuit  court  authorizing  his  discharge 
from  the  custody  of  the  sheriff  of  San  Joaquin  county. 

Habeas  corpus  lies  to  discharge  one  in  custody  under  process  of  a 
state  court,  when  such  action  of  the  state  court  is  in  violation  of  the 
constitution  of  the  United  States,  or  of  a  treaty,  or  law  thereof:  but  this 
power  is  exercised  with  caution  and  under  the  discretion  of  the  court, 
rather  than  as  a  matter  of  course,  even  in  thosQ  cases  in  which  the 
power  clearly  exists.  "Whitten  v.  Tomlinson,  160  U.  S.  231,  16  Sup.  Ct. 
297,  reviewing  many  cases;  Ex  parte  Young,  209  U.  S.  123,  167,  28  Sup. 
Ct.  441,  involving  the  ^linnesota  passenger  rate  law  of  1907;  Hunter  v. 
Wood,  209  U.  S.  205,  2.S  Sup.  Ct.  472,  involving  the  North  Carolina  pas- 
senger ratp  law  of  1907 — for  the  decision  of  the  state  supreme  court  on 
the  validity  of  this  law,  see  State  v.  So.  R.  R.  Co.,  145  N.  C.  495,  59  S.  E. 
570.  See  "Habeas  Corpus,"  Century  Dig.  §§  38-45;  Decennial  and  Am. 
Dig.  Key  No.  Series  §  45;   "Courts,"  Century  Dig.  §§  1376-1385. 


TARBLE'S  CASE,  13  Wallace,   397,   401,   402,   409,   410.     1871. 

Power  of  State  Courts  to  Discharge  Those  in  Custody  Under  the  Laws 
and  Judicial  Proceedings  of  the  United  States. 

f Proceeding  by  habeas  corpus  in  a  state  court  for  tli(^  discharge  of 
Tarhlo  hold  in  custody  by  a  recruiting  ofTicer  of  the  TTiiited  Slates  as  an 
f-nlistfd  soldier.  The  writ  was  issued  by  the  court  commissioner  of 
Dane  county,  Wisconsin,  and  directed  to  the  United  States  officer,  who 
Itroughl  Tarble  befoie  the  court,  but  pleaded  want  of  jurisdiction.  Tar- 
t)lp  flainifd  to  be  under  IS  ycar.s  nf  age  and  to  have  been  diii)0(l  into  en- 
listing. The  foiut  ordered  the  discharge  of  Tarble  from  cnslody.  The 
officer  carried  the  case  to  the  supreme  court  of  the  state  where  the  order 
of  the  lower  court  was  affirmed.  The  case  was  then  carried  to  the  su- 
pr^eme  court  of  tlu"  T'liitr-d  States  by  writ  of  error  sued  out  by  the  TTuitod 
Sfalf's  Koverniiienl.  'I'ho  question  jjresenlod  is:  Can  one  in  custody  un- 
der the  laws  of  the  United  States  be  discharged  by  a  state  court  under 
habeas  corijiis  proceedings?  Only  so  much  of  the  oi)lnion  as  bears  upon 
the  f|ue.stion,  is  here  inserted.] 

Mr.  Jnslii'c  FiF.r.l).  The  iiiipoi'faiit  qucslioii  is  presented  by  lliis 
'•a.se.  wliefbi'i'  ;i  slate  court  commissioner  lias  jiirisdielion.  upon 
habeas  e(ir[nis.  to  iii(|iiire  inln  tln'  \;ilidity  nf  llir  mlisl  hhmiI  of  sol- 


4512  I'KKSONAK    S^liCI   KMIN  .    I.IHKKTY,    ETC.  |  ( 7( .    .). 

(liors  into  tho  military  service  of  the  rnitcnl  States,  and  to  dis- 
eharjie  tlieiii  Irom  sueh  service  when,  in  his  judgiiieiit,  their  enlist- 
ment has  ni)t  been  maile  in  eonformity  with  the  laws  ol"  the  I'nited 
States.  The  ([uestion  ])resented  may  be  more  generally  stated  thus: 
AVlu'ther  any  jndieial  oflieer  oi'  a  state  has  jurisdiction  to  issue  a 
writ  of  habeas  corpus,  or  to  continue  proceedinj.rs  under  the  writ 
when  issued,  for  the  tlischarge  of  a  jierson  held  uiidei'  the  author- 
ity, or  claim  and  color  of  authority,  of  the  I'nitt'd  States,  !)>•  an 
otiicer  of  that  government. 

State  judges  and  state  couiis.  aulliorized  by  laws  (if  their  states 
to  issue  writs  of  habeas  corpus,  have  undoubtedly  a  right  to  issue 
the  writ  in  any  case  where  a  party  is  alleged  to  be  illegally  con- 
fined within  their  limits,  unless  it  appear  upon  his  ai)plication 
that  he  is  contined  luider  the  authority,  or  claim  and  color  of  au- 
thority, of  the  Tnited  States,  by  an  officer  of  that  government.  If 
such  fact  appear  ui>on  the  application,  the  writ  should  be  refused. 
If  it  do  not  apjx'ar.  the  judge  or  court  issuing  the  writ  has  a  right 
to  in(|uire  into  the  cause  of  imprisonment,  and  ascertain  by  what 
authority  the  person  is  held  within  the  limits  of  the  state;  and  it  is 
the  duty  of  the  marshal,  or  other  officer  having  the  custody  of  the 
prisoner,  to  give,  by  a  proper  return,  information  in  this  respect. 
His  return  should  be  sutificient,  in  its  detail  of  facts,  to  show  dis- 
tinctly that  the  imj)ris(mment  is  under  the  authoi-ity,  or  claim  and 
color  of  authority,  of  the  United  States,  and  to  exclude  the  sus- 
picion of  imposition  or  oppression  on  his  ])art.  And  the  process 
or  orders,  under  which  the  prisoner  is  held,  should  be  produced 
with  the  return  and  sulimitted  to  inspection,  in  order  that  the 
court  or  judge  issuing  the  writ  may  see  that  the  prisoner  is  held 
by  the  officer,  in  good  faith,  under  the  authority,  or  claim  and 
color  of  authority,  of  the  United  States,  and  not  under  the  merr 
pretense  of  having  such  authoi'ity. 

This  right  to  inquire  by  process  of  habeas  corpus,  and  the  duty 
of  the  of^cer  to  make  a  return,  "grows  necessarily,"  says  ^Ir. 
Chief  Justice  Taney,  "out  of  the  complex  character  of  our  govern- 
ment and  the  existence  of  two  distinct  and  separate  sovereignties 
within  the  same  territorial  space,  each  of  them  restricted  in  its 
power,  and  each  within  its  sphere  of  action,  prescribed  by  the  con- 
stitution of  the  I'nited  States,  independent  of  the  other.  But. 
after  the  return  is  made,  and  the  state  judge  or  court  judicially  ap- 
prised that  the  party  is  in  ciLstody  under  the  authority  of  the 
I'nited  States,  they  can  proceed  no  further.  They  then  know^  that 
the  prisoner  is  within  the  dominion  and  jurisdiction  of  another 
government,  and  that  neither  the  writ  of  habeas  corpus  nor  any 
other  process  issued  under  state  authority  can  pass  over  the  line 
of  division  between  the  two  sovereignties.  Tie  is  then  within  the 
dominion  and  exclusive  jurisdiction  of  the  United  States.  If  he 
has  committed  an  ofifen.se  against  their  laws,  their  tribunals  alone 
can  punish  him.  If  he  is  wrongfully  imprisoned,  their  judicial 
tribunals  can  release  him  and  afford  him  redress."     .     .     . 

It  follows,   from   the  views   we  have  exjiressed.  tliat  the  court 


Sec.    S    a.]  PERSOX-VL    SECURITY.    LIBERTY,    ETC.  453 

commissioner  of  Dane  comity  "was  without  jurisdiction  to  issue  the 
writ  of  habeas  corpus  for  the  discharge  of  the  prisoner  in  this  case, 
it  appearing,  upon  the  application  presented  to  him  for  the  writ, 
that  the  prisoner  was  held  by  an  officer  of  the  United  States,  under 
claim  and  color  of  the  authority  of  the  United  States,  as  an  enlisted 
.soldier  mustered  into  the  military  service  of  the  national  govern- 
ment; and  the  same  information  was  imparted  to  the  commissioner 
by  the  return  of  the  officer.  The  commissioner  was,  both  by  the 
application  for  the  writ  and  the  return  to  it.  apprised  that  the 
prisoner  was  within  the  dominion  and  jurisdiction  of  another  gov- 
ernment, and  that  no  writ  of  habeas  corpus  issued  by  him  could 
pass  over  the  line  which  divided  the  two  sovereignties.  The  con- 
clusion we  have  reached  renders  it  unnecessary  to  consider  how  far 
the  declaration  of  the  prisoner  as  to  his  age,  in  the  oath  of  enlist- 
ment, is  to  be  deemed  conclusive  evidence  on  that  point  on  the  re- 
turn of  the  writ.    Judgment  reversed. 

See  Dillingham  v.  Booker,  163  Fed.  696,  18  L.  R.  A.  (N.  S.)  956,  and 
note. 

The  opposite  of  the  ruling  in  the  principal  case  was  held  by  Pearson, 
C.  J.,  in  a  case  involving  the  same  question  of  conflict  of  authority  be- 
tween the  state  and  the  Confederate  States  government.  In  re  Bryan, 
60  X.  C.  1.  One  who  is  in  the  custody  of  state  officials  under  extradi- 
tion proceedings,  may  be  discharged  under  habeas  corpus  issued  by 
either  a  state  or  federal  court,  although  the  detention  is  necessarily 
under  color  of  authority  derived  from  the  constitution  and  laws  of  the 
United  States,  for  from  that  source  alone  is  interstate  extradition  de- 
rived. In  such  cases,  however,  the  person  is  not  in  the  custody  of,  or 
under  restraint  by,  en  officer  of  the  United  States.  Roberts  v.  Reilly, 
116  U.  S.  80,  at  pp.  94.  9.^,  6  Sup.  Ct.  291;  Robb  v.  Connolly,  111  U.  S.  624, 
4  Sup.  Ct.  .o44;  In  re  Sultan,  115  N.  C.  57,  20  S.  E.  375.  So  it  is  when  one 
is  in  custody  under  international  extradition  proceedings,  though  in 
such  cases  the  courts  are  to  some  extent  circumscribed  in  the  exercise 
of  their  powers.  Terlinden  v.  Ames,  184  U.  S.  270,  278  et  seq.,  22  Sup. 
Ct.  484.  One  wrongfully  brought  into  a  state,  with  or  without  extradi- 
tion proceedings,  and  wiio  is  in  its  custody  under  a  criminal  charge,  will 
not  be  released  on  habeas  corpus  on  account  of  irregularity  in  such  pro- 
ceeding. Ex  parte  Davis,  103  S.  W.  891,  12  L.  R.  A.  (X.  S.)  225,  and 
note;  12  lb.  227.  See  "Habeas  Corpus,"  Century  Dig.  §§  40-42;  Decen- 
nial and  Am.  Dig.  Key  Xo.  Series  §  42. 


STATE  v.  IIERXDOX,  107  X.  C.  934,  12  S.  E.  268.     1890. 

Duty  of  Juflge  in  Haheas  Corpus  Proceedings.     Nights  of  Prisoner  on 

Refusal   to  JMsiharge  Him.     Appeal.     Certiorari. 

f  Application  to  a  judge  of  the  superior  court  for  a  writ  of  habeas  cor- 
pus. Fpon  rfturn  of  the  writ  the  judge  refused  to  examine  witnesses, 
with  a  view  lo  ;i(lniitling  the  prisoner  to  ball,  ui)on  the  ground  that  a 
true  bill  for  murder  had  lieen  found  l)y  the  grand  jury,  which.  i)('r  se, 
showed  probable  cause  for  detaining  the  prisoner  in  jail.  The  jirlsoner 
was,  therefore,  remanded  to  jail.  Thereupon  the  prisoner  applied  to  the 
supreme  court  for  a  writ  of  certiorari  to  review  this  action  of  the  judge. 
A  ropy  of  the  record  being  fllod  with  the  i)etition  for  a  cer( Inrari  and 
taken,  by  consent,  as  a  leturn  to  the  writ,  tlie  cnnrt  proceeded  to  pass 
upon  the  errors  assigned.     Reversed.! 


■ioi:  I'EKSON'AL    SECl  iniN.    I.IHKKTV,    KTC.  [CIl.    J. 

Ci.ARK.  J.  ir  llio  jiulgo,  upon  tho  investigation  of  the  evidence! 
on  ;i  petition  lor  habeas  eorpus,  adjndges  thai  tliere  is  or  is  not 
probahle  cause,  ami  admits  or  refuses  to  admit  to  bail,  no  appeal  or 
certiorari  lies  either  in  i'avor  oi'  the  state  or  the  i)etitioner.  Walton 
V.  CJatlin.  CO  N.  C.  olO;  Stale  v.  Miller,  !)7  N.  C.  451,  1  S.  K.  77G. 
The  iiuaiitum  of  evidence,  and  the  number  of  witnesses  to  be  ex- 
amined, nuist  necessarily  be  left  also  to  the  sound  discretion  of  the 
judge  who  hears  the  writ,  and  his  action  in  that  regard  cannot  be 
reviewed.  When,  lu)wever,  on  the  return  of  the  writ,  the  judge 
declines  to  hear  evidence  because  an  indictment  for  a  capital  of- 
fense has  beeu  found  against  the  petitioner,  this  presents  a  ruling 
of  law  which  the  petitioner  is  entitled  to  have  reviewed  by  this 
court.  The  statute  nowhere  provides  for  an  appeal  in  such  case, 
but  the  constitution  (article  1,  §  IS)  guaranties  the  writ  of  habeas 
corpus,  and  if  such  ruling  has  the  ell'ect  to  deny  its  effieacy  to  any 
one  who.  on  investigation  of  the  evidence,  might  have  been  entitled 
to  bail,  this  court  by  virtue  of  the  constitution  (article  4,  §  8)  has 
"the  power  to  issue  any  remedial  Avrit  necessary  to  give  it  a  gen- 
eral supervision  and  control  over  the  proceedings  of  the  inferior 
courts."  It  appearing  that,  upon  the  return  of  the  writ,  the  judge 
declined  to  hear  evidence  or  investigate  the  charge,  the  writ  of  cer- 
tiorari should  issue  that  we  may  be  further  advised  concerning  the 
matter.  Walton  v.  Gatlin.  supra;  Ex  parte  Biggs,  64  N.  C.  202; 
State  V.  Jelferson,  66  N.  C.  30!).  .  .  .  The  judge  having  re- 
fused to  hear  the  evidence,  and  to  i)ass  upon  the  right  of  the  pris- 
oner to  be  admitted  to  bail,  committed  error,  and  it  must  be  so  ad- 
judged. Lynch  v.  People,  38  111.  494 ;  Com.  v.  Rutherford,  5  Rand. 
(Va.)  646;  Lumm  v.  State,  3  Ind.  293;  People  v.  Cole,  6  Park. 
Crim.  R.  695;  2  Hawk.  P.  C.  c.  15,  §  79;  Hurd,  Ilab.  Corp.  439; 
Church.  Ilab.  Corj).  p.  540.  There  are  other  cases,  as  where  the 
prisoner  is  so  sick  as  to  be  in  danger  of  his  life,  or  the  prosecution 
is  unreasonably  delayed,  and  the  like,  in  which  the  prisoner  ha.s 
been  let  to  bail  after  indictment  found.  Kirk's  Case,  5  Mod.  454; 
U.  S.  V.  Jones,  3  Wash.  C.  C.  224.  Fed.  Cas.  No.  15,495;  Bac.  Abr. 
"Bail  in  Criminal  Cases,"  D;  Kurd,  Ilab.  Corp.  445.  But  these 
and  like  cases  stand  on  a  dilTerent  footing  from  the  present  appli- 
cation, and  are  only  authority  that  a  habeas  corpus  may  lio  after 
indictment  found  for  a  capital  oti'ense.  A  statutory  remedy  is  now 
given  where  the  trial  is  unreasonably  delayed  by  Code,  §  1658.  In 
a  recent  historical  case,  Jett'erson  Davis,  after  an  indictment  found 
for  treason,  was  admitted  to  bail  by  the  United  States  court. 
Where  the  charge  is  of  a  capital  felony,  which  is  prima  facie  not 
bailable,  the  courts  are  very  slow  to  admit  to  bail,  for  there  is  good 
authority  that  "all  that  a  man  hath  will  he  give  in  exchange  for 
his  life."  and.  after  indictment  found,  it  is  only  in  a  clear  ease, 
and  with  great  caution,  that  a  judge  will  admit  to  bail;  for,  while 
the  indictment  is  no  presumption  of  guilt  on  the  trial  before  the 
petit  jury,  it  is  otherwise  in  the  application  for  bail.  The  pre- 
sumption then  is  in  favor  of  the  correctness  of  the  action  of  the 
grajid  jury,  and  it  may  be  that  testimony  was  before  them,  which 


Sec.  8  a.]  personal  security,  liberty,  etc.  455 

is  not  produced  before  the  judge.  AVe  merely  decide  that  the  find- 
ing of  the  true  l)ill  does  not  preclude  the  application.  Of  course, 
after  indictment  found,  the  judge  cannot  absolutel}'  discharge  the 
prisoner  in  any  case,  however  clear  a  case  of  innocence  may  be 
made  out.  but  must  require  his  appearance  at  the  next  term  of 
court.     .     .     . 

During  the  civil  war,  President  Lincoln  practically  suspended  the 
privileges  of  the  writ  of  habeas  corpus.  Chief  Justice  Taney  issued  a 
writ  of  habeas  corpus,  from  the  circuit  court  of  Maryland,  directing  that 
the  body  of  one  in  the  custody  of  the  officers  of  the  United  States  army 
be  brought  before  him.  The  officers,  acting  under  the  orders  of  the  presi- 
dent as  commander  in  chief  of  the  army,  refused  to  obey  the  writ.  The 
chief  justice  wrote  an  opinion  in  which  he  held  that  the  presidents 
action  was  unlawful,  because  the  power  to  suspend  the  privileges  of  the 
writ  of  habeas  corpus  was  vested  exclusively  in  Congress.  As  the  writ 
was  still  disobeyed,  the  chief  justice  declared  that,  having  exhausted  the 
powers  of  the  judiciary,  he  could  do  no  more.  The  writ  was  never 
obeyed.  Merryman's  Case,  Taney's  Circuit  Court  Rep.  246,  Fed.  Cas. 
No.  9,487.  For  similar  action  by  Chief  Justice  Pearson,  see  Ex  parte 
Moore  and  others,  G4  X.  C.  802,  810.  After  discussing  the  curt  refusal 
of  Col.  Kirk  of  the  state  militia,  to  obey  the  writ  of  habeas  corpus  issued 
by  the  chief  justice — Kirk's  refusal  being  in  obedience  to  the  orders  of 
the  governor,  as  commander  in  chief  of  the  militia — ^the  chief  justice 
says:  "If  the  sheriff  demands  the  petitioner  of  Col.  Kirk,  with  his  pres- 
ent orders,  he  will  refuse,  and  then  comes  war.  The  country  has  had 
war  enough.  But  it  was  said  by  the  counsel  of  the  petitioner,  'if  in  the 
assertion  of  civil  liberty,  war  comes,  let  it  come.  The  blood  will  not  be 
on  your  hands,  or  on  ours;  it  will  be  on  all  who  disregard  the  sacred 
writ  of  habeas  corpus.  Let  justice  be  done  if  the  heavens  fall.'  It  would 
be  to  act  with  the  impetuosity  of  youth,  and  not  with  the  calmness  of 
age,  to  listen  to  such  counsels.  Let  justice  be  done  if  the  heavens 
fall,'  is  a  beautiful  figure  of  speech,  quoted  by  every  one  of  the  five 
learned  counsel.  Justice  must  be  done,  or  the  power  of  the  judiciary  be 
exhausted;  but  I  would  forfeit  all  claim  to  prudence  tempered  with 
firmness  should  I.  without  absolute  necessity,  add  fuel  to  the  flame,  and 
I)lunge  the  (ountry  into  civil  war,  provided  my  duty  can  be  fully  dis- 
charged without  that  awful  consequence.  Wisdom  dictates  if  justice 
can  be  done,  'let  heaven  stand.'  Unless  the  governor  revokes  his  orders. 
Col.  Kirk  will  resist;  that  appears  from  the  affidavit  of  service.  The 
second  branch  of  the  motion,  that  the  power  of  the  county  be  called 
out  if  necessarv  to  aid  in  taking  the  petitioner  by  force  out  of  the  hands 
of  Kirk,  is  as  difficult  of  solution  as  the  first.  The  power  of  the  county, 
or  'posse  comitatus,'  means  the  men  of  the  county  in  which  the  writ  is  to 
be  executed— in  this  instance  Caswell,  and  that  county  is  declared  to  be 
in  a  state  of  insurrection.  Shall  insurgents  be  called  out  by  the  person 
who  Is  to  execute  the  writ,  to  join  in  conflict  with  the  military  forces  of 
the  state?  It  is  said  that  a  sufficient  force  will  volunteer  from  other 
counties.  Thev  may  lielong  to  the  association,  or  be  persons  who  sym- 
pathize with  it.  But  the  'posse  comitatus'  must  come  from  the  county 
where  the  writ  Is  to  be  executed;  it  would  be  illegal  to  take  men  from 
other  counties.  This  is  settled  law.  Shall  illegal  means  be  resorted  ^o 
in  order  to  execute  a  writ?  .  .  .  The  writ  will  be  dirrctcd  to  the 
marshal  of  the  supreme  court,  with  instriictions  to  exhibit  it  and 
a  ropv  of  this  opinion  to  his  excellency  the  governor.  If  he  orders  the 
pptitionrr  to  be  df-livcppd  to  the  marshal,  well;  if  not,  following  the  ex- 
ample of  Chief  .Iiislicc  Taney,  in  Merryman's  case,  I  have  discharged  my 
duty:  the  power  of  the  judiciary  is  exhausted,  and  the  responsil)ility 
ninst  rest  on  the  exrr  utivp." 

The  stntp  has  no  appeal  from  a  judgment  releasing  a  prisoner  under 
habeas  corpus  proceedings.     State  v.   Miller,  07  N.  C   4r.1.   1    S.   E.   77fi; 


•io6  TERtJONAL    SECLRITV.    LIUKRTV,    ETC.  \('li.    .7. 

14i)  X.  C.  430.  Whotlier  a  prisoner  can  appeal  in  such  proceedings,  or 
will  be  ioreed  to  resort  to  a  certiorari,  is  not  satisfactorily  determined. 
In  State  v.  Ilerndon,  107  N.  C.  0;'.J,  12  S.  E.  2GS,  the  matter  was  carried 
111)  by  certiorari:  in  Clallin  v.  Underwood,  75  N.  C.  485.  the  point  was 
waived;  in  Stewart  v.  Bryan.  121  N.  C.  4C,  2S  S.  10.  18,  and  In  re  Boyett, 
13G  N.  C.  415,  48  S.  E.  789,  the  prisoner  appealed  but  whether  or  not  that 
was  the  proper  i)ractice,  is  not  discussed.  See  21  Cyc.  335,  347,  note  85. 
An  appeal  does  lie  in  cases  involving  the  custody  of  children.  State  v. 
Miller,  II7  X.  C.  451.  1  S.  E.  77(5;  Revisal.  §  1854;  Walton  v.  Gatling,  60 
N.  C.  311;  Ex  parte  Williams.  149  X.  C.  43(5,  63  S.  E.  108;  and  see  2  L.  R. 
A.  (N.  S.)   244,  for  the  effect  of  the  appeal  on  the  custody  of  the  child. 

A  prisoner  may  ai)peal  from  the  circuit  court  of  the  United  States  to 
the  United  States  sui)reme  court  wheie  his  petition  alleges  that  he  is  im- 
prisoned in  violation  of  the  United  Slates  constitution,  Dimmick  v. 
Tompkins,  194  U.  S.  540,  24  Sup.  Ct.  780;  such  appeals  are  restricted  to 
those  cases  provided  for  by  sec.  5  of  the  act  of  March  3,  1891,  In  re  Len- 
non,  150  U.  S.  393,  14  Sup.  Ct.  123.  The  case  of  Hunter  v.  Wood,  209  U.  S. 
205,  28  Sup.  Ct.  472,  was  carried  u])  by  the  appeal  of  the  officer  from 
whose  custody  the  prisoner  was  discharged. 

See  further,  on  the  subject  of  Habeas  Corpus,  Injuries  to  Relative 
Rights— Husband  and  Wife,  ch.  6,  §  1  (a);  and  Parent  and  Child,  ch.  6. 
§  2  (a).  See  "Habeas  Corpus,"  Century  Dig.  §§  96,  116;  Decennial  and 
Am.  Dig.  Key  No.  series  §§  107,  114. 


(b)  False  Imjjrisonment. 

STATE  V.  LUNSFORD,  81  N.  C.  528.     1879. 
What  is,  and  What  is  Not  an  Imprisonment. 

[Indictment  for  false  imprisonment.  The  bill  of  indictment  charged 
that  defendant  assaulted  the  piosecutor  and  unlawfully  and  injuriously, 
against  his  will  and  the  laws  of  the  state  and  without  any  legal  war- 
rant, authority,  or  reasonable  or  justifiable  cause  whatsoever,  did  im- 
prison and  detain  the  prosecutor.  The  jury  rendered  a  special  verdict 
to  the  effect  that  defendant  and  others  went  to  the  prosecutor's  house  in 
the  night,  and,  under  pretense  of  being  strangers  in  search  of  a  stolen 
horse,  deceived  him  into  riding  behind  one  of  the  party  on  a  horse.  The 
defendants  were  disguised.  After  going  about  a  quarter  of  a  mile  the 
prosecutor  complained  of  the  pain  incident  to  his  ride,  and  he  was  al- 
lowed to  dismount  and  go  home.  The  |)rosecutor  went  voluntarily.  No 
violence  was  offered  to  him,  and  his  only  injury  was  the  pain  from  the 
rapid  ride.  The  whole  thing  was  a  mere  practical  joke  at  prosecutor's 
expense.  Upon  the  verdict,  judgment  of  guilty  was  pronounced  by  the 
judge,  and  the  defendant  appealed.     Reversed,! 

Ashe.  J.  False  imprisonment  is  the  illegal  restraint  of  the  per- 
son of  any  one  apjainst  his  will.  The  common  law  was  so  jealous 
of  the  personal  liberty  of  the  citizen,  that  it  was  reprarrled  as  a 
heinous  offense,  and  the  infrinj^emeiit  of  this  ri^ht  in  England, 
under  eertain  circumstances,  was  visited  witli  severe  punishment. 
False  imprisonment  generally  included  an  assault  and  battery,  and 
always  at  least  a  technical  as.sault;  and  hence  the  form  of  the  in- 
dictment, which  is  for  an  a.ssault  and  battery  and  false  imprison- 
ment: though  there  may  be  a  false  imprisonment  without  touching 
the  person  of  the  prosecutor,  as  where  a  constable  showed  a  magis- 
trate's warrant  to  the  prosecutor  and  desired  him  to  go  before  the 


Sec.   8    b.]  PERSONAL    SECURITY,   LIBERTY,    ETC.  457 

magistrate,  which  he  did.  without  further  eoinpulsion.  This  was 
held  to  be  a  sufficient  imprisonment,  because  the  officer  exhibited 
a  warrant  for  his  arrest,  and  in  going  with  him,  he  yielded  to  what 
he  supposed  to  be  a  legal  necessity.  But  there  nuist  be  a  detention, 
and  the  detention  must  be  unlawful.    3  Blk.  127. 

The  prosecutor  in  this  case  went  voluntarily  with  tiie  defend- 
ants, with  the  expectation  of  a  reward  for  his  trouble.  Instead  of 
walking  to  the  point  of  destination,  a  short  distance  from  his  house, 
he  i)referred  to  mount  on  the  crupper  of  one  of  the  horses  ridden 
by  some  of  the  party,  and  after  going  about  one  fourth  of  a  mile 
and  discovering  that  he  was  the  victim  of  a  hoax,  he  complained 
of  the  uncomfortable  mode  of  transportation,  and  dismoimted 
without  objection  from  any  one.  He  was  left  all  the  while  to  ex- 
ercise his  own  free  will.  There  was  no  violence,  no  touching  of  his 
]ierson,  no  threat,  no  intimidation  of  any  sort.  And  the  ruse  em- 
l)loyed  by  the  defendants  to  decoy  him  from  his  house  we  do  not 
think  was  such  a  fraud  as  to  impress  the  transaction  with  the  char- 
a(.'ter  of  a  criminal  act.  It  seems  to  have  been  one  of  those  practical 
jokes  that  is  sometimes  practised  without  any  intention  of  doing 
harm  or  violating  the  law;  and  we  are  of  the  opinion  that  there 
was  no  violation  of  the  criminal  law  in  this  case.  There  is  error. 
Li't  this  be  certified,  etc.    Reversed. 

What  amounts  to  an  imprisonment  is  discussed  in  20  L.  R.  A.  (X.  S.) 
967,  and  note.  See  "P'alse  Imprisonment,"  Century  Dig.  §  122;  Decennial 
and  Am.  Dig.  Key  No.  Series  §  43. 


BRYAN  V.  STEWART,  123  N.  C.  92,  96-98,  31  S,  E.  286.     1898. 
When  Trespass  and  When  Case  the  Remedy.    Remedy  Under  Code  Prac- 
tice.    Void  and  Erroneous  Process. 

[Action  for  damages  for  false  imprisonment.  Judgment  against  the 
[ilaintiiT,  and  he  appealed.     Affirmed. 

Stewart  caused  Bryan  to  be  arrested  under  ancillary  i)roceedings  in 
arrest  and  bail.  Bryan  was  discharged  under  habeas  corpus  i)roceed- 
ings,  upon  the  ground  that  the  dork  who  issued  the  wanant  of  arrest, 
bad  no  authority  for  doing  so.  Bryan  then  brought  this  action  for  false 
imprisonment  against  Stewart.  By  consent  the  judge  tried  the  case 
without  a  jury.  He  found  as  a  fact  that  Stewart  caused  Bryan  to  be  ar- 
rested and  imprisoned  wrongfully  and  unlawfully.  In  the  case  on  ap- 
peal it  was  admitted  that  this  action  was  not  for  malicious  i)rosecution, 
nor  for  the  malicious  abuse  of  legal  process,  but  for  the  alleged  false 
imprisonment  under  illegal  process.] 

Fi'RCHES.  J \1   cdiiiiimii   law  there  wcvr  two  jictions 

for  an  illegal  arrest.  Oiif  was  where  there  was  no  legal  excuse  or 
instifieation  for  making  the  arrest,  a.s  where  it  was  made  without 
leiral  process,  or.  if  made  uiirler  the  form  of  legal  process,  where 
the  same  was  absoliilely  V(»i(I.  This  was  an  aelioii  of  tresjia.ss  vi  et 
nrmis.  The  other  was  wliere  the  process  was  erroneous,  but  not 
absolMtely  vf>id.  This  was  an  aefion  of  trespa.ss  on  the  case,  and 
was  subject  fo  tile  sami'  rules  and  ref|uirements  as  if  it   were  nti 


45S  rKKSOiNAL    SEClKirv.    I.IMKK'PV.    V.'VV.  \('li.    .j. 

jictiuii  I'oi"  lUiiliiMous  prosccut  idii.  I'.isli.  Xoiiconl.  Law.  Ji  'Jll; 
Ciiniiaii  V.  KiiuTsoii.  IS  ('.  (".  A.  ;!S.  71  Fed.  2(1 1;  l',i|.  Torts.  Ub. 
\(  tlu'  process  is  absohiidy  void,  it  will  not  protect  the  (lefeiidant 
wiu>  profuivd  it  to  he  issued,  nor  will  it  proteet  the  oflieer  iiuikinj; 
the  arrest:  hut  if  the  |)i'oeess  is  eri'oueously  issued,  hut  not  void, 
it  will  jtroteet  the  oi'lieei"  luakinir  the  aj'irst.  .Murfree,  Shcrill's. 
i;  :iL'!t:  Tol.  Torts.  148.  And  it  will  protect  the  defendant,  who 
prtR'ured  it  to  he  issued,  in  an  action  vi  et  armis  for  false  iniprison- 
luent.  thouirh  such  process,  erroneously  issued,  will  not  proteet  the 
l)arty  pidcurinir  it  to  he  issut'd  Iroiii  an  action  on  the  case,  in  the 
nature  of  malicious  prosecution,  where  the  want  of  probable  cans' 
and  nialici'  ai-e  alle<red  and  shown.  Xewell.  .Mai.  Pros.  1*J9.  200; 
Pol.  Torts.  148.   . 

I'nder  the  present  code  practice,  we  are  of  the  opinion  that  what 
was  fornierl\  an  action  \i  el  ai'iiiis  and  an  action  of  trespass  on  the 
case,  in  the  nature  of  false  imprisonment,  might  be  joined  with 
each  other  in  the  same  action,  and  declared  on  in  the  same  com- 
l^laint.  l^ut.  if  this  were  done,  still  the  allegation,  on  the  case  in 
the  nature  of  malicious  prosecution,  would  have  to  be  sustained  b>- 
evidence  of  malice  and  the  want  of  probable  cause,  to  entitle  the 
plaintiff  to  recover.  But  by  the  agreement  of  the  parties,  entered 
of  record,  the  action  of  trespass  on  the  case,  in  the  nature  of  an 
action  for  malicious  prosecution,  is  eliminated  and  taken  entirely 
out  of  consideration  in  this  case,  and  it  is  left  to  be  considered  as 
an  action  of  trespass  vi  et  armis  for  false  imprisonment  alone. 
This  being  so.  the  correctness  of  the  ruling  of  the  court  below  and 
the  defendant's  liability  for  damages  depend  upon  the  question  a> 
to  whether  the  process  upon  which  the  plaintiff  was  arrested  w'as 
void  or  only  erroneous ;  and  this  depends  upon  the  fact  as  to 
whether  the  clerk  who  issued  it  was  acting  in  a  judicial  capacity. 
or  simply  in  the  discharge  of  a  ministerial  duty.  .  .  .  That 
the  clerk,  in  issuing  the  order  of  arrest,  was  acting  in  his  judicial 
capacity,  is  sustained  in  Austin  v.  Vrooman  (N.  Y.  App.),  28  N.  E. 
477.  Bish.  Xoncont.  Law,  §  211.  It  is  admitted  that  the  clerk  had 
the  right — the  jurisdiction — to  issue  the  process  under  which  the 
plaintitt'  was  arrested;  and  we  are  clearly  of  the  opinion  that,  in 
doing  so.  he  acted  in  his  judicial  capacity,  and  not  simply  as  a 
ministerial  officer.  This  being  so.  the  cai)ias  under  which  the  plain- 
tiff was  arrested  was  not  void,  although  it  was  erroneous.  Tucker 
V.  Davis,  77  N.  C.  330;  Carman  v.  Emerson,  supra;  Pol.  Torts. 
148:  Bish.  Xoncont.  Law.  §  211.  This  process,  having  been  issued 
by  a  judicial  officer,  in  the  exercise  of  tlie  judicial  functions  of  his 
ofifiee,  was  not  void  (though  erroneous),  and  was  a  justification 
for  the  plaintiff's  arrest  in  this  action.     .     .     .     Affirmed. 

See  "Action,"  Century  Dig,  §§  236-255;  Decennial  and  Am.  Dig.  Ke.v 
No.  Serips,  §  SO;  "False  Imprisonment,"  Century  Dig.  §§  8-10,  32-42, 
48-50;   Decennial  and  Am.  Dig.  Key  No.  Series  §  7. 


iieO.    8    &.]  PERSONAL    SECURITY,    LIBERTY,    ETC,  459 


COLTER  V.  LOWER,  35  Ind.  285,  9  Am.  Rep.  735.     1871. 
False  Imprisonment  Distinguished  pom  llalitious  Prosecution. 

[Action  for  false  imprisonment.  Judgment  against  plaintiff,  and  he 
appealed.  Reversed.  Tlie  complaint  alleged  that  the  defendant  falsely, 
wrongfully,  and  unlawfully  seized  and  arrested  the  plaintiff  "and  con- 
fined him  in  unlawful  imprisonment"  in  jail,  no  cause  for  which  arrest 
and  imprisonment,  nor  charge  of  any  kind,  having  been  at  any  time 
preferred  against  the  plaintiff  in  any  court;  by  reason  whereof  plaintiff 
suffered  in  mind,  body  and  estate,  etc.  Defendant  demurred  because  the 
complaint  did  not  allege  that  the  imprisonment  was  vialicious  and  with- 
out probable  cause.     Demurrer  sustained,  and  plaintiff  excepted.] 

Downey,  C.  J.  .  .  .  The  only  question  for  our  decision  is 
as  to  tlie  sufficiency  of  the  complaint,  for  the  court  did  not  pass  on 
the  sufficiency  of  the  answer,  and  therefore  that  question  is  not  be- 
fore us  as  a  court  of  error.  It  is  insisted  by  the  appellees  that  tlie 
complaint  is  bad  for  the  reason  that  it  does  not  allege  that  the  im- 
prisonment was  malicious  and  without  probable  cause.  It  must  be 
conceded  that  if  the  approved  precedents  in  the  best  works  on 
pleading  are  to  be  received  as  evidence  of  what  the  law  is  on  the 
subject,  the  allegation  in  question  is  essential.  2  Chit.  PL  857,  et 
seq.  That  the  allegation  is  essential  in  an  action  for  malicious 
prosecution,  is  well  understood,  and  is  recognized  as  the  rule  by 
this  court.  Wilkinson  v.  Arnold,  11  Ind.  45 ;  Ammerman  v.  Crosby, 
26  Ind.  451  ;  Stanchff  v.  Palmeter,  18  Ind.  321.  But  we  do  not 
think  it  essential  in  an  action  for  false  imprisonment,  such  as  the 
one  in  question. 

There  is  a  marked  distinction  between  malicious  prosecution  and 
false  imprisonment.  At  common  law,  the  former  was  the  subject 
of  an  action  of  trespass  on  the  case,  while  for  the  latter,  trespass 
vi  ct  armis  was  the  remedy.  1  Chit.  PI.  13:5.  167.  If  the  imprison- 
ment is  under  legal  process,  but  the  action  has  been  commenced 
and  carried  on  maliciously  and  without  probable  caiLse,  it  is  ma- 
licious prosecution.  If  it  has  been  extrajudicial,  without  legal 
jjrocess,  it  is  false  imprisonment.  In  Turjjin  v.  Reiiiy,  3  Blackf. 
210,  it  was  said  by  Stevens.  J.,  in  delivering  the  opinion  of  the 
fonrt,  "an  action  for  a  malicious  prosecution  can  only  be  sup- 
I)orted  for  the  malicious  prosecntion  of  somo  legal  proceeding,  be- 
fore some  judicial  officfr  or  tribiuial.  If  the  pi'oceedings  com- 
plained of  are  extrajudicial,  the  remedy  is  trespass,  and  not  an  ac- 
tion on  the  ca.se  for  a  malicious  prosecution."  In  Johnstone  v. 
Sutton.  1  T.  T?.  544,  it  is  sairl  in  speaking  of  the  action  for  malicious 
[ii'osecution,  "there  is  no  similitufle  or  analogy  between  an  action 
of  trespass,  or  fal.se  ini])rison)iieTit.  and  this  kind  of  action.  An 
action  of  trespass  is  for  llii-  defendant's  having  done  that,  which. 
u[)on  the  statinir  of  it.  is  manifestly  illegal.  This  kind  of  action  is 
for  a  7»ro.s('cut  ion.  which,  upon  the  slalintr  of  it.  is  ]iianif(>stlv 
legal." 

The  ea.ses  for  false  iniprisoiiiiicnt  in  this  court,  wc  tliinlc.  fully 
maintain  this  distinct  Ion.  ;iiid  slmw  1li;il   mnlici'  docs  not  enter  into^ 


400  rKRSONAI,    SIOCI'KITV.    l.im'.HTV.    KTC.  [('//.    .'>. 

considoraticMi  in  acticuis  Ini'  tluit  caiiso.  Tlio  case  of  'I'aylor  v.  Mof- 
I'att,  L*  lilackl'.  '^0'^.  was  I'or  false  iinprisomnciil.  aiul  llic  (Icrciulanl 
was  lu'Kl  lialilc  lii'cansc  llw  jud^t'.  wlio  awarded  an  attaclmu'iit,  at 
his  iiistaiu't'.  for  violation  of  an  injunction,  was  held  to  have  no 
jurisdiction  to  (h>  so.  and  the  d(d'ciuhint  was  subjected  to  the  pay- 
ment of  tliiTc  thousand  (h>lhirs  (hnnaj?es.  Tliere  was  no  indii-ation 
of  malice.  In  Hall  v.  J\oj>;ers,  2  Blackf.  421),  the  defendant  was 
held  liable,  hecausi'  the  ch;n-ge  on  which  the  arrest  and  iuiprison- 
niont  took  place  was  not  leyally  suflicit-nt.  See  also  Wasson  v.  Can- 
field,  (5  HIackf.  4(Mi;  i'oulk  v.Slocnni,  3  Hlackf.  421.  No  proof  of 
malice  or  want  of  probable  cause  is  necessary  to  make  out  a  casj 
for  false  imprist)nment.  2  Stai-kie's  Ev.  1112.  It  freiiuently  hap- 
pens that  fals(>  imprisonment  includes  a  battery,  but  it  is  obvious 
that  the  latter  is  not  necessarily  inctluded  in  the  former. 
2  Starkie's  Ev.  1113.  An  action  for  malicious  prosecution  may  h^ 
nuiintained,  although  there  has  been  no  imprisonment.  That  the 
plaintilT  was  assaulted  and  beaten,  or  that  the  arrest  and  imprison- 
ment were  othei-wise  accompanied  with  malice  or  other  indignities, 
may,  no  doubt,  be  given  in  evidence,  as  tending  to  affect  the  amount 
of  damages.    2  Starkie's  Ev.  1114. 

We  regard  the  complaint  as  setting  out  a  good  cause  of  action. 
If  there  was  any  legal  justification  for  the  acts  alleged  to  have 
been  committed  by  the  defendants,  it  devolves  on  them  to  set  it  up 
in  their  defense.  The  judgment  is  reversed,  M'ith  costs,  and  the 
cause  remanded. 

See  "False  Imprisonment,"  Century  Dig.  §§  2,  87;  Decennial  and  Am. 
Dig.  Key  No.  Series  §§  3,  20. 


TAYLOR  V.  MOFFATT,  2  Blackf.,  305.     1830. 
Judicial  Process  Void  for  Want  of  Jurisdiction. 

[Moffat  was  imprisoned  for  contempt  of  coin-t.  Taylor  made  the  affida- 
vit in)OU  which  the  contempt  was  adjudged.  The  judge  who  committed 
Moffatt  had  no  jurisdiction  in  vacation  to  commit  for  contempt,  and 
this  commitment  was  in  vacation.  Moffatt  sued  Taylor  for  false  im- 
prisonment. Verdict  and  judgment  against  Taylor,  who  carried  the  case 
to  the  supreme  court  by  writ  of  error.     Affirmed.] 

HoLMAN,  J.  .  .  .  The  merits  of  the  defense  made  by  Taylor 
depend  on  the  authority  of  the  judge  to  order  the  attachment  for 
the  contempt.  If  the  judge  was  acting  within  his  jurisdiction,  the 
plea  of  Taylor  was  a  bar  to  the  action,  without  an.y  reference  to  the 
manner  in  which  the  judge's  authority  was  exercised.  Much  has 
been  said,  in  this  case,  about  the  ordering  an  attachment  without 
giving  ^loffat  an  opportunity  of  being  heard,  and  about  the  com- 
mitment for  an  unlimited  time;  but  we  conceive  that  these  are  sub- 
jects that  cannot  affect  the  merits  of  Taylor's  defense.  For  if  a 
judicial  officer,  whether  possessed  of  a  general  or  a  special  jurisdic- 
tion, act  erroneously,  or  even  oppressively,  in  the  exerci.se  of  his 
authoritv.  an  individual  at  whose  suit  he  acts  is  not  answerable,  as 


Sec.    8    C]  PERSONAL    SECURITY.    LIBERTY,    ETC.  461 

a  trespasser,  for  the  error  or  misconduct  of  the  officer.  But  if  a 
judicial  officer,  whose  jurisdiction  is  special  and  limited,  transcend 
his  authority,  and  act  in  a  case  of  which  he  has  no  cognizance,  his 
proceedings  are  coram  non  judice.  and  no  person,  much  less  a 
suitor,  can  justify  under  them.     .     .     . 

In  this  case,  as  we  leani  from  the  plea  of  Taylor,  the  judge 
awarded  the  injunction  at  his  chambers,  on  the  29th  of  September, 
1827.  The  writ  of  injunction  was  issued  on  the  1st  of  October;  the 
affidavits  show  a  Tending  of  merchandise  by  ]\Ioft'at  on  the  4th,  5th, 
and  6th  of  the  latter  month :  and  the  order  for  the  attachment  is 
dated  at  the  judge's  chambers  on  the  8th.  So  that,  from  the  fore- 
going view  of  the  subject,  the  judge  had  no  jurisdiction  of  the 
case  at  the  time  he  ordered  the  attachment.  The  order  Avas  a  nul- 
lity, and  Taylor  could  not  justify  under  it.  The  plea  was  no  bar 
to  the  action,  and  the  circuit  court  very  properly  sustained  the 
demurrer.  See  an  extensi^'e  view  of  the  doctrine  of  chancery  at- 
tachments in  Yates  v.  The  People.  6  Johns.  337.  and  Yates  v.  Lans- 
ing. 9  Johns.  395.     .     .     .     Judgment  affirmed. 

A  master,  such  as  a  railroad  company,  for  instance,  is  liable  for  the 
acts  of  his  servant  in  causing  the  unlawful  imprisonment  of  another, 
when  such  servant  acts  within  the  scojie  of  his  authority.  The  measure 
of  damages  in  such  cases  is  "actual  damages  including  injury  to  feelings 
and  mental  sufferings,  and  not  punitive  damages,  unless  the  arrest 
was  accompanied  with  malice,  gross  negligence,  insult,  or  other  aggra- 
vating circumstances."  Lovick  v.  R.  R.,  129  N.  C  427,  435,  40  S.  E.  191, 
citing  Lewis  v.  Clegg,  120  N.  C.  292,  26  S.  E.  772,  and  Neal  v.  Joyner,  89 
N,  C.  287;  Levin  v.  Burlington,  129  X.  C.  184.  See  also  as  to  liability  of 
employer  for  the  acts  of  his  agent  or  deputv  in  such  cases,  Milton  v. 
M.  P.  R.  R.  Co.,  91  S.  W.  949,  4  L.  R.  A.  (N.  S.)  282,  and  note..  See 
False  Imprisonment,"  Century  Dig.  §§  48,  49;  Decennial  and  Am.  Dig. 
Key  Xo.  Series,  §  7. 


(c)  Malicious  Prosecution  and  Abuse  of  Lrgal  Process. 

HOLMES  v.  .70HXS0X.  44  X.  C.  44.     1852. 

Malicious  Prosecution  Defined.     What  Damages  Must  he  Shown  to  Sup- 
port the  Action. 

fActlon  on  the  case  for  Malicious  Prosecution.  Submission  1o  arbitra- 
tion. Award  that  jiulgnicnt  be  entered  against  the  iilaintiff  on  the 
ground  that  this  action  could  not  be  maintained.  Motion  to  set  aside 
thp  award.  Motion  overruled,  and  judgment  against  i)laintiff,  from 
which   he  api)ealed.     Reversed. 

The  jtroof  was.  that  the  defendant  jirocnred  a  warrant  for  larceny  to 
bf  drawn  up  by  a  justice  of  the  iieace  against  the  plaintiff:  but  the  war- 
rant was  never  placed  in  the  hands  of  an  ofRcer  and  was  not  further  pro- 
ceeded with.l 

P>.\TTi-E.  J.  Tt  is  stated  in  an  elementary  work  of  high  autliority. 
3  Step.  N.  P.  2274.  that  "the  foundation  of  nn  action  for  a  mali- 
cious prosecntif)n  is  the  ninlirr  of  IJir  fj,- fr DfJaiil .  rither  r.rprr.f.^ed 
fir  intjtlird :  jitid  wlialcvcr  cngiiics  of  tin-  law  iiialii-c  may  etnploy  to 
accojn])lisli  ibs  evil  designs  against  innoccnl  ntid  iinofTcndiTig  per- 


4» 


;•'  PKUSONAL    SECUHITY.    I.IBKKTV.    KTC,  \Ch.    5. 


SOUS.  whcthiT  ill  the  sliap(^  of  indictiiuMil  or  iiironiiation.  wlucli 
(•har«ro  a.  party  with  ci-inu's  injui-ious  to  his  fame  and  imputation, 
ami  U'lul  to  ilcprivc  liiiii  of  his  lilicit\  -.  of  whrltici-  such  malice  hi' 
cviiU'iMl  hy  malicious  arivsts,  or  by  exhihitiii^'  jirouiulh'ss  accusa- 
tions, merely  with  a  view  to  occasion  exixMise  to  the  i)arly,  who  is 
uiulor  the  necessity  of  deremlin'i'  himseH"  a<,'aiiist  them,  tlie  action 
on  the  caso  att'onls  an  adetpiate  remedy  to  the  party  injured." 
There  are  three  sorts  of  damaj^e.  any  of  whicli  would  l)e  sul'licicnt 
to  support  an  action  Tor  malii-ious  ])rosecut ion  :  1st,  "The  damaf>'e 
to  a  man's  tame,  as  it  the  matter  therecd"  he  scandalous; 
'Jnd.  AVhere  a  man  is  i)ut  in  danger  to  lose  his  life,  limh  or  liberty; 
Avd.  Damage  to  a  man's  property,  as  where  he  is  forced  to  exi)end 
money  in  neeessary  charges  to  acquit  himself  of  the  crime,  of  wliieh 
he  is  "accused."  Vcv  Holt,  C.  J.,  in  Savile  v.  Roberts,  1  Ld.  Ray. 
374. 

The  case  before  us  seenrs  to  fall  directly  within  the  tirst  class 
of  damages,  for  which  Lord  TTolt  says  the  action  will  lie.    Tt  cer- 
tainly cannot  l)e  contended,  that  taking  out  a   warrant  upon  an 
accusation  of  larceny,  has  no  tendency  to  endamage  a  man's  rep- 
utation— that  the  mallei-  whereof  he  is  accused  is  not  scandalous. 
Yet,  if  he  be  not  allowed  to  avail  himself  of  this  action,  he  is  en- 
tirely without  remedy.     He  cannot  sue  for  the  slanderous  words 
merely,  because  they  were  spoken  in  the  course  of  a  judicial  pro- 
ceeding.    3  Step.  N.  P.  2565.     His  reputation,  it  must  be  admitted, 
may  be  as  nuich  injured  where  the  warrant  was  only  sued  out  from 
a  justice,  and  not  i)ut  into  the  hands  of  an  officer,  as  if  it  had  been 
prosecuted  to  the  utmost  extent.     Nay,  more,  for  in  the  latter  case 
the  party  might  have  vindicated  his  character  by  proving  his  inno- 
cence.    Analogous  to  this  is.  we  think,  the  case  of  a  bill  of  indict- 
ment  preferred  and   returned   ignoramus   (Payne  v.  Porter.  Cro. 
Jae.  490)  ;  or  that  of  a  hill  preferred  coram  non  judice.     5   Roll. 
Abr.     Action  sur  case.  (P)   112.     Both  upon  principle  and  author- 
ity then,  we  lliiiik  his  honor  in  the  court  l)elow  erred  in  refusing  to 
.set  aside  the  award,  and  in  giving  judgment  for  the  defendant. 
For  this  error,  the  judgment  must  be  reversed,  and  the  award  set 
aside. 

See  9  L.  R.  A.  (X.  S. )  171,  and  note  (making  a  criminal  charge  which 
is  not  followed  by  arrest).  See  "Malicious  Prosecution,"  Century  Dig. 
§  8:    Decennial  and  Am.  Dig.  Key  No.  Series  §  8. 


GROVE  V.  BRANDENBURG.  7  Blackford,  234.     1844. 
Stirrinfj  up  Vexatious  Litigation. 

[Action  of  trespass  on  the  case  for  inciting  a  person  to  bring  an  ac- 
tion of  slander  against  the  plaintiff.  Defendant  demurred.  Demurrer 
sustained  and  .iudgment  against  plaintiff.  Plaintiff  carried  the  case  to 
the  suiiremf  court  bv  writ  of  error.     Affirmed. 

The  complaint  alleged  that  the  defendant  falsely  and  maliciously  in- 
formed Archibald  Estei)  that  plaintiff  bad  said  he  was  a  horse-thief; 
that    defendant    bad    wickedly   and    maliciously    procured   Estep   to   sue 


Sec.   8   C]  PERSONAL   SECURITY.    LIBERTY,    ETC.  463 

plaintiff  for  slander  for  the  supposed  speaking  of  such  words:  that  de- 
fendant had  testified  as  a  witness  in  such  action  for  slander  and  falsely 
swore  that  plaintiff  had  called  Estep  a  horse-thief;  by  reason  of  all 
which  Estep  obtained  a  judgment  against  plaintiff,  upon  which  plaintiff 
had  been  forced  to  pay  out  money,  etc.  There  was  a  second  count  to 
the  same  effect,  omitting  the  charge  that  defendant  had  testified  as  a 
witness  and  the  result  of  the  action  for  slander.] 

Blackford.  J.  .  .  .  Bolh  counts  in  this  case  eharoe  the  de- 
fendant with  falsely  and  maliciously  procttring  Estep  to  sue  the 
plaintiff  in  an  action  of  slander:  and  the  first  count  also  charges 
the  defendant  with  perjury,  in  swearing  as  a  witness  on  the  trial 
of  that  suit  that  the  plaintiff  had  spoken  the  slanderous  words. 
The  law  is  said  to  be.  that  if  one  procures  another  to  sue  me  with- 
out cause,  an  action  lies  not  against  him  Avho  sued  without  cause; 
but  that  for  this  falsity  in  procuring  mv  vexation  an  action  well 
lies.  J^^rren  v.  Bud.  Cro.  Eliz.  793 ;  Savil  v.  Roberts.  1  8alk.  13. 
It  must  be  observed  that  the  suit  for  vexation,  etc..  cannot  be  sus- 
tained, unless  there  was  no  cause  for  the  action  which  was  pro- 
cured to  be  instituted.  In  the  present  case,  the  first  count  is  bad, 
because  it  shows.  i)v  tlie  verdict  and  judgment  set  out,  that  there 
was  good  ground  for  Estep 's  action ;  and  the  second  is  bad  for  not 
alleging  the  failure  of  that  action.  The  charge  of  perjury  against 
the  defendant  in  giving  testimony,  etc..  alleged  in  the  first  count, 
does  not  aid  the  plaintiff.  See  Nelson  v.  Robe,  6  Blackford,  204, 
and  note;  Harding  v.  Bodman.  Hutton.  11.    Judgment  affirmed. 

See  'Torts."  Century  Dig.  §§  17,  18;  Decennial  and  Am.  Dig.  Key  No. 
Series  §§  13,  14. 


PLUMMER  V,  GHEEN.  in  X.  C.  66,  14  Am.  Dec.  572.     1824. 

yfalice  in  Prosecuting  One  Who  is  Guilt}/.     What  Malicious  Prosecutions 

are  Actionable.    Proljable  Cause. 

[Action  on  the  case  for  Malicious  Prosecution.  .Tudgment  against  de- 
fendant, and  he  appealed.     Reversed. 

Plaintiff  jiroved  a  slate's  warrant  against  him  for  perjury:  that  the 
♦iefendant  i)rofured  the  issuing  of  the  warrant;  a  bill  of  indictment  on 
which  the  defendant  was  marked  as  prosecutor;  that  the  bill  of  indict- 
ment was  Indorsed  "not  a  true  bill:"  and  that  plaintiff  bad  bpcn  thci-PU]ion 
discharged. 

The  judge  charged,  inter  alia,  that  although  probable  cause  was  partly 
a  question  of  law,  yet  it  was  so  dependent  on  facts  and  circumstances  of 
which  the  jury  were  the  only  judges,  that  in  a  case  like  this  the  court 
deemed  it  most  i)ropor  to  leave  it  to  the  jury  to  say  wbofber  the  defend- 
ant had  not  probable  ground  for  a  susjjicion  amounting  to  probable 
cause.  The  defendant  excepted  to  this  charge  on  (he  ground  that  prob- 
able cause  Is  a  quest  ion  of  law,  and  the  judge  should  not  have  left  it  to 
the  jury  to  say  whether  reasonable  suspicion  was  jjrobable  ca>ise — for 
that  permits  the  jury  to  substitute  an  inference  of  law  for  an  inference 
of  fact:  but  the  judge  should  have  defiiu'd  prol)able  cause  and  left  it  to 
the  jury  to  say,  whether,  under  the  definition,  it  existed  in  (his  case 
uiion  the  facts  as  the  jury  should  find  (hem  to  be.  The  judge  below  ex- 
idainerl  to  the  jury  that  probable  cause  by  no  means  meant  a  good  cause; 
that  such  circumstances  as  would  warrant  a  reasonable  susi)ici()n  in  the 


4(14  rKKsoN.M.  sKciiJi  ^^ .  i.iiu;i;i'\ .   i;ih'.  \('li.  .'>. 

mind  of  tlio  ilelomiaiu  iliiii  i)l;iiutil't'  had  < oinniittt'd  llic  criiiie  of  which 
(U'fcndant  had  ai'cust'd  him,  and  tor  which  dorciuhuil  had  caused  him  to 
be  prosecuted,  would  make  out  a  case  of  proljahle  cause.) 

Tam.ok.  (".  .1.  'I'lif  most  mail  ri.il  «>:rotiii(l  ol'  this  action  is.  thiit 
a  IcLral  pi'tiscculion  Wiis  cafi'ietl  on  against  tlic  plaintiff  without 
prohahK'  cans(\  and  this  it  was  iiiciiinhcnt  on  liiin  to  jn'ove  ex- 
pressly. I'nr  it  cannot  he  implied.  Whcic  pinlxthlv  cnusc.  isahsiiil, 
it  is  nsnal  to  inii)l.\  malice  as  well  as  the  kiu)wled«;e  of  the  defend- 
ant:  but  the  want  of  pi-ohahle  cause  caiinol  be  implied  from  Ihv 
must  cxpriss  inaJicc.  If  a  man  i>roseente  another  from  real  •rnill. 
however  malicious  his  motives  may  be.  lie  is  not  liable  in  this  ac- 
tion;  nor  is  he  liable  if  he  prosecute  him  from  apparent  guilt,  aris- 
ing from  eireumstanees  which  be  honestly  believes.  These  princi- 
ples have  been  repeatedly  laid  down  and  sanctioned,  and  are  nec- 
essary to  be  kept  in  view  in  considering  the  nature  of  the  action. 
1  T.  R.  544.  ...  As  the  question  of  probable  cause  is  com 
]ioundcd  of  law  and  fact,  the  defendant  had  a  right  to  the  ojnnion 
of  the  court  distinctly  on  the  law.  on  the  supi)osition  that  he  had 
established,  to  the  satisfaction  of  the  jury,  certain  facts.  Whether 
the  circumstances  were  true  was  a  fjuestion  for  the  jury;  whether, 
being  true,  they  amounted  to  probal)lc  cause  is  a  question  of  law. 

It  is  true  that  the  court  explained  to  the  jury  what  probable 
cause  was.  and  explained  it  correctly;  but  then,  in  the  subsecpient 
part  of  the  charge,  it  is  left  at  large  for  the  jury  to  say  whether  the 
defendant  had  not  this  probable  ground  for  suspicion  amounting 
to  probable  cause.  Whereas,  the  right  instruction  was,  that  if  the 
defendant  had,  in  their  opinion,  this  probable  ground  of  suspicion. 
il  amounted  in  point  of  law  to  probable  cause.  I  am  of  opinion, 
therefore,  that  there  ought  to  be  a  new  trial. 

Whether  there  was  probable  cause  is  a  question  of  law,  but  the  jury 
must  find  the  facts  which  constitute  it.  Tf  there  is  evidence  tending  to 
show  probal)le  cause,  the  judge  must  e.xplain  what  constitutes  probable 
cause  and  leave  the  jury  to  ascertain  from  the  facts  whether  or  not  it 
existed:  but  where  the  evidence,  if  all  taken  to  be  true,  fails  to  make 
out  probable  cause,  the  judge  should  so  instruct  the  jury.  .Tones  v.  R.  R., 
125  N.  C.  at  p.  229,  34  S.  E.  398,  citing  the  principal  case  and  other  au- 
thorities. See  also  Moore  v.  Bank,  140  N.  C.  293,  .^)2  S.  E.  944.  For  the 
rule  laid  down  in  the  principal  case,  see  26  Cyc.  22,.  See  9  L.  R.  A. 
(N.  S.)  1087  (when  malice  may  be  inferred).  See  "Malicious  Prosecu- 
tion," Century  Dig.  §§  21,  22,  161,  169;  Decennial  and  Am.  Dig.  Key  No- 
Series  §§  16,  71.  72. 


ALLEN  v.  GREENLEE,  13  N.  C  370.     1830. 

Malicious   Prosecution  DisUnguislied  from   False  Imprisonment.     Does 
Trespass  or  Case  Lie  for  Malicious  Prosecution? 

[Action  on  the  Case  for  Malicious  Prosecution.  Verdict  and  judg- 
ment against  defendant,  and  he  appealed.    Reversed. 

Defendant  had  procured  the  plaintiffs  arrest  on  a  charge  which  de- 
fendant preferred  before  a  justice  of  the  peace,  and,  while  thus  under 
arrest,  the  defendant  grossly  abused  the  plaintiff,  struck  him,  and  spit 
in  his  face.  T'pon  examination  of  the  charge  the  justice  discharged  the 
plaintiff.     The  defendant  proved  that  the  plaintiff  had  done  the  acts  for 


Sec.    S    C]  PERSONAL    SECURITY.    LIBERTY.    ETC.  465 

which  defendant  had  prosecuted  him  before  the  justice.  Tlie  judge 
charged  that  there  was  no  probable  cause  shown,  and  if  the  defendant 
maliciously  procured  the  issuing  of  the  warrant  for  plaintiff's  arrest, 
the  jury  should  find  for  the  plaintiff.  The  acts  for  which  the  defendant 
prosecuted  the  plaintiff  criminally  were  not  criminal  under  the  law, 
but  mere  civil  trespasses.] 

RuFFiN,  J.  It  is  proper  that  the  boundaries  of  actions  should 
not  be  confounded ;  but  that  for  every  wrong  the  appropriate  rem- 
edy should  be  pursued.  An  action  of  trespass  lies  for  all  injuries 
of  which  force  is  the  immediate  cause,  and  for  which  the  defendant 
cannot  produce  a  justification.  If  one  person  cause  another  to  be 
arrested  without  process,  it  is  a  trespass  and  false  imprisonment. 
So,  if  he  arrest  him  upon  process  that  is  void  in  itself,  or  is  issued 
by  a  court  or  magistrate  having  no  jurisdiction.  An  action  for 
malicious  prosecution,  on  the  other  hand,  is  a  special  action  on  the 
case,  foi'  the  abuse  of  the  process  of  law  from  malicious  motives.  It 
presupposes  valid  process,  and  case  is  given  because  trespass  will 
not  lie.  It  is  given  against  the  parly  suing  it  out.  because  the 
hand  which  executes  the  process  is  justified  by  it.  and  it  is  not 
guilty  of  a  trespass.  There  being  no  other  remedy,  this  special  ac- 
tion is  provided. 

In  the  case  before  us.  the  propriety  of  this  rule  is  made  very 
manifest.  The  charge  in  the  warrant  is  for  a  mere  civil  injury,  of 
which  a  justice  of  the  peace  has  no  jurisdiction.  It  constitutes  no 
frime.  But  every  fact  alleged  in  the  Avarrant  is  fully  proved. 
That  did  not  justify  Greenlee  in  taking  it  out;  because  admitting 
tlie  facts  to  be  true,  the  magistrate  could  not  take  cognizance  of 
the  case,  since  it  was  not  an  indictable  oftVnse.  nor  a  private  wrong 
which  he  could  redress.  The  prosecutor,  magistrate,  and  sheriff 
were,  therefore,  all  guilty  of  a  trespass.  But  how  can  malicious 
prosecution  lie  ?  That  can  only  be  sustained  where  the  party  has 
been  hnrfuUi/  ai  rested,  and  where  the  prosecutor  had  no  probable 
caiLse  to  believe  the  paiiy  guilty  of  the  acts  chai-ged  to  him.  Now. 
every  fact  charged  here  was  proved.  If  that  does  not  constitute 
probable  cause,  nothing  can.  It  is  true,  they  do  not  constitute 
probable  cause  to  think  that  Allen  was  guilty  of  a  crime,  but  no 
crime  is  charged,  and  they  do  make  probable  cause  to  think  that  he 
did  the  acts  charged,  since  it  is  in  proof  that  lie.  in  i'aet.  did  them. 
Tlie  judge  confounded  two  distinct  princi]»les  when,  in  order  to 
iiijiintain  this  suit  foj-  what  ai)j)ears  to  have  been  insulting  and  op- 
pressive eondiiet  on  the  part  of  the  defc^iKlant.  be  lold  the  jniry 
that  there  was  no  probable  cause.  There  was  full  proof.  Had  the 
action  been  tresi)a.ss.  he  would  have  been  perfectly  right  in  saying 
the  evidence  proved  no  just  ifieation.  This  action  eannol  be  niain 
taiiied.  iiiid  there  niusl  be  a  new  trial.     Kevei-se(l. 

P'or  distinrtion  between  false  Impri.sonnient  ;iiii]  malicious  prosecution. 
Bee  19  Cyc.  ?>21.  For  the  remedy  for  false  imprisonment,  see  10  Cyc  357. 
For  the  remedy  for  malicious  prosecution,  see  2fi  Cyc.  fiS.  See  "False 
Imprisonmcnf."  f'enfury  Dip.  §§  2,  81:  Decennial  and  Am.  DIr.  Key  No. 
Series  §§  ?,.  Ifi;  '■.Atalicious  Prosecution,"  Century  Dip.  §§  23-55;  Decen- 
nial and  Am.  Dip.  Key  .\o.  Series  §§  17  21. 

Remedies— 30. 


•4GG  rERSoNAi.  sKci  icriv,  i.mRRTv.  ktc.  \('Ii.  5. 


HAHFllOI^D  V.  TrRNKH,  lOl  N.  C.  357,  360,  8  S.  E.  115.     1888. 
M'hat  the  CovipJaint  i^hoiild  Contain  in  Malicious  Proscriition. 

lArtiou  inti'iiili-il  lo  lie  I'oi'  .Malicious  I'rosi'tiilion.  TIumo  was  a  de- 
luuirtT  oiv  tonus.  Dt'niuni-i-  suslainoil,  and  juilgnu'nt  against  the 
lilaintiff,  from  which  he  ai)poaliHi.     Anirnied. 

IMaintiff  alleged  that  the  defendant  proeured  his  arrest  and  inii)rison- 
nient  under  proioss  sued  out  by  the  defendant  in  a  justice's  court, 
whereby  plaintiff  suffered  in  mind,  body,  financial  standing,  and  estate. 
What  the  complaint  lacked  is  shown  in  the  oijinion,  only  so  much  of 
which  as  bears  upon  this  defect  is  here  inserted.) 

Mi'.RKiMON.  J.  .  .  .  The  plaintilT  does  not  allege  lliai  the 
process  was  void,  or  that  it  was  groundless,  or  tli;i1  it  was  issued 
without  probable  cause,  or  that  it  was  prompted  by  lualiee,  or  that 
it  was  ended.  The  substance  of  the.se  things  he  shotdd  have  al- 
leged, if  he  intended  lo  allege  a  cause  of  action  for  lualieious  pros- 
ecution, as  it  seems  he  intended  to  do.    Judgment  affirmed. 

2  L.  R.  A.  (N.  S. )  927,  and  note  (when  an  action  is  deemed  termi- 
nated). The  opinion  in  the  principal  case  says,  inferentially,  that  the 
complaint  might  have  alleged  that  the  process  was  void.  Is  that  correct? 
See  the  preceding  cases  under  this  sub-section.  See  "Malicious  Prosecu- 
tion." Centurv  Dig.  §§  91-99;  Decennial  and  Am.  Dig.  Key  No.  Series 
§§  47-51. 


CRESCENT  LIVE  STOCK  CO.  v.  BUTCHERS'  UNION,  120  U.  S.   141,  7 

Sup.  Ct.   472. 

Malicious  Prosecution.  Essential  Points.  Effect  of  a  Judgment  Re- 
versed on  Appeal  as  Prohahle  Cause.  Judgment  of  Commitling  Mag- 
istrate as  Probable  Cause. 

[Action  in  a  state  court  for  malicious  prosecution,  in  which  the 
Butchers'  Union  was  plaintiff  and  Crescent  Live  Stock  Co.  was  defend- 
ant. Appeal  to  the  supreme  court  of  the  state  from  a  judgment  against 
the  Crescent  Live  Stock  Co.  .Judgment  affirmed  in  that  court,  and  the 
cause  carried  to  the  supreme  court  of  the  United  States  by  writ  of  er- 
rer.     Reversed. 

The  defendant  showed  a  decree  of  the  circuit  court  of  the  United 
States  granting  and  perpetuating  an  injunction,  and  insisted  that  it  was 
conclusive  i^roof  of  probable  cause  for  the  prosecution  of  the  suit  which 
Is  claimed  in  this  action  to  have  been  a  malicious  prosecution.  The  de- 
fendant requested  the  court  to  charge  that  the  decree  of  the  United 
States  court  was,  per  se,  conclusive  that  probable  cause  existed  for 
the  prosecution  of  the  suit  in  which  the  decree  was  rendered,  even 
though  such  decree  was  subsequently  reversed.  This  charge  the  judge 
refused  to  give.  Only  selected  extracts  from  the  opinion  are  here  in- 
serted.! 

^\r.  .Tn.stice  M.vtthews.  .  .  .  The  decree  of  the  circuit  court 
M-as  relied  upon  in  the  state  court  as  a  complete  defense  to  the 
action  for  malicious  pro.secution.  on  the  ground  that  it  was  con- 
clusive proof  of  prohahle  cause.  The  supreme  court  of  Louisiana, 
affirming  the  .indcrment  of  the  inferior  state  court,  denied  to  it.  not 
only  the  effect  elaimed.  but  any  effect  whatever.  Tt  is  coneeded 
that,  according  to  the  law  of  Loui.siana,  the  action  for  a  malicious 


Sec.    8    C]  PERSOXAL    SECURITY.    LIBERTY,    ETC.  467 

prosecution  is  founded  ou  the  same  principles,  and  subject  to  the 
same  defenses,  as  haYe  been  established  by  the  common  law  pre- 
Yailing  in  the  other  states.  ...  In  the  opinion  in  the  present 
case,  the  supreme  court  of  Louisiana  say  that  to  sustain  the  charge 
of  malicious  prosecution  it  is  necessary  to  show  "  (1)  that  the  suit 
had  terminated  unfaYorably  to  the  prosecutor;  (2)  that  in  bring- 
ing it  the  prosecutor  had  acted  without  probable  cause;  (3)that  he 
was  actuated  by  legal  malice,  i.  e..  by  improper  or  sinister  motives. 
The  aboYe  three  elements  must  concur." 

And.  when  there  is  no  dispute  of  fact,  the  question  of  probable 
cause  is  a  question  of  law.  for  the  determination  of  the  court. 
Stewart  v.  Sonneborn.  08  V.  S.  187.  194.  "Want  of  probable  cause. 
and  the  existence  of  malice,  either  express  or  implied,  must  both 
concur  to  entitle  the  plaintiff  in  an  action  for  a  malicious  prosecu- 
tion to  recover.  So  that,  if  probable  cause  is  shown,  the  defense 
is  perfect,  notwithstanding  the  defendant  in  instituting  and  carry- 
ing on  the  action  may  hnw  l>een  actuated  solely  by  a  motive  and 
intent  of  malice.  If  he  had  probable  cause  to  institute  his  action, 
the  motives  by  which  he  was  actuated,  and  the  purposes  he  had  in 
view,  are  not  material. 

How  much  weight,  as  proof  of  probable  cause,  shall  be  attributed 
to  the  judgment  of  the  court  in  the  original  action,  when  subse- 
quently reversed  for  error,  may  admit  of  some  question.  It  does 
not  appear  to  have  been  ludicially  determined  in  Louisiana.  In 
the  case  of  Griffis  v.  Sellars.  4  Dev.  &  B.  177,  Ruffin,  C.  J.,  said 
"that  probable  cause  is  judicially  ascertained  by  the  verdict  of  the 
jury,  and  judgment  of  the  coui't  thereon,  although  upon  an  appeal 
a  contrary  verdict  and  judgment  be  given  in  a  higher  court."  In 
Wliitney  v.  Peckham,  15  ]\lass.  243,  such  a  judgment  was  held  to 
be  conclusive  in  favor  of  the  existence  of  probable  cause.  To  the 
same  effect  is  Herman  v.  Brookerhoff,  8  Watts,  240,  in  an  opinion 
of  Chief  Justice  Gibson.  The  decision  in  the  case  of  "Whitney  v. 
Peckham.  ubi  supra,  however,  was  questioned  by  the  supreme  court 
of  Xcw  York  in  the  case  of  Burt  v.  Place,  4  "Wend.  591.  598.  where 
M.VRCY.  J.,  delivering  the  opinion  of  the  court,  said  that  the  Massa- 
(thusetts  decision  rested  entirely  upon  Povnolds  v.  Kennedy. 
1  "Wils.  232.  which  had  been  qualified  by  tlie  decision  of  Eyre. 
I»anm  of  the  cxcln-fiuer.  in  Sutton  v.  Johnstone.  1  Term  R.  505,  and 
by  what  was  said  liy  Lord  ^Iansfield  and  Lord  Lofgtiborougti  in 
the  same  case,  which  came  before  them  on  a  writ  of  error.  1  Term 
H.  512. 

The  effect  of  these  English  authorities,  as  stated  by  !Marcv,  J., 
in  Burt  v.  T'lace,  ubi  supra,  is  as  follows:  "That  if  it  appears  by 
the  plaintiff's  own  declaratioji  that  the  prosecution,  which  he 
eluu'L'es  to  h;ive  been  nialieions.  was  before  ;i  tribunal  having  jnris- 
dietion,  and  was  tliere  deeided  in  favor  of  the  plaintiff  in  that 
eourt.  nothing  appearing  to  fix  on  him  any  unfair  means  in  con- 
ducting the  suit,  the  court  will  regard  the  judgment  in  favor  of  the 
proseeiition  satisfactory  evidence  of  prob;ible  e;nise."  In  that 
case  the  judgment  relied  iqion  by  tlie  defeiKLint  was  lield  not  to  be 


4(SS  PEKSONAL   SECIHITY,    l.ini.Krv.    KTC.  [CIl.    5. 

(.•i>iu'liisivi'.  'riu'  rt'iusoii  is  slnlrd  to  he  as  i'ollows:  "Though  llio 
phiiiitilV  iuliiiits  in  liis  lUH-lariition  thai  the  suits  institutt'il  before 
the  luajiislralf  Ity  the  (K'l\>iulaiil  were  decideil  a}?aiiisl  liiiii,  he  sui- 
lii-iiMitl\-  t'ountei  vails  the  clVeft  ol"  that  admission  by  alleging  that 
tlie  defendant,  well  knowing  that  lie  hatl  no  eause  of  aetion,  and 
that  the  plaint itV  had  a  full  defense,  prevented  tiie  plaintiff  from 
proruring  tlu'  neeessary  evidence  to  make  out  that  defense  by 
eausing  him  to  he  detained  a  ]>i-isoner  until  the  judgments  were 
obtained,  antl  by  alleging  that  the  impi-isonment  was  for  the  very 
purjtose  of  preventing  a  defense  to  thr  actions." 

CNnimii  iiling  on  this  ease,  the  eouil  dl'  appeals  of  Keutueky  in 
Spring  V.  liesore.  12  \l.  ^Mou.  551,  oi'hy.  say:  "The  prineiple  settled 
in  thf  case  last  cited  wc  understantl  to  be  that  such  a  judgments 
will  not,  in  v\\n-y  ]){)ssible  state  of  ease,  be  deemed  to  be  eonelusive 
of  the  (piestion  of  probable  cause;  but  that,  like  judgments  in 
other  cases,  its  effect  may  be  destroyed  by  showing  that  it  was  pro- 
cured by  fraud  or  other  nndue  means.''  That  court  pi-oceeds  to 
state  the  rul(»  as  follows:  "The  correct  doctrine  on  tlie  subject  is. 
in  our  opinion,  that  llic  di>cree  or  judgment  in  favor  of  the  plain- 
tiff, although  it  be  afterwards  reversed,  is,  in  cases  where  the  pai'- 
ties  have  ai)i)eared,  and  proof  has  l)ecn  heard  on  both  sides,  con- 
clusive evidence  of  probable  cause,  luiless  other  matters  be  relied 
upon  to  impeach  the  judgment  or  decree,  and  show  that  it  was  ob- 
tained by  fraud,  and,  in  that  case,  it  is  indispensable  that  such 
matter  should  be  alleged  in  the  ]>laintiff's  declaration,  for  unless 
it  be  done,  as  the  other  facts  which  have  to  l)e  stated  establish  the 
existence  of  probable  cause,  the  declaration  is  suicidal.  The  plain- 
tiff's declaration  will  itself  always  furnish  evidence  of  probable 
cause  when  it  states,  as  it  nmst  do.  the  proceedings  that  have  taken 
place  in  the  suit  alleged  to  be  malicious,  and  shows  that  a  judg- 
ment or  decree  has  been  rendered  again.st  the  plaintiff.  To  coun- 
teract the  eff'ect  of  the  judgment  or  decree,  and  the  legal  deduction 
of  probable  cause,  it  is  incumbent  upon  him  to  make  it  appear  in 
his  declaration  that  such  judgment  or  decree  was  unfairly  ob- 
tained, and  was  the  result  of  acts  of  malice,  fraud,  and  oppression 
on  the  pai't  of  the  defendant,  designed  and  having  the  effect  to  de- 
prive him  of  the  opportunity  and  necessaiy  means  to  have  defeated 
the  suit,  and  obtained  a  judgment  in  his  favor." 

The  limitations  upon  the  general  principle  declared  in  Burt  v. 
Place,  ubi  supra,  were  followed  by  the  supreme  court  of  Maine  in 
Witham  v.  Oowen.  14  ]\Ie.  362.  and  botli  decisions  w^ere  referred 
to  in  the  subserpient  ca.se  of  Payson  v.  Caswell.  22  Me.  212.  226. 
where  the  court  said :  "In  these  two  cases  we  have  instances  of  ex- 
ceptions to  the  general  rule,  indicative  of  the  general  nature  of  the 
characteristics  which  might  he  expected  to  attend  them;  hut  the 
rule  itself  remains  unimpaired.  If  there  be  a  conviction  before  a 
magistrate  having  jurisdiction  of  the  subject-matter,  not  obtained 
by  undue  means,  it  will  be  conclusive  evidence  of  probable  cause." 
The  prnprif'ty  of  this  limitation  of  the  7'ule  seems  to  have  been 
admitted  by  the  supreme  judicial  court  of  ]\Iassachusetts  in  Bacon 


.S(C.    5    C]  PERSON.VL    SECURITY,    LIBERTY,    ETC,  -it)!) 

V.  Towne.  4  Cush.  217,  236,  though  in  hater  cases  it  reiterated  the 
broader  rule,  as  originally  stated  in  Wliilney  v.  Peckhani,  ubi 
supra.     I'arker  v.  Huntington,  7  Gray,  36. 

This  seems  to  reeoneile  the  apparent  contradiction  in  the  au- 
thorities, and  states  the  rule,  which  we  think  to  be  well  grounded 
in  reason,  fair  and  just  to  both  parties,  and  consistent  with  the 
principle  on  which  the  action  for  malicious  prosecution  is  founded. 

It  is,  perhaps,  not  material  in  this  case  to  define  the  rule  with 
precision,  and  to  attempt  to  state  with  accui-acy  the  precise  effect 
to  be  given  to  a  judgment  or  decree  of  the  court  as  proof  of  prob- 
able cause  imder  all  circumstances,  because  in  the  present  case  the 
decree  of  the  circuit  court  of  the  United  States  was  adjudged  to  be 
entitled  to  no  effect  whatever  as  evidence  in  support  of  the  defense 
of  the  plaintiff"  in  error.     .     .     . 

But  the  rule  in  question,  which  declares  that  the  judgment  or 
decree  of  a  court  having  jurisdiction  of  the  parties  and  of  the 
subject-matter,  in  favor  of  the  plaintiff',  is  sufficient  evidence  of 
probable  cause  for  its  institution,  although  subsequently  reversed 
by  an  appellate  tribunal,  was  not  established  out  of  any  special 
regard  to  the  person  of  the  party.    As  we  have  already  seen,  it  will 
avail  him  as  a  complete  defense  in  an  action  for  a  malicious  prose- 
cution, although  it  may  appear  that  he  brought  his  suit  mali- 
ciously, for  the  mere  purpose  of  vexing,  harassing,  and  injuring 
his  adversary.     The  rule  is  founded  on  deeper  grounds  of  public 
policy,  in  vindication  of  the  dignity  and  authority  of  judicial  tri- 
bunals constituted  for  the  purpose  of  administering  justice  ac- 
cording to  law,  and  in  order  that  their  judgments  and  decrees  may 
be  invested  with  that  force  and  sanctity  which  shall  be  a  shield 
and  protection  to  all  parties  and  pei-sons  in  privity  with  them. 
The  rule,  therefore,  has  respect  to  the  court  and  to  its  judgment, 
and  not  to  the  parties,  and  no  misconduct  or  demerit  on  their  part, 
except  fraud  in  procuring  the  judgment  itself,  can  be  permitted  to 
detract  from  its  force.    It  is  equally  true  and  equally  well  settled 
in  the  foundations  of  the  law  that  neither  misconduct  nor  demerit 
can  be  imputed  to  the  coui-t  itself.    It  is  an  invincible  presumption 
of  the  law  that  the  judicial  tribunal,  acting  within  its  jurisdiction, 
has  acted  impartially  and  honestly.    The  record  of  its  proceedings 
imports  verity  ;  its  judgments  cannot  be  impugned  except  by  direct 
process  from  superior  authority.     The  integrity  and  value  of  the 
judicial  sy.stem,  as  an  institution  for  the  administration  of  pul)lic 
and  private  justice,  rests  largely  upon  this  wholesome  principle. 
That  principle  has  been  disregarded  in  the  present  case  by  the  su- 
preme court  of  Louisiana  in  failing  to  give  due  effect  to  the  decree 
of  the  circuit  court  of  tin;  Tnited  Slates  as  sullicient  evidence  ':\ 
support  of  the  defense  of  the  plaintiff  in  cnor  in  lliis  actit»n,  so 
far  as  it  is  iin  iiclion  for  Ihe  recoverv^  of  damages  for  ;i   ninlicious 
I)r(»secnf  i(tn. 

Tlie  jndgiiient  of  the  supn-iiie  conil  of  Louisiiina  mi  the  bond  i1 
self,  for  damages  occasioned  by  its  breach,  against  the  principal 
and  sun-ty.  is  not  afliickcd  in  Iliis  prnci-ediuLr      11  is  so  far  aflinned 


470  I'liKSONAL    SEClKirV.    l.lHliKTV,    ETC.  [Ch.    J. 

But  tliiit  part  wliic'h  i-unstitutos  u  jiulginoiit  against  tlio  Crost'cnt 
City  Livc-sliK-k  Laiuliiig  ».\:  Slau^f|it('rlu)use  Company  solely.  Tor 
ilaiuagi's  lor  liio  malicious  prosi'i-ut  ion,  is  I'cvt'rsi'd,  and  the  cause 
is  ivniandecl  for  further  proeeetlings  therein  not  inconsistent  with 
this  oi)inion;  and  it  is  so  (trdcicd. 

Tl\at  iJiobable  cause  is  a  quc^stion  ol  law  lor  the  tonil,  see  I'luiumer 
V.  Glieen,  10  N.  C.  GO,  iusertod  ante  in  this  sui)-seclion,  and  the  note  to 
that  case.  Particular,  as  distinguished  from  general,  malice  must  be 
shown.  Particular  malice  is  malice  against  a  certain  person.  General 
nuilice  is  malice  against  manUind  in  general.  I  articular  malice  may  be 
shown  by  threats  and  cx|)icssions  of  ill  will;  or  it  nuiy  l)e  inferred  from 
want  of  probable  cause.  lirooks  v,  .lones,  o3  N.  C.  2G0;  see  also  Savage 
V.  Davis,  131  N.  C.  159,  42  S.  E.  571,  affirming  this  and  stating  that  par- 
ticular malice  is  not  essential  in  libel,  though  it  is  in  nuilicious  prosecu- 
tion. If  there  be  want  of  probable  cause,  etc.,  the  advice  of  counsel  is 
not  an  absohUe  defense,  biu  it  may  be  shown  to  rebut  the  presumption 
of  malice.  Smith  v.  B.  &  L.  Association,  116  N.  C.  73,  75,  20  S.  E.  963; 
Railroad  v.  Hardware  Co.,  113  N.  C.  54,  58,  55  S.  E.  422.  In  some  states 
the  advice  of  counsel  makes  out  a  case  of  probable  cause,  if  the  defend- 
ant shows  that  he  acted  in  good  faith.  Black  v,  Buckingham,  174  Mass. 
102,  54  N.  E.  494;  Pawlowski  v.  Jenks,  115  Mich,  at  p.  276,  73  N.  W.  238. 
See  also  as  to  advice  of  counsel,  26  Cyc.  31;  19  Am.  &  Eng.  Enc.  L.  685. 
See  also,  on  the  question  of  probable  cause,  18  L,  R.  A.  (N.  S.)  49-74, 
and  elal)orate  note  (advice  of  ( ounsel ) ;  C.  lb.  701,  and  note,  149  N.  C.  100 
(effect  of  reversal  of  conviction,  on  appeal);  6  L.  R.  A.  (N.  S.)  701,  and 
note  (effect  of  nol.  pros.);  20  Tb.  295,  and  note,  149  N.  C.  100  (effect  of 
plea  of  guilty);  15  L.  R.  A,  (N.  S.)  1143,  and  note  (conviction  secured 
by  fraud  and  perjury):  2  lb.  1100,  and  note  (effect  of  want  of  jurisdic- 
tion of  the  court  in  which  the  prosecution  was  begun);  12  lb.  717,  and 
note  (effect  of  release  after  arrest,  without  further  prosecution);  3  lb. 
928,  and  note  (effect  of  discharge  by  magistrate).  See  "Malicious  Pros- 
ecution," Century  Dig.  §  58;  Decennial  and  Am.  Dig.  Key  No.  Series 
§  25. 


WOOD  V.  GRAVES,  144  Mass.  365,  11  N.  E.  567.     1887. 
Abiise  of  Legal  Process. 

[Tort  against  Graves  and  others.  Verdict  a.gainst  defendants,  who  al- 
leged exceptions.  The  complaint  contained  three  counts:  (1)  For  ma- 
licious prosecution;  (2)  For  false  imprisonment;  (3)  For  abuse  of  legal 
process.  No  facts  are  stated  and  none  are  necessary.  Th*^  judgment  be- 
low was  reversed,  but  upon  a  point  immaterial  to  the  subject  under 
consideration.  After  showing  that  the  firFt  two  counts  were  not  sus- 
tained by  the  proof,  the  opinion  proceeds:] 

C.  Allen,  J.  .  .  .  There  is  no  donht  that  an  action  lies  for 
the  malicious  abuse  of  lawful  process,  civil  or  criminal.  It  is  to 
be  assumed,  in  .such  a  case,  that  the  process  was  lawfully  issued  for 
a  just  cause,  and  is  valid  in  form,  and  that  the  arrest  or  other  pro- 
ceeding upon  the  process  w^as  .iu.stifiable  and  proper  in  its  incep- 
tion. But  the  frrievance  to  be  redressed  arises  in  consequence  of 
subsequent  proceedings.  For  example,  if.  after  an  arrest  upon 
civil  or  criminal  process,  the  party  arrested  is  subjected  to  unwar- 
rantable insult  and  indiirnities.  is  treated  with  cruelty,  is  deprived 
of  proper  food,  or  is  otherwise  treated  with  oppression  and  undue 


ISCC.    S    C]  PERSONAL    SECLRITY.    LIBERTY.    ETC.  471 

hardship,  iie  has  a  remedy  by  an  avtiou  against  the  officer,  and 
against  others  who  may  nnite  with  the  officer  in  doing  the  wrong. 

It  is  sometimes  said  tliat  the  protection  att'orded  by  the  process 
is  lost,  and  that  the  officer  becomes  a  trespasser  ab  initio.    Esty  v. 
AVilmot,  15  Gray,  168;  Malconi  v.  Spoor,  12  Mete.  279.    This  rule, 
however,  is  somewhat  teehnieal,  and  is  hardly  applicable  to  others 
than  the  officer  himseli*.     But  the  principle  is  general,  and  is  ap- 
plicable to  all  kinds  of  abuses  outside  of  the  proper  service  of  law- 
ful process,  whether  civil  or  criminal,  that  for  every  such  wrong 
there  is  a  remedy,  not  only  against  the  officer  whose  duty  it  is  to 
protect  the  person  under  arrest,  but  also  against  all  others  who  may 
imite  with  him  in  inHicting  the  injury.    Perhaps  the  most  frequent 
form  of  such  abuse  is  by  working  upon  the  fears  of  the  person  un- 
der arrest,  for  the  purpose  of  extorting  money  or  other  property, 
or  of  compelling  him  to  sign  some  paper,  to  give  up  some  claim,  or 
to  do  some  other  act,  in  accordance  with  the  wishes  of  those  who 
have  control  of  the  prosecution.   The  leading  ease  upon  this  subject 
is  Grainger  v.  Hill,  -i  Hing.  (N.  C.)  212,  where  the  owner  of  a  ves- 
sel was  arrested  on  civil  process,  and  the  officer,  acting  under  the 
directions  of  the  plaintiffs  in  the  .suit,  used  the  process  to  compel 
the  defendant  tlicrein  to  give  up  his  ship's  register,  to  which  they 
had  no  right,     lie  was  held  entitled  to  recover  damages,  not  for 
maliciously  putting  tiie  process  in  force,  but  for  maliciously  abus- 
ing it.  to  eft'ect  an  object  not  withni  its  proper  scope.    In  Page  v. 
Gushing.  38  ]Me.  523.  the  same  doctrine  was  held  applicable  to  the 
abuse  of  criminal  process.     Hollcy  v.  Mix,  3  Wend.  350,  is  to  the 
same  eft'ect,  and  it  was  held  that  an  action  for  false  imprisonment 
will  lie  against  mii  officer  and  a  complainant  in  a  criminal  prosecu- 
tion where  they  coml)ine  and  cxtoi-t  money  from  a  party  accused 
by  operating  ui)()n  his  fears,  though  the  party  was  in  the  custody 
of  the  officer  under  a  valid  warrant,  issued  upon  a  charge  of  felony. 
The  case  of  Baldwin  v.  Weed.  17  Wend.  224.  was  an  action  for 
false  imprisonment.    The  plaintiff  had  been  indicted  in  New  York. 
He  was  arrested  in  ^'ermont.  and  carried  to  New  York  for  trial. 
The  defendant.  Weed,  procured  the  requisition,  was  present  at  the 
arrest,   and   caused  the  plaintiff  to  be   put  into  irons,   with   the 
[Mirpose   to   sccui-e   two   small    debts.     The    plaintiff'   executed    to 
Weed  a  bond  for  the  delivery  of  property  nnich  in  excess  of  the 
debts.     The  action  for  malicious  prosecution  failed.  Inif  the  court 
CNei.sox.  J.)  declared  that  an  action  of  trespass.  as.sault.  and  false 
iiiiprisonment  should  have  been  bronght.  and  was  the  api>ropriate 
remedy  for  tlie  excess  of  authority  and  abuse  of  the  j)rocess.  and 
intimated  to  the  plaintiff  to  amend  his  pleadings  accordingly.    See. 
also.  Carleton   v    Taylor.   oO  Vt.   220;   Mayer  v.  Walter.  CA  Pa. 
St.  283. 

On  similar  ^'r< <ls.  an  oWu-cy  liecoiiies  resiionsible  in  damages. 

for  abuse  of  j)roce.ss.  or  as  trespasser  al)  initio.  ])y  reason  of  such 
abuse,  who  omits  to  give  an  iiti[)ounded  beast  reasonable  food  and 
water  while  under  his  cnre  CAdams  v.  Adams.  13  Pick.  384)  ;  or 
who  stavs  too  lont.'  in  a  store  wlien-  he  has  attached  goods  (Rowley 


47:2  PERSONAL    SECURITV.    LIHERTV,    ETC.  [(7(.    ,5. 

V.  Rice,  11  :\It>te.  AM-  Williams  v.  Powell.  101  .Alass.  407;  Davis  v. 
Stoue.  120  Mass.  L'L'S)  ;  or  wlu)  ke('i)s  a  kccpt'i"  too  lonji"  in  possos- 
siou  of  attached  property  iCuttei-  v.  Howe,  \2'2  Mass.  •')-l:l);  or 
who  places  in  a  dwelling  honsc  an  unlit  person  as  keeper,  against 
tiie  owner's  ivnionst ranee  (MaU-oin  v.  Spoor,  12  Mete.  27'.)). 

In  various  other  cases,  where  it  has  i)een  said  that  tli(>  only  rem- 
edy was  by  an  action  Tor  mali^'ions  proseculion.  the  whole  griev- 
ance eomj^lained  of  consisted  in  the  original  institution  of  the 
process,  and  no  abuse  in  the  mere  mannei*  of  serving  it  was  al- 
leged. Such  cases  are  iNfuUen  v.  lirown,  138  Ma.ss.  114;  Ilamil- 
hurgh  v.  Sheitard,  119  .Mass.  30;  Coupal  v.  Ward,  106  Mass.  289; 
O'Brien  v.  liarry.  Id.  300.  The  case  of  Ilackett  v.  King,  6  Allen. 
oi'>,  was  trover  for  the  conversion  of  property  which  the  plaintiff 
conveyed  to  the  defendant  under  alleged  duress.  In  Taylor  v. 
Jaques.  100  .Ma.s.s.  2!)1,  the  question  arose  in  another  foj-m,  the  ac- 
tion being  on  a  promissory  note,  in  defense  to  which  the  defendant 
alleged  that  liis  signature  was  procured  by  dures.s. 

See  12  L.  R.  A.  (N.  S. »  1019,  and  note  (insult,  etc.,  after  arrest).  See 
"Malicious  Prosecution,"  Century  Dig.  §  7;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  7. 


ADAMS  V.  LISHER,  3  Blackford,  241,  244.     1833. 

Malice  and  Probable  Cause.  Prosecutions  for  Wrongs  Affecting  the 
Public  Distinguished  from  Those  for  Private  Benefit.  Effect  of  Ac- 
quittal  on  the  Question  of  Probable  Cause. 

[Lisher  sued  Adams  for  Malicious  Prosecution.  Verdict  and  judg- 
ment against  Adams,  who  carried  the  case  to  the  supreme  court  by  writ 
of  error.  Reversed.  Adams  had  "prosecuted  Lisher  in  an  action  of 
trespass  for  cutting  timber  on  the  land  of  the  United  States,"  and 
caused  him  to  be  imprisoned  by  the  United  States  marshal.  Lisher  was 
acquitted  of  this  charge,  and  then  brought  this  action  against  Adams. 
The  judge  charged  that  although  Lisher  was  guilty  of  cutting  certain 
poplar  trees  on  the  land  of  the  United  States,  yet,  if  that  fact  was  tin- 
known  to  Adams  at  the  time  he  caused  the  action  to  be  commenced 
against  Lisher,  the  prosecution  was  malicious  and  Lisher  could  recover. 1 

Ste\'t;xs.  J.  .  .  .  The  last  error  complained  of  is  the  in- 
struction of  the  court  to  the  .jury,  that  although  the  plaintiff  wa.s 
guilty  of  cutting  some  of  the  poplar  trees  on  the  land  in  question, 
as  charged  in  the  declaration,  yet.  if  that  fact  was  unknown  to  the 
defendant  at  the  time  he  caused  the  action  of  trespass  to  be  com- 
menced, the  prosecution  was  malicious,  and  the  defendant  was 
liable  to  the  plaintiff  for  a  malicious  prosecution.  The  grounds  of 
this  action  are  malice,  either  express  or  implied,  and  the  want  of 
probable  cause;  both  must  exist,  or  the  action  cannot  be  main- 
tained. From  the  Avant  of  probable  cause,  malice  may  be  implied; 
rjut  the  want  of  prol)able  cause  can  never  be  implied  from  the 
proof  of  malice.  The  direct  proof  of  the  most  intense  malice  is 
not  sufficient;  there  must  be  proof  also  of  the  want  of  probable 
cause,  or  the  suit  must  fail.    The  want  nf  probable  cause  is  never 


Sec.    8    C]  PERSONAL    SECURITY.    LIBERTY,    ETC.  473 

implied.  There  is  a  distinction  between  malicious  arrests  in  civil 
suits  between  individuals  prosecuted  for  the  private  benefit  of  the 
plaintiff  and  a  malicious  prosecution  of  an  offense,  misdemeanor  or 
wrong,  which  affects  the  public.  In  the  latter  case,  the  prosecutor 
is  much  more  favored  than  in  the  other.  It  is  a  rule  of  law  which 
seems  to  be  founded  on  principles  of  policy,  convenience,  justice, 
and  necessity,  that  the  prosecutor  of  a  wrong  that  aft'ects  the  pub- 
lic shall  be  protected,  provided  he  has  probable  cause,  however 
malicious  his  private  motives  may  have  been ;  for  although  he  may 
have  intended  ill.  still  good  may  arise  to  the  public.  1  T.  R.  493 ; 
White  V.  Dingley.  4  ]Mass.  433:  Lindsay  v.  Larned.  17  ]\[ass.  190; 
X'auduzor  v.  Linderman.  10  Johns.  106^;  2  Stark.  Ev.  911 ;  2  ^Vils. 
302;  2  Saund.  PI.  ik  Ev.  195;  1  Sw.  Dig.  491. 

This  suit  is  foimded  on  a  prosecution  set  on  foot  by  the  defend- 
ant against  the  plaintiff',  for  a  wrong  that  affects  the  public,  and, 
therefore,  the  defendant  stands  on  the  footing  of  the  most  favored 
class  of  prosecutors.  It  was  an  action  of  trespass  for  cutting  and 
carrying  away  from  lands  belonging  to  the  public,  timber,  that  is 
to  say,  two  poplar  trees,  and  one  hickoiy  tree,  etc.  The  gist  of  that 
action  was  the  trespass,  and  proof  of  cutting  and  carrying  away 
any  one  of  those  trees,  would  be  sufficient  to  sustain  the  action ; 
and  if  he  were  guilty  of  the  trespass,  he  cannot  maintain  this  ac- 
tion, although  he  may  have  been  actiuitted  in  the  district  court, 
where  he  was  prosecuted ;  and  it  is  immaterial  whether  the  defend- 
ant knew  him  guilty  or  not,  if  he  can  now  prove  the  fact  that  he 
was  guilty,  or  if  he  can  even  prove  that  there  was  probable  cause 
to  suspect  him  of  being  guilty,  it  is  sufficient  for  him.  Judgment 
reversed. 

See   "Malicious   Prosecution,"   Century   Dig.    §§   49-5',;    Decennial    and 
Am.  Dig.  Key  No.  Series  §  24. 


RAILROAD  V.  HARDWARE  CO.,  143  N.  C.  54,  57-59,  55  S.  E.  422.     1906. 

Abuse  of  Lcf/al  Process  and  Malicious  Prosecution  Distinguished.     Ad- 

mce  of  Couusel. 

FAction  for  abuse  of  legal  process  in  attaching  i)laintiff's  oars  and 
keeping  them  tied  up  for  two  years.  What  judgment  was  rendered,  is 
not  disclosed  in  the  reported  case,  but  both  parties  appealed.     Affirmed. 1 

Clark,  C.  J.  .  .  .  The  court  below  erred  in  instructing  the 
jury  that  "if  they  believed  the  evidence  to  answer  the  first  issue 
'Yes.'  That  issne  was.  'did  the  defendant  wrongfully,  and  without 
probable  cause,  cause  lo  be  issued  and  levied  a  warrant  of  attach- 
ment upon  the  property  of  the  plaintiff?'  There  was  ample  evi- 
dence to  submit  to  the  jury  upon  the  question  of  ])ro])a])le  cause. 
There  was  tlie  testiiriony  of  the  genei-al  manaL'i-r  (if  the  defendant 
that  the  party  who  l)onght  the  goods  told  him  tbev  were  fur  llu^  use 
of.  and  bouL'ht  for  the  account  of.  the  plaintiff;  that  he  liad  no 
rea.son  whatsoever  to  disbelieve  this  statemenl  ;  Ihal  the  action  wa,s 


4/4  I'KKSiONAl-    t<lXrKriN,    I.IHKKIV.    K'l'C.  |  ( 7( .     '). 

instiliit«'<l  liy  llic  (Icrcinlaiil  in  llif  utmost  y;o()cl  fnilli.  hrli.  \  iii<?  that 
tho  plaint ilV  vciilv  owvd  tlic  drht  \'ov  wliicli  the  properly  was  at- 
taclii'tl;  that,  notwitlistaniliii^  this  hfliei",  out  ol"  the  al)iiiulaiice  of 
i-aulion.  he  suhnnltcd  hoiicstlv  all  tlu'  Tacts  to  iiis  couiisfl.  who  acl- 
visod  him  that  he  had  a  faiisc  ol'  actioti  aiiaiiisl  tlir  plaiiitilV;  that 
no  sti'ps  were  taUi-n  cxcopt  such  as  wci-c  advised  hy  iiis  atlorucy; 
that,  as  for  atlachiuj;  more  propci'ty  tluiu  the  amoind  of  his  claim 
wouUl  wairant.  he  had  no  idea  what  property  the  sheritV  had  at- 
tached under,  and  li\  \irtne  of,  the  writ,  and  that  his  oidy  cause 
for  taking'  a  nonsmt  at  the  time  of  the  trial  of  the  action  wa.s  his 
inahility  to  secure  the  attendance,  as  a  witness,  of  the  party  who 
hought  the  ^oods."  The  del'endanl  had  laid  all  the  fads  befoiv 
c'ouusel  of  hiizh  standin^^  in  the  profession,  and  had  sued  out  the 
attachment  under  his  advice.  This  is  evidence  to  rebut  the  allega- 
tion of  malice.  Smith  v.  H.  c^  L.  Assn..  11(5  N.  C.  7:1  20  S.  E.  !)(>}. 
and  there  are  many  authorities  holdiufi;  that  it  is  evidence,  also, 
of  probable  cause.  See  cases  collected  in  note  98  Am.  St.  Rep.  461. 
This  acti<m  furthermore  cannot  be  maintained  for  malicious  prose- 
cution, if  as  the  jury  have  foinid.  there  was  no  malice.  Railroad  v. 
Hardware  Co..  I'^SX.  C.  174,  50  S.  E.  571. 

The  only  jjround  for  an  action  for  abuse  of  i>rocess  is  the  levy 
on  an  excessive  number  of  cars  for  the  alleged  purpose  of  forcing; 
]iaynient  of  an  all(>»'ed  debt,  preferably  to  submitting'  to  loss  and 
inconvenience  by  the  attachment.  There  was  certainly  evidence, 
above  set  out.  in  denial  of  this,  and  it  was  error  in  any  aspect  of 
the  case  to  instruct  the  jury  to  answer  the  first  issue  "Yes."  If 
the  officer  levied,  as  it  seems  that  he  did.  on  an  excessive  quantity 
of  property,  the  j)laintitt'  in  the  attacliment  was  not  liable  for  the 
abuse  unless  it  had  in  some  way  directed,  advised  or  encouraged 
such  act.  1!)  Am.  &  Eng.  Enc.  (2d  ed.)  (i:30.  This  being  denied, 
raised  an  issue  for  the  jury. 

It  may  be  as  well  to  note  here  the  distinction  between  an  action 
for  malicious  prosecution  and  an  acticn  for  abuse  of  process.  In 
an  action  for  malicious  prosecution  there  nuist  be  shown  (1)  mal- 
ice, and  (2)  want  of  probable  cause,  and  (3)  that  the  former  pro- 
ceeding has  terminated.  Railroad  v.  Hardware  Co..  138  N.  C. 
174.  50  S.  E.  571.  In  an  action  for  abuse  of  process  it  is  not  nec- 
essary to  show  either  of  these  three  things.  By  an  inadvertence 
it  was  said  in  the  case  last  cited  that  want  of  probable  cause  nuist 
be  shown.  "If  process  either  civil  or  criminal  is  wilfully  made 
use  of  for  a  jmrpose  not  .instified  by  the  law\  this  is  an  abuse  for 
which  an  action  will  lie."  1  Cooley.  Torts  (3d  ed.).  354.  "Two 
elements  are  necessary:  First,  an  ulterior  purpose;  second,  an  act 
in  the  use  of  the  process  not  proper  in  the  i-eofular  prosecution  of 
the  proceeding."  Id.  355 ;  1  Jaggard.  Torts,  §  203;  Hale  on  Torts. 
§  185.  "An  abuse  of  legal  process  is  where  it  is  employed  for 
some  unlawful  object  not  the  purpose  intended  by  law.  It  is  not 
necessary  to  show  either  malice  or  want  of  probable  cause,  nor 
that  the  proceeding  had  terminated,  and  it  is  immaterial  whether 
such  proceeding  was  baseless  or  not."    Mayer  v.  Walter.  64  Pa. 


Sec.    8    C]  PERSONAM.    SECURITY.    LIBERTY,    ETC.  475 

283     The  distiuction  has  been  clearly  stated.    Jacksou  v.  Tel.  Co., 
139  X.  C.  356,  51  S.  E.  1015,  70  L.  R.  A.  738.    Error. 

An  action  lies  for  the  malicious  abuse  of  lawful  process — whether  civil 
or  criminal — issued  for  a  just  cause,  valid  in  form,  and  proceeded  on 
in  a  manner  justified  and  proper  in  its  inception,  but  subsequently 
abused.  Jackson  v.  Telegraph  Co.,  139  X.  C.  347,  headnote  9,  51  S.  E. 
1015,  inserted  post,  in  this  section.  See  'Process,''  Century  Dig.  §  257; 
Decennial  and  Am.  Dig.  Key  No.  Series  §  168. 


DOCTOR  et  al.  v.  RIEDEL  et  al.,  96  Wis.  158,  71  N.  W.  119.     1897. 

iMuful  Exercise  of  Legal  Process  tcith  a  Malicious  Motive  and  Ulterior 

Vindictive  Object.    Executing  Laufvl  Process  in  an  Offensive  Manner. 

[Action  for  abuse  of  legal  process.  General  demurrer.  Demurrer 
overruled.  Judgment  against  defendants,  and  they  appealed.  Reversed. 
The  facts  appear  in  the  beginning  of  the  opinion.] 

WiNSLOw.  J.    The  complaint  charges,  in  brief,  that  the  defend- 
ants, Avithoiit  previons  demand,  entered  judgment  upon  a  .jiidg- 
inent  note  at  10  o'clock  at  night,  and  immediately  issued  execu- 
tion thereon,  and  broke  into  the  plaintiffs'  store,  and  levied  upon 
their  stock  of  goods,  with  the  malicious  intent  thereby  to  injure 
and   destroy  the  plaintiffs'   business  credit  and  re]iutation.   and 
thai  the  ])laintift's.  on  being  informed  of  the  seizure,  immediately 
paid  the  judgment  and  procured  release  of  the  levy.    Plainly,  the 
complaint  does  not  state  a  case  of  malicious  prosecution  of  a  civil 
action,  because  the  action  ended  favorably  to  the  present  defend- 
ants: thus  demonstrating  that  there  Avas  not  only  prol)able,  but 
perfect,  cause  for  bringing  it.     O'Hrien  v.  Barry.  106  IMass.  300. 
It  is  claimed,  however,  that  a  cause  of  action  is  stated  for  abuse  of 
process.     The  authorities  upon  the  question  of  Avhat  will  consti- 
tute a  cause  of  action  for  abuse  of  process  are  certainly  in  a  state 
of  some  confusion,  and  frequently  this  action  seems  to  have  been 
confounded  with  actions  for  malicious  prosecution,  although  they 
are  essentially  dift'crcnt  actions.     The  lending  case  on  the  subject, 
perhaps,  is  the  ca.se  of  Grainger  v.  llill.  4  Ring.  X.  C.  212.     Here 
the  plaintiff  was  arrested  at  a  time  when  he  could  not  procure 
bail,  and  kept  under  arrest  until  he  surrendered  a  ship's  register. 
The  faf)ias  was  a  valid  wi-it.  i-cgularly  IssikmI  upon  ;i  g^od  cnuse  of 
action,  but  it  was  used  to  effect  an  ulterior  and  illegitimate  piu- 
]>ose:  and  for  that  use  there  was  held  to  be  a  remedy  in  tort,  re- 
gardless of  the  question  whether  the  original   actieii    was  deter- 
iriined.  or  whether  it  was  fonnrled  on  pi'ob;ible  ejiuse.     Ro.  where 
an  execution  is  issued  upon  a  judgment   ali-eady  ])aid.   or  for  an 
excessive  amount,  and  gorxls  are  levied  upon,  a  remedy  is  given. 
In  these  and  similar  eases,  as  said  by  an  eminent  text  writer,  "it 
is  enouL'h  tliat  the  process  was  wilfully  abused  to  aceoinplish  some 
unlawful  j)un)Ose."     TrKiley.  Torts  (2d  ed.).  pp.  220.  221.     This  is 
f»robably  the  test,  namely,  whether  the  process  hns  been  used  to  ac- 
eom|>lish   some  uid;iwful   <ii(l.  oi-  to  compel   the  (lt'fcii<l;iiil    to  do 


47(;  I'KRSONM.    SKcrWriN  .    IIHKIM'N.    K'l'C".  |  ( 7( .    5. 

sonu>  rollaloral  thinj;  wliiih  lie  fouKl  not  le}i;ally  he  conipoUod  to  do. 
.Folinson  V.  Ix.mmI.  l;i(i  .Mass.  4'_M.  .\|)|)lyiMf'-  tliis  tost  to  the  case 
hofoi'i'  us,  uc  ilo  not  tlisfovcr  any  rause  ol;  action  stated.  The 
prttc-i'ss  of  llic  court  lias  been  used  to  collect  a  valid  debt,  and  in 
precisely  tli''  ninr.ucr  thai  Ibc  piaiutiiVs  here  consented  to  its  use 
by  the  judLiiuent  note,  iiy  this  insti'uineut  the  plaintilVs  author- 
ized its  holder  to  cuter  judirnient  aiul  issue  execution  at  any  time, 
and  this  is  all  that  has  been  done.  The  defendants  seem  to  have 
acted  strictly  witliin  liieir  riuht.  Tiie  genei-al  rule  is  that,  where 
one  exercises  a  leiral  ri^ht.  his  undisclosed  motives  ai'c  iuunatci'ial. 
IMieli)s  V.  Nowlen.  72  N.  Y.  31);  Haycroft  v.  Tayntor,  G8  Vt.  21!), 
:{;")  Atl.  53.  We  see  no  reason  why  the  rule  should  not  ai)i)ly  here. 
The  defendants  havin";  collected  their  debt  in  a  way  which  they 
were  authorized  to  use.  we  cannot  ]>»uiish  them  for  their  secret 
motives.  The  ]daintilVs  had  an  open  account  at  the  l)ank,  ujkju 
which  there  stood  ^S.IO  to  tlicir  credit,  and  they  claim  that  this 
should  have  been  applied  upon  the  note.  "Whether  the  hank  had 
a  riirht  to  make  such  an  application  without  consent  may  he  doubt- 
ful, but,  whether  it  could  do  so  or  not,  we  see  no  reason  for  hold- 
ing that  it  was  ol)li«i»'d  to  do  so.  Order  reversed  and  action  re- 
manded, with  directions  to  sustain  the  denuirrer. 

Marsh.m.l,  J.  (dissentino-).  1  understand  the  decision  of  the 
court  to  be  to  the  effect  that  if  a  person  is  in  the  mercantile  busi- 
ness and  unquestionably  solvent,  to  the  knowledge  of  another  to 
whom  he  is  indebted  on  a  .iudgment  note,  the  circumstances  being 
that  such  othei-  knows  he  can  ol)tain  payment  of  such  note  on  de- 
uuind.  he  may.  notwitlistanding.  with  the  malicious  purpose  to 
destroy  the  ci-edit  of  his  debtor  and  break  up  his  business,  enter 
judgment  on  such  note  at  10  o'clock  at  night,  immediately  issue 
iin  execution  thereon,  and.  in  the  absence  of  such  debtor  (his  place 
of  business  being  closed  f(u-  the  night),  cause  an  officer  to  break 
into  such  place  and  take  possession  of  such  debtor's  stock  in 
trade,  without  having  made  any  demand  for  payment  of  the  debt, 
or  demanding  (mtrance  to  the  store,  or  giving  the  debtor  any  no- 
tice whatever  that  immediate  payment  of  the  debt  is  required, 
thereby  maliciously  causing  unnecessary  and  serious  pecuniary 
injury  to  such  debtor,  and  that  such  conduct  constitutes  no 
wTong.  or,  if  it  does,  it  is  without  legal  redress.  If  there  is  no 
remecly  for  such  an  official  outrage,  it  uuist  stand  as  a  striking  ex- 
ample of  the  insufficiency  of  our  system  of  jurisprudence  to  deal 
with  a  class  of  serious  malicious  injuries  that  may  break  down  a 
prosperous  business,  involve  its  owner  in  utter  ruin,  turn  his  con- 
dition of  solvency  to  one  of  insolvency,  and  make  him  a  beggar  in 
a  day.  I  nmst  respectfully  dissent  from  that  doctrine,  and  pro- 
test that  no  such  imperfection  exists  in  the  remedies  afforded  by 
our  laws.  That  the  reasoning  upon  which  the  decision  of  my 
brethren  rests  leaves  such  a  Avrong  without  a  remedy  is  of  itself 
an  infallible  test  of  its  fallacy.  Actionable  injuries,  growing  out 
of  what  is  commonlv  called  ''abuse  of  process."  consists  of  two 


Sec.    S   c]  PERSON.VL    SECURITY.    LIBERTY,   ETC.  477 

classes :  One  where  the  process  of  the  eonrt  is  not  used  for  its 
legitimate  purpose,  but  to  accomplish  by  coercion  some  outside  ob- 
ject not  within  the  proper  use  of  the  ])roeess.  as  in  Grainger  v. 
Ilill.  4  Bing.  N.  C.  212.  cited  in  the  opinion  of  the  court,  where 
the  injured  party  was  arrested  on  a  valid  writ  in  order  to  coerce 
him  into  delivering  a  ship's  register,  which  was  entirely  outside 
of  the  legitimate  purposes  of  the  writ.    My  brethren  test  the  com- 
plaint here  solely  by  Grainger  v.  Hill  and  similar  eases,  and  the 
elementary  principle  that  abuse  of  process,  strictly  so  called,  is 
the  use  of  process  regularly  issued,  to  accomplish  an  unlawful 
end,    or   to   compel  the   defendant   tti    do   some    collateral   thing. 
Thereby  the  conclusion  is  easily  re-u-lied  that  the  complaint  does 
not  state  a  cause  of  action.     But  there  is  another  class  of  mali- 
cious injuries  growing  out  of  abuse  of  process,  sometimes  desig- 
nated as  "malicious  misuse  of  process,"  that  has  been,  to  my 
mind,  entirely  overlooked,  to  which  class  the  case  made  by  the 
complaint  belongs,  and  within  the  rules  of  which  a  good  cause  of 
action  is  clearly  stated.     Such  class  includes  the  use  of  process  to 
accomplish  its  legitimate  object,  but  in  a  reckless,  unnecessarily 
oppressive  way.  with  wrong  intent  to  injure  the  person  against 
whom  the  process  runs.     Siich  misuse  is  actionable,  because  of  the 
unnecessary  injury   inflicted,   and   the   motive    of   it.      The   two 
classes  of  injuries  referred  to  are  recognized  in  IMayer  v.  Walter, 
r>4  Pa.  St.  28.S.  which  is  a  very  instructive  case  on  the  subject. 
The  court  there  held,  in  effect,  that  malicious  abuse  of  process  is 
where  it  is  u.sed  for  some  unlawful  object  not  within  its  scope,  but 
that  malicious  misuse  of  process  may  take  place  where  no  object 
but  its  proper  and  legitimate  execution  is  contemplated.     Here 
the  object  intended  was  the  execution  of  the  judgment.     Defend- 
ant had  a  legal  right  to  collect  it.  but  the  proceedings  to  that  end 
were  unnecessarily  harsh   and  oppressive,  and  with  bad  intent; 
hence  the  actionable  injury.     Rogers  v.  Brewster.  5  Johns.  125, 
which  will  be  found  cited  by  all  standard  text  writers,  touches 
this  case  at  evers^  essential  ]>oint.     The  officer  had  ample  opportu- 
nity to  execute  his  writ  by  taking  property  that  would  not  inter- 
fere seriously  with  the  debtor's  business.     Instead  of  doing  so.  he 
Took  a  horse  from  the  team  with  which  such  debtor  was  at  work, 
with   intent  to  cmbarrMSS  and  injure  him.     In  deciding  the  case 
the  court  said:  "The  constable  appears  to  have  executed  the  war- 
rant in   an   unreasonable   and   oppressive  manner,   and   with   the 
avowed  and  malicious  design  to  liarass  and  oppress  the  iilaintiff. 
The  oppression  of  an  officer  in  llie  execution  of  process  is  indict- 
able, and  a  great  aliuse  of  the  powers  of  a  sheriff  on  execution  has 
been  held  sufficient  fo  make  him  a  trespasser      If  he  be  charged 
with  a  malicious  and  opj^ressive  ])rocee(ling.  a  proper  rcMuedy  for 
this  abuse  of  power-  is  a  spe<'ial  acfidn   nn  the  case,   in   which  the 
malice  and  oppression  must    br   iii.idi'  manifest.     The  seizing  and 
selling  of  the  horse  in  the  ca.se  before  us  was  wilhout  any  just 
cause,  so  long  as  other  jiroperfy   was  shown    which   would    have 
raised  the  money  with  eriual   facility.     It  was  tlwi-efore  a  cause- 


478  PKKSDN.U,    SIX  IKII'V.    I.IIU'.IM'Y.    V.'VV.  \('ll.    Ci . 

less  ami   iiialicious   iiroccfiliiiu'.      Wlu'ic  a    ministi'rial   til'lirrr  docs 
aiiytliiiiir  airaliist   tlic  duly  ol"  his  ollico.  and  daiiia«i:('  lliiMvby  ac- 
iTUOs  to  the  |>art\.  an  action  lies."     To  tlic  sanu>  clToct  aro  Jiich- 
tor  V.   Imu'Iuii.  tiT  (Ja.  aiH  ;  Snydackci-  v.   I'rossc,  f)!    111.  :\7u .     lii 
lliliror  V.   l^ucliaiiaii   (Tex.  Sup.^.  <1  S.   W.   108,  the  iMrw  and  tin; 
cxtHMition   i>laintitV.  \vl»o  ratilicd  thf  oriicor'iijict.   wcic  held   liable 
Tor  the  malicious  conduct   oi'  Ihc  latter  in  cxec\ilin<i'  the  wi'it  in  a 
hasty  and  oppi-essive  manner  at  n  time  when  it  subjected  defend- 
ant and  his  family  to  uiuiecessaiy  hardship.     Many  eases  of  the 
same  kind  exist   in  tlie  books,  but  time  will  not   permit   eallin«;'  at 
tent  ion  to  lliem  I'uiihcr  than   is  necessary  1o  show  clearly  m\-  I'ca- 
sons  for  holdinu   that   the  complaint   in  the  instant  ease  states  a 
cause  of  action.     The  whole  subject   misi'ht   well  rest   on   Smith  v. 
Weeks.  bO  ^Vis.  !)4.  18  N.  \V.  778.    There  the  oflieer  bad  a  warrant 
to  arrest  Weeks  in  contempt  proeeodinfrs.     The  latter  was  a  loco- 
motive engineer.     He  was  at  home  all  day.  to  the  knowledjjfe  of  the 
olIHeer,  and  mi^ht  have  been  ai-rested,  and  the  object  of  the  writ 
satistied.  without  seriously  embarrassing'  him.     It  was  his  duty  to 
go  out  with  bis  engine  at  night,  which  the  officer  knew,  yet,  for 
the  purpose  of  embarrassing  and  unnecessarily  oppressing  Weeks, 
the  officer  waited  till  be  was  about  to  go  out  on  his  night  run.  and 
then  arrested  him.     The  court  held  that  such  conduct  constituted 
an   official  outrage,   and   a  clear  abuse  ol"   ])i"ocess.      There   were 
many  aggravating  circumstances  which  occurred  after  the  arrest, 
init  the  coui-t  held  clearly  that  the  arrest  itself,  under  the  circum- 
stances, and  the  motive  of  it.  constituted  abuse  of  process.    From 
the  foregoing,  the  principle  governing  this  subject  may  be  stated 
thus:  If  process  to  collect  a  judgment  be  executed  in  an  unneces- 
sarily harsh  and  oppressive  manner,  with  a  malicious  purpose  to 
injure  the  judgment  debtor,  such  conduct  constitutes  an  action- 
able wrong.     In  executing  such  a  process  the  officer  must  not  be 
guilty  of  oppression,  or  make  use  of  greater  force  or  violence  than 
the  thins:  re(|uires.     If  he  does,  he  is  guilty  of  an  abuse  of  process 
and  liable  for  damages.     Alder.  Jud.  Writs,  514,  §  179.    Applying 
the  above-stated  principle  to  the  complaint  before  us,  the  order 
overruling  the  demurrer  to  the  complaint   was  obviously  right, 
and  should  be  sustained. 

See  "Process,"  Century  Dig.  §  257;    Decennial  and  Am.  Dig.  Key  No. 
Series  §  168. 


.TACKSON  V.  TELEGRAPH  CO..  139  N.  C.  347,  355.  51  S.  E.  1015.     1905. 
False  Imprisonment,  etc.    Measure  of  Damages. 

(Action  for  Praise  Imprisonment.  .Judgment  against  defendant.  De- 
fendant appealed.  Affirmed.  Only  that  portion  of  the  opinion  which  de- 
cides urton  the  measure  of  damages,  is  here  inserted.] 

Walker.  J.  .  .  .  The  court  charged  correctly  when  it  per- 
mitted the  jui-y  to  award  ])unitive  damages.  If  McManus.  as  the 
jury  found,  arrested  the  plaintiff,  not  because  the  latter  had  as- 


Sec.    S    d.]  PERSONAL    SECURITY.    LIBERTY,    ETC.  479 

saiilttxl  him.  but  to  put  him  out  of  the  way  and  thereby  jux'vent 
his  resistance  to  an  entry  upon  the  hind,  it  was  a  case  where  vin- 
dictive damages  might  well  be  allowed  by  the  jury  in  addition  to 
compensation  for  the  wrong'.  The  court  in  its  charge  made  the 
question  of  prol)abIe  cause  turn  upon  whether  the  plaintiff  had  or 
had  not  a.s.saulted  IMc^ranus.  and.  they  having  decided  that  there 
was  no  probable  cause,  it  follows  that  they  found  there  was  no 
as.sault.  and  tliat  the  nrrest  was  wholly  un.iustifial)le.  and  a  wan- 
ton, highhanded,  and  oppressive  act.  for  which  ])unitive  damages 
may  be  allowed.  Remington  v.  Kirby.  120  N.  C.  :}20.  26  S.  E. 
917.  The  verdict  was  moderate  in  view  of  the  circumstances,  and 
the  .iury  do  not  seem  to  have  allowed  nuich.  if  anything,  in  the 
way  of  exemphiry  damages.  '"Tlie  doctrine  is  well  settled  that 
the  jury,  in  addition  to  compensatory  damages,  may  award  ex- 
emplary, punitive,  or  vindictive  damages,  sometimes  called  'smart 
money.'  if  the  defendant  has  acted  wantonly  or  with  criminal  in- 
difference to  civil  obligations"  (Kailroad  v.  Prentice.  147  U.  S. 
106,  13  Sup.  Ct.  261,  37  L.  Ed.  97).  or  the  defendant  has  been 
guiltv  of  an  intentional  and  wilful  violation  of  the  plaintiff's 
i-ights  (Railroad  v.  Arms.  91  V.  S.  489.  23  L.  Ed.  374;  Ilansley  v. 
Railroad.  117  X.  C.  565,  23  S.  E.  443.  32  L.  R.  A.  543.  53  Am.  St. 
Rep.  600).     ...     No  error. 

See   'False   Imprisonment,"   Century  Dig.    §§   109-115;    Decennial  and 
Am.  Dig.  Key  No.  Series  §§  32-00. 


(d)  Liability  of  Officers  in  Actions  for  False  Imprisonment,  Ma- 
licious Prosecution,  and  Abuse  of  Legal  Vmccss. 

STEW.\RT  V.  COOLEY,  23  Minn.  347,  23  Am.  Rep.  090.     1877. 
lAahUity  of  Judicial  Officers. 

fAction  for  Conspiracy  to  institute  a  Malicious  Prosecution  against 
the  plaintiff.  The  acts  of  Cooley  which  are  made  the  subject  of  this 
action,  were  done  in  his  capacity  as  judge  of  the  municipal  court  of 
.Minneapolis.  Demurrer.  Demurrer  sustained.  .Judgment  against  plain- 
tiff, anri  he  appealed.  Reversed.  The  facts  appear  in  the  beginning  of 
the  opinion. 1 

CoK.N'KLL.  J.  Eliminaling  from  the  complaint  the  av(>rments 
"that  (Icfi'iidants.  on  etc..  at.  etc..  wilfully  and  maliciously  con- 
spired togflliei-  to  cause  said  plainlilf  lo  be  charged  with,  com- 
j)lained  of.  and  arrested  and  imprisoned  for  the  crime  ol'  ix-rjury, 
a.s  hereinafter  set  forth,  and  lliat,  in  pursuance  of  the  said  con- 
spiracy." the  thereinarier  lecited  acts  were  done,  we  liiid  no  dif- 
ficull\'  whatever-  in  atrreeing  with  the  coui'l  below  that  no  cause  of 
action  is  staled  airainsi  the  d(!fendant  Cooley. 

The  reception  of  the  complaint,  the  issue  of  a  warrant  thereoiL 
tbe  (leeision  upon  its  snTficiency.  ami  refusal  to  discliarge  the  pris- 
<iner  froni  arr-est.  liis  subsc(juent  oini-^sion  to  tal<e  an>"  steps  lo  pro- 


480  PF.Hsox.M.  sKci  Krr\ .  liukktv.  ktc.  |r/(.  .;. 

(Uiv  tlu'  ;itt«'inl;mrf  ol"  llic  piHtsrciit  iiit:  w  it  iicss,  iiiul  ilisiiiiss;il  ot" 
tlio  ;u'tioii  I'oi-  w.iiil  (if  iirosoculioii.  were  ;ill  acts  iiiul  oiuissioiis 
doMf  and  adinittfd  in  his  capacity  df  jndu-c.  in  I  lie  pci-fdnnanct; 
and  tliscliarir*'  «>!  Iiis  judicial  duties,  in  a  niattci-  and  pcocoediuf? 
oloarly  within  thi'  criminal  juiistlictioii  of  the  nuinicipal  court, 
of  Avliicli  he  was  judsic  No  i)rivato  action  coidd  be  maintained 
\ipon  any  of  these  acts,  decisions,  or  omissions,  however  erroneous 
they  may  have  been,  or  by  wliatevei"  Jiiotivcs  prompted.  An  inde- 
penilent  judiciary  is  justly  resjarded  as  (Essential  to  tlie  public 
welfare  and  tlu'  best  interests  of  society.  ITence,  the  doctrine  luis 
become  settled  tbat.  for  acts  done  in  the  exercise  of  judicial  au- 
tliority.  cU'arl\  conferred,  an  officer  m-  jud^e  shall  not  be  held 
liable  to  an\'  oni'  in  a  civil  action,  so  that  he  may  feel  free  to  act 
upon  his  own  convictions,  uninfluenced  by  any  fear  or  apprehen- 
sion of  eon.sequences  personal  to  himself.  Yates  v.  Lansinj;.  5 
Johns.  2S2:  ^^.  C.  0  Johns.  804;  "Rochester  White  Lead  Co.  v.  Cifv 
of  Kochester.  8  N.  Y.  4();5 :  Stewart  v.  ITawley.  21  Wend.  552; 
Weaver  v.  Devendorf.  3  Denio.  117;  TIai-man  v.  Hrotherson.  1 
Denio.  537;  Wilson  v.  flavor  of  New  Yoi-k.  1  Denio.  505;  Randall 
v.  Brioham.  7  Wall.  523;']iradley  v.  Fisher.  13  Wall.  335. 

While  we  are  thus  clear  that  none  of  the  specific  acts  charged 
in  the  complaint,  taken  singly  or  together,  furnished  any  ground 
for  a  civil  action,  or  even  any  evidence  sufficient  to  support  the 
allegations  of  conspiracy  in  the  complaint,  we  cannot  concur  \vith 
the  court  below  in  liolding  the  conspiracy  averments  hereinbefore 
quoted  as  merely  formal  and  immaterial  allegations.  Tinder 
tliem  it  would  have  been  competent,  on  the  trial,  to  prove  that, 
prior  to  the  institution  of  the  criminal  proceedings,  the  defendant 
Cooley  and  the  otlier  defendants  met  together,  and  maliciously 
and  without  probable  cause  actually  entered  into  an  agreement 
and  conspiracy  with  each  other  to  prosecute  plaintiff  for  perjur>% 
for  the  sole  purpose  of  bringing  him  into  disgrace,  and  subject- 
ing him  to  arrest  and  imprisonment;  and  that  each  and  all  the 
acts  charged  to  have  been  done  by  the  defendants,  respectively, 
were  done  solely  in  pui'suance  of  this  agreement,  and  to  carry  out 
lliis  common  purpose,  and  not  otherwise.  It  cannot  be  doubted 
that  such  a  conspiracy,  previously  formed,  and  carried  out  by  such 
a  gross  perversion  and  abuse  of  legal  proce.?s  and  proceedings, 
would  subject  all  the  parties  engaged  in  it  to  liability  to  the  party 
injured  and  aggrieved.  The  act  of  entering  into  such  an  agree- 
ment was  not  done  in  the  coui-se  of  any  judicial  proceeding,  or  in 
the  discharge  of  any  judicial  function  or  duty.  .  .  .  Re- 
versed. 

See  the  valuable  note  to  the  principal  case  in  23  Am.  Rep.  at  pp.  692- 
(;94.  .TiKlges  of  courts  of  record  of  superior  or  general  jurisdiction  are 
not  liable  to  civil  actions  for  their  judicial  acts,  even  when  such  acts 
are  in  excess  of  iheir  jurisfliction  and  alleged  to  have  been  done  mali- 
ciousl.v  or  corrin)tly.  .ludgea  of  inferior  and  limited  jurisdiction  are 
protected  only  when  the  act  is  within  their  jurisdiction.  If  judges  of 
superior  and  general  jurisdiction  act  corruptly  or  maliciously  in  mat- 
ters over  which  there  is  a  clear  absence  of  all  jurisdiction,  as   distin- 


Sec.    8    d.]  PERSON.VL    SECURITY.    LIBERTY,    ETC.  481 

guished  from  a  mere  exceeding  of  their  jurisdiction,  they  may  be  liable. 
Bradley  v.  Fisher,  13  Wall,  at  pp.  o51-o54.  See  'Judges,"  Century  Dig. 
§  165;    Decennial  and  Am.  Dig.  Key  No.  Series  §  36. 


WALL  V.  TRUMBULL,  16  Mich.  228,  234-230.     1867. 

Judicial  and  Ministerial  Officers  and  Duties  Distinguished.  Respective 
LialnUties  of  Such  Officers.  Superior  and  Inferior  Courts.  Juris- 
diction. 

[Action  of  Trespass  for  issuing  a  warrant,  as  supervisor,  to  collect  an 
alleged  illegal  tax,  under  which  warrant  Wall's  property  was  sold.  De- 
fendant pleaded  that  what  he  did  was  done  in  his  official  capacity  as 
supervisor.  Judgment  against  Wall,  who  carried  the  case  to  the  su- 
preme court  by  writ  of  error.  Affirmed.  Only  part  of  the  opinion  is 
inserted  here.l 

CoOLEY,  J.  .  .  .  It  will  now  become  necessary  to  considei' 
whether  the  supervisor  can  be  hekl  lialile  as  a  member  of  the  town- 
ship board  which  allowed  the  claim>^.  Tt  is  objected  on  his  behalf 
that  it  does  not  appear  that  he  voted  in  favor  of  their  allowance, 
and  it  is  urged  that,  for  aught  that  appears,  he  may  have  opposed 
them.  But  I  am  of  opinion  that  this  objection  is  not  well  taken. 
The  supervisor's  presence  was  necessary  to  a  quorum  when  they 
were  allowed,  and  nothing  appears  from  which  his  dissent  can  be 
inferred.  lie  signed  the  record  of  the  allowance,  embodying 
therein  an  order  to  himself,  as  supervisor,  to  levy  the  amount  by 
taxation — an  order  without  any  puri)ose.  so  far  as  I  can  perceive, 
except  to  formally  connect  the  persons  signing  it  with  the  allow- 
ance of  the  claims,  and  the  levy  of  the  taxes  to  meet  them. 

In  determining  whether  the  members  of  the  township  board 
voting  for  the  allowance  are  liable,  the  first  question  which  arises 
is.  whether  the  nature  of  their  duties  is  judicial,  or  ministerial 
oidy;  for  the  rule  of  liability  is  altogether  different  in  the  two 
ca.ses.  A  ministerial  officer  has  a  line  of  conduct  marked  out  for 
him.  and  has  nothing  to  do  but  to  follow  it;  and  he  must  be  held 
liable  for  any  failure  to  do  .so  which  results  in  the  injury  of  an- 
other. A  judicial  officer,  on  the  other  hand,  has  certain  powers 
confided  to  him  to  be  exercised  according  to  his  judgment  or  discre- 
tion; and  the  law  would  be  oppressive  which  should  compel  him 
in  every  ca.se  to  decide  correctly  at  his  peril.  Tt  is  accordingly  a 
rule  of  very  great  antiquity  that  no  action  will  lie  against  a  ju- 
dicial officer  for  any  act  done  by  him  in  the  exercise  of  his  judicial 
funetif>ns.  jirovided  the  act.  though  done,  mistakenly,  were  within 
Ihe  scope  of  his  jtirisdidion.  lii-oom's  ]\Iax.  S2 ;  Smith  v. 
l»ouelier.  fas.  Teiiq».  Ilardw.  HO;  Mostyn  v.  Fabrigas,  Cowp.  ^C^^  ; 
]MiIIs  v.  Collell.  (i  I'.ing.  85;  TJainetl  v.  Farrand.  G  li.  &  (\  Cy2r>: 
Ifftiilden  V.  Smith.  14  (^.  li.  H41  :  Yates  v.  Lansing.  •')  Jolms.  2!)1  ; 
f>  Tbid.  .IDG;  Dieas  v.  T>(.rd  Brougham.  (\  C.  &  V.  241);  Ilolroyd  v. 
Beare.  2  B.  &  .\ld.  47:{ ;  Pike  v.  Carter.  :{  Bing.  7H ;  Lowther  v. 
Karl  of  Kadnf.r.  H  Ea.st.  113;  Basten  v.  (^irew.  3  P..  .<;:  C  r,52 ; 
Remedies — 31. 


482  I'KUSONAl.    SECrUITN.    I.liu.lMV.    HTC.  1('//.    5. 

Sti'Wiirt  V.  Uawli'v.  L'l  Wcml.  552;  WcaviM-  v.  Dcvfiuloi  I",  :\  Dciiio, 
117;  Vail  V.  Owoii.  1!)  liarh.  22;  Hill  v.  S.>llii'k,  21  liarb.  207;  Gor- 
don V.  Kairar.  2  Doiiir.  (.Mii-li.)  411;  AVilkos  v.  Diiisman,  7  How. 
Si).  Tills  principle  ol'  protection  is  not  conlinecl  to  courts  of  rec- 
oi\l.  I)ut  it  applies  as  well  to  inferior  jnrisilictions ;  the  only  dif-. 
ference  heinir  that  anthoi'ily  in  a  court  ol"  {i'enci'ai  jurisdiction  is 
to  be  iiresiuued.  while  the  jurisdiction  of  inferior  tribunals  must 
atlirniativelv  appeal-  (Ui  the  face  of  tlicir  pj-oceedinjjs.  \Vip:ht  v. 
WarniM-.  l"  Dout;.  i.Mich.)  3S4;  Chirk  v.  TTolnics,  Ibid.  890: 
("handler  v.  Nash,  5  .Mich.  401).  Xor  docs  llu  nilr  depend  upon 
ichitlur  flic  irihuind  is  a  court  or  not;  it  is  the  nature  of  the  du- 
ties to  he  performed  that  determines  its  application.  Thus,  in 
Hari-inixton  v.  Connnissioners.  etc..  2  McCoi-d.  400.  a  decision  by 
road  coinniLssioners  that  one  was  not  exeni])t  fi-oni  a  road  assess- 
ment was  lu'ld  a  protection  notwithstanding'  the  party  was  ex- 
empt in  fact.  In  Fi-eeman  v.  Cornwall.  10  Johns.  470.  an  over- 
seer of  highways  who  had  adjudj^ed  one  in  default  for  not  work- 
inir.  and  obtained  a  wan-ant  of  distress  from  a  matjistrate,  was 
lield  not  liable,  althou.iih  in  fact  there  was  no  default.  In  Easton 
V.  Calendai-.  1 1  Wend.  90.  the  tmistees  of  a  school  district  in- 
cluded in  theii-  apportionment  of  taxes  the  collector's  ])ercentag(.\ 
tlioufrli  otherwise  directed  by  statute,  but  were  lield  not  liable. 
In  Weaver  v.  Devendorf.  3  Denio.  117.  it  was  held  that  the  duty 
of  assessors  in  determining  the  value  of  taxable  property  was  in 
its  nature  judicial,  and  that,  however  erroneous  their  decision, 
they  were  not  liable  to  a  suit  on  behalf  of  the  ])arty  aggrieved. 
The  court  say  the  act  "is  emphatically  a  judicial  act,"  and  "the 
principle  of  irresponsibility,  so  far  as  respects  a  civil  remedy,  is  as 
old  as  the  connnon  law  itself."  The  same  rule  was  applied  to 
assessors  in  Dillingham  v.  Snow,  5  INIavSs.  547.  Tn  Brown  v.  Smith. 
24  Barb.  419,  it  was  held  that  assessors  act  judicially  in  determin- 
ing upon  the  residence  of  a  person  owning  real  estate  subject  to 
taxation,  and  that  they  were  not  liable  to  an  action  for  an  erro- 
neous decision.  And  on  the  same  ground  they  were  held  not 
liable  in  Vail  v.  Owen,  19  Barb.  22.  for  assessing  property  which 
by  law  was  exempt  from  taxation.  See  the  same  principle  ap- 
plied in  a  tax  ca.se,  in  ITill  v.  Sellick,  21  Barb.  207.  The  rule  w^as 
applied  in  Yan  Steenbergh  v.  Bigelow',  3  Wend.  42,  to  appraisers 
appointed  to  a.ssess  damages  mider  a  turnpike  act,  and  in  Cordon 
v.  Farrar,  2  Dong.  (Mich.)  511.  to  inspectors  of  election  in  passing 
upon  the  rpialification  of  votei-s.  See  also  Stewart  v.  ITawley,  21 
Wend.  552;  :\[acon  v.  Cook.  2  Nott  &  McCord.  379;  :\roor  v.  Ames. 
3  Caines,  170.  There  can  be  no  question.  I  think,  in  the  light  of 
these  decisions,  that  the  duties  performed  by  this  board  are  within 
the  principle  of  protection  which  they  affirm. 

Xone  f)f  these  cases  conflict  with  those  where  officers,  judicial 
as  well  as  ministerial,  have  been  held  liable  when  acting  without 
jurisdiction.  As.sessors  have  frequently  been  held  liable  for  levy- 
ing a  personal  tax  upon  a  person  not  resident  within  their  town- 
.ship.    because    their   jui-isdiction    over    personal    assessments    was 


Sec.    S    d.]  PERSONAL    SECURITY,    LIBERTY,    ETC.  -183 

confined  to  residents  (Freeman  v.  Kenney,  15  Pick.  44;  Gage  v. 
Currier,  4  Id.  399;  Suydam  v.  Keys,  13  Johns.  444;  Mygatt  v. 
Washbura,  15  N.  Y.  316)  ;  and  all  classes  of  officers  have  been 
subjected  to  similar  responsibility.  The  rule  of  official  exemp- 
tion depends  in  these  cases  upon  jurisdiction ;  but  wherever  that 
appears  and  is  not  exceeded,  the  protection  is  complete.  .  .  . 
Judgment  affirmed. 

No  action  will  lie  against  a  justice  of  the  peace  for  his  judicial  acts 
as  distinguished  from  his  ministerial  acts,  provided  he  act  within  his 
jurisdiction.  It  is  not  always  easy,  however,  to  distinguish  between  ju- 
dicial and  ministerial  acts.  See  Furr  v.  Moss,  52  N.  C.  525.  If  the  act 
be  judicial — as  a  commitment  for  a  contempt  committed  in  the  pres- 
ence of  the  court — no  action  will  lie  even  against  the  mayor  of  a  town 
who  acted  both  maliciously  and  erroneously.  Scott  v.  Fishblate,  117 
N.  C.  265,  23  S.  E.  436,  30  L.  R.  A.  696.  For  further  discussion  of  this 
matter,  see  80  N.  W.  248,  46  L.  R.  A.  215.  and  note.  See  '-Taxation,"  Cen- 
tury Dig.  §  508;   Decennial  and  Am.  Dig.  Key  No.  Series  §  301. 


TAYLOR  V.  ALEXANDER  et  al.,  6  Ohio,  144.     1833. 
Acting   Under  Yold  and  Voidable  Process. 

[Action  of  Trespass  for  assault  and  battery,  and  for  false  imprison- 
ment of  plaintiff  and  his  wife.  Verdict  and  judgment  against  plaintiff. 
Plaintiff  moved  for  a  new  trial,  and  upon  this  motion  the  opinion  is 
written.     Motion  refused,  and  judgment  against  the  plaintiff. 

The  acts  complained  of  were  done  in  the  execution  of  a  warrant  is- 
sued by  a  justice  of  the  peace.  The  judge  charged  that  the  warrant, 
though"  irregular,  was  not  void,  and  afforded  a  justification  to  the  de- 
fendant provided  he  acted  in  a  reasonable  manner  and  without  excessive 
violence,  etc.;  and  that  if  the  process  was  legal,  the  motive  which  actu- 
ated the  party  who  procured  it  was  immaterial  in  this  form  of  action, 
i.  e.    Trespass  vi  et  armis.] 

Wright,  J.  The  first  question  to  be  decided  is,  whether  it  Is 
competent  for  the  plaintiff  in  trespass  to  prove,  in  order  to  en- 
haiift'  the  damages,  that  a  legal  prosecution  was  commenced  witli 
a  maliciou.s  motive.'  If  the  pi-osccutioii  complained  of  be  )nali- 
cious,  and  the  forms  of  law  have  been  used  I'oi-  malignant  pur- 
poses, the  party  injured  has  his  remedy  by  an  action  on  the  case 
for  a  malicions  prosecution,  in  wbich  the  concnrren(*e  of  a  mali 
••ions  motive  witii  the  want  <»f  i)i'()l);il)l('  cause  will  subject  Ihc 
aggressor  to  damages  commensuralc  willi  tlic  injuiy  sustained 
and  oftentimes  to  tlio.se  exemplary  or  vindictive.  Tn  trespass,  tlio 
rule  is  differenl.  If  tlie  defendiuit  in  Ihat  action  lias  act(>d  under 
\alid  legal  proceedings,  they  will  justifx'  him,  and  protect  those 
acting  under  him.  The  true  rpiestion  in  such  ca.se  is,  were  the 
acts  complained  of  legal?  Tf  they  were,  they  are  none  the  less  so, 
beeau.se  the  [larly  instituting  the  legal  proceedings  was  actuated 
by  mf)tives  of  revenge  or  malignity.  The  evidence  olVered  by  the 
jtlaintifT,  and  ruled  out  at  the  trial  of  the  ease,  was  ofT(>red  upon 
the  avowed  L'roiiiid  lli;il  |iroceediiigs  had  bi''!i  cniiinifiici'd  under 
the    ciitiiiiiid    laws.       Tin'    |iroc liiiijs    t heiiisi-Urs    had     iml     liei-n 


484  PKKSONAl.    SIXIKITV.    I.IKKWTV.    KTC.  K'//.    .'*). 

shown,  iuul  could  nul  ln'  rousidcriHl  Ity  the  comt  cither  ;is  h'^ul, 
or  as  ilh'«;iil  .-iiul  voiil;  iiiul  it  was  Ihcivroiv  propci-ly  rejected. 
It  is  no  jMi.swcr  to  this  to  say,  that  subsetiucutly  these  proceedings 
were  given  in  evidence,  because  .it'tei-  so  <,'iven  in  evith-nce  the 
proof  was  not  olVereil. 

•J.   AVere  tlie  warrants  of  tlic  justice  of  tlie  pe.M-e  a  justification 
to  the  otlicer  and  his  posse?     'I'lie  i)rinciple  is  well  estal)lislicd  that 
exeeutive  othcers,  being  obliged  to  execute  i^rocess,  are  protected 
in  the  rigid ful  discharge  of  theii-  duty,  ])rovided  the  process  is- 
sued from  a  court  or  magistrate  having  jurisdiction  of  the  subject 
matter.     And    if   the   magistrate   proceed   unlawfully    in    issuing 
the  process,  lie.  ;iud  not  the  exeeutive  officer,  will  be  liable  for  the 
injury.     ^^^  iMass.  2S(i.  272;  14  INIass.  45!).     The  executive  officer 
is  justified,  even  when  the  process  under  wliich  he  acts  is  void- 
able  for    irregiUarily   or  mistake   in    issuing   it.      4   Mass.    232; 
2  Stark.  Ev.  818;  8  Stark.  P^v.  1448.  n.   (e).     The  eases  relied 
upon  by  the  plaintiff's  counsel  are  those  of  attempted  justification 
where  thei-e  ai>pears  an  excess  of  juri.sdicfion.     In  such  cases,  the 
process  being  void.  it.  of  course,  could  afford  no  protection.     As 
if  a  justice  of  the  peace  were  to  issue  a  writ  in  slander,  that 
process  would  not  ])rotect  the  officer,  because  the  justice  has  no 
jurisdiction  of  the  subject.     It  does  not  comjiort  with  law  or  cor- 
rect policy  to  permit  an  executive  officer,  or  those  he  commands  as 
his  posse,  to  examine  into  the  regularity  of  the  proceedings  of  the 
court  whose  process  they  execute,  or  to  confer  upon  them  author- 
ity to  proceed  or  to  forbear,  as  they  may  judge  best.     The  rule 
that  holds  them  to  know  the  extent  of  the  jurisdiction  requires 
for  its  justification  some  legal  subtlety,  but  rests  on  far  different 
ground  from  Hint  urged  by  the  plaintiff.     The  papers  in  this  case 
are  irregular,  but  do  they  not  show  a  proceeding  under  the  laws 
of  the  state?     We  think  they  do.     The  affidavit  might  not  stand 
a  critical  examination.    The  magistrate  in  drawing  it  has  endeav- 
ored to  pursue  the  statute  form,  and  has  omitted  a  sentence.     If 
the  affidavit  was  the  authority  under  which  l*eterson  and  Boland 
justified,  we  should  doubt;  and  we  might  also  doubt,  if  the  justie? 
sought  under  that  to  protect  himself.    But  it  must  be  remembered 
that  the  justice  was  ac(|uitted  before  this  evidence  was  introduced. 
We  think  the  other  defendants  need  not  look  back  of  the  warrants 
for  their  justification.     The  larceny  is  bunglingly  enough  charged 
in  the  warrant,  yet  it  shows  that  there  was  a  com})laint  under  the 
laws  for  the  punishment  of  crimes,  for  taking  the  property  of  an- 
other,  and   commanded   the   arrest,    and    the   officer   Avas   legally 
bound  to  execute  it.    The  search  warrant  describes  the  offense  suf- 
ficiently clear.    The  objection  that  it  sets  forth  the  belief  that  the 
offense  had  been  committed  by  Taylor  or  his  wife,  while  it  com- 
mands the  search  of  the  house  of  Tnylor.  the  husband,  and  if  the 
goods  Avere  found,  to  firing  forth  only  his  body,  does  not  seem  to 
us  of  much  weight.     The  goods  were  found  in  his  possession  ;  his 
arrest  is  complained  of;  and.  in  our  opinion,  the  law  does  not  in- 
voke the  aid  of  courts  to  punish  the  officers  of  justice  for  trifling 


Sec.    9.]  PERSONAL    SECURITY,    LIBERTY,    ETC.  485 

errors  in  drawing  up  legal  process.  If  they  are  substautially 
good  they  are  sufficient.  We  do  not  inquire  what  right  these  par- 
ties have  in  any  other  form  of  action,  and  only  decide  that,  in  this 
case,  the  error  of  the  coui-t  is  not  apparent ;  certainly  not  such  as 
to  require  us  to  grant  a  new  trial.    Judgment  for  defendant. 

See  "False  Imprisonment,"  Century  Dig,  §  16;  Decennial  and  Am.  Dig. 
Key  No.  Series  §  4;  "Justices  of  the  Peace,"  Century  Dig.  §  46;  Decennial 
and  Am.  Dig.  Key  No.  Series,  §  27;  -Sheriffs  and  Constables,"  Century 
Dig.  §§  143-157;  Decennial  and  Am.  Dig.  Key  No.  Series  §  98. 


Sec.  9.    Deprivation  of  Privileges. 

ASHBY  V.  WHITE  et  al.,  2  Lord  Raymond,  938,  941,  958.     1704. 
Unlaicftil  Interference  vnth  the  Right  to  Vote. 

[Action  on  the  Case  for  damages  for  refusing  to  allow  the  plaintiff  to 
vote.  Verdict  against  the  defendants,  who  moved  in  arrest  of  judgment 
on  the  ground  that  the  action  could  not  be  maintained.  The  motion  was 
sustained  and  judgment  entered  against  the  plaintiff.  Holt,  C.  J.,  dis- 
sented. The  plaintiff  finally  prevailed,  as  appears  from  the  statement 
at  the  end  of  the  opinion.] 

Gould,  J.  I  am  of  opinion  that  judgment  ought  to  be  given  in 
this  case  for  the  defendants,  and  I  canuot  by  any  means  be  recon- 
ciled to  give  my  judgment  for  the  plaintiff,  for  there  are  no  foot- 
steps to  warrant  such  an  opinion,  but  only  a  single  case.  I  am  of 
opinion  that  this  action  is  uot  maintainable  for  these  four  reasons : 
First,  because  the  defendants  are  judges  of  the  thing,  and  act 
herein  as  judges;  Secondly,  because  it  is  a  parliamentary  matter, 
with  which  we  have  nothing  to  do;  Thirdly,  the  plaintitf's  privi- 
lege of  voting  is  not  a  matter  of  property  or  profit,  so  that  the 
hindrance  of  it  is  inerely  damnmn  absque  injuria ;  Fourthly,  it  re- 
lates to  the  public,  and  is  a  popular  offense. 

1.  As  to  the  first,  the  king's  writ  constitutes  the  defendant  a 
judge  in  this  case,  and  gives  him  power  to  allow  or  disallow  the 
plaintiff' 's  vote.  For  this  rea.son  it  is,  that  no  action  lies  against  a 
sheriff  for  taking  insufficient  bail,  because  he  is  the  judge  of  their 
sufficiency.  So  is  the  case  of  IMedcalf  v.  Ilodge.son,  Hutt.  120; 
and  their  sufficiency  is  not  traversable,  1  Lev.  8(5.  Benlloy  v.  Ilore. 
Upon  the  same  reason  the  resolution  of  the  court  is  founded  in  IIk^ 
case  of  Hammond  v.  ITowell,  2  ]\Iod.  218,  thai  no  action  lies 
against  a  man  for  what  lie  does  as  a  judge.    0  lien.  0,  HO,  p.  i). 

2.  This  is  a  [)arliameii1;iry  mailer,  and  the  parliament  is  |o 
judge  whether  tlie  pl.-iiiititT  had  a  i-ight  of  electing  or  not;  I'of  it 
may  be  a  dispute,  whether  the  right  of  election  be  in  a  .select  num- 
ber, or  in  the  populace;  and  this  is  proper  for  tin;  parliament  to 
determine,  jirirl  not  for  us;  and  if  we  should  tnke  upon  us  to  de- 
termine that  he  has  a  right  to  vote,  and  the  pai-liameiit  be  of  o])iu- 
ion  that  he  ha.s  none,  an  inconveniene(^  would  follow  from  con- 
trary  judgments.      So   in    2   Veiitr.    ;?7.    Onslow's  case,    it    is   ;id- 


48()  PEliSONAL    SECLHri'\,    LII5KKTV,    KTC.  [i'll.    5. 

jiultroil.  that  lU)  action  lies  foi-  a  doiihlc  rcliini  ol"  iiicinlx'rs  In 
sorvo  ill  parliaiiiciil.  'IMu'  resolution  ui'  the  kiny:'s  bonch  in  tlu' 
(.•asi>  ot"  iiarnaiilison  v.  Si'aiiio,  "2  Jjcv.  114,  was  «jjiven  on  this  par- 
ticular reason,  that  IIumv  hat!  been  a  dotcnuinat ion  before  in  par- 
liament in  I'avoi-  ol"  llie  plaiiililV.  And  ll;dc  snid.  we  pursue  tlic 
judt::iiu'nt  of  the  parliaiiienl  ;  Iml  llic  plainlilV  would  have  been 
too  early,  il"  he  had  eoiue  bclore ;  and  yet  that  jiKlguient  was  re- 
versed. 

•  \.  Il  is  not  any  mailer  ol"  prolit.  eillier  in  pre.seuti  or  in  future. 
To  raise  an  action  upon  the  case,  both  damaiic  and  injury  must 
ooneur.  as  is  tiic  casi'  oi'  19  Hen.  (i,  44,  cited  in  Hob.  2G7.  If  a  man 
forge  a  bond  in  another's  name,  no  action  upon  the  case  lies,  til! 
the  hond  be  put  in  suit  against  the  party :  so  here,  it  may  be  this 
refusal  of  the  jilaintitf 's  vote  may  be  no  injury  to  him,  accordinii 
as  parliament  sliall  decide  the  matter;  for  they  may  adjudge  that 
he  had  no  right  to  vote,  whereby  it  will  appear,  the  plaintilf  was 
mistaken  in  )iis  opinion  as  to  his  right  of  election,  and  conse- 
(piently  has  sustained  no  injury  by  the  defendant's  denying  to 
take  his  vote. 

4.  It  is  a  matter  which  relates  to  the  public,  and  is  a  kind  of 
popuhir  offense,  and  therefore  no  action  is  given  to  the  party ;  for 
by  the  same  reason  if  one  man  may  bring  an  action,  a  hundred 
may.  and  so  actions  infinite  for  one  default;  which  the  law  will  not 
allow,  as  is  agreed  in  AVilliams's  case,  5  Co.  78,  a,  and  104,  b. 
l^oulton's  case.  Perha])s  in  this  ea.se  after  the  parliament  have 
adjudged  the  plaintiff  h.is  a  right  of  voting,  an  information  ma>' 
lie  against  the  sheriff  for  his  refusal  to  receive  it.  So  the  case  ox 
Ford  V.  Iloskins,  2  Cro.  368;  2  Brown,  194.  Such  an  action  a,s 
this  was  never  brought  before,  and  therefore  shall  not  be  taken  to 
lie,  though  that  be  not  a  conclusive  reason.  As  to  the  case  of  Ster- 
ling V.  Turner.  2  Lev.  50.  2  Ventr.  50.  where  an  action  was 
brought  b}'  the  plaintiff,  who  was  a  candidate  for  the  jilace  of 
bridge  master  of  London,  for  refusing  him  a  poll,  and  adjudged 
maintainable,  there  is  a  loss  of  a  jn-ofitable  place.  So  the  case  of 
Herring  v.  Fint^h.  2  Lev.  250,  whei-e  the  plaintiff  brought  an  ac- 
tion on  the  case  against  the  defendant,  for  that  the  plaintiff  being 
a  freeman,  who  had  a  voice  m  the  election  of  mayor,  the  defend- 
ant being  the  present  mayor  refused  to  admit  his  voice;  in  that 
case  the  defendant  is  guilty  of  a  breach  of  his  faith:  and  in  both 
these  cases  the  i>laintiff  has  no  other  remedy,  either  in  parliament 
or  anywhere  else,  as  the  plaintiff'  in  our  case  has.  So  that  I  am  of 
opinion  that  the  judgment  ought  to  be  given  for  the  defcmdant 
upon  the  merits.  But  upon  this  declaration  the  plaintiff  cannot 
maintain  any  action,  for  the  plaintiff  does  not  allege  in  his 
count,  that  the  tv>-o  burgesses  elected  were  returned,  and  if  they 
were  never  returned,  there  is  no  damage  to  the  plaintiff.  See 
2  liulstr.  265.  But  I  do  not  rely  upon  this  fault  in  the  declara- 
tion. 

[This  judgment  was  reversed  in  the  house  of  lords  and  judgment 
given  for  the  plaintiff  by  a  vote  of  50  to  15.  2  Ld.  Ray.  at  p.  958.  See 
next  case  post  for  fuller  account  of  the  action  of  the  house  of  lords.] 


Sec.    9.]  PERSONAL    SECURITY.    LIBERTY,    ETC.  487 

See  •Elections,"  Century  Dig.  §  53;    Decennial  and  Am.  Dig.  Key  No. 
Series  §  57. 


JENKINS   V.   WALDRON,   11   Johnson,   114,   120.     1814. 
Unlawful  Interference  with  Right  to  Vote. 

[Action  on  the  Case  by  Waldron  against  Jenkins  et  al.,  inspectors  of 
election,  for  refusing  to  receive  his  vote.  Judgment  against  Jenkins 
et  al.,  who  carried  the  case  to  the  supreme  court  by  writ  of  error.  Re- 
versed. 1 

Spencer.  J.  ...  It  is  not  alleged  or  proved  that  the  in- 
spectors fraudulently  or  maliciously  refiLsed  to  receive  AValdron"s 
vote ;  and  this  we  consider  to  be  absolutely  necessary  to  the  main- 
tenance of  an  ai-lion  against  the  insi)ectors  of  an  election.  The 
case  principally  relied  on  by  the  counsel  for  the  defendant  in 
error  is  that  of  Ashby  v.  White.  2  Ld.  Raym.  938.  There  the  dec- 
laration alleged  that  the  rejection  oE  Ashby 's  vote  was  done  frand- 
idently  and  )iialic'iou.sly.  and,  althougli  the  jury  found  the  de- 
fendant guilty,  the  judgment  was  arrested  by  three  judges,  in  op- 
position to  th(>  opinion  of  Chief  Justice  Holt.  The  judgment  was 
after^^■ards  revei-sed  in  the  House  of  Lords.  The  reasons  for  the 
reversal  do  not  appear  in  the  report  of  the  ease;  but  the  grovmd 
of  the  reversal  is  distinctl>'  stated  in  the  resolutions  of  the  Lords, 
in  answer  to  the  resolutions  of  the  Connnons,  reprehending  the 
bringing  of  the  action  and  the  judgment  thereon.  The  first  res- 
oluti(m  of  the  Lords  states,  "that  by  the  known  laws  of  this  king- 
dom every  freeholder,  or  other  person  having  a  right  to  give  his 
vote  at  the  election  of  members  to  serve  in  parliament,  and  being 
wilfully  denied,  or  hindered  so  to  do.  by  the  officers  who  ought  to 
••eceive  the  siuiie.  may  maiiitain  an  action  in  the  cjueen's  court 
against  such  officer  to  assert  his  right,  and  to  recover  damages  for 
Ihe  injury."'  ]  Bro.  Par.  Cas.  49.  1st  ed.  The  case  of  Ilarman 
V.  Tappende  et  al..  1  East.  555.  and  Drewy  v.  Coulton.  in  a  note  to 
that  case,  clearly  show  that  this  action  is  not  maintainable,  with- 
out stating  and  proving  malice  express  or  implied  on  the  part  of 
the  officers.  In  the  case  in  the  text,  Lawrence.  J.,  said:  "There 
is  no  instaiK'c  of  an  action  of  tliis  sort  maintained  for  an  act  aris- 
ing merely  from  ci-ror  of  judgment:""  and  lu'  cited  ]\Ir.  Jastice 
WiTiSON's  opinion  in  Drewy  v.  Coulton  with  approbation.  In 
that  ca.se  the  suit  was  for  refusing  the  plaintiff's  vote.  Justice 
Wilson  consincrod  it  as  an  actioji  foi-  misbehavior  by  a  public 
rtf'licfr  in  llic  discharge  of  his  duly,  and  that  the  act  must  be  ma- 
licious and  wilful  to  render  it  a  misbehavior;  and  he  held  that  no 
action  would  lie  foi-  ;i  mistake  in  law.  In  speaking  of  the  case 
of  Ashby  V.  Wliile.  li.-  considered  il  as  having  lieen  di'termined 
by  the  House  of  Lords  on  that  ground,  from  the  resolutions  en- 
tered by  thetii.  The  whole  of  Judge  "Wilson's  reasoning  is  clear, 
perspicuous  ;ind  irresisl ible.  and  is  full\  confirmed  in  TTai'man 
V.  Tappeiidm,  It  would,  in  our  opinidii.  be  oijposed  1o  all  the 
principles  of  law,  justice  and  sound  i)olicy,  to  hold  that  officers, 
called  upon  to  exercise  their  deliberative  judgments,  are  answer- 


488  PERSONAL   SECUBITY.    LIBERTY,    ETC.  |  (  7( .    ,). 

able  for  ;i  mistake  in  law.  imIIut  iMvilly  ov  i-iiiiiiiially,  wlu'ii  tlu'ir 
motives  aro  puri'.  aiul  imtaiiitiHl  with  i'laiul  or  malice.  Jiul^nient 
reversed. 

An  action  tor  daniaBos  was  sustained  against  the  selectmen  ol  a  town, 
who  wrongfully  erased  a  voter's  nanio  from  the  roRistry  of  votes.  "Tho 
removal  of  plaintiff's  name  was,  if  wrongful,  a  direct  injury  which  de- 
prived him  of  his  right  to  vote.  For  this  an  action  may  be  maintained, 
althoui;h  there  are  also  highly  penal  provisions  in  the  statute,  intend- 
ing to  provide  for  wilful  violations  of  the  rights  of  voters,  under  whicli 
the  plaintiff  does  not  seek  to  i-ecovor."  Lamed  v.  Wheeler,  140  Mass. 
;?90,  5  N.  E.  1'90.  In  Carter  v.  Harrison,  5  Ulacklord,  138,  the  principal 
cases  supra  are  fully  sustained,  and  it  is  said:  "If  persons  when  dis- 
charging the  duties  which  devolved  upon  these  defendants,  wrongfully 
and  maliciously  deprive  a  man  of  his  right  to  vote,  they  do  him  an  in- 
tentional and  serious  injury,  for  which  he  may  have  an  action  against 
them.  Bnt  if  their  refusal  of  a  legal  vote  be  merely  in  consequence  of 
an  error  of  jndgment  and  no  wilful  wrong  can  be  imputed  to  them,  they 
ought  not  to  be  liable  to  a  suit."  See  also  Peavey  v.  Robbins,  48  N.  C. 
339.  For  the  necessary  allegations  in  the  declaration  or  complaint  in 
actions  of  this  nature,  see  Murphy  v.  Ramsey,  114  U.  S.  15,  5  Sup.  Ct. 
747.  See  "Elections,"  Century  Dig.  §  53;  Decennial  and  Am.  Dig.  Key 
Xo.  Series  §  57. 

The  right  to  fish  and  shoot  on  navigable  waters  is  a  privilege  pos- 
sessed by  the  public.  An  action  lies  for  damages  against  one  who  inter- 
feres with  the  exercise  of  such  privileges  by  a  private  individual,  and 
such  interference  will,  in  proper  cases,  be  enjoined.  Perrin  v.  Chandler, 
69  Atl.  874,  17  L.  R.  A.  (N.  S.)  1239,  and  note. 


GORDON  V.  FARRAR,  2  Douglas  (Mich.),  411,  415.     1847. 
Exemption  of  Election  Officers  from  Civil  Actions. 

[Special  action  on  the  Case  by  Gordon  against  Farrar  et  al.,  in- 
spectors of  election,  for  refusing  to  let  the  plaintiff  vote  for  a  congress- 
man, etc.  The  jury  rendered  a  special  verdict  fixing  plaintiff's  damages 
at  12V^  cents  subject  to  the  opinion  of  the  court.  The  verdict  found  as 
facts  that  the  plaintiff  was  of  African  descent  though  nearly  white  in 
color;  and  that  he  offered  to  vote  and  his  vote  was  refused  by  the  de- 
fendants, who  were  inspectors  of  election.  The  presiding  judge  re- 
served the  question,  as  to  what  judgment  should  be  rendered  upon  the 
verdict,  for  the  supreme  court,  which  court  directed  that  judgment  be 
entered  against  the  plaintiff.] 

Miles,  J.  .  .  .  This  brings  us  to  the  question  of  judicial 
responsibility.  "The  doctrine  which  holds  a  judge  exempt  from  a 
civil  suit  or  indictment  for  any  act  done  or  omitU^d  to  be  done  by 
him  as  a  judge,  has  a  deep  root  in  the  connnon  law,"  Per  Kent, 
C.  J.,  in  5  Johns.  291.  "Courts  of  special  and  limited  jurisdiction, 
while  acting  within  the  line  of  their  authority,  are  protected  as  to 
error  of  judgment."  Cuimingliam  v.  Bucklin.  8  Cow.  183.  In  the 
case  of  Vanderheyden  v.  Young,  11  Johns.  159,  which  was  an  ac- 
tion of  trespa.ss  against  the  members  of  a  court-martial  for  the  im- 
prisoning of  the  plaintifF.  Spencer,  J.,  in  concluding  the  opinion 
delivered,  says,  it  would  be  jnost  tnischievous  and  pernicious  to 
subject  men  acting  in  a  judicial  capacity  to  actions,  when  their 


Sec.    5.]  PERSONAL    SECURITY.    LIBERTY,    ETC.  489 

conduct  IS  fair  and  impartial,  wiieii  they  are  uninrtiiciiced  by  any 
corrupt  or  improper  motives,  for  a  mere  mistake  in  judgment. 
Authorities  might  be  multiplied  upon  this  subject,  but  it  cannot 
be  necessary  to  cite  cases  to  siLstain  a  proposition  so  well  estab- 
lished. In  this  view  of  the  case,  it  is  unnecessary  to  examine  the 
cases  referred  to  by  plaintiff's  comisel.  to  show  that  an  action 
could  be  maintained  against  the  inspectoi's  of  an  election,  acting 
ministerially,  and  without  malice,  for  rejecting  a  lawful  vote,  as 
we  put  the  judgment  of  this  court  upon  the  distinct  ground  that 
the  inspectors,  in  determining  upon  the  plaintifl"s  qualifications 
to  vote  as  a  white  person,  acted  judicially,  and  are  tlierefore  not 
liable  to  this  action.    Judgment  for  the  defendants. 

See  10  Am.  &  Eng.  Enc.  Law,  673  et  seq.,  and  Bish.  Non-Cont.  Law,  s 
31.  See  "Elections,"  Century  Dig.  §  53;  Decennial  and  Am.  Dig.  Key  No 
Series,  §  57. 


4i>0  KKI.ATIVK    KKillTS.  [('//.    6. 


CHAPTER  VI. 

INJURIES   GROWING  OUT  OF  RELATIVE  RIGHTS. 


Sec.  1.    lIisBAND  AND  Wife. 
(<i)    Ifdhcds  ('or})tls. 

LISTER'S  CASE,  8  Modern,  22.     1721. 
Right  uf  Wife  to  Habeas  Corpus  When  Restrained  hy  Her  Husband. 

[Mr.  Lister  was  married  to  Lady  Rawlinson,  a  widow,  who  had,  before 
her  marriage  with  Lister,  settled  her  estate  in  her  own  power,  and  out 
of  his  control.  Afterwards,  there  being  some  disagreement  between 
them,  he,  by  a  proper  writing  duly  executed,  covenanted  to  allow  her  so 
much  every  year  for  her  maintenance,  and  that  she  might  live  sepa- 
ately  from  him;  to  which  she  agreed.  Thry  accordingly  lived  apart  for 
some  time.  The  husband,  during  this  separation,  pretended  a  desire 
to  be  reconciled  to  his  wife,  but  in  fact  only  wanting  more  money  of  her, 
she  refused;  whereupon  he,  with  another  person  who  assisted  him, 
forced  her  into  a  coach  as  she  was  coming  from  church  on  a  Sunday, 
and  carried  her  into  the  mint,  and  kept  her  in  custody  under  a  strict 
confinement.  And  now  she  being  brought  into  court  by  habeas  corpus, 
her  husband  moved  by  his  counsel,  that  the  court  would  not  interpose 
between  husband  and  wife;  that  she  could  not  deny  herself  to  be  his 
wife;  and  that  by  the  law  the  husband  has  a  coercive  power  over  his 
wife.] 

The  Court.  An  agreeniont  l)i't\veen  husband  and  wife  to  Wvo 
separate,  and  that  she  shall  have  a  separate  maintenance,  shall 
bind  them  both  until  they  both  a<?ree  to  cohabit  again;  and  if  the 
wife  be  willing  to  return  to  her  husband,  no  court  will  interpose 
to  obstruct  her.  But  as  to  the  coercive  power  which  the  husband 
has  over  his  Avife.  it  is  not  a  ])Ower  to  confine  her;  for  by  the  law 
of  England  she  is  entitled  to  all  reasonable  liberty,  if  her  behav- 
ior is  not  very  bad ;  and  therefore  she  shall  now  be  set  at  liberty, 
if  it  is  her  pleasure  to  be.  She  answered,  that  she  desired  to  be  at 
liberty.  And  thereupon  she  was  discharged  out  of  the  custody  of 
her  husband,  and  went  out  of  court  with  her  son. 

But  the  court  said,  that  the  husband  should  have  leave  to  write 
to  her.  and  to  use  any  lawful  means  in  order  to  a  reconciliation, 
provided  she  was  willing  to  see  him  ;  and  that  her  children  or  serv- 
ants should  not  hinder  him.  unless  by  her  order;  but  that  when- 
ever she  permitted  him  to  come  to  her.  he  should  not  offer  any 
violence  or  uncivil  behavior  to  her  person. 


Sec.    la.]  RELATIVE    RIGHTS.  491 


DOMINUS  REX  v.  LISTER,  1   Strange,  47S.     1721. 
Another  Report  of  Lister's  Case. 

The  defendaut  married  the  Lady  Kawlinson,  and  they  disagree- 
ing, a  deed  of  separation  was  executed,  whereby  some  part  of  her 
fortune  was  made  over  to  him,  and  the  rest  settled  for  her  separate 
maintenance.  In  pursuance  of  this  agreement  they  lived  sepa- 
rately for  some  time,  till  Mr.  Lister  thought  fit  to  seize  on  her, 
as  she  came  out  of  church,  and  hurried  her  away  to  a  remote 
place,  where  he  kept  her  under  a  guard,  till  her  relations  found  her 
out  and  brought  a  lialieas  corpus,  by  virtue  of  which  she  came 
before  the  court.  And  all  this  matter  appearing,  and  that  he  de- 
clared he  took  her  into  his  power  in  order  to  prevail  with  her  to 
part  with  some  of  her  separate  maintenance ;  the  chief  justice  de- 
clared, and  all  the  rest  agreed,  that  where  the  wife  will  make  an 
undue  use  of  her  liberty,  either  by  squandering  away  the  hus- 
band's estate,  or  going  into  lewd  company,  it  is  lawful  for  the 
husband,  in  order  to  preserve  his  honor  and  estate,  to  lay  such  a 
M'ife  under  restraint:  but  where  nothing  of  that  appears,  he  can- 
not justify  depriving  her  of  her  liberty.  That  there  was  no  color 
for  what  he  did  in  this  ease,  there  being  a  separation  by  consent. 
And  therefore  they  discharged  the  lady  from  her  confinement, 
and  l)eing  desired  to  bind  the  husband  from  attempting  the  like 
in  the  future,  they  refused  to  do  that;  but,  however,  intimated  to 
him  that  they  should  bear  a  heavy  hand  over  him,  if  he  acted  cou- 
traiy  to  the  declared  opinion  of  the  court. 

See  Craton's  case,  28  N.  C.  161,  inserted  at  ch.  1,  §  2,  ante. 


REGINA  V.  JACKSON,  L.  R.  1  Q.  B.  671,  Smith's  Cases  L.  P.  473.     1891. 

Nifjhts  of  Ilushand  and  Rights  of  Wife  in  Habeas  Corpus  for  Custody  of 

the  Wife. 

[Habeas  corijus  sued  out  on  behalf  of  Mrs.  .Jackson,  wife  of  the  de- 
fendant, to  secure  her  lii)eration  from  enforced  confinement  to  her  hus- 
band's house.  The  husband  insisted  that,  under  his  marital  rights,  he 
fould  force  his  wife  to  live  with  him,  and  that  the  courts  could  not  re- 
leasp  hor  from  his  custody — it  being  admitted  that  the  only  grniind  of 
complaint  on  the  part  of  the  wife  was,  that  she  was  confined  to  the  hus- 
band's house,  because  otherwise  she  would  not  live  with  him.  The 
court  examined  Mrs.  .Jackson  as  to  her  wishes,  and,  finding  that  her 
refusal  voluntarily  to  live  with  her  husband  arose  from  her  own  free 
will,  discharged  her  from  Ihe  husband's  restraint  and  permitted  her  to 
go  where  she  pleased.! 

Lord  TT.M.SHCRV.  Lord  Cliancellf)!-.  The  court  has  salisficd  itself 
thai,  in  refusing  1o  go  In  ;ind  conlimie  in  her  Inisbaiid's  bous<'. 
Mrs.  Jackson  was  aclinu  of  in  r  own  ri-( c  will,  and  (hat  she  is  not 
coinyxUcd  or  indeed,  so  far  as  present  eireumstances  are  con- 
cerned, induced  bv  any  one  to  refns(>  to  r-ontinne  in  bis  lionse.  and 
was  not  compelled  to  remain  where  she  was  before  he  i-einoved  her. 


492  REL.VnVK    KIUIITS.  |(7(.    6. 

I  fonl'oss  iliat.  soiiio  of  tlu'  pi'Dposilioiis  whu'li  Ikivc  hoen  roF(M'rcd 
to  during;  llu'  iii'jjuinriit  arc  sucli  as  1  should  l)e  rcliu'tant  to  sup- 
pose cvor  to  hav(  hccu  the  law  ot'  I'hij^land.  IMoro  than  a  century 
a«?o  it  was  boldly  (•oMlriidcd  lli.il  slaveiy  existed  in  Knglaud;  hul, 
il"  any  one  were  to  sel  up  sueh  a  eontention  now.  it  would  he  I'e- 
sjfarded  as  ridieulous.  In  the  same  way,  sueh  (piaint  and  at)sui"d 
dicta  as  are  to  he  found  in  liie  books  as  to  the  i-iiyht  ol"  a  husband 
over  his  wile  in  respect  oi'  personal  chastisement  aic  not,  I  tliink, 
now  eapal)le  ol'  btMujj;  cited  as  authoiities  in  a  coui't  of  justice  in 
tliis  or  any  civilized  country.  It  is  important  to  bear  tliis  in  mind, 
for  many  of  the  statements,  which  have  been  relied  upon,  oi"  a 
more  moderate  characti-r  ;i:i(l  less  t)utrageous  to  comiuon  feelings 
of  humanity,  are  bound  up  with  these  ancient  dicta  to  which  I 
refer.  The  only  justilication,  as  it  appears  to  me,  for  such  ex- 
pressions as  are  found  in  some  of  the  old  books  is  that  afforded 
by  the  free  translation  given  to  them  bj^  Hale,  C.  J.,  who  sug- 
gests  that  "castigidio"  may  be  taken  to  mean  admonition  merely. 
Whether  the  word  will  bear  that  translation  in  these  passages  I 
cannot  say ;  but  I  am  glad  that  some  one  even  at  that  early  period 
thought  it  inconsistent  with  the  rights  of  free  human  creatures 
that  such  a  power  of  personal  chastisement  of  the  wife  should  ex- 
ist. I  only  mention  the  subject,  because  it  appears  to  me  that  the 
authorities  cited  for  the  husband  were  all  tainted  with  this  sort 
of  notion  of  the  absolute  dominion  of  the  husband  over  the  wife. 
The  only  ease  referred  to  in  which  it  was  decided,  as  a  question  of 
law  in  an  abstract  form,  unaccompanied  by  circumstances  which 
might  import  a  qualification,  that  a  husband  had  a  right  to  the 
custody  of  his  wife,  was  Cochrane 's  Case,  8  Dowl.  630.  "With  re- 
gard to  the  proposition  that  the  mere  relation  of  husband  and 
wife  gives  the  husband  complete  dominion  over  the  wife's  person, 
apart  from  any  circumstances  of  misconduct  or  any  acts  amount- 
ing to  a  proximate  approach  to  misconduct  on  her  part,  which 
would  give  the  husband  a  right  to  restrain  her,  none  of  the  au- 
thorities cited  appear  to  me  to  establish  that  x)roposition.  I  do 
not  mean  to  lay  it  down  as  the  law  that  there  may  not  be  some 
acts,  acts  of  proximate  approach  to  some  misconduct,  which  might 
give  the  husband  some  right  of  physical  interference  with  the 
wife's  freedom, — for  instance,  if  the  wife  were  on  the  staircase 
about  to  join  some  person  with  whom  she  intended  to  elope,  I 
could  understand  that  there  might  be  to  some  extent  a  right  to  re- 
strain the  wife.  It  is  not  necessary,  however,  on  the  present  occa- 
sion to  discuss  that  question  any  further  than  to  say  that  I  can 
understand  that  some  authority  on  the  part  of  the  husband  of 
such  a  nature  and  so  limited  might  well  be  justified  according  to 
any  system  of  reasonable  law.  We  have  to  determine  this  case 
on  the  return  to  the  writ,  which  states  in  substance  that,  because 
the  wife  refused  to  live  with  the  husband,  ho  took  her  and  has 
since  detained  her  in  his  house,  using  no  more  force  or  restraint 
than  was  necessary  to  take  her  or  to  prevent  her  returning  to  her 
relations.     Rudi  is  the  return  by  which  he  justifies  the  admitted 


Sec.    1    a.]  RELATIVE   RIGHTS.  493 

iraprisoninent  of  this  lady.  I  do  not  know  that  I  can  express  iu 
surliciently  precise  language  the  distinction  which  has  been  sug- 
gested between  "imprisonment"  and  "coniinement."  If  there 
be  any  such  distinction,  I  should  iind  that  in  this  case  there  was 
imprisonment.  1  do  not  find  any  denial  in  the  return  that  the 
lady  IS  kept  in  imprisonment  in  the  husband's  house.  The  return 
seems  to  me  to  be  based  on  the  broad  proposition  that  it  is  the 
right  of  the  husband,  where  his  wife  has  wilfully  absented  herself 
from  him,  to  seize  the  person  of  his  v»ife  by  force  and  detain  her 
in  his  house  until  she  shall  be  willing  to  restore  to  him  his  conju- 
gal rights.  I  am  not  prepared  to  assent  to  such  a  proposition. 
The  legislature  has  deprived  the  matrimonial  causes  court  of  the 
l)ower  1o  inqu'ison  for  refusal  to  obey  a  decree  for  the  restitution 
of  conjugal  rights.  The  husband's  contention  is  that,  whereas 
the  court  never  had  the  power  to  seize  and  hand  over  the  wife  to 
the  husband,  but  only  the  power  to  imprison  her  as  for  a  eon- 
tempt  for  disobedience  of  the  decree  for  restitution  of  conjugal 
rights,  and  even  that  power  has  now  been  taken  away,  the  hus- 
band may  himself  of  his  own  motion,  if  she  withdraws  from  the 
conjugal  consortium,  seize  and  imprison  her  person  imtil  she  con- 
sents to  restore  conjugal  rights.  I  am  of  opinion  that  no  such 
right  exists  or  ever  did  exist.  ^Moreover,  assuming  that  sufficient 
authority  existed  for  such  a  proposition,  it  is  subject  in  any  case 
to  the  qualification  which  I  observe  is  always  imported,  that, 
where  the  wife  has  a  comj'laint  of  or  reason  to  apprehend  ill-usage 
of  any  sort,  the  court  will  never  interfere  to  compel  her  to  return 
to  her  husband.  This  brings  me  to  the  particular  circumstances 
of  this  transaction.  I  am  prepared  to  base  my  judgment  on  the 
ground  that  the  hu5;band  has  no  such  authority  as  he  claims ;  that 
no  P^nglish  subject  has  such  a  right  of  his  own  motion  to  imprison 
another  Englisli  subject,  whether  his  wife  or  any  one  else — of 
course,  I  am  speaking  of  persons  of  full  age  and  sui  juris;  but, 
assuming  that  there  were  such  authority,  it  would  be  subject  to 
the  qualification  I  have  mentioned  in  the  case  of  apprehended 
ill-u.sage,  and  I  am  of  opinion  that  the  facts  in  this  case  afford 
ample  ground  for  refusing  to  allow  \\\v  husband  to  retain  the 
castody  of  his  wife.  It  seems  to  have  been  thought  that  the  ques- 
tion how  far  a  lady  may  be  dealt  with  in  this  way  depends  on  the 
exaet  amount  of  force  or  violence  used  or  pain  inflicted.  But  is  it 
nothing  that  a  lady  coming  out  of  church  on  a  Sunday  afternoon 
is  to  be  seized  by  a  number  of  men  and  forcibly  put  inio  a  car- 
ri}ige  and  carried  off?  ]\Inst  not  the  element  of  insult  involved  in 
such  H  transjK'lion  be  considci-cd  .'  Then,  if  the  lady's  statement 
to  the  medical  iri;in  be  true,  the  moment  she  got  into  the  house  the 
hnsb;nid  took  off  her  bonnet  and  threw  it  inio  the  fire.  The  alTida- 
vil  (»r  the  nic(lic;il  ni;in  states  that  the  wife  told  him  so:  that 
aflidavit  is  one  of  the  liMsbjind's  nffidavits.  and  there  is  no  denial 
that  this  happened  by  the  husban<l  I  confess  to  regarding  wWih 
.soMiethinf,'  like  indignation  the  statement  of  the  facts  of  this  ca.se. 
and  tlie  ;il)sence  of  ;i  due  Kciise  of  tlie  delicncy  ;uid  respect   dne  to 


4114  Ki:i..\ii\  K  KKiirrs.  [Ck.  6. 

a  wife  wlumi  I  lie  luisbaiul  lias  sworn  to  t-lu'i-isli  ami  protoet.  With 
r«'i;aril  lo  llu-  statciiu'iils  as  to  tlic  earlier  jtart  of  Ihe  history  of 
the  ease,  eoiitainetl  in  the  husband 's  alliihivils,  I  am  iiiiwillinjjj  to 
h>ok  at  tliem  Tor  this  reason:  I  do  not  deiiv  that  nii(|iialilied  and 
uneontradiett>d  tliey  (h>  make  out  a  ease  in  his  I'avor,  so  far  as 
showinsz  tlial  tliis  alliam-e  was  entei'ed  iido  unch'r  eirenmstanees 
wliieh  do  not  rt>lh'et  any  discredit  on  him.  lint  I  am  unw  illinii;  to 
disenss  these  statements  of  the  alVuhivils.  heeauso  1  (h)  not  know 
how  far  they  can  he  tiMisted.  inasmuch  as  the  wife  lias  not  been 
permitted  lo  have  any  o|)i)ortunity  of  connnnnicatinu:  with  any 
K'jral  atlviser  as  to  any  maltei'.s  on  which  siie  nii^ht  liave  conlni- 
dieted  those  allidavits.  Tlierefoi-e.  it  seems  to  me  tliat,  though 
one  has  no  riirht  to  say  that  one  disbelieves  those  statements,  it  is 
impossiliU'  to  iel>  upon  them  under  the  circumstances.  The  re- 
sult is.  in  niy  opinion,  that  tliere  is  no  powei-  l)y  law  such  as  the 
husband  claims  to  exercise,  and.  if  there  were,  the  facts  give  am- 
ple ^ronnd  to  the  lady  to  a|)]n'ehend  violence  in  the  future. 
Either  of  thesi'  <4'ronnds  is  sul'ticient  to  show  that  the  relui'ii  t(» 
this  writ  is  bad.  and  that  this  lad\-  nnist  be  restored  to  her  lib- 
erty. 

Lord  EsiiHR.  M.  K.  .  .  .  One  projiositicm  that  ha.s  been  re- 
ferred to  is  that  a  Inisband  has  a  right  to  beat  his  wife.  I  do  not 
believe  this  ever  was  tlu'  law.  Then  it  was  said  that,  if  the  wife 
was  extravagant,  the  husband  might  confine  her,  though  he  could 
7iot  imjirison  her.  The  confinement  there  spoken  of  was  clearly 
the  dejirivation  of  her  liberty  to  go  where  she  pleases.  The  coun- 
sel for  the  husband  was  obliged  to  admit  that,  if  she  was  kept  to 
one  room,  that  would  be  in)])risonnient;  biit  he  argued  that,  if  she 
was  only  kept  in  the  house,  that  was  confinement  onl\'.  That  is  a 
refinement  too  great  for  my  intellect.  I  should  say  that  confining 
a  person  to  one  house  was  imprisonment,  just  as  much  as  confin- 
ing such  person  to  one  room.  I  do  not  believe  that  this  contention 
is  the  law  or  ever  was.  It  was  said  that  by  the  law  of  England 
the  husband  has  the  custody  of  his  wife.  What  nmst  be  meant  by 
"custody"'  in  that  proposition  so  used  to  us?  It  nnist  mean  the 
same  sort  of  custody  as  a  gaolei-  has  of  a  prisoner.  I  protest  that 
there  is  no  such  law  in  England.  Cochrane 's  Case,  8  Dowl.  680, 
was  cited  as  deciding  that  the  husband  has  a  right  to  the  custody, 
such  custody,  of  his  wife.  T  have  read  it  carefully,  and  I  think 
that  it  does  so  decide.  The  judgment,  if  T  may  respectfully  say 
so,  is  not  very  exactly  worded,  and  uses  different  expressions  in 
)nany  places  wliere  it  means  the  snme  thing;  but  that  seems  to  me 
to  be  the  result  of  it.  It  ap])ears  to  me.  if  I  am  right  in  attribut- 
ing to  it  the  meaning  T  have  mentioned,  that  the  decision  in  that 
case  was  wrong  as  to  the  law  enunciated  in  it.  and  that  it  ought 
to  be  overruled.  Sitting  here,  in  the  court  of  api)eal.  we  are  en- 
titled to  overi'ule  it.  T  do  not  believe  that  an  English  husband 
has  by  law  any  such  ii<rhts  over  his  wife's  person,  as  have  been 
suggested.  T  do  not  say  that  there  may  not  be  occasions  on  which 
he  would  haA'e  a  right  of  restraint,  though  not  of  imprisonment. 


Sec.    1    &.]  RELATIVE   RIGHTS.  495 

For  instance,  if  a  wife  were  about  inmiediately  to  do  .something 
which  would  be  to  the  dishonor  of  her  husband — as  if  the  husband 
saw  his  wife  in  the  act  of  going  to  meet  a  paramom* — I  think 
that  he  might  seize  her  and  pull  her  back.  That  is  not  the  right 
that  is  contended  for  in  this  case.  Tlie  right  really  now  contended 
for  is  that  he  may  imprison  his  wife  by  way  of  punishment,  or  if 
he  thinks  that  she  is  going  to  absent  herself  from  him,  for  any 
])urpose.  however  innocent  of  moral  otfense.  he  may  imprison  her, 
and  it  must  go  the  full  length  that  he  may  perpetually  imprison 
her.     I  do  not  think  that  this  is  the  law  of  England.     .     .     . 

The  principal  case  is  generally  known  and  referred  to  as  'The  Cli- 
theroe  Case,"  because  the  incidents  upon  which  it  is  based  arose  at  a 
little  place  named  Clitheroe.  The  case  is  referred  to  in  State  v.  Jones, 
132  X.  C.  at  p.  1052,  43  S.  E.  939.  and  in  Powell  v.  Benthall,  136 
N.  C.  at  p.  154,  48  S.  E.  598.  See  "A  Century  of  Law  Reform."  347,  for 
valuable  and  interesting  comments  upon  the  principal  case.  It  is  hardly 
supposable  that  the  principles  laid  down  in  the  case  will  be  disputed, 
in  this  day  and  generation,  in  any  jurisdiction  deriving  its  laws  from 
the  common  law.  That  a  husband  may  protect  his  honor,  is  a  right 
still  accorded  to  him  by  the  Clitheroe  case.  As  to  this  right  see  State 
V.  Craton,  28  X.  C.  164,  inserted  at  ch.  1,  §  2,  (1),  ante  and  note. 

Where  the  guardian  of  an  infant  husband  took  the  husband,  his  ward, 
from  the  society  of  the  wife,  the  wife  was  held  entitled  to  have  her  hus- 
band released  upon  habeas  corpus  proceedings,  to  the  end  that  he  might 
resume  his  relations  as  her  husband  if  he  should  choose  to  do  so.  Ex 
parte  Chace,  58  Atl.  978,  69  L.  R.  A.  493.  See  "Husband  and  Wife,"  Cen- 
tury Dig.  §  5-8;  Decennial  and  Am.  Dig.  Key  Xo.  Series  §  3. 


(h)  Seduction. 


BIGAOFETTE   v.   PAULET,   134   Mass.   123.     1883. 

HushanrVs  Recovery  for  Seduction  of  Wife.    Basis  of  the  Action.     Con- 
sortium. 

[Action  of  tort  with  four  counts:  (1)  Seduction  of  wife;  (2)  Assault 
on  wife;  (3)  Rape  of  wife;  (4)  Assault  on  wife.  Verdict  directed 
against  the  plaintiff.  Plaintiff  alleged  exceptions.  The  opinion  is  on 
these  exceptions.  Exceptions  sustained.  The  proof  w^as  that  the  defend- 
ant forcibly  had  connection  with  the  i)laintiff's  wife— "violently  and  for- 
cibly ravished  her;"  that  she  continued  to  perform  her  usual  household 
duties  so  that  her  husband  suffered  no  pecuniary  loss  from  the  defend- 
ant's act.  The  judge  ruled  that  as  there  was  no  seduction  proven  nor 
any  loss  of  services,  the  action  could  not  be  maintained.! 

AV.  Af.LKS.  J.  Tlio  plaintiff  cannot  maintain  this  action  for  an 
injury  to  the  wife  only;  lie  nnist  prove  tliat  some  right  of  his  own 
in  the  person  or  conduct  of  liis  wife  has  been  violated.  .\  husband 
is  not  the  master  of  liis  wife,  and  can  maintain  no  action  for  the 
loss  of  her  sorvicps  as  his  ser\-ant.  TTis  interest  is  expressed  by  the 
word  consortium.  Ilir-  right  1o  the  conimral  fellowship  of  the 
wife,  to  her  company,  eo-operation  and  aid  in  eveiy  conjugal  rela- 
tion. Some  acts  of  a  stranger  to  a  wife  are  of  themselves  inva- 
sions (if  the  hnsbnnd's  riirht.   anrl   uccessnrily   injnrinns  to  him; 


4MG  RELATJVK   RIGHTS.  [Ch.    0. 

dtliors  iiiny  or  iiuiy  iu»t  iiijiirc  him.  act'ordinj;  to  llieir  eonse- 
t|iioiu'os,  iiiul.  in  such  cnsos.  llif  injurious  ('oiisi>(|ueneos  iiuist  be 
piHivcd.  ami  it  nnisl  he  shown  lliat  llic  hushaiul  actually  lost  the 
company  and  as.sistancc  of  the  wife.  Thi.s  is  illustrated  in  the 
statement  <»f  injuries  to  a  Imshand  in  'A  lil.  Com.  !;{!),  140,  where 
sneh  injuries  an'  said  to  he  pi-incipally  three:  "  Ahduetion,  or  tak- 
ing away  a  man's  wife;  adulteiw.  or  criminal  conversation  with 
her;  and  heatinfr  or  otherwise  ahusing  her."  The  lirst  two  are  of 
themselves  wrongs  to  the  hn.s])and.  and  his  i-emedy  is  by  action  of 
trespass  vi  et  armis.  In  regard  to  the  others,  the  anther's  words 
are.  "if  it  be  a  conunon  a.s-sault,  battery,  or  imprisonment,  tlie  law 
gives  the  nsual  remedx  1o  reeover  damages,  by  action  of  trespass 
vi  et  armis.  which  nnist  be  brought  in  the  names  of  the  hnsband 
and  wife  jointly  :  but  if  the  beating  or  other  maltreatment  be  very 
enormons.  so  tliat  thereby  the  husband  is  deprived  for  any  time 
of  the  company  and  assistance  of  the  wife,  the  law^  then  gives  him 
a  separate  remedy  by  an  action  of  ti-espass,  in  the  natnre  of  an 
action  npon  the  case,  for  this  ill  nsage,  per  quod  consortium 
amisit;  in  which  he  shall  recover  a  satisfaction  in  damages."  He 
states,  as  one  of  the  circumstances  affecting  the  damages  in  an  ac- 
tion for  adulteiy.  "tlie  seduction  or  otherwise  of  the  wife,  foimded 
on  her  previous  behavior  and  character." 

It  is  usual  in  actions  for  criminal  conversation  to  allege  the 
seduction  of  the  w'ife,  and  the  consequent  alienation  of  her  affec- 
tions, and  loss  of  her  company  and  assistance,  and  sometimes  of 
her  services ;  but  these  are  matter  of  aggravation,  except  so  far  as 
they  are  the  statement  of  a  legal  inference  from  the  fact  itself, 
nnd  actual  proof  of  them  is  not  necessary  to  the  husband's  right  of 
action.  The  loss  of  consortium  is  presumed,  although  the  wife 
may  have  herself  been  the  seducer,  or  may  not  have  been  living 
with  the  husbaiid.  A  husband  who  is  living  apart  from  his  wife, 
if  he  has  not  renounced  his  marital  rights,  can  maintain  the  ac- 
tion, and  it  is  not  necessary  for  him  to  prove  alienation  of  the 
wife's  affection,  or  actual  loss  of  her  society  and  assistance.  See 
(Miambers  v.  Caulfield,  6  East.  244;  Wilton  v.  Webster,  7  C.  &  P. 
108;  Yundt  V.  ITartrunft,  41  111.  0.  The  essential  injury  to  the 
Inisband  consists  in  the  defilement  of  the  marriage  bed — in  the  in- 
vasion of  his  exclusive  right  to  marital  intercourse  with  his  wife, 
and  to  beget  his  own  children.  This  presumes  the  loss  of  the 
consortium  with  his  wife — of  comfort  in  her  society  in  that^  re- 
spect in  wdiich  his  right  is  peculiarly  exclusive.  Although  actions 
of  this  nature  have  generally  been  brought  where  the  alienation  of 
the  wife's  affections,  and  actual  deprivation  of  her  society  and 
assistance,  have  been  the  prominent  injury  to  the  husband,  yet  it 
is  plain  that  the  seduction  of  the  Avife,  inducing  her  to  violate  her 
conjugal  duties,  and  the  injuries  arising  from  that,  are  not  the 
foimdation  of  the  action.  The  original  and  approved  form  of 
action  is  trespass  vi  et  armis,  and,  though  this  form  was  adopted 
when  the  act  was  with  the  consent  of  the  wife,  it  Avas  for  the  rea- 
son, as  given  bv  Thief  Justice  IToll.  that  "the  law  indulges  the 


Sec.    1    &.]  RELATIVE    RIGHTS.  497 

husband  with  an  action  of  assault  and  battery  for  the  injury  done 
to  him.  though  it  be  with  the  consent  of  his  wife,  because  the  law 
will  not  allow  her  a  consent  in  such  case  to  the  prejudice  of  her 
husband,  because  of  the  interest  ho  ha.s  in  her."  Rigaut  v.  Gal- 
lisard.  7  :\rod.  78;  2  Ld.  Raym.  809:  Holt.  501.  See  also  Bac. 
Abr."  Trespass,  C.  1;  and  Marriage.  F.  2;  2  Chit.  PI.  (1.3th  Am. 
ed.)  855;  Reeves'  Dom.  Rel.  63.  The  fact  that  trespass,  and  not 
ease,  was  the  form  of  action,  even  when  the  wrong  was  accora- 
pli.shed  by  the  seduction  of  the  wife,  for  the  reason  that  the  wafe 
was  deemed  incapable  of  consent,  and  "force  and  violence  were 
supposed  in  law  to  accompany  this  atrocious  injury,"  indicates 
that  the  cause  of  action  arose  from  acts  commiitcd  iipon  the  perso)) 
of  the  wife,  and  not  from  influences  exerted  upon  her  mind — that 
the  corrupting  of  the  'body  rather  than  the  mind  of  the  wife  was 
the  original  essential  wrong  to  the  hushand. 

"We  think  that  this  action  may  be  maintained  upon  the  evidence 
otfered,  not  for  the  actual  loss  of  comfort,  assistance,  society  and 
benefit,  alleged  in  the  second  and  fourth  counts  as  consequences  of 
the  assaults  set  forth  in  them,  but  for  the  loss  of  the  consortium 
with  the  wife  which  is  implied  from  criminal  conversation  with 
her,  whether  with  or  against  her  will.     Exceptions  sustained. 

That  the  action  lies  though  the  intercourse  with  the  wife  is  had  by 
violence,  see  Egbert  v.  Greeuwalt,  44  Mich.  245,  6  N.  W.  654,  38  Am.  Rep. 
260:  21  Cyc.  1626;  8  Am.  &  Eng.  Enc.  Law,  262;  and  see  18  L.  R.  A. 
(N.  S.)  587.  The  fact  that  the  husband  ill-treated  his  wife,  was  ill- 
temi)ered,  and  lived  unhappily  v.ith  her,  cannot  be  shown  in  mitigation 
of  damages,  Van  Vector  v.  McKillip,  7  Blackford,  578,  which  case  also 
holds  that  either  trespass  vi  et  armis  or  trespass  on  the  case  will  lie 
for  seduction.  That  a  man  cannot  maintain  an  action  for  the  seduc- 
tion of  his  fiancee,  see  Case  v.  Smith.  107  Mich.  416,  65  N.  W.  279,  31 
L.  R.  A.  282.  See  14  L.  R.  A.  (N.  S."»  at  pp.  749,  750  (previous  bad  char- 
acter or  conduct  of  the  wife,  as  a  defense);  16  lb.  742,  and  note  (effect 
of  wife's  being  the  aggressor);  16  lb.  674,  and  note  (mental  anguish). 
For  the  opposite  rulings  of  Lords  Kenyon  and  Eldon  on  the  measure  of 
damages, — Lord  Kenyon  allowing  punitive  damages,  and  Lord  Eldon  al- 
lowing compensatory  damages — see  4  Camp.  Lives  C.  .I's.  118,  119.  See 
•Husband  and  Wife,"  Century  Dig.  §  1128;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  341. 


MORRIS   v.    MILLER,   4    Burrows,   2057,   2059.     1767. 
"Crim.  Con."     Proof  Regiiiaite  in. 

(Action  for  Criminal  Conversation  with  plaintiffs  wife.  Verdict  for 
plaintiff  sul)jpct  to  the  opinion  of  the  court  upon  this  question: 
"Whether,  to  support  an  action  of  crim.  con...  there  must  not  ])e  proof  of 
an  actual  marriage?"     .Tndgnient  of  nonsuit  against  the  jilaintiff.  1 

fjord  M.WSKIEM).     I  dn  iiol.  at  ytrcscnt.  nMiiember  any  aetion  for 
eriminril  conversalion.  where  an  actual  maj-riagc  was  not  proved. 
Proof  of  actual  inarriatrn  is  always  used  ;md  understood  in  opposi- 
tion U>  proof  liy  (•<il\;il)itation.  repntal  ioti.  and  otlief  ciri'iimstances 
ReniediPH— 32. 


45)8  KKI.ATIVK    KKIIIM'S.  |  (  7/ .    6'. 

from   uliicli   ;i   iiinrriaiic   may   he   iiircrccd.      We   will   Icll  you   our 
opinion  to-moi-row.     i'wv'  atlvisaiv  vult. 

lionl  Mjnislickl  now  (U'liv(M-o(l  the  opinion  oL'  ilio  court.  "We  are 
all  clearly  of  oiunion,  that  in  tliis  kind  of  action,  an  action  foi- 
I'l-iminal  convci'sation  with  the  i)laintin"s  wife,  there  mnst  be  evi- 
(leni'c  of  a  niarriajie  in  fad  :  acluiowlcdijenient,  cohabitation,  and 
reputation,  are  not  snflicient  to  maintain  tliis  action. 

lint  we  do  not  at  ])rescnt  define  wliat  may  oi"  may  not  be  evi- 
denee  of  a  man-iajre  in  fact.  This  is  a  sort  of  criminal  action. 
TluM-e  is  no  other  way  of  ])unishinf?  this  crime  at  common  law.  It 
shall  not  dejiend  upon  the  mere  re])ntation  of  a  marriajre,  which 
arises  from  the  condiict.  or  declarations,  of  tlie  jilaintiff  himself. 
In  prosecutions  foi-  bijiamy,  a  mai'i'ia«it'  in  fact  must  be  i)rovcd. 

No  inconvenience  can  happen  by  this  determination  ;  but  incon- 
venience mi^ht  arise  from  a  contrary  determination,  which  mifjht 
render  jiersons  liable  to  actions  founded  u])on  evidence  made  by 
the  persons  tluMuselves  who  should  lu-iuiz-  the  action.  Judji;ment  of 
nonsuit. 

See  also  Brinegar  v.  Chaffin.  14  N.  C.  at  p.  Ill;  21  Cyc  1630.  See 
"Husband  and  Wife,"  Century  Dig.  §  1133;  Decennial  and  Am.  Dig.  No 
Series  §  348. 


KROESSTN  V.   KELLER,  60  Minn.   372,   27  L.   R.  A.   372,  62  N.   W.   438. 

1895. 
Wife's  Riqht  of  Action  for  Seduction,  etc..  nf  Her  Husband. 

I  The  plaintiff  and  the  defendant  were  both  women.  The  plaintiff 
sues  in  Crira.  Con.  for  seduction  of  her  husband  by  the  defendant.  De- 
murrer. Demurrer  overruled.  Judgment  against  defendant,  and  she 
ai)pealed.     Reversed.! 

CoiXTNS.  J.  This  is  an  action  brous?ht  by  a  married  woman 
aorainst  one  of  her  own  sex  to  recover  damages,  following,  in  a  gen- 
eral way.  the  common-law  form  of  declarations  in  crim.  con.  A 
general  demurrer  to  the  complaint  was  oven-uled  in  the  court  be- 
low, and  by  this  appeal  we  are  required  to  determine  whether  such 
an  action  can  be  maintained;  the  right  to  recover  being  based 
solely  on  alleged  adulterous  acts  between  plaintiff's  husband  and 
the  defendant.  Tt  is  to  be  noticed  here  that  it  is  not  alleged  that 
the  defendant  was  the  seducer  of  the  husband,  or  that  plaintiff  has 
been  deprived  of  his  support;  nor  is  it  an  action  for  enticing  the 
husband  away,  or  for  inducing:  him  to  abandon  or  desert  his  wife. 
We  are  quite  safe  in  saying  that  at  common  law  no  such  action 
could  have  been  maintained.  The  injured  husband  alone  brought 
crim.  con.,  and  he  could  sustain  the  action  by  simply  showing  adul- 
terous intercourse.  The  grounds  on  which  the  right  to  recover 
was  based  are  well  stated  in  Cooley  on  Torts,  224,  and  the  princi- 
pal elements  were  the  disgrace  which  attached  to  the  plaintiff  as 
the  husband  of  the  unfaithful  wife.— and  no  such  disgrace  has 
ever  rested  upon  the  wife,  if  there  was  one,  of  the  ^lilty  defend- 


Sec.    1    &.]  KELATIVK    RIGHTS.  499 

ant, — and.  of  more  importance,  the  danger  that  a  wife's  infidelity 
might  not  only  impose  on  her  hnsband  the  support  of  children  not 
his  own.  but  still  worse,  cast  discredit  upon  the  legitimacy  of  those 
really  begotten  by  him.  Because  of  these  elements,  the  man  w^as 
always  conclusively  presumed  to  be  the  guilty  party.  In  the  eye 
of  the  law,  the  female  could  not  even  give  her  consent  to  the  adul- 
terous acts,  and.  as  a  result,  it  was  no  defense  in  this  form  of  ac- 
tion that  the  defendant  had  been  enticed  into  criminal  conversa- 
tion through  the  acts  and  practices  of  the  woman.  From  this  state- 
ment as  to  the  grounds  or  elements  constituting  this  action,  it  will 
be  seen  that  the  principal  ones  cannot  possibly  exist  or  be  involved 
in  a  similar  action  brought  by  a  wife.  And  what  has  been  said 
about  the  unavailability  of  the  defense  that  the  defendant  him- 
self was  the  victim,  and  not  the  seducer,  is  suggestive  of  what  the 
courts  might  have  to  hold  to  be  the  rule  of  pleading,  and  what  they 
might  have  to  inquire  into,  upon  the  trial  of  an  action  of  this  kind. 
"Would  it  be  held,  following  the  old  rule  we  have  mentioned,  and 
for  which  the  reason  seems  well  founded,  that  it  was  no  defense 
for  the  female  sued  to  allege  and  prove  that  she  was  the  party  se- ' 
dueed.  and  that  the  greater  wrong  and  injury  had  been  inflicted 
upon  her,  not  upon  the  plaintiff  wife  ?  or  would  the  contrary  rule 
prevail?  But  we  need  not  consider  the  subject  further,  for  a  mo- 
ment's reflection  will  suggest  the  remarkable  results  flowing  from 
the  adoption  of  either  rule. 

We  have  been  cited  to  quite  a  number  of  cases,  determined  in  the 
courts  of  last  resort  in  this  country,  in  which  it  has  bet-n  held, 
without  much  stress  being  laid  on  statutes  concerning  the  rights  of 
married  women,  that  an  action  may  be  maintained  by  a  wife 
against  one  who  wi'ongfully  induces  and  procures  her  husband  to 
abandon  or  send  her  away.  "Westlake  v.  "Westlake.  34  Ohio  St.  621. 
the  court  being  divided  in  opinion,  is  a  leading  case  on  this  view  of 
the  subject.  A  later  one.  announcing  the  same  doctrine,  but  made 
to  rest  much  more  on  the  married  woman's  acts  in  the  state  of 
Michigan  and  similar  to  our  own.  is  Warren  v.  Warren.  SO  ]\Iich. 
123.  50  N.  W.  842.  The  plaintiff's  counsel  has  been  industrious  in 
collecting  this  class  of  cases  in  his  brief,  and  to  them  we  add  Price 
V.  Price  (Iowa).  00  N.  W.  202.  But  even  on  this  proposition,  and 
desi)ite  l)n)ad  statutory  enactments  affecting  the  rights  of  marj-ied 
women,  the  courts  are  not  entii'ely  agreed,  for  in  Maine  and  Wis- 
consin it  has  been  held  that  such  an  action  cannot  be  maintained. 
Doe  V.  Roe.  S2  ^Vfe.  oO^.  20  Atl.  83;  Duffies  v.  Duffies.  70  Wis.  374. 
45  N.  W.  522.  But  we  need  not  di^cidi\  as  between  tliese  cas(>s.  for 
the  <'xact  «|uestion  raised  by  the  demurrer  here  was  not  the  one  un- 
der consideraliori  in  any  we  have  cited.  They  were  brought  for 
enticing  away  tin-  husband;  causing  him  to  withdraw  his  supiiort 
froin  the  wife;  to  abandon  or  desert  her.-  an  entirely  distinct  and 
.separate  cause  of  action  from  that  set  out  in  the  i)laiiililT"s  coiu- 
f)hiint.  At  common  law  this  form  of  action  was  wholly  difVerent 
in  fdcadiuL's  and  proof,  as  wdl  as  parties,  from  criiii.  con.  It  pro- 
ceeded, and  still  proceeds,  upon  (lilVcrcnl   '.'loiinds.  .•iiid   \\f  do  not 


500  KKi.ATivi:  uiciiTS.  [Ch.  6. 

ivtrard  c'lisrs  of  that  natun^  as  aiitlioiaty  in  tliis.  We  are  not  nn- 
mindful  of  the  fact  that  |)hrnit ill's  eoin\si>l  has  presented  two 
eases— J^eaver  v.  Aihiins  (\.  II.),  1!)  Atl.  77(i.  and  llaynes  v.  Now- 
lin.  1'2!>  Ind.  aSl.  2*)  N.  E.  389— in  uhidi  it  is  held  that  an  aetion 
by  a  wife  aixainst  another  woman,  based  on  a  eoinplaint  V(M-y  much 
like  this,  will  li(>.  Kut  in  th(>se  eases  the  anthorities  befoi-e  re- 
ferred to  are  eited  and  relied  on  a.s  direetiy  in  point.  The  eonrts 
renderinir  these  deeisions  do  not  seem  to  have  considered  that  there 
is,  atul  inevitably  nnist  be,  a  marked  distinction  between  an  action 
charirinLT  a  defendant  with  haxinsj:  induced  and  enticed  a  husband 
to  withdraw  his  suppoil  from  his  wife  and  to  abandon  and  desert 
her  and  one  similar  to  crini.  con.  We  think  the  difference  notice- 
able and  matei-ial.  althonjih  we  do  not  wish  to  be  understood  as 
lioldin^'  that  the  one  iirst  mentioned  will  lie.  That  question  is  not 
before  us.  and  we  simply  express  our  conviction  that  a  wife  cannot 
maintain  an  action  in  the  nature  of  crim.  con.  Such  actions  would 
"seem  to  be  better  calculated  to  inflict  pain  upon  innocent  mem- 
bers of  the  familiw  of  tlie  parties  than  to  secure  redi-ess  to  the 
persons  injured."  The  power  to  brin<>'  such  actions  would  furnish 
wives  "with  the  means  of  inflicting  untold  misery  upon  others, 
with  little  hope  of  redress  for  themselves."  We  find  nothing  in 
our  statutes  in  respect  to  the  rights  of  married  women  which  indi- 
cates that  the  powder  to  proceed  in  this  form  of  action  was  intended 
to  be  conferred.  Attention  has  been  called  to  Gen.  Laws  1887, 
c.  207,  §  1.  We  have  heretofore  had  occasion  to  comment  upon 
that  act.  and  have  not  changed  our  views  as  then  expressed.  Al- 
then  V.  Tarbox,  48  Minn.  18,  50  N.  W.  1018.    Order  reversed. 

The  principal  case  is  not  one  for  seduction,  enticing  away,  or  induc- 
ing tlie  husband  to  abandon  or  desert  his  wife,  but  for  crim.  con.  with 
the  husband,  and  for  that  alone.  It  is  not  to  be  confounded  with  the 
cases  of  seduction,  enticing,  etc.  See  Haynes  v.  Nowlin,  129  Ind.  581, 
29  N.  E.  389,  and  read  it  in  the  light  of  the  criticism  upon  it  in  the 
principal  case.  See  also  Gernerd  v.  Gernerd,  185  Pa.  233,  39  Atl.  884,  40 
L.  R.  A.  549  (insc-ted  in  ch.  6,  §  1.  (c),  post)  and  notes.  It  will  be  ob- 
served that  the  reason  assigned  for  the  rule  of  the  common  law  does  not 
come  within  the  spirit  of  modern  statutes  conferring  upon  a  feme  covert 
the  right  to  sue  alone,  etc.  The  reason  referred  to  is:  "The  man  was 
always  conclusively  presumed  to  be  the  guilty  party.  In  the  eye  of  the 
law,  the  female  could  not  even  give  her  consent  to  the  adulterous  acts, 
and,  as  a  result,  it  was  no  defense  in  this  form  of  action  [crim.  con.  by 
the  husband  against  the  seducer  of  his  wife!  that  the  defendant  had 
been  enticed  into  criminal  conversation  through  the  acts  and  practices 
of  the  woman."  "The  legal  inability  of  a  wife  to  consent  to  the  act"  is 
announced  in  Barbee  v.  Armstead,  32  N.  C.  at  p.  535,  inserted  in  the 
next  section.  See  "Husband  and  Wife,"  Century  Dig.  §  1128;  Decennial 
and  Am.  Dig   Key  No.  Series  §  341. 


Sec.    1    C]  RELATIVE   RIGHTS. 


501 


(c)  Enticing  and  Harhoring. 

BARBEE  V.  ARMSTEAD  et  al.,  32  N.  C  530,  535.     1849, 
What  is  the  Proper  Form  of  Action  for  Enticing  and  Harboring  a  Wife? 

[Action  of  Trespass  on  the  Case  to  recover  damages  for  enticing  the 
plaintiff's  wife  to  leave  him  and  for  detaining  her.  Verdict  and  judg- 
ment against  the  plaintiff,  and  he  appealed.     Reversed. 

One  of  the  defendants  was  the  mother-in-law  of  the  plaintiff,  and  lived 
with  the  defendant  Armstead.  She  assigned  as  a  reason  for  enticing 
her  daughter  to  leave  the  plaintiff,  that  the  plaintiff  was  lazy  and  failed 
to  provide  for  his  wife,  and  that  she,  the  defendant,  "did  not  wish  her 
daughter  to  perish."  Some  time  after  the  enticing  away  of  his  wife, 
the  plaintiff  entered  into  a  written  agreement  with  Armstead  to  the 
effect  that  Armstead  might  retain  the  custody  of  the  wife  with  the 
right  of  the  plaintiff  to  visit  her.  After  deciding  that  this  contract 
was  invalid,  the  opinion  proceeds:] 

Nash,  J.  .  .  .  Lord  Brougham  declares,  in  Warrender  v. 
Warrender,  2  C.  &  Fin.  561,  that,  notwithstanding  a  deed  of  sep- 
aration had  been  executed,  the  husband  had  a  right  to  reclaim  his 
wife;  his  language  is  "no  pledge  can  bind  the  party  not  to  reclaiia 
his  or  her  conjugal  rights,  for  such  pledge  is  against  the  inherent 
condition  of  the  married  state,  and  against  public  policy."  The 
plaintiff  in  this  ease,  his  license  being  by  parol,  had  a  right  to  re- 
claim his  wife.  His  demand  was  a  revocation  of  his  license  to  the 
defendant  to  harbor  her,  and  he  was  a  wrong-doer  in  continuing  to 
do  so. 

Finally,  the  defendant  insists,  that  the  plaintiff  has  miscon- 
ceived his  action,  and  ought  to  have  sued  in  trespass.  INlr.  Chitty 
in  the  1st  vol.  of  his  treatise  on  pleadings,  page  91,  says  that  tres- 
pass is  the  appropriate  remedy  for  seducing  away  a  wife,  or  seduc- 
ing a  daughter ;  but  he  does  not  say  that  it  is,  in  either  case,  the 
only  remedy;  and  on  the  same  page  he  states,  that  for  the  latter 
offense,  it  has  been  usual  to  declare  in  case.  The  same  principles 
govern  the  action  for  each  injury — the  legal  inability  of  the  ^yife 
or  child  to  assent  to  the  act.  Where  the  injury  is  both  immediate 
and  consequential,  either  action  can  be  supported,  page  147.  Tf 
there  be  a  doubt  as  to  the  form  of  the  action  in  this  case,  it  is 
whether  the  plaintiff  could  have  maintained  trespass  for  a  deten- 
tion, even  after  a  demand.     .     .     .     Judgment  reversed. 

See  Powell  v.  Benthall,  136  N.  C  145,  48  S.  E.  598,  inserted  post  in 
this  subsection.  See  "Husband  and  Wife,"  Century  Dig.  §  1118;  Decen- 
nial and  Am.  Dig.  Key  No.  Series  §  324. 


RINEIIART  V.  BILLS,  82  Mo.  534,  52  Am.  Rep.  385.     1884. 

Alirnalinn  of  Wifi's  Affections  Without  Euticimi  Jlr.r  Away  or  fiediiciiip 

Her. 

fRlll  in  equity  lo  enjoin  the  follection  of  a  note  given  tlie  defendant 
by  the  i)laintifr.  on  fhe  ground  that  It  was  procured  by  fraud  and  threats. 
Answer.     Demurrer  to  answer,     nr'nnirrer  overruled.     .Tudgment  against 


502  BBLATIM-;    KKilll'S.  [CIl.    () . 

the  plaintiff  for  tho  balancp  duo  the  defondaiit  on  tlio  note.     Plaintiff  ap- 
poalod.     Allirniod. 

The  answer  set  up  iliat  plaintiff  made  love  to  defendant's  wife  and  ob- 
tained her  fonsont  to  an  eloiKMnoiit,  althongh  she  rei)onted  and  made  a 
full  confession  to  the  defendant  and  abandoned  lu-r  idea  of  elopir.g;  that 
defendant  threatened  to  sue  the  plaintiff  for  his  eondnct  and,  in  compro- 
niise,  the  plaintiff  executed  the  note  in  controversy.  The  balance  due 
on  the  note  was  set  up  by  the  defendant  as  a  oounterolaiin.  | 

M.\KTiN.  ("....  Only  one  (nicslion  is  pi-cscntod  to  lis  in  tlit? 
reeoi'il  I'or  detennination.  That  (iiicslion  involves  the  suHiciency 
of  the  dctVnso,  and  is  I'aised  on  Ihc  di'iiunrcr  and  in  lln^  motions 
made  ai'tci-  jndiiinenl.  Tlu'  iihiinlilT  eonlends  that  as  the  answer 
fails  to  sliow  that  defendant's  wife  had  heen  aetnally  dehanehed 
or  sedneed  away  from  him.  no  wroni""  liad  been  inllicted  upon  liim 
for  whieli  an  action  lies,  and  that  the  note  taken  in  settlement  of 
the  supposed  wrong  was  void  as  being  without  consideration.  This 
position  cannot  be  maintained  npon  eitlier  i)rineii)le  or  authority. 
The  injury  to  the  (k'feiidant  consists  in  the  alienation  of  his  wife's 
aiTeetions  with  malice  or  improper  motives.  Debauchery  and 
elopement  when  they  occur  are  only  the  immediate  and  legitimate 
consequenci's  of  the  wrong.  That  the  injuiy  in  this  instance  did 
not  culminate  in  adultery  and  elopement  is  a  fact  not  due  to  the 
plaintiff's  forbearance,  but  to  the  wife's  prudent  reflection  and 
laudable  repentance.  The  alienation  of  the  wife's  aiTections  for 
which  the  law  gives  redress  may  be  accom]")lished  notwithstanding 
her  eontijuied  residence  under  her  husband's  roof.  Indeed  it  has 
been  not  infrequently  remarked  by  attthors  and  jurists  that  sucli 
continued  residence  after  the  alienation  has  been  effected,  so  far 
from  leaving  tlie  husband  without  a  good  cause  of  action,  contrib- 
utes an  aggravation  to  his  injury  from  which  an  elopement  might 
well  be  accepted  in  the  nattire  of  an  alleviation.  Schotiler,  Dom. 
Rel.  57;  Cooley,  Torts,  224;  Hoard  v.  Peck,  56  Barb.  202;  Heer- 
mance  v.  James.  47  Barb.  120.  T  think  it  would  be  difficult  to  re- 
gard it  in  any  other  light  in  the  al)sence  of  contrition  or  change  of 
heart.  The  demurrer  admits  the  salacious  and  seductive  solicita- 
tions of  the  plaintiff,  extending  over  a  period  of  eighteen  months. 
It  also  admits  the  fact  of  actual  estrangement  and  alienation  whicli 
constitutes  the  essence  of  the  offense.  Ever\^  thing  which  follows 
afterward  can  be  only  in  the  nature  of  aggravation,  mitigation  or 
reparation  of  the  Avrong  inflicted  upon  the  sanctity  of  the  defend- 
ant's home. 

I  may  add  here,  by  way  of  allusion  to  the  consideration  of  the 
note,  that  the  compromise  of  a  doubtful  claim  asserted  in  good 
faith  furni.shes  a  valuable  consideration  to  support  a  promise. 
1  Pars.  Cont.  488,  §  4,  6  Ed.    The  judgment  is  affirmed. 

See  3  L.  R.  A.  fN.  S.)  470  (conspiracy  to  alienate  affections);  16  lb. 
742.  and  note  (the  wife  being  the  aggressive  party  to  the  alienation).  See 
"Husband  and  Wife."  Century  Dig.  §  1118;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  324. 


g(,(^     ±    C.]  RELATIVE    RIGHTS.  503 

BERTHON  V.  CARTWRIGHT,  2  Espinasse,   480.     1796. 
Harboring  a  Wife  Wlw  Leaves  the  Husband  for  Good  Cause. 

Case  for  sedueiuff  the  plaintiff's  wife,  detaining  her.  and  tliereby 
depriving  him  of  her  society.  Plea  of  not  guilty.  The  plaintiff 
proved  the  elopement  of  his  wife  from  his  home,  and  her  reception 
and  entertainment  by  the  defendant. 

The  defense  was,  that  the  plaintiff's  wife  had  been  compelled  to 
leave  his  house  in  consequence  of  ill  treatment,  and  had  been  re- 
ceived by  the  defendant  out  of  motives  of  humanity. 

It  was  ruled  by  Lord  Kenyon.  that  if  a  husband  ill  treats  his 
wife  so  that  she  is  forced  to  leave  his  house  through  fear  of  bodily 
injurv.  a  person  may  safely,  nay  honorably,  receive  and  protect 
her;  and  that  of  course  in  such  ease  no  action  was  maintainable. 
The  plaintiff  was  nonsuited. 

See  "Husband  and  Wife,"  Century  Dig.  §  1118;  Decennial  and  Am. 
Dig.  Key  No.  Series  §  324. 


HOLTZ  V.  DICK,  42  Ohio  St.  23,  51  Am.  Rep.  791.     1884. 

Enticing   and  Harboring   Minor   Wife   by  Her   Parents.     General   Rules 

Governing  Enticing  and  Harboring  in  All  Cases. 

fDick  sued  Holtz  and  his  wife,  the  parents  of  Dick's  wife,  for  the  al- 
leged malirious  enticing  away  of  his  wife.  The  defense  was  that  Dick's 
wife  left  him  of  her  own  uninfluenced  will.  Verdict  and  judgment 
against  Holtz  and  wife.  The  case  comes  before  the  supreme  court  on  a 
petition  in  error  filed  by  Holtz  and  wife  in  the  lower  court,  from  which 
the  cause  was  transferred  to  the  su|)renie  court  for  decision  of  the  ques- 
tion raised  liy  the  petition.     Afflrmed. 

The  wife  was  only  sixteen  years  of  age.  She  and  her  husband  got 
along  well  enough  together;  but  Mrs.  Holtz  hated  her  son-in-law  and  per- 
suaded his  wife  to  leave  him  out  of  malice  towards  him,  and  not  for  the 
good  of  her  daughter.  Mrs.  Holtz'  husband  simply  submitted  to  her  acts 
because  of  her  dominion  over  him.  After  disposing  of  minor  points  of 
evidence,  etc..  the  oiiinion  proceeds;! 

Okey.  J.  .  .  .  The  remaining  question  relates  to  the  law 
applicable  to  the  ca.se.  A  man  lu-operly  demeaning  himself  is 
entitled  to  the  society  and  assistance  of  his  wife  against  all  the 
world.  Whoever  unlawfully  deprives  him  of  such  society  oi-  as- 
sistance is  liable  to  an  action.  In  estimating  damages,  however, 
each  case  must  be  detormined  by  the  cii'cumstances  attending  it. 
and  the  motive  of  tlie  inteiA'cning  person  must  (>ver  be  kept  in 
view.  The  cases  may  be  properly  divided  into  two  classes.  One 
where  a  villain  interferes  for  the  purpose  of  seduction,  or  the  sole 
ground  of  interference  is  malice;  the  oilier  where  iViends.  nsuall\- 
parents,  interfere  for  the  jirotection  of  the  wife  and  the  oll'spring. 
if  any.  In  the  first  cl;iss  the  liu.sband.  if  without  fault,  is  always 
entitled  to  rhunages;  in  the  latter,  if  the  motive  of  the  intervening 


:)04  KELATIVK    RRiUTS.  [('//.    t!. 

pei-son  was  puvi'.  ;nul  tho  iippoaranco  scoined  to  indicalf  necessity 
for  interiVi-iMU'e.  there  ean  he  no  i-eeovery,  thoiijrli  no  oceasion  i'oi' 
interl'eveuee  really  existed.  Mneh  will  he  i"ory;iven  the  parents  of  a 
wife  who  honestly  interfere  in  her  behalf,  though  the  interference 
was  wholly  nnneeessary,  and  may  have  been  d(^trimental  to  her 
interest  and  hap]iiness.  as  well  as  tliat  of  her  husband;  still,  where 
the  motive  is  not  proteelion  of  the  wife,  hut  hatred  and  ill  will  of 
the  husliand.  it  is  no  answer  to  his  action  for  such  interference  that 
the  otVenders  were  his  wife's  parents.  Fi-iend  v.  Thompson. 
Wrisiht.  (>:?().  039;  Kahe  v.  Tlanna.  5  Ohio.  530;  I'reston  v.  Bowers, 
13  Ohio  St.  1;  Sehouler's  IIus.  &  W.  §  64;  Cooley's  Torts,  224. 

.  .  As  James  Dick  was  living  happily  with  his  wife,  and  it 
wjis  the  interest  and  desire  of  both  that  they  should  continue  so  to 
live,  we  deny  that  the  parents  had  authority  to  cause  them  to  sep- 
arate on  the  mere  ground  that  she  had  not  arrived  at  the  age  of 
sixteen  years  and  the  marriage  was  without  such  parents'  consent; 
and  the  motive  having  been  malice  toward  Dick  and  not  protection 
to  Irena.  we  hold  that  the  action  was  maintainable,  even  if  her  age 
was  as  her  parents  claimed  it  to  be.     .     .     . 

I  confess  to  some  reluctance  to  the  entry  of  judgment  against 
Frederick  Holtz.  But  if  the  law  as  to  the  liability  of  the  husband 
for  the  tort  of  his  wife  is  wrong,  the  evil  must  be  remedied  by  the 
legislature  and  not  this  court.    Judgment  affirmed. 

See  Brown  v.  Brown,  124  N.  C.  19,  32  S.  E.  320,  which  sustains  the 
principal  case,  and  goes  on  to  show  that  while  parents  are  liable  for  ma- 
liciously enticing  their  infant  children  to  abandon  their  spouses,  still 
the  bona  fide  acts  of  parents — ^not  wanton  or  malicious — in  bringing 
about  such  separations,  are  treated  with  much  greater  leniency  than  are 
the  officious  intermeddlings  of  strangers.  See  "Husband  and  Wife," 
Century  Dig.  §  1118;   Decennial  and  Am.  Dig.  Key  No.  Series  §  324. 


POWELL  V.  BENTHALL,  136  N.  C.  145,  153,  48  S.  E.  598.     1904. 

Enticing  and  HarhoHng.    Acts  of  Strangers  and  of  Parents  and  Other 

Relatives. 

f  Action  by  a  husband  against  his  sister-in-law  and  her  husband, 
(1)  For  enticing  away  his  wife  and  alienating  her  affections;  (2)  For 
harboring  his  wife  after  being  forbidden  to  do  so.  Verdict  against  the 
plaintiff  on  the  first  cause  of  action,  and  against  the  defendants  on  the 
second  cause  of  action.  .Judgment  against  defendants,  and  they  ap- 
pealed.    Reversed. 

The  defense  set  up  was  that  the  plaintiff's  wife  left  him  of  her  own 
accord  and  with  his  consent,  to  seek  for  work;  that  she  refused  to  return 
to  him;  that  defendants  acted  without  malice  and  because  of  their  rela- 
tionship to  the  wife  of  the  plaintiff  and  to  ''assist  a  neglected  relative 
in  her  unhappy  condition."  The  defendants  asked  the  court  to  charge 
the  jury:  "The  defendants  had  the  right  to  permit  their  sister  to  live 
in  their  house,  and  to  give  her  such  countenance,  comfort,  and  support 
as  her  condition  seemed  to  require,  although  she  had  separated  from 
her  husband  without  just  cause,  and  although  the  plaintiff,  after  said  sep- 
aration, forbade  the  defendants  to  give  shelter,  comfort,  and  support  and 
protection  to  his  wife;  and  the  jury  should  answer  the  second  issue  'No,' 


Sec.    1    C]  RELATIVE   RIGHTS.  505 

unless  they  find  that  the  defendants  wrongfully  induced  the  plaintiff's 
wife  to  leave  her  husband — alienate  her  affections  from  him — notwith- 
standing the  defendants  did  give  to  the  plaintiff's  wife,  after  she  left  her 
husband,  such  shelter,  comfort,  and  support."  The  court  refused  the 
prayer,  and  defendants  excepted.] 

Connor,  J.     .     .     .     We  should  be  reluctant  to  excuse  or  jus- 
tify the  conduct  of  either  husband  or  wife,  or  of  third  persons,  en- 
couraging separation  or  withdrawal  of  marital  rights  or  refusal  to 
recognize  or  discharge  marital  duties.     We  should  adhere  strictly 
to  the  wise  and  salutarj'  principles  announced  and  enforced  by  the 
great  judges  who  liave  preceded  us  as  essential  to  the  sanctity  of 
this  relation  which  forms  the  basis  of  our  social  and  domestic  life. 
On  the  other  hand,  we  should  be  equally  reluctant  to  adhere  to  the 
conceptions  of  a  past  age  regarding  the  status  of  the  wife  and  the 
power  of  the  husband  over  her  person  and  conduct.     We  fully  sym- 
pathize with  the  statement  made  in  "A  Century  of  Law  Reform" 
that  there  is  no  branch  or  department  of  the  law  in  which  the 
change  has  been  greater  or  the  contrast  more  violent.     It  is  not 
necessary  to  cite  decisions  of  this  court  to  show  that  our  predeces- 
sors have  recognized,  and  given  expression  to  the  change  of  public 
conscience  and  policy  in  this  respect.    Thirty  years  ago  this  court, 
speaking  by  Settle,  J.,  said:  "Wo  may  assume  that  the  old  doc- 
trine that  a  husband  has  a  right  to  whip  his  wife,  provided  he  used 
a  switch  no  larger  than  his  thumb,  is  not  law  in  North  Carolina. 
Indeed,  the  courts  have  advanced  from  that  barbarism  until  they 
have  reached  the  position  that  the  husband  has  no  right  to  chastise 
his  wife  under  any  circumstances."     State  v.  Oliver,  70  N.  C.  60. 
In  1891  Lord  Chancellor  Ilalsbury,  in  Rcgina  v.  Jackson,  1  L.  R. 
R.  B.  D.  671,  said:  "The  court  has  satisfied  itself  that  in  refusing 
to  go  and  continue  in  her  husband's  house   [the  petitioner]    was 
acting  of  her  own   free  will,  and  that  she  is  not  compelled  or 
.     .     .     induced  by  any  one  to  refuse  to  continue  to  remain  where 
she  was  before  he  removed  her.    I  confess  that  sohh^  of  the  proposi 
tions  which  have  been  referred  to  during  the  argument  are  such  as 
I  should   be  reluctant  to  suppose  ever  to  have  been  the  law  of 
England.     ...     In  the  same  way  such  quaint  and  absurd  dicta 
as  are  to  be  found  in  the  books  as  to  the  right  of  the  husband  over 
his  wife  in  respect  of  personal  cha.stisement  are  not.  I  think,  ca- 
pable of  being  cited  as  authorities  in  a  court  of  justice  in  this  or 
any  civilized  country."     He  says:  "The  retuni  seems  to  me  to  be 
based  on  the  broad  proposition  that  it  is  the  right  of  the  husband, 
when  his  wife  has  wilfully  absented  hei-self  from  him,  to  seize  the 
person  of  his  wife  by  foree.  and  (h'lain  her  in  his  liouse  until  she 
shall  be  willing  to  restore  him  1o  his  conjugal  rights.      1   am  Tint 
prepared  to  assent  to  such  a  projiosition."     In  this  case  (ii>ini(ms 
were  written  by  the  Master  of  the  Rolls,  and  Fry.  Tj.  J.,  conenrring 
with  the  Cliancellor.     Tbe  c.'i.se  is  regarded  as  the  latest   and  best 
jndieial  expression  of  llie  law  eonfdi'iiiintr  to  the  sentiment  of  the 
most  enlightened  statesmen  and  jurists  of  the  age.     So  far  back  as 
1701,  Lord  Kenyon,  who  certaiidv  was  imt    a   ia<lieal    iii(liei;ii   re- 


r)OG  KEi.Ai'n  K  uMdirrs.  \('li.  (!. 

I'oiiiicr.  s;iul  111  riiillips  v.  Si|\iirf.  r.'.ikc.  Kcp.  S'J  :  "The  iii-oiiiid  of 
this  ju'tion  is  tluil  tlu>  dcrcinliinl  rctjiiiis  tlu>  phiiiililV's  wife  n^ainsl 
tlio  iiu'liiiatioii  of  Ium-  liusl)aii»l.  wliosc  bi'havioi"  lie  knows  to  bn 
pro|)i'r;  or  from  scllisii  oi-  ciiiiiiiial  niotivos.  lint  wliciv  slio  is  rc- 
I'oivod  from  principles  of  humanity  the  action  cannot  he  suj)- 
portcd.  li"  it  could,  the  most  (lani>-ei-ous  couseipieiuH's  would  ensue, 
for  no  one  would  venture  to  i)rotecl  a  mariied  woman.  It  is  of  no 
eonsetpienee  whether  the  wife's  representation  was  true  or  falsi'. 
This  kiiul  of  action  mateiially  differs  fiom  that  of  harboring  an 
apj)reulice.  the  ii;i'ound  of  that  action  being  the  Joss  of  ai)prentiee's 
services.  ■■  The  plaintiff  was  nonsuiltMl.  Tn  Turner  v.  Kstes,  'A 
Mass.  'Ml.  the  court  said:  "  The  defendant  is  charged  with  enticing 
the  plaintilf's  wife.  No  evidence  was  given  at  the  trial  of  any  en- 
ticing. As  to  the  charge  of  liarhoring,  the  sum  of  the  evidence  is 
that  the  defendant  permitted  his  wife's  mother  to  remain  in  his 
house,  without  using  force  to  expel  her.  He  was  not  obliged  to  use 
force."  Those  authoi-ities  fully  sustain  the  defendants'  exception 
to  the  charge. 

We  think  that  his  h(mor  was  also  in  ei-ror  in  placing  upon  the 
defendants  the  burden  of  showing  justitication.  Barnes  v.  Allen, 
*40  N.  Y.  3!)0.  The  leai-ned  justice  says:  "The  gist  of  the  action, 
as  all  the  authorities  agree,  is  the  loss,  without  justifiable  cause,  of 
the  comfort,  society,  and  services  of  the  wife.  Tn  maintaining  the 
action  two  questions  principally  arise:  Was  the  loss  occasioned  by 
the  voluntaiy  action  of  the  wife  upon  justifiable  cause,  or  was  it 
occasioned  by  the  acts  or  persuasion  of  the  defendant  without  any 
real  cause,  and  in  bad  faith  toAvards  the  plaintiff?  On  both  these 
(piestions  the  plaintiff  must  give  evidence  tending  to  establish  his 
case,  or  his  action  nuist  fail."  The  error  in  the  instruction  in  this 
particular  is  that  it  overlooks  entirely  the  motives,  and  casts  the 
burden  of  proving  the  truth  of  the  wife's  statement  upon  the  de- 
fendant. 

We  are  further  of  the  opinion  that  his  honor  erred  in  telling  the 
jury  that  they  could  not  consider  the  relation  of  the  defendants  to 
the  plaintiff's  wife.  Upon  the  question  of  good  faith  the  relation- 
ship was  most  material.  It  cannot  be  that  a  sister  and  her  husband 
are  to  be  treated  as  officious  intenneddlers  and  wrongdoers  for 
giving  food  and  shelter  to  plaintiff's  wife  and  permitting  her  to 
remain  in  their  home.  We  do  not  intend  to  say  that,  if  it  ap- 
peared that  they  actively  procured  the  separation,  or  counseled 
and  advised  its  continuance,  they  would  not  be  liable;  but  where 
the  question  of  motive  is  essential  to  be  shown  the  relationship  is 
not  only  relevant,  but  most  material. 

After  a  careful  examination  of  the  testimony,  we  fail  to  see  any 
evidence  fit  to  be  submitted  to  the  juiy  to  sustain  the  ailRrmative  of 
the  issue.  In  view  of  all  the  evidence,  we  think  his  honor  should 
have  given  the  instruction  asked  upon  the  second  issue.  He  could 
not  have  dismis,sed  the  action  pending  the  trial  upon  the  first  issue. 
The  finding  upon  that  issue  practically  put  an  end  to  the  case. 
The  plaintiff  relied  upon  the  case  of  Johnson  v.  Allen,  100  N.  C. 


5gc.    1    C]  RELATIVE    RIGHTS. 


SOT 


131,  5  S.  E.  666.  That  was  a  case  in  which  the  plaintiff  sued  for 
"enticing,  harboring,  and  debauching"  his  wife.  The  testimony 
was  ample  to  sustafn  the  allegation.  The  language  of  the  court 
must  be  taken  in  the  light  of  the  testimony.  There  is  a  vast  differ- 
ence between  the  case  of  a  man  who  entices  another  man's  wife 
away  from  him  and  debauches  her  and  the  facts  in  this  case. 

The  conclusion  to  which  we  have  arrived  renders  it  unnecessary 
to  pass  upon  the  exceptions  of  the  defendants "  counsel  in  regard  to 
the  form  of  the  issue  and  the  verdict.  It  is  not  improper  to  say, 
however,  that  in  the  light  of  what  is  said  in  Pearce  v.  Fisher,  183 
N.  C.  333.  45  S.  E.  638.  the  exception  should  be  sustained.  For  the 
error  pointed  out.  there  must  be  a  new  trial. 

That  the  marriage  of  an  infant  daughter  works  her  emancipation  from 
parental  control,  see  Wilkinson  v.  Bellinger,  126  N.  C.  462,  35  S.  E.  819; 
80  N.  W.  877,  46  L.  R.  A.  440,  and  notes:  and  the  notes  to  State  v.  Stigall, 
22  N.  J.  L.  286,  inserted  at  sec.  2  of  this  chapter,  \\aiether  or  not  a 
husband  can  recover  for  the  harboring  of  his  wife  when  they  are  living 
apart  under  articles  of  separation— which  articles  he  undertakes  to  re- 
pudiate—presents a  question  of  some  interest.  See  Barbee  v.  Armstead, 
32  N.  C.  530,  inserted  ante  in  this  subsection;  A  Century  of  Law  Reform, 
348-  Smith  v.  King,  107  N.  C.  273,  12  S.  E.  57;  Eversley's  Dom.  Rel.  434 
et  seq.;  25  Am.  &  Eng.  Enc.  L.  476;  Metcalf  v.  Tiffany.  106  Mich.  504, 
64  N.  W.  479. 

That  damages  may  be  recovered  for  an  unlawful  entry  upon  land  with 
intent  to  debauch  the  owner's  wife,  see  Brame  v.  Clark,  148  N.  C.  364, 
62  S.  E.  418,  inserted  at  ch.  3,  sec.  12,  ante.  It  is  a  felony  in  North  Caro- 
lina to  elope  with  or  abduct  the  wife  of  another,  see  Revisal,  sec.  3360. 
See  "Husband  and  Wife,"  Century  Dig.  §  1118;  Decennial  and  Am.  Dig. 
Key  No.  Series  §  324. 


GERNERD  v.  GERNERD,  185  Penn.  233,  39  Atl.  884,  40  L.  R.  A.  549.  1898. 

When  the  Wife  Can  and  Cannot  Sue  for  Enticing  Her  Hushand  from  Her. 

or  Tortiously  Inducing  or  Causing  Him  to  Abandon  Her. 

(Action  by  the  wife  against  her  father-in-law  for  inducing  her  husband 
to  abandon  her,  by  means  of  injurious  words  spoken  of  and  concerning 
her.     Judgment  against  defendant,  and  he  appealed.     Affirmed. 1 

Fell,  J.     The  right  of  a  husband  to  inaintain  an  action  against 
one  who  has  wrongfully  induced  his  wife  to  separate  from  him 
seems  not  to  have  been  doubted  since  the  ca.se  of  Winsmore  v. 
Greenbank  (decided  in  1745),  Willcs,  577.    The  right  of  a  wife  to 
maintain  an  action  for  Iho  same  cause  has  been  denied,  because  of 
the  common-law  unity  of  husltand  and  wife,  and  of  her  want  of 
property  in  his  society  and  a.ssist.ance.    There  was  certainlx  an  in 
consistency  in  permilting  a  recov(^i-y  when  her  husband  was  a  nec- 
essary party  to  the  actitm.  and  she  had  no  separate  legal  existenee 
or  iiit(!rest.  and  the  damages  recovered  would  belong  to  him,  but 
the  gist  of  the  action  is  the  sauK^  in  either  ease.     There  is  no  sub 
stantial  difference  in  the  right  whieli  each  has  to  the  .society,  com- 
panionship,   and    aid    of   the    Dther.    and    the    injury    is    the   same 
whet.h(;r  it  affects  the  hu.sband  or  the  wife.     Where  the  wif(!  has 


5()S  IvKl.AllVK    ICHai'l'S.  [CIl.    6. 

been  frood  from  lu-i-  (•oMinioii-liiw  ilisabililii's,  jiiul  iii;i\-  sue  in  lu'i* 
own  name  and  \\ix\\\  lor  toils  done  \h'\\  wc  svr  no  n-ason  lo  donbt 
luM'  ri«;lit  to  maintain  an  action  ai:;ainst  one  who  has  wroiifj^fully 
indut't'd  her  Inishjuid  to  Icavi'  Ium-.  Generally,  this  rifj^lit  has  been 
reeojinized  and  snstaini'd  in  jurisdietions  wlicic  she  has  tlu^  capac- 
ity to  sue,  notably  in  the  eases  of  liennett  v.  lieiniett,  ll(j  N.  Y. 
r)S4.  2;{  N.  K.  17  ;  Voot  V.  Card.  58  C:onn.  4,  18  Ail.  1027  ;  Seaver  v. 
Adams  (N.  II.),  10  All.  77(>;  Westlake  v.  Westlake,  34  Ohio  St. 
ti'-M  ;  llaynes  v.  Xowlin,  12!)  Ind.  581,  29  N.  E.  38!);  Warren  v. 
Warren.  8!)  ]\Iieh.  123,  50  N.  W.  842;  l^assett  v.  Bassett,  20  III. 
Ai)p.  543;  l»rice  v.  Price,  !)1  Iowa.  093,  (50  N.  W.  202;  Clow  v. 
Chapman.  125  Mo.  101,  28  S.  W.  328;  Melirhofl"  v.  MehrholT 
(C.  C),  26  Fed.  13.  The  New  York  and  Indiana  eases  cited  over- 
I'ule  the  earlier  ea.ses  in  those  states  in  wliieh  a  different  conclusion 
had  been  reached.  The  only  decisions  in  which  we  find  the  right 
denied  are  Duffies  v.  Duffies*  76  AVis.  374,  45  N.  W.  522,  and  Doe  v. 
Roe,  82  Me.  503,  20  Atl.  83.  Of  late  years,  the  right  of  the  wife  to 
sue  has  generally  been  maintained  by  text  writers.  It  is  said  in 
Rigelow,  Torts,  153:  "To  entice  away  or  corrupt  the  mind  and 
affection  of  one's  consort  is  a  civil  w-rong,  for  which  the  off'ender  is 
liable  to  the  injured  husband  or  wife."  And  in  Cooley,  Torts. 
228:  "We  see  no  reason  why  such  an  action  should  not  be  sup- 
ported, where,  by  statute,  the  wife  is  allowed  for  her  own  benefit, 
to  sue  for  personal  wrongs  suffered  by  her."  In  1  Jag.  Torts. 
p.  467,  many  of  the  cases  on  the  subject  are  referred  to.  and  the 
conclusion  is  thus  stated:  "On  the  other  hand,  it  has  been  insisted 
that  in  natural  justice  no  reason  exists  why  the  right  of  the  wife  lo 
maintain  an  action  against  the  seducer  of  her  husband  should  not 
be  coextensive  with  the  right  of  action  against  her  seducer.  The 
weight  of  authorities  and  the  tendency  of  the  legislation  strongly 
incline  to  the  latter  opinion."  The  same  proposition  is  stated  in 
I  Am.  &  Eng.  Enc.  Law  (2d  ed.)  p.  166,  and  in  1  Bish.  Mar.  & 
Div.  §  1358.  The  defendant  in  this  action  was  the  father  of  the 
plaintiff's  husband,  and  the  case  was  one  to  be  carefully  guarded 
at  the  trial.  The  intent  with  which  he  acted  was  material  in  deter- 
mining his  liability.  It  was  his  right  to  advise  his  son.  and  in  so 
doing  in  good  faith,  and  with  a  proper  motive,  he  should  not  be  re- 
garded in  the  same  light  as  a  mere  intermeddler.  A  clear  case  of 
want  of  justification  on  the  part  of  the  parents  should  be  shown 
before  they  should  be  held  responsible.  Cooley,  Torts,  265 ;  Hutch- 
eson  V.  Peck,  5  Johns.  196;  Bennett  v.  Smith,  21  Barb.  439;  IIul- 
ing  v.  Ruling,  32  111.  App.  519;  Tasker  v.  Stanley.  153  Mass.  148, 
26  N.  E.  417;  Fratini  v.  Caslini  (Vt.),  44  Am.  Rep.  850.  note 
(S.  C.  29  Atl.  252).  On  the  trial  the  plaintiff  was  held  to  distinct 
and  clear  proof  that  the  defendant  wrongfully  and  maliciously 
caused  her  husband  to  abandon  her.  Every  right  which  the  de- 
fendant could  properly  claim  in  this  regard  was  carefully  stated  in 
a  very  clear  and  adequate  charge.  The  claim  that  the  action  was. 
in  effect,  an  action  for  words  spoken,  and  consequently  barred  by 
the  statute  of  limitations,  cannot  be  sustained.    It  was  not  either  in 


Sec.    1    d.]  RELATIVE    RIGHTS.  509 

form  or  in  substance  an  action  of  slander,  and  the  words  proven 
were  only  one  of  the  many  means  employed  by  the  defendant  to 
effect  his  purpose.    The  judgment  is  affirmed. 

See  Kroessin  v.  Keller,  60  Minn.  372,  inserted  at  sec.  1  (b),  ante,  and 
note,  for  the  right  of  the  wife  to  sue  for  seduction  of  her  husband. 
For  other  authorities  on  enticing  a  husband  from  his  wife,  see  Brown  v. 
Brown,  121  N.  C.  8,  27  S.  E.  998,  which  holds  that  a  wife  who  is  aban- 
doned may  maintain  such  an  action  in  North  Carolina,  because,  being 
abandoned,  she  becomes  a  free  trader  under  the  statute;  1  Am.  &  Eng. 
Enc.  L.  166;  15  lb.  864-866.  See  4  L.  R.  A.  (N.  S.)  643,  3  lb.  470,  and 
notes;  and  note  to  Rinehart  v.  Bills,  inserted  ante  in  this  section.  See 
"Husband  and  Wife,"  Century  Dig.  §  1119;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  325. 


(d)  Injuries  to  the  Wife  by  Her  Husband  and  by  Third  Persons. 

HOLLEMAN  v.  HARWARD,  119  N.  C.  150,  152-155,  25  S.  E.  972.     1896. 
Selling  Deleterious  Drugs  to  the  Wife.    Husband's  Right  of  Action. 

[Action  for  damages  resulting  from  sale  of  laudanum  to  plaintiffs 
wife.  Demurrer  by  defendant.  Demurrer  sustained.  Judgment  against 
the  plaintiff,  from  which  he  appealed.     Reversed. 

The  complaint  alleged  that  defendant  was  a  druggist  and  knew  that 
plaintiffs  wife  was  using  large  quantities  of  laudanum  to  the  injury 
of  her  health;  that  plaintiff  notified  the  defendant  not  to  sell  to  her; 
that  defendant  nevertheless  sold  laudanum  to  her;  and  that  plaintiff 
sustained  injuries  in  consequence.] 

^loNTGOMERY.  J.  .  .  .  The  question,  then,  is,  can  the  plain- 
tiff, upon  the  facts  set  out  in  the  complaint,  maintain  an  action? 
The  action  is  a  novel  one.  With  the  exception  of  the  case  of  Hoard 
V.  Peck,  56  Barb.  202,  which,  in  its  most  imi)ortant  aspects,  resem- 
bles the  one  before  us.  we  have  been  able  to  find  no  precedent  in 
the  English  common-law  courts  or  in  the  courts  of  any  of  our 
.states.  It  does  not  follow,  however,  that  because  the  case  is  new 
the  action  cannot  be  maintained.  If  a  prineii)le  upon  which  to 
base  an  action  exists,  it  can  be  no  good  objection  that  the  case  is  a 
new  one.  It  is  contended  for  the  defendants,  though,  that  there  is 
no  principle  of  the;  eommon  law  upon  which  this  action  can  be  sus- 
tained, and  that  our  own  statutory  law  gives  no  such  remedy  as 
the  plaintiff  seeks  in  this  action  for  the  wrong  done  to  him  by  the 
defendants,  and  that  the  novelty  of  the  action,  together  with  the 
silence  of  the  elomenlaiy  books  on  the  subject-matter  of  the  com- 
plaint, while  not  conclusive,  furnishes  strong  counteMance  to  their 
contention.  It  is  claimed  for  the  defendants  that  while,  in  the  ab- 
stract, such  facts  as  are  .stated  in  the  coiiiiil.-iinl  would  make  the 
parties  charged  g\iilty  of  a  gn-at  iiKiral  wi-ong.  tlicrc  would  be  no 
legal  liability  incurred  Iherelnr.  11  was  argui-d  fop  the  dei'endants 
that  there  was  no  legal  ol)ligatinn  resting  upon  themselves  not  to 
sell  the  drug,  as  is  alleged,  to  tlie  i)laiii1iff's  wife,  nr  upon  the  wife 
not  to  use  it;  that  many  of  the  ancient  restrictions  upon  the  rights 
of  married  wr)men  bad  been  repealed  by  recent  legislalidU.  or 
modified  by  a   UKire  liberal  judiei;i]  construction:  that   a   married 


r>10  m;i,vn\i'.  kkiuts.  \('Ii.  6. 

woman  was  oi(lmaiil\    Iroc  to  uo  w  lirrt'  slic  would,  and  that  the 
Imsbaiul  roiihl  not  arbitrarily  dopiivc  licr  of  In  r  liberty,  nor  use 
violonc'O    a«j;ainst    her    luidoi-    an>-    iMrciiinslanccs,    <'xi't'i>l    in    st>lf- 
dot'onso.   an<l   that,   if   lie  could    not    restrain   her   loeoinotion    and 
lier  will,  lie  could  not  pi'event  lici-  I'l-oni  buyini::  the  di'U'j:  and  usinijf 
it  :  that  the  wife '.s  duty  to  honor  and  obey  lici-  husband,  (o  ^ive  to 
their  children   iuotlicrl.\    caic.   to  lender  all   pi'oper  service  in  the 
h()nst>hold.  and   to  yix-c   him   her  companionship  and   love,  was  a 
moral  iluty.  but  that  they  could  not  be  enroi-ced  by  any  power  of 
the  law.  if  the  wife  r«4"used  to  dischar^v  them.     l'>ut.  no!  withstand- 
iuiT  the  claim  ol'  the  plaint  ill',  we  think  this  action   rests  upon  a 
l)rinciple.-    a    principle   not    new.   but   one  sound   and   consistent. 
The  pi'inciple  is  this:  '"  Wlioevei-  does  an  injury  to  another  is  liable 
in  dama^res  to  the  extent  of  that  injury.     It  matters  not  whether 
the  injury  is  to  the  pi-operty.  or  the  rights,  or  the  reputation  of  an 
other."     Story.  J.,  in  Dextei-  v.  Spear,  4  Mason,  llf).  Fed.  Cas. 
No.  3,867.     And  also  in  the  third  book  of  liluekstone's  Couunen- 
taries  (eh.  S.  p.   128)   it  is  written:  "Wherever  the  connnon  law 
y;ives  a  rijrht.  or  prohibits  an  injury,  it  also  gives  a  remedy  by  ac- 
tion."   A  married  woman  still  owes  to  her  husband,  notwithstand- 
ing her  greatly  improved  legal  .status,  the  duty  of  companionship. 
and  of  rendering  all  such  services  in  his  home  as  her  relations  of 
wife  and  mother  ri'(|uire  of  her.    The  husband,  as  a  matter  of  law. 
is  entitled  to  her  time,  her  wages,  her  earnings,  and  the  product  of 
her  labor,  skill,  and  industry.     He  may  contract  to  furnish  her 
services  to  others,  and  may  sue  for  them,  as  for  their  loss,  in  his 
own  name.     And  it  seems  to  be  a  most  reasonable  proposition  ol 
law  that  whoever  wilfully  joins  with  a  married  woman  in  doing  an 
act  which  dej^rives  her  husband  of  her  services  and  of  her  com 
panionshii)  is  liable  to  the  husband  in  damages  for  his  conduct. 
And  the  defendants  owed  the  plaintiff  the  legal  duty  not  to  sell  to 
his  wife  opium  in  the  form  of  large  quantities  of  laudanum  as  a 
beverage,  knowing  that  she  was.  by  using  them,  destroying  her 
mind  and  body,  and  thereby  causing  lo.ss  to  the  husband.     The  de- 
fendants and  the  wife  joined  in  doing  acts  injurious  to  the  rights 
of  the  husband.     Prom  the  facts  stated  in  the  complaint,  the  de- 
fendants were  just  as  responsible  as  if  they  had  forced  her  to  take 
the  drug,  for  tJiey  had  their  part  in  forming  the  habit  in  her,  and 
continued  the  sale  of  it  to  her  after  she  had  no  power  to  control 
herself  and   resist  the  thii-st;   and  that,  too.  after  the  repeated 
warnings  and  pi'otests  of  the  husband.     There  is  no  difference  be- 
tween the  jn-inciple  involved  in  this  action  and  the  principle  upon 
which  a  husband  can  recover  from  a  third  person  damages  for  as- 
sault and  battery  upon  his  wife.     That  assaults  and  batteries  are 
made  criminal  oflPenses  nud<es  no  difference,  the  foundation  of  the 
husband's  suit  being,  not  for  the  public  offense,  but  for  damages, — 
compensation  for  the  injury  which  he  has  sustained  on  account  of 
the  loss  of  his  wife's  servnces.     The  sale  of  the  laudanum  by  the 
defendants  to  the  plaintiff's  wife,  under  the  circumstances  set  out 
in  the  complaint,  was  wilful  and  unlawful,  and  the  husband's  in- 


Sec.   1    d.]  RELATIVE   BIGHTS.  511 

jury  is  just  as  great  as  if  his  wife  had  been  disabled  from  a  bat 
tery  committed  on  her.  although  the  unlawful  act  is  not  indictabh'. 
.     Error. 

In  a  "Note  by  the  Reporter"  to  Rinehart  v.  Bills,  52  Am.  Rep.  385,  at 
p.  888.  it  is  said:  'The  case  of  Hoard  v.  Peck,  56  Barb.  202,  cited  in  the 
opinion  above,  is  sui  generis,  and  probably  will  always  remain  so.  It 
was  there  held  that  a  husband  may  maintain  an  action  against  an  apothe- 
cary, who,  without  the  husband's  knowledge,  habitually  sells  laudanum 
to  the  wife,  knowing  that  she  uses  it  to  the  impairment  of  her  mind  and 
body.  It  would  seem  that  if  this  were  law  there  would  be  no  need  of 
the  civil  damage  acts  which  grant  a  similar  redress  to  the  wife  against 
those  v.ho  sell  intoxicating  liquors  to  the  husband."  See  -Husband  and 
Wife."  Century  Dig.  §§  767,  768;  Decennial  and  Am.  Dig.  Key  No.  Series 
§  209. 


SMITH  V.  CITY  OF  ST.  JOSEPH.  55  Mo.  456,  17  Am.  Rep.   660.     1874. 
Injury  to  the  Wife.     Remedies  of  the  Husband  and  Wife  Respectively. 

[Action  by  the  husband  for  damages  incident  to  loss  of  services  of  his 
wife  and  to  necessary  expenses  incurred  in  her  cure,  in  consequence  of 
iujuries  suffered  by  the  wife  through  the  alleged  negligence  of  the  de- 
fendant, .ludgment  against  the  defendant.  Defendant  appealed.  Af- 
firmed. 

In  an  action  brought  against  the  defendant  by  the  plaintiff  and  his 
wife,  the  wife  had  recovered  for  the  injuries  she  had  sustained  and  for 
the  physical  suffering  she  endured.  This  recovery  by  the  wife — ^her  hus- 
band having  been  joined  with  her  as  co-plaintiff  for  conformity  only — 
was  relied  upon  as  a  defense  to  this  action  by  the  husband.  The  facts 
appear  in  the  latter  part  of  the  opinion.] 

"Wagner.  J.  .  .  .  The  main  questions  relied  on  for  a  re- 
versal of  this  judgment  are,  (1)  that  the  former  judgment  was  a 
bar  to  the  maintenance  of  this  action,  and  (2)  that  the  court  erred 
in  its  instructions  in  reference  to  damages.  The  judgment  ren- 
flerod  in  favor  of  plainliflT  and  wife  in  the  former  action  was  solely 
for  the  dairuiges  njsulting  to  the  wife  in  consequence  of  the  injuries 
received  by  her.  She  was  the  meritorious  cause  of  the  action,  and 
the  husband  was  merely  joined  under  the  provisions  of  the  statute 
to  enable  her  to  sue.  But  the  damages  there  Avere  strictly  confinerl 
to  her  personal  injuries,  and  llie  expcMises  incurred  by  Ihe  hus- 
band, and  loss  of  service,  which  constitute  the  foundation  of  this 
action,  were  not  in  that  case.  In  some  of  the  New  England  states, 
inifler  the  provisions  of  statutes  regulating  the  subject,  it  is  heli! 
tbat  but  one  action  can  be  maintained.  Tho.se  statutes  permit  all 
the  damatres  incident  to  and  growing  out  of  the  injury  to  be  re- 
covered in  tlie  sam(!  suit.  'IMiey  provide  for  but  one  action.  But 
in  thf  other  states,  where  no  such  statutory  regulations  i^xisl.  a 
contrary  doctrine  is  lield.  Tn  the  case  of  ^[(dvijuiey  v.  Western 
Sta«re  (V)..  4  Iowa.  420.  the  court  ,savs:  "We  suppose  lliat  at  com- 

til 

mon  law  the  rule  is  well  .settled  that  fni-  an  injury  to  the  person  of 
the  wife  duriuL'  coverture,  by  battery,  or  to  her  ehaiaeter  by  slau- 
<ler  or  any  such  injur\'   the  wife  nuist  join  with  the  husband  in  the 


512  KELATIVK    HIGIITS.  [Ck,    6. 

suit.  Wlu'M.  luuvt'vtM-.  llu'  iujui-y  is  such  llial  flu-  luish.uul  icct'ives 
u  so})ar;ilt,'  loss  or  dnnijiiri',  iis,  if  iu  cousiMiuruco  o\'  I  lie  batlt'ry,  ho 
has  bi'cu  (U'|>ii\(Ml  ol'  licr  socioly,  or  has  boon  put  to  expouse,  ho 
may  briuir  u  so|)aralo  acliou  in  liis  own  name.  Jiarnos  v.  llurd, 
11  .Mass.  5!»;  Lowis  v.  Habcock.  IS  Johns.  A4'.\  ■  2  Saund.  PI.  &  Ev. 
;)()S;  and  this  i-ulc  we  do  not  uiuhM-stand  to  bo  chanfjjod  by  the 
Codo.- 

Tlio  Indiana  court  hoUls.  also,  tliat  tho  ostablishod  doctrine  is, 
that  for  a  tort  committed  uj^on  a  wii'o  two  actions  will  lio,  one  by 
tho  husband  alouc  for  tho  loss  oi"  sorvioo,  oxponsos,  etc.,  and  tln- 
othor  by  tho  husband  and  wife  for  the  injury  to  her  person.  Rog- 
ers V.  Smith,  17  Ind.  828;  Long  v.  Morrison,  14  Ind.  505;  Ohio  & 
M.  R.  R.  Co.  V.  Tindall.  18  Tnd.  800;  lioyd  v.  Blaisdoll.  15  Ind.  73. 

In  tho  ease  of  Fuller  v.  Naugatuok  R.  R.  Co.,  21  Conn.  557,  it 
was  said  that  it  was  clear  that  tho  plaintiffs  oould  not  recover  for 
the  wife's  personal  injury  and  also  for  the  expenses  of  her  cure  iu 
tho  same  action.  On  the  former  ground  of  damages,  the  husband 
would  have  no  interest,  while  tho  latter  would  accrue  to  him  alone, 
and  so  tho  two  claims  would  bo  incompatible  with  each  other.  Th;; 
same  princii)lo  has  often  boon  adjudged  in  different  cases  and  laid 
down  in  olomontary  treatises.  Reeves'  Doni.  Rel.  291;  "Whitney 
V.  Hitclioock.  4  Denio,  461;  Cowdon  v.  Wright,  24  Wend.  429; 
Hartley  v.  Ritohmyer.  4  N.  Y.  38;  Klingman  v.  Holmes,  54  Mo. 
304.  We  think  there  can  be  no  doubt  respecting  the  maintenance 
of  the  action,  and  that  there  is  no  bar  in  consequence  of  the  pre- 
vious recovery. 

On  tho  question  of  damages  the  court  instructed  the  jury  that 
if  they  found  for  the  plaintiff  they  should  assess  his  damage  at 
.such  sum  as  was  shown  by  the  evidence  would  compensate  him  for 
the  expenses  he  had  necessarily  incurred,  in  nursing  and  taking 
care  of  his  wife  for  the  time  she  Avas  diseased  and  disabled  on  ac- 
count of  the  injury  she  had  sustained  in  falling  over  the  embank- 
ment, including  compensation  for  his  services  in  waiting  upon 
her,  doctors'  bills,  and  cost  of  medicine,  and  also  for  the  loss  of  her 
services  directly  resulting  from  the  injury.  The  only  serious  ob- 
jection made  to  this  instruction  is  that  it  allow^s  the  plaintiff  to 
recover  compensation  for  his  services  in  waiting  upon  his  wife 
during  her  illness.  Under  all  the  circumstances  surrounding  this 
case  I  think  the  instruction  was  right.  [FACTS.]  The  evidence 
show^s  that  the  w^ife's  thigh  was  broken  by  the  fall;  that  for  two 
months  she  v.as  so  utterly  helpless  that  her  husband  had  to  be  con- 
stantly at  her  bedside  and  assist  her  oven  to  move.  During  all  tliis 
time  he  did  not  take  off  his  clothes,  as  his  attentions  were  recjuired 
to  be  uncea.sing  and  unremitting.  The  husband  then  had  to  neg- 
lect all  his  business  to  perform  this  painful  duty,  and  if  he  had  not 
done  it  in  person  he  would  have  been  under  the  necessity  of  hiring 
some  one  to  do  it  in  his  stead.  In  this  avspect  of  the  case,  therefore, 
I  think  the  instruction  was  justified. 

There  is  no  reason  for  interference  on  the  ground  that  the  dam- 
ages were  excessive.    The  verdict  was  for  $3,500,  and  the  wife  was 


Sec.   1    d.'\  RELATIVE   RIGHTS.  513 

contiued  to  her  bed  fur  a  year  before  she  could  even  get  around 
the  room  on  crutches;  she  was  constantly  using  medicine  all  that 
time,  and  under  the  attendance  of  phj'sicians,  and  extra  sei-vants 
had  to  be  employed.  Before  the  accident,  she  was  a  healthy  young 
woman  about  thirty-one  years  old  and  a  good  housekeeper,  super- 
intended the  domestic  affairs  of  the  family,  and  did  all  the  sewing 
for  them.  She  had  a  family  of  six  small  children,  and  they  and 
her  husband  have  lost  the  benefit  of  her  services.  Seven  years  had 
elapsed  from  the  occurrence  of  the  injury  up  to  the  time  of  the 
trial,  and  the  husband  for  that  length  of  time  had  been  deprived 
of  her  services,  and  will  be  as  long  as  she  lives,  for  it  is  conceded 
that  the  accident  had  rendered  her  a  cripple  for  life.  Taking  all 
these  things  together,  and  the  estimate  placed  upon  the  loss  of 
services  by  the  witnesses,  and  the  actual  expenses  laid  out  and  in- 
curred by  the  plaintiff,  we  are  not  prepared  to  say  that  the  jury 
placed  the  compensation  too  high.    Judgment  affirined. 

"If  one  slanders  a  married  woman  or  rommits  an  assault  and  battery 
upon  her,  the  action  for  injuring  her  must  be  in  the  name  of  husband 
and  wife,  although,  in  the  latter  instance,  if  there  be  any  damage  besides 
the  pain  suffered  by  the  wife — as  a  loss  of  service,  or  an  injury  to  her 
clothes,  or  medical  bills — the  husband  may  sue  alone  and  allege  special 
damage.  So,  if  one  drive  a  carriage  so  negligently  as  to  run  against  a 
married  woman,  in  an  action  for  the  personal  injury  to  her,  she  is  a  nec- 
essary party  as  the  husband  cannot  sue  alone  without  alleging  special 
damage."  Pearson,  C.  J.,  in  Crump  v.  McKay.  -53  N.  C.  32,  decided  in 
1860.  before  the  adoption  of  the  Code  practice.  In  1893,  it  was  held  that 
a  husband  could  not  recover  for  the  slander  of  his  wife  unless  he  showed 
srperial  damage  to  himself.  This  was  under  the  Code  practice.  Harper 
v.  Pinkston,  112  X.  C.  293,  17  S.  E.  161.  In  Strother  v.  R.  R.,  123  N.  C. 
197,  31  S.  E.  386,  it  is  held  that  the  wife  can  sue  alone  for  insults  of- 
fered her.  and  that  the  husl)and  is  not  required  to  be  a  party  to  the  ac- 
tion and  has  no  interest  or  share  in  the  recovery.  See  17  L.  R.  A.  (N. 
S.)  570,  and  note  (does  the  husband's  action  abate  at  his  death?);  20 
lb.  215,  and  note  (right  of  wife  to  sue  for  injuiy  to  herself);  9  lb.  1193, 
19  lb.  633.  and  notes  (right  of  husband  to  recover  for  injuries  resulting 
in  wife's  death).  See  "Husband  and  Wife,"  Century  Dig.  §g  767.  768; 
Decennial  and  Am.  Dig.  Key  No.  Series  §  209. 


BANDFIELD  v.  BANDFIELD,  117  Mich.  80,  7.".  N.   W.  287.  40  L.  R.  A. 

757.     1898. 
Injuries  to  the  Person  of  the  Wife  hy  the  Husband.    Remedy  of  the  Wife. 

I  .Mrs.  Randfield  sued  her  husband  for  damages  sustained  by  his  com- 
municating to  her  a  loatlisome  and  incurable  disease.  The  plaintiff  had 
been  aljandoned  by  her  hiisl)and  and  she  had  obtained  a  divoice  from 
hlni  before  bringing  this  action.  Defendant  demurred.  Demurrer  sus- 
tained.    Judgment  against  plaintiff,   and  she  aiJiiealcd.     AfTirmed.! 

Gr.nnt.  C.  J      The  .scile  (|ucstion   is:  Can  a  wife  inainlain  suit 

against  her  liiisl);iiid  foi-  a  pci-sonal  tort,  enmmittcd  upon  \\vv  wliili' 

they  were  living  logetlicr  as  Imsbiind  ;mi(I  wife  /    We  answered  this 

question  in  the  negative  in  the  ca.s<'  of  W.igncr  v.  C'arpenter.  cir- 

Remedles— 33. 


514  RRI.ATIVK    KICIITS.  |r/(.    () . 

('\iit  jiuli;*'.  ili-('i(U'(l  N(>vt>iiil)('i'  17.  IS!)"*.     Ill  tliat  ciisc  llii'  luishMiul 
luul  iitlcrcil  :i  trross  lilu'l  ajjfiiiist   his  wil'i'.     Slio  hnnijjht  suit   hy 
capias  ad  ivspoiulondiiiu.  and  the  prococdinjis  were  (|iiaslu'd  by  tli  • 
cii-cnit  jiulirt'.  i't'i-  lh(>  i-casoii  that  the  wife  couhi  not  inaiiitaiii  Ihc 
suit  airainst  her  hushand.     The  wil'i'  applied  to  this  t-onit   lor  111'' 
writ  o\'  inaiidanuis  to  foiiipt'l  the  circuit  judirc  to  \;t<'alc  thai  oi'dci'. 
The  writ  was  denied,  and  the  ordei-  of  liie  eiriMiil  jiuh^e  sustained. 
Xo  opinion  was  written,     lint  the  sole  and  identical  (ptestion  tliore 
involv(Hl  ii?  the  same  as  is  involved   in   this  suit.     Tlie  hriefs  there 
tih'd  |>\u'sned  the  same  line  of  arjyument  and  cited  the  same  au- 
thorities as  are  now  cited.     Counsel  cite  the  married  woman's  act 
of  this  state  as  conferriuL!:  this  ri^ht.     This  act  is  found  in  2  ITow. 
Ann.  St.  iJv;  6205.  ()2!)7.  which  read  as  follows:  "The  real  and  per- 
sonal estate  of  every   female,   acquii'cd   before   marriafje.   and  all 
property,  real  and  personal,  to  which  she  may  aftei'wards  become 
entitled  by  ^jift.  jjrant.  inheritance,  devise,  or  in  any  other  man- 
ner, shall  lie  and  remain  the  estate  and  property  of  such  female. 
.     .     .     Acliojis  may  be  brought  by  and  against  a  marri(>d  woman 
in  relation  to  her  sole  property,  in  the  same  manner  as  if  she  were 
unmarried."    In  many  decisions  the  courts  of  many  of  the  states, 
notwithstandini:  the  statutes  conferrinp;  rights  upon    a   married 
woman  over  her  sei)arate  ])roperty  not  conferred  l)y  th(>  common 
law.  have  thus  fa!',  without  exception,  denied  the  right  of  a  wife 
to  sue  her  husband  for  personal  wrongs  committed  during  cover- 
ture.    Xo  such  right  is  ccmferred  by  oni-  statut(>  uidess  it  be  by 
implication.    The  legislature  should  speak  in  no  uncertain  manner 
when  it  seeks  to  abrogate  the  plain  and  long-e.stablished  rules  of 
the  comnio7i  law.    Courts  should  not  be  left  to  construction  to  sas- 
tain  .such  bold  innovations.    The  rule  is  thus  stated  in  9  Bae.  Abr. 
tit.  "Statutes,"  I,  p.  245:  "In  all  doubtful  matters,  and  when  the; 
expression  is  in  general  terms,  statutes  are  to  receive  such  a  con- 
struction as  may  be  agreeable  to  the  rules  of  the  common  law  in 
cases  of  that  nature;  for  .statutes  are  not  presumed  to  make  any 
alteration  of  the  common  law.  further  or  otherwise  than  the  act  ex- 
pressly declares.     Therefore  in  all  general  matters  the  law  pre- 
sumes the  act  did  not  intend  to  make  any  alteration;  for.  if  the 
parliament  had  that  design,  they  should  have  expressed  it  in  the 
act." 

The  resiill  of  plaintiti^"s  contention  would  be  another  step  to  de- 
stroy th'e  sacred  relation  of  man  and  wife,  and  to  open  the  door  to 
law  suits  between  them  for  every  real  and  fancied  wrong,— suits 
which  the  conmion  law  has  refused  on  the  ground  of  public  policy. 
This  court  has  gone  no  further  than  to  support  the  wife,  under  the 
married  woman's  act.  in  pi-otecting  her  in  the  management  and 
control  of  her  property.  It  has  sustained  her  right  to  an  action 
for  a.ssault  and  battery,  for  slander,  and  for  alienation  of  her 
husband's  affections  against  others  than  her  husband.  Berger  v. 
Jacobs.  21  Mich.  215;  Leonard  v.  Pope.  27  INIich.  U5;  Rice  v.  Rice. 
104  :\Iich.  371.  62  N.  W.  833.  At  the  same  time,  it  has  held  that 
the  wife  could  not  enter  into  a  partnership  or  other  business  with 


Sec.    1    d.]  RELATIVE    RIGHTS.  515 

her  liusband.  and  tlius  beeoine  responsible  for  the  contracts  and 
debts  of  her  husband.  Artman  v.  Ferguson.  73  ]\lich.  146.  40 
N.  W.  907;  Edwards  v.  McEnhill.  51  Mich.  IGO.  16  N.  W.  322. 
'Personal  wrongs  intlicted  upon  her  give  her  the  right  to  a  decree 
of  separation  or  divorce  from  lier  husband,  and  our  statutes  have 
given  the  court  of  chancery  exclusive  jurisdiction  over  that  sub- 
ject. This  court,  clothed  with  the  broad  powers  of  equity,  can  do 
justice  to  her  for  the  wrongs  of  her  husl)and.  so  far  as  courts  can 
do  justice,  and.  in  jn-oviding  for  her.  will  give  her  such  amount  of 
her  husband's  property  as  the  circumstances  of  both  will  justify. 
and.  in  so  doing,  may  take  into  account  the  cruel  and  outrageous 
conduct  inflicted  ui^on  her  by  him.  and  its  effect  upon  her  health 
and  ability  to  labor.  2  Am.  &  Eng.  Enc.  Law  (2d  ed.).  120; 
2  How.  Ann.  St.  §  6245.  In  the  absence  of  an  express  statute. 
there  is  no  right  to  maintain  an  action  at  law  for  such  wrong.  We 
are  cited  to  no  authority  holding  the  c(mtrary.  We  cite  a  few  sus- 
taining the  rule :  Abbott  v.  Abbott.  67  j\le.  304 ;  Preethy  v.  Frec- 
thy,  42  Barb.  641  ;  Peters  v.  Peters,  42  Iowa.  182 ;  Sclmltz  v. 
Schultz,  89  N.  Y.  644;  Coolev.  Torts  (2d  ed.).  p.  268;  Schouler. 
Dom.  Rel.  §  252;  Newell.  Defam.  p.  366;  To^^^lsh,  Sland.  &  L. 
(3d  ed.).  p.  548.  Judgment  affirmed.  The  other  justices  con- 
curred. 

For  the  rights  of  husband  and  wife  to  sue  each  other,  before  and  after 
divorce,  for  personal  injuries  and  other  torts,  at  common  law  and  under 
modern  statutes,  see  note  to  the  principal  case  in  40  L.  R.  A.  757,  6  lb. 
(N.  S.)  191.  23  lb.  (N.  S.)  699.  and  notes.  See  also  Abbott  v.  Abbott, 
24  Am.  Rep.  27;  Rev.  sec.  408;  21  Cyc.  1519;  Phillips  v.  Barnet,  Smith's 
Cases  L.  P.  385.  For  changes  effected  by  modern  statutes,  see  6  L.  R.  A. 
506,  and  note.  See  "Divorce,"  "Husband  and  Wife,"  Century  Dig.  §§  812- 
816,  748-755;  Decennial  and  Am.  Dig,  Key  No.  Series,  "Divorce,"  §  316; 
lb..  "Husband  and  Wife,"  §  205. 


FISCHLF  V.  FISCHLI,  1  Blackford,  360,  364.     1825. 
Remedy  of  Wife  for  Support. 

[The  plaintiff,  a  divorced  wife  to  whom  alimony  had  been  allowed, 
sued  her  husband  in  equity,  i)raying  that  one-third  of  his  land  be  set 
apart  to  her  for  life  and  for  general  relief.  Defendant  denuirred.  De- 
murrer sustained,  and  decree  against  the  i)laintiff,  dismissing  her  bill. 
Plaintiff  carried  the  case  to  the  supreme  court.     Affirmed.  1 

IToi.M.\N.  J.  Takini;-  the  mailer  as  it  stood  in   l^higland. 

we  find  no  prcccdcnl .  (■.\c('|)t  in  a  few  extreme  cases,  where  any 
court  has  intcrf'ci-cd  in  granting  a  Jiiaintenance  to  the  wife,  other 
than  the  court  that  granted  the  divorce  Most  of  the  cases  turn  on 
the  agreement  of  the  parties,  wliieli  will  be  cni-ried  into  efVed 
whether  there!  has  been  a  di\nrce  or  iiol.  X'ide.  1  h'onb.  !)7:  1  Al.id- 
dock.  307;  riead  v.  Head.  3  Atkyns.  517;  Seeling  v.  Crawley. 
2  Vernon.  386.  It.  seems  to  l)e  a  general  iiile.  thai  the  granting  of 
a  maintenance  to  tiie  wife  (.nt  of  llie  husband's  property,  is  not  an 


r)l(;  KKI,.\'I'I\  i:    KKMITS.  ICJi.    C)'. 

oriiiinal.  l)ut  ;in  iiHMtlcnIal  iii;iII.t.  ^^iicli  \v:is  tlio  conclusion  of 
Fonl)l;uuiuc.  jit'tci-  review  inu"  iiiosl  nl'  ll\r  cjiscs  on  the  subject.  See 
1  Foul).  !)7.  Such  was  also  tho  clelerminalion  oT  Lord  Cliancellor 
Thurlow.  in  Hall  v.  i\Ion1si-oniery.  'J  Ves.  Jr.  IDf).  Tlis  laniiua^e  is: 
"I  take  it  now  to  be  the  established  law.  that  no  court,  not  even 
the  eeolesiastical  court,  has  any  oritrinal  juiisdiction  to  j;ive  a  wift^ 
separate  maintenance.  It  is  always  as  incidental  to  some  other 
matter  that  she  becomes  entitled  to  a  si^parate  jtrovision.  Tf  she 
applies  in  this  court  \\\m\\\  a  sui)plicavit  i'or  security  of  the  ])eace 
apainst  her  husband,  and  it  is  necessary  that  she  should  live  apart, 
as  incidental  to  that  the  chancellor  will  allow  her  separate  main- 
tenance; so  in  th(^  ecclesia.stical  coiu't.  if  it  is  necessary  for  a  di- 
vorct-  a  mensa  et  thoro  propter  saevitiam."  Similar  to  this  is  the 
authority  ofiven  by  our  act  of  assembly.  The  making  of  a  pro- 
vision for  the  wife,  by  the  division  of  the  property,  is  incidental  to 
the  divorce.  The  coiu't  that  decrees  the  divorce,  is  to  make  the 
provision.  And  if  that  court  fails  to  provide  for  the  wife,  by  a 
division  of  the  property,  or  makes  an  ineciuitable  division,  we  know 
of  no  authority,  either  from  the  act  of  assembly,  or  the  English 
books,  for  any  other  court  to  remedy  the  evil,  or  extend  the  pro- 
vision.   The  decree  is  affirmed,  ■with  costs. 

Tt  is  now  held  in  many  states  that  a  wife  may  Ije  allowed  a  main- 
tenance by  a  court  of  equity  in  a  suit  brought  by  her  against  her  hus- 
band, although  she  is  not  seeking  a  divorce.  That  to  grant  her.  relief 
where  the  husband  wrongfully  fails  to  support  her,  is  within  the  powers 
of  a  court  of  equity  independently  of  any  statute,  see  Galland  v.  Galland. 
38  Cal.  26.'..  Smith's  Cases  L.  P.  431;  Graves  v.  Graves,  14  Am.  Rep.  .525; 
Cram  v.  Cram.  116  N.  C.  at  p.  293,  21  S.  E.  197;  14  Cyc  744.  See  Cram 
v.  Cram,  116  N.  C.  288,  21  S.  E.  197.  for  similar  relief  in  North  Carolina 
upon  construction  of  the  statutes  of  that  state,  Revisal,  sec.  1567,  In 
Graves  v.  Graves,  36  Iowa,  310,  14  Am.  Rep.  525,  it  is  said:  "The  main 
question  involved  in  this  controversy  is,  whether  a  court  of  equity  has 
the  authority  or  jurisdiction  to  entertain  an  action  brought  for  alimony 
alone,  and  to  grant  such  alimony  where  no  divorce  or  other  relief  is 
sought?  It  is  true,  beyond  controversy,  that  the  great  weight  and  num- 
ber of  the  English  authorities  deny  such  jurisdiction.  And  it  is,  per- 
haps, also  true  that  the  number  and  possibly  the  preponderance  of  the 
American  authorities  are  in  accord  with  the  English.  But  there  are 
well-considered  cases  and  authorities  of  great  weight  which  aflRrm  the 
jurisdiction.  .Tudge  Story  says  of  these  latter,  that  there  is  so  much 
good  sense  and  reason  in  the  doctrine  that  it  might  be  wished  it  were 
generally  adopted.  .  .  .  That  a  husband  is  bound,  both  in  law  and 
equity,  fgr  the  support  and  maintenance  of  his  wife  is  a  proposition 
hitherto  and  now  undisputed.  Tf  by  his  conduct  he  makes  it  unsafe,  or 
by  entertaining  others  there  he  makes  it  immoral  for  her  to  remain  at 
his  home,  sh?  may  leave  it  and  him  and  carry  with  her  his  credit  for 
her  maintenance  elsewhere.  So  that,  in  such  case,  a  victualler,  a  mer- 
fhant,  a  dressmaker,  a  milliner,  a  shoemaker,  a  laundress,  a  physician. 
a  lawyer,  or  any  dealer  in  the  necessaries  of  life  may  severally  supply 
the  wife  with  the  articles  needful  and  proper  in  her  situation,  and  may 
respectively  maintain  their  actions  against  the  husband  for  their  value. 
This  remedy  the  law  affords.  But  this  involves  multiplicity  of  suits: 
and,  besides,  the  remedy  is  by  no  means  adequate.  The  wife  may  find  it 
difficult,  if  not  impossible,  to  obtain  a  continuous  support  in  this  way, 
since  such  dealers  and  professional  men   would  be  unwilling  to  supply 


Sec.    1    d.]  RELATRTC    RIGHTS.  517 

their  articles  or  services,  if  thus  compelled  to  resort  to  litigation  in 
order  to  secure  their  pay.  Here  then  is  a  plain  legal  duty  of  the  hus- 
band for  the  violation  of  which  no  adequate  remedy,  even  with  a  multi- 
plicity of  suits,  can  be  had,  except  in  a  court  of  equity.  Upon  the  ground 
of  avoiding  a  multiplicity  of  suits,  or  on  the  ground  that  no  adequate 
remedy  can  be  had  at  law,  a  court  of  equity  may  properly  base  its  juris- 
diction in  such  cases.  ...  It  seems  to  us,  that  upon  well-settled 
equity  principles,  as  well  as  upon  considerations  of  public  policy,  the 
action  may  be  maintained  without  asking  a  divorce  or  other  relief." 
For  alimony  in  divorce  proceedings — when  allowed,  how  enforced,  when 
it  ceases,  effect  of  death  of  husband,  remarriage  of  the  parties,  etc.,  see 
2  L.  R.  A.  (N.  S.)  232;  3  lb.  192,  923;  4  lb.  909;  7  lb.  179;  9  lb.  593,  1070, 
1168;  17  lb.  1140.  See  "Divorce,"  Century  Dig.  §  585;  Decennial  and 
Am.  Dig.  Key  Xo.  Series  §  199. 


KYLES  r.  RAILROAD,  147  X.  C.  394,  398-403,  61  S.  E.  278.     1908. 
Wife's  Remedy  for  Mutilation  of  Husband's  Corpse. 

[Mrs.  Kyles  sued  the  defendant  for  damages  claimed  as  the  result  of 
the  careless  and  negligent  conduct  of  the  defendant  whereby  the  corpse 
of  her  husband  was  mutilated;  also  for  wantonly,  wilfully,  and  recklessly 
mutilating,  etc.  Defendant  demurred  to  the  evidence.  Demurrer  sus- 
tained.    .Judgment   against   the   plaintiff,   and   she    appealed.     Reversed. 

"The  evidence  indicated  that  the  body  was  struck  after  death  by  dif- 
ferent trains  going  east  and  west,  and  that  it  and  parts  thereof  were 
thrown  hither  and  thither,  backwards  and  forwards,  by  the  passing 
trains  going  in  opposite  directions."  There  was  also  evidence  of  negli- 
gence on  the  part  of  the  defendant's  employees,  none  of  whom  were  dis- 
charged in  consequence,  and  this  the  court  holds  was,  per  se,  ''a  ratifica- 
tion and  it  [the  defendantl  cannot  be  heard  to  say  that  the  act  was  un- 
authorized.    12  A.  &  E.  (2nd  Ed.)   36  et  seq."] 

Clark,  C.  J.  .  .  .  The  nonsuit,  it  seems,  was  granted,  not 
on  the  groinKl  of  lack  of  evidence  to  support  the  allegations  of  fact 
in  the  complaint,  but  on  the  ground  that  they  did  not  constitute  a 
cause  of  action.  As  this  is  the  first  time  that  such  cause  of  action 
has  been  presented  in  the  history  of  this  court,  it  is  proper  to  re- 
view .soniewliat  the  authorities  elsewhere  which  sustain  tlie  prop- 
ositions that  inutilation  of  a  dead  body  entitles  the  surviving  hus- 
band or  wife  (and.  if  none,  the  next  of  kin)'  to  recover  compensa- 
tory damages  for  the  mental  anguish  caused  thereby,  and,  in  addi- 
tion, punitory  damages  if  such  conduct  was  wilful  and  wanton. 
or  in  recklessness  of  the  rights  of  others.  The  right  to  the  posses- 
sion of  a  dead  body  for  the  purpose  of  preservation  and  burial 
belongs,  in  the  absence  of  any  testamentary  disposition,  lo  Ihc 
surv'ivintr  hnsbnnd  or  wife,  or  next  of  kin.  and.  when  the  widow 
was  living  with  her  husbnnd  at  the  time  of  liis  death,  her  right  to 
the  possession  of  tjie  husband's  body  for  such  ])urpose  is  para- 
mount lo  the  next  of  kin.  l^arson  v.  Chase,  47  Minn.  307.  50  N.  W. 
238.  14  L.  R.  A.  85.  28  Am.  St.  "Rep.  370.  A  widow  has  a  right  of 
action  for  the  unlawful  mutilation  of  tlio  remains  of  her  dec(\'ised 
hnsbiiiid,  L;irs..n  v.  Clwise,  47  Minn.  307.  50  X.  W.  23S.  14  L.  R.  A. 
85.  28  Am.  St.  Rep.  370;  Foley  v.  Phelps  fSnp.).  37  N.  Y.  Supp. 


MS  iu;i..\ri\  i;  :ji(iins.  [('/(.  U. 

471  Wliilf  ;i  (h'iul  l)()(ly  is  iu>l  proitcily  in  the  strict  sense  of  tlu' 
I'onniutii  law.  yet  ll\e  lifrlit  to  iiury  a  corpse  antl  preserve  its  rc- 
inains  is  a  IcLral  riirlit.  wliicli  the  courts  will  i-eeo<;in/e  and  pi'otcH't, 
and  an\  \iolation  of  it  will  fiivc  rise  lo  an  action  tor  dauiajies. 
S  A.  \  I-:.  (LM  c(|.)  S;U.  and  cases  cited:  \'.\  ("ye.  2<S()  and  eases 
cited.  While  the  connnoii  law  does  not  recoj;;nizc  deatl  bodies  as 
])roperty.  the  couits  of  America  and  other  (^hrislian  and  civilized 
countries  holil  that  tlu-y  ai-e  (piasi  pi'oi)erty,  and  that  any  mutila- 
tion thereof  is  actionable.  Larson  v.  C-hase.  su])ra.  This  is  not  an 
aetion  for  the  ne.i>li<ient  killin<r  of  the  deceased,  but  an  action  In' 
the  widow  (S  A.  «5c  Iv  \'2d  ed.  |  SI^H,  and  ca.ses  cited)  for  the  wilful, 
unlawful,  wanton,  aiul  negligent  mutilation  of  his  dead  body.  She 
was  entitled  to  his  ivmains  in  the  condition  found  w'hen  life  be- 
came extinct;  and  for  any  mutilation  incident  to  the  killing  the 
tlcfendnnl  would  not  be  liable,  but  is  liable,  in  law,  for  <niy  furtlier 
nmtilation  thereof  aftei"  death,  if  done  eithei*  wilfully,  recklessly, 
wantonlv,  uulawfullv.  or  net(lif2;entlv.  Larson  v.  Chase,  supra; 
Folev  V."  Phelps,  supra;  K»ailroad  v.  Wilson,  128  Ga.  62,  51  S.  E. 
24;  Lindh  v.  Railroad.  !)!)  Minn.  408,  lOJ)  N.  AV.  S23.  7  L.  R.  A. 
(N.  S.)  1018.  AVhei-e  the  rights  of  one  legally  entitled  to  the  cus- 
tody of  a  dead  body  are  violated  by  mutilation  of  the  body  oi' 
otherwise,  the  parly  injured  may  in  an  action  for  damages  recover 
for  the  mental  suffering  caused  bv  the  injury.  Pcrley,  ^rortuar\' 
Law,  20;  Renihan  v.  Wright.  125  Ind.  536,  25  N.  E.  822,  0  L.  R.  A. 
514,  21  Am.  St.  Rep.  24!) ;  Larson  v.  Chase,  supra;  Hale  v.  Honnei . 
82  Tex.  33,  17  S.  W.  605,  14  L.  R.  A.  336.  27  Am.  St.  Rep.  850. 
In  Larson  v.  Chase,  47  Minn.  311,  50  N.  W.  239,  14  L.  R.  A.  85, 
28  Am.  St.  Rej).  370,  it  is  said,  discussing  this  cause  of  action  : 
"W'here  the  wrongful  act  constitutes  an  infringement  of  a  legal 
right,  mental  suffering  maj''  be  recovered  for,  if  it  is  the  direct, 
proximate,  and  natural  resnlt  of  the  wrongful  act.  It  was  early 
settled  that  substantial  damages  might  be  recovered  in  a  class  of 
torts  whei'e  the  oidy  injury  sulfered  is  mental — as,  for  example, 
an  assault  without  physical  contact.  So,  too,  in  actions  for  false 
imprisonment,  where  the  plaintiff  was  not  touched  by  the  defend- 
ant, substantial  damages  have  been  recovered,  though  ])hysicall\' 
the  i)lainliff  did  not  sutl'er  any  actual  detriment.  In  an  action  for 
seduction,  substantial  damages  are  allowed  for  mental  sufferings, 
although  there  be  no  proof  of  actual  pecuniary  damages  other  than 
the  nominal  damages  wliich  the  law  ])resnmes.  The  same  is  true  in 
actions  for  breach  of  promise  of  marriage.  Wherever  the  act  com- 
plained of  constitutes  a  violation  of  some  legal  right  of  the  plain- 
tiff, which  always,  in  contemplation  of  law,  causes  injury,  he  is 
entitled  to  recover  all  damages  wliich  ai'e  the  j^roximate  and  nat- 
ural consequence  of  the  w^rongful  act.  That  mental  suffering  and 
injury  to  the  feelings  would  be  the  ordinary  and  proximate  result 
of  knowledge  that  the  remains  of  a  deceased  husband  had  been 
mutilated  is  too  plain  to  admit  of  argument."  This  case  cites 
Meagher  v.  Driscoll.  99  Mass.  281.  96  Am.  Dec.  759.  where  a  father 
recovered  damages  for  mental  anguish  in  digging  up  and  remov- 


Sec.    1    d.]  RELATIVE    KIGHTS.  519 

ing  the  body  of  his  child.  Chase  v.  Larson,  supra,  is  quoted  and 
followed  by  many  eases,  among  them  Foley  v.  Phelps  (Sup.),  37 
N.  Y.  Supp.  471.  "Where  the  injury  intiieted  upon  the  plaintiffs 
was  an  unlawful  and  unwarranted  interference  with  the  right  of 
decent  burial,  and  such  conduct  was  wanton  or  malicious,  or  the 
result  ot  <ir(if;<  neiiliovnce.  or  reckless  disregard  ol'  the  rights  of 
others,  exemplary  damages  may  be  awarded."  Wright  v.  Holly- 
wood. 112  Ga.  SS-i:,  38  S.  E.  9i.  52  L.  R.  A.  621.  This  whole  sub- 
ject is  fully  reviewed  with  full  citation  of  authorities  sustaining 
the  right  of  action  for  compensatory  damages  for  reckless  indiffer- 
ence to  the  rights  of  others  by  Judge  Dodge  in  the  late  case  of 
Koerber  v.  Patek  (1905),  123  Wis.  462-467,  102  N.  W.  40,  68  L. 
R.  A.  956.  In  Lombard  v.  Lennox.  155  Mass.  70,  28  N.  E.  1125. 
31  Am.  St.  Rep.  528.  it  is  said:  "If  the  ordinary  and  natural  con- 
sequence of  the  tort  is  to  cause  an  injury  to  the  feelings  of  the 
plaintiff',  and  if  the  acts  are  done  wilfully  or  with  gross  careless- 
ness of  the  rights  of  the  plaintiff,  damages  ma.y  be  recovered  for 
mental  sufferings."  To  same  purport,  1  Sedg.  Dam.  fSth  ed.) 
;;§  43-47;  1  Suth.  Dam.  ;;  1)5  el  seci. 

The  defendant  also  owed  the  i)laintiff'  the  duty  to  gather  the 
body,  and  its  fragments,  and  i)repare  the  same  for  burial,  and  a 
negligent  failure  to  do  so  was  an  infringement  upon  her  l(>gal 
rights,  and  therefore  actionable.  Commonwealth  v.  Susquehanna 
Coal  Co.,  5  Kulp,  195  (Pa.  case,  1889)  ;  Scott  v.  Riley,  40  Leg.  Int. 
382  (Pa.  case).  Parts  of  the  body  were  left  aUmg  the  track  and 
ti'athered  up  by  the  father  on  the  Monday  folhtwing.  Respect  for 
the  dead  is  an  instinct  that  none  may  violate.  The  democracy  of 
death  is  superior  lo  the  edicts  of  kings.  Rizpah  became  forever 
famous  among  hei-  kind  wlicn  .she  defied  the  king  of  Israel  who 
would  treat  the  bddics  (if  hei-  dead  with  contciiq)t.  and  Sophocles 
has  immoi'talized  Antigone,  who  vindicated  the  like  .sentiment  oP 
human  nature  as  a  higher  law  than  that  of  her  sovereign.  [The 
court  then  discussed  the  facts  which  constituted  negligence.] 

The  above  facts,  if  sustained  on  I  he  trial,  will  entitle  tlie  plain- 
tiff" to  recover  damages  for  mental  anguish  for  such  indignities  to 
the  body  of  her  husband,  and  ])unitive  damages,  also,  if  the  jury 
find  that  such  coii(lu<-t  was  wilful  and  wanton,  oi-  in  reckless  in- 
difference to  the  rights  and  feelings  of  the  plaintiff'  and  to  their 
own  duties.  The  jniy  should,  however,  be  cautioned  (as  in  actions 
for  delay  in  delivery  of  telegrams  concerning  sickness  and  deaths 
to  carefnllv  di^siociate  this  from  the  plaintiff's  grief  at  learning  of 
the  death  of  her  husliaiid.  for  this  action  does  not  concern  th;if 
phase  of  the  ca.se.  .\or  is  tln'  plaintiff  entitled  to  recovei*  anything 
for  grief  at  seeing  the  condition  of  tlie  body  in  the  colfin.  She 
knew,  or  lier  friends  siifndd  have  told  her  of  the  condition  ol'  tlie 
remains,  and  she  herself  is  to  blame  tliat  she  chose  to  look  in  ujion 
them..  It  may  have  been  a  natural  inq)idse.  but  the  defendant  is 
not  responsible  For  tlie  mental  antruish  resulting  therefrom.  The 
(leceased  Jiiay  lia\e  moved  in  the  humbler  walks  of  lif(^;  but  to  the 
plaintiff  he  \v;is  huslcuid  and   the  father  of  hci-  children.     It   was 


520  RELATIVE   RIGHTS.  [C7(.    6. 

her  right,  old  as  time,  as  broad  as  liuinanily,  and  as  deep  ii^  the 
heart  of  man.  that  his  mortal  remains  should  be  treated  with  ilue 
respeet.  iSo  I'ar  as  the  dereiidaiil  through  its  agents  reeUlessly, 
wilfully,  or  negligently  failed  to  do  this,  it  has  violated  her  rights 
under  the  law.  \Vhjit\lamages  will  eompensate  her  for  the  ment.il 
anguish  the  defendant's  eoiuluet  has  caused  her  and  what  woidd 
l)e  proi)er  punitory  damages  for  the  reekl(>ssness,  negligence,  or  in 
ditferenee  of  its  agents  (if  proven)  is  a  matter  for  a  jury  of  her 
countrymen  to  determine,  subject  to  the  supervision  of  a  just 
judge,  that  an  excessive  sum  be  not  assessed.  The  nonsuit  is  set 
aside,  and  a  new  trial  ordered.     Error. 

Kor  tlie  right  to  recover  lor  tlie  nuitilatioii  of  Lho  corpse  of  a  child, 
wife,  etc.,  see  C  L.  R.  A.  (N.  S.)  883;  16  lb.  40.5,  and  notes,  As  to  the 
measure  of  damages  in  siuh  cases— when  mental  anguish  is  allowed  and 
when  not— see  114  N.  W.  353,  19  L.  R.  A.  (N.  S.)  564,  and  112  S.  W.  897, 
19  L.  R.  A.  (N.  S.)  575,  which  two  cases  are  opposed  on  the  mental  au- 
suish  question.  The  opinion  here  inserted  is  copied  from  61  S.  E.  and 
differs  a  little,  in  the  order  of  statement  but  not  otherwise,  from  the 
opinion  in  the  original  report.  See  "Dead  Bodies,"  Century  Dig.  §  13; 
Decennial  and  Am.  Dig.  Key  No.  Series  §  9. 


Sec.  2.    Parent  and  Child. 
(a)  Habeas  Corpus. 

STATE  V.  STIGALL  and  TURNLEY,  22  N.  J.  L.  286,  287-291.     1849. 

Rnles  governing  Courts  as  to  Custody,  etc.,  when  Child  broiight  before 

them  on  Habeas  Corpus. 

[The  plaintiff,  the  father  of  certain  children,  prosecutes  habeas  corpus 
to  obtain  the  custody  of  his  children  from  his  wife  and  her  father.  Two 
of  the  children,  aged  3  years  and  13  months,  respectively,  were  left  by. 
the  court  with  the  defendant.  The  other  child,  aged  5  years,  was  de- 
livered to  the  father.  The  case  was  commenced  in  the  supreme  court. 
The  parents  were  separated  but  not  divorced.  Each  laid  the  blame  for 
the  separation  on  the  other.  The  wife's  father  merely  permitted  his 
laughter  and  her  children  to  live  vi^ith  him  at  his  daughter's  request.] 

RANDOiiPii,  J.  .  .  .  The  custody  of  children,  as  a  general 
principle,  belongs  to  one  or  both  of  the  parents,  yet,  for  their  pro- 
tection and  education,  or  for  the  preservation  of  their  propertj''. 
courts  of  equity,  in  the  exercise  of  a  sound  discretion,  will  deprive 
both  parents  of  the  custody,  and  place  them  with  third  persons. 
2  Story's  Eq.  §  1341,  and  the  cases  there  referred  to. 

When  a  child  is  brought  up  on  habeas  corpus,  if  of  sufficient  age 
and  discretion,  the  court  will  only  ascertain  whether  the  child  is 
under  restraint,  and  if  so  will  merely  make  an  order  setting  him 
at  liberty,  to  go  where  he  chooses;  and  if  it  be  necessary  to  give 
effect  to  that  order,  will  send  an  officer  to  see  that  it  is  respected 
and  observed.  And  the  same  rule  applies  when  a  wife,  apprentice, 
or  any  other  person  who  has  arrived  at  years  of  discretion,  is 
brought  up  on  habeas  corpus,  the  court  usually  refusing  to  make 


Sec.  2  a.]  relativk  rights.  521 

other  order,  unless  it  is  absolutely  necessary.     Rex  v.  Deleval, 

3  Burr.  1434;  Rex  v.  Clarksen,  1  Strange,  444;  Rex  v.  Smitli,  2 
Stra.  982;  Case  of  AVoolstoncroft,  4  J.  C.  R.  80. 

But  where  the  child  is  of  tender  years,  and  the  father  and 
mother  have  separated,  or  the  wife  has  left  the  abode  of  her  hus- 
band, it  often  becomes  necessary  for  the  court  or  judge,  on  the  re- 
turn of  the  habeas  corpus,  to  determine  as  to  the  custody  of  the 
child,  without  waiting  for  the  slower  action  of  the  chancellor,  or 
referring  the  matter  to  him.  as  the  parens  patriae,  in  the  place  of 
the  sovereign.  There  are  two  classes  of  cases  in  the  books,  very 
distinctly  marked  in  character  and  principle,  especially  in  the 
English  decisions;  the  one  is  when  the  writ  is  brought  uj)  by  the 
mother  to  remove  the  custody  of  the  child  from  the  father,  or  from 
his  control,  and  the  other  is  when  the  father  sues  out  the  writ  to 
deprive  the  mother  of  the  custody,  and  give  it  to  the  father.  The 
general  principle  operating  in  both  cases  is,  that  the  father,  as 
head  of  the  family,  is  entitled  to  the  custody  and  control  of  his 
legitimate  child,  and  may  by  will  delegate  that  cu.stody  to  a  guard- 
ian. Case  of  Nicker.son,  19  Wend.  16 ;  Case  of  Chegay.  18  Wend. 
637 ;  25  AVend.  72 ;  3  Hill.  400 ;  9  J.  B.  Moore,  279 ;  5  East.  221 ; 

4  Ad.  &  El.  624;  Story  E(i.  §  1341.  a ;  1  Blk.  Com.  453.  But  in  the 
case  of  illegitimate  children,  the  mother,  and  not  the  putative 
father,  is  entitled  to  the  custody;  and  if  deprived  of  it.  the  court 
Mill  restore  them  to  her.  Rex  v.  ]\Iosely.  10  Ves.  52,  note  a  ;  Rex 
V.  Soper.  5  T.  R.  278;  7  East.  579 ;  2  Inst!  375;  2  ^Mass.  109. 

I'nder  the  general  rule  of  the  common  law,  courts  have  not  felt 
authorized  to  take  the  child  from  the  father,  and  give  it  to  the 
mother,  although  some  very  strong  cases  have  arisen  which  seem  to 
demand  the  interference  of  the  court.  Thus,  in  the  ease  of  De 
.Manneville.  5  Ea.st.  221.  the  court  refused  to  take  a  child  eight 
Mionths  old  from  the  father,  and  give  it  to  the  mother,  on  the  alle- 
gation that  he  intended  to  take  it  out  of  the  kingdom ;  and  even 
the  chancellor,  on  application  in  the  same  case  (10  Ves.  52). 
merely  made  an  order  resti-aiuing  the  father  from  removing  the 
child  from  the  kingdom,  but  refused  to  order  it  to  be  delivered  to 
the  mother,  living  separate  from  the  husband.  And  in  the  case 
of  Skinner.  9  AFoore,  279.  wherein  the  mother  api>lied  to  have  the 
child  i-cmoved  from  the  fatlier.  who  was  living  in  jail  and  cohabit 
ing  with  a  mistress,  the  court  refused  to  make  the  order,  referring 
the  matter  to  chancery  a.s  the  proper  tribunal.  To  the  same  ef- 
fect is  Ball  V.  Ball.  2  Sim.  35.  and  Welleshy  v.  The  T)uk(>  of  Beau 
fort.  2  Russ.  9.  Til  is  rule  seemed  so  har.sh  and  unsatisfactory  that 
parliament  was  constrained  to  mitigate  its  rigor,  .ind  now.  by 
2  &  3  Viet,  c,  54,  s.  1.  the  chancellor  or  master  of  the  rolls.  ui)on 
petition  of  the  mother  of  any  infant  in  the  custody  of  the  fathei-, 
or  otlier  person  undei-  his  autiiority.  may  make  oi-der  for  tlie  ae- 
<'«^ss  of  the  petitioner,  or.  if  the  infant  be  within  the  age  of  seven 
years,  for  the  delivery  of  such  infant  to  the  mothei-.  until  he  at 
tains  such  atre.  inider  convenient  regul.-itions.  Ifai-r.  Wwx-  ■{'?79. 
Tit.  Infant.  4.  I'.ut  when  the  father  had  asked  a  court  of  law  or  a 
judge  to  grant  an  order  to  reinvest  him  with  the  actual  custody  of 


.>-_  RKLATIVK    HKiiri'S.  \('.ii.    (i. 

his  t'liild.  llif  cuiiil.  I)('f(»i('  iiijikiiiir  muIi  tii-dcr.  woiiUl  look  into  the 
i'asi>.  and  iiolwitlislandiii^'  tlic  |)rcsuiiicd  riirlil  ol'  the  fallicr,  wotdd 
t'XtM'cisi-  a  disfi'ct  ion  in  the  mat  In-:  such  ever  was  and  still  is  the 
law.  with  nuifh  less  chaniic  in  tlic  ladc  than  in  the  mode  of  cxec- 
cisinjr  tlu'  tlist'it'l  inn.  oi-  the  extent  <il'  its  exercise.  Tlic  iiiinci|»ie  oi' 
tlii>  action  of  the  court,  or  i-cfusal  to  act.  is  this:  the  power  and 
riiiht  of  tile  father  is  allowed  I'oi-  tiic  hi'iielil  of  the  child,  and  not 
to  eiiahli'  him  to  iroM-rn  with  arhilrary  ca|)rice  oi*  lyrauTiical  con- 
trol, so  as  to  sul)\crt  the  vrvy  object  (d*  the  law  in  <j'ivin^  him  the 
autliority.  Thus,  when  the  children  would  he  exposed  to  cruelty 
or  j^ross  coi-ruption.  inunoral  itrincijiles  or  habits,  or  the  falhei*  is 
not  of  ability  to  provide  foi-  the  support,  education,  and  future 
prospects  of  the  child,  and  the  mother  or  person  with  whom  the 
child  I'esides  is  able,  the  court  w  ill  make  no  oi'dci-  irranlinji:  the  cus- 
tody of  the  child  to  the  fathei-.  And,  too.  if  the  child  is  of  tender 
years,  ami  especially  if  a  female  or  of  sickly  constitution,  in  the 
custody  of  the  mother,  against  whom  there  is  no  charge  but  inabil- 
ity to  live  with  her  husband,  the  couit  wouh]  make  no  order  of  re- 
moval. The  discretion  is  pretty  bi'oad,  and  i)ei'haps  extending  with 
tlie  improvements  and  refinements  of  the  age,  yet  it  is  not  arbi- 
trary, but  based  on  sonnd  prinei])les.  and,  like  all  other  discretion- 
ary procewlings.  will  take  its  Inie  fi'om  the  officer  exei-cising  it.  Tn 
Kex  V.  GIreenhill.  4  Ad.  &  YA.  ()24.  the  fathei-  left  his  home  and  fam- 
ily, and  was  cohabiting  with  a  mistress;  then  the  mother  left  and 
took  with  her  her  three  young  children.  The  husband  was  other- 
wise of  good  character,  and  had  large  i)r()])erty.  the  mother  none. 
He  offered  to  abandon  his  mistress  and  be  reconciled  to  his  wife,  or 
to  take  the  children  to  his  mansion,  to  be  educated  under  the  super- 
vision of  his  mother,  and  away  from  any  immoral  influence.  Th  • 
wife  refused,  and  tlu^  court  made  the  order  of  removal,  on  tlie 
ground  that  it  would  be  for  the  benefit  of  the  children,  and  there 
being  nothing  of  cruelty  or  corruption  about  the  father  or  his 
home,  the  law  gave  him  the  custody.  But  in  Rex  v.  Dobbins,  and 
in  Rex  v.  "Wilson,  in  the  same  book,  pp.  6(i4.  665,  note,  where  the 
conduct  of  the  father  at  his  home  came  within  the  discretionary- 
exceptions,  the  court  refused  to  take  the  child  from  the  mother.  In 
the  matter  of  Waldron.  13  Johns.  149.  where  the  father  was  poor, 
and  his  wife  went  home  to  her  father,  who  was  of  large  estate, 
when  she  was  delivered  of  a  child  and  died,  leaving  tlie  child  the 
heir  apparent  to  his  grandfather,  and  when  it  was  still  of  tender 
age,  the  father  applied  for  his  custody  ;  but  the  court  refused  it,  on 
account  of  the  inability  of  the  father  and  the  great  benefit  of  the 
child,  and  that  the  special  ])Owers  of  the  court  of  chancery  in  the 
case  invoked  would  be  sufficient  to  correct  any  evil.  Tn  the  case  of 
Nickerson,  19  Johns.  16,  the  court  say  the  father  is  the  natural 
guardian,  and  entitled  to  the  custody  of  the  child,  if  there  be  no 
danger  of  ill  usage  or  he  be  not  of  grossly  immoral  principles  or 
habits,  or  unable  to  provide  for  him.  In  the  De  llautville  case, 
the  child  was  but  twenty-one  months  old,  very  sickly,  and,  in  the 
opinion  of  physicians,  not  of  an  age  to  be  separated  frcmi   his 


See.    2    a.]  RELATIVE    RIGHTS.  523 

mother;  and.  on  these  gronnds  tlie  court  rightfully  refused  to  re- 
move the  child  fix)m  the  mother  and  i^lace  him  with  the  father. 
The  case  derives  interest  from  the  station  of  the  parties,  the  ex- 
tended and  exciting  evidence  in  relation  to  the  history  of  the  mar- 
riage and  separation  of  the  parents,  as  well  as  from  the  great  abil- 
ity and  learned  investigation  of  both  counsel  and  court,  yet  in  its 
simple  details  is  of  no  extraordinary  i-liai-acter,  and  though  dif- 
fering in  result  from  Rex  v.  Greenhill.  yet  it  comes  within  the 
principles  and  scope  of  the  exceptions  stated  by  the  court  in  that 
case;  the  real  difference  is  in  the  mode  and  extent  of  the  discretion. 
In  the  Engli.sh  case  the  court,  in  a  very  strong  case,  exercised  their 
discretion,  and  removed  the  child  because  they  considered  the  ex- 
ercise within  the  rule  and  for  the  benefit  of  the  child :  in  the  Amer- 
ican case  the  court,  in  not  a  very  strong  case,  refused  its  exercise. 
for  prettv  much  the  same  reasons.  In  the  case  of  Harrv  v.  Mer- 
cein.  to  be  found  in  25  Wend.  72,  3  Hill.  401.  and  8  Paige.  47,  the 
same  diilficulty  occurs  as  to  the  mode  of  exercising  the  discretion, 
but  upon  the  general  principles  of  law  there  is  no  great  diversity 
among  the  several  jurists  who  examined  the  matter,  and  these 
{)rinciples  will  generally  be  found  to  accord  with  what  has  been 
before  stated.  In  Grey's  case.  6  Law  Jour.  529.  the  child  w^as  of 
tender  years  and  feeble  health,  and  was  left  with  the  mother, 
though  living  apart  from  the  luisl)and.  So  in  the  present  case,  the 
two  younger  children,  one  of  thirteen  months  and  the  other  of 
about  three  years,  are  too  young  to  be  removed,  for  any  practical 
or  useful  purjiose  to  themselves  at  h^nst.  and  as  nothing  is  proved 
against  the  mother  but  her  inability  to  live  with  her  husband,  they 
should  for  the  present  remain  with  her;  but  an  order  may  be  en- 
tered to  deliver  the  eldest  child  to  his  father. 

In  Tillman  v.  Tillman,  —  S.  C.  — ,  66  S.  E.  1049.  where  the  mother 
asked  for  the  custody  of  her  ohildren.  who,  without  her  consent,  had  been 
committed  to  their  grandparents  by  the  father,  by  a  deed  executed  ac- 
cording to  the  iirovisions  of  a  statute,  Woods.  .T..  gives  a  very  clear  ex- 
position of  the  law  in  regard  to  the  resi)ective  rights  of  the  father  and 
the  mother  to  the  control  and  custody  of  their  children;  the  effect  of  the 
<lisposition  of  such  custody  by  the  deed  of  the  father;  and  the  constitu- 
tionality of  such  statutes,  as  affecting  the  rights  of  the  mother,  the  lib- 
erty of  the  children,  and  the  i)ower  of  the  courts  to  control  the  custody 
of  the  children.  Upon  reading  this  oi)inion  one  is  impressed  with  (he 
idea  that  "while  much  else  may  be  said  on  the  subject,  nothing  more 
ran  be  saTd." 

That  a  father  may  regain  the  custody  of  his  infant  children  by  habeas 
corpus,  notwithstanding  the  fact  that  the  respondent  holds  them  under 
the  deed  of  the  father,  f^ee  Musgrove  v.  Kornegay,  .52  N.  C.  71;  so  it  is 
with  the  mollicr  of  a  bastard — she  may  retake  the  child  though  she  has 
made  a  deed  transferring  it  to  another,  Jn  re  Lewis.  88  N.  C.  31;  a  has 
tard  cannot  be  taken  from  the  mother  by  the  putative  father,  Wright  v. 
Wright.  2  Mass.  lOf).  While  12  Car.  2.  permits  a  father  to  appoint  a 
guardian  for  his  infant  children,  yet  such  aiipointment.  whether  by  deed 
or  V'XW.  takes  effect  only  after  the  father's  death.  Tillman  v.  Tillman. 
Hupra.  See  further  as  to  the  custody  of  infants,  Harris  v.  Harris,  ll.'t 
N.  C.  587,  20  S.  K.  187;  I^lham  v.  Ellis.  116  \.  C.  :!0,  20  S.  E.  1012;  ir> 
Am.  &  FIng.  Enc.  I^aw,  182.  is:!.  IS.",.  187;  21  lb.  1036,  10:{7:  20  Cyc.  1.586 
et  seq.     The  federal   courts  d(t  not    issue  writs  of  habeas  cor))Us  in  con- 


524  KIOLATIVK    ICUiUTS.  [(-'/(.    6. 

troviMsles  over  llio  ciislDdy  of  tliihlron.  lu  ro  liunus.  136  U.  S.  G86,  10 
Sup.  Ct.  sriO.  Kor  appeals  in  luilieas  corpus  proceedings  for  the  custody 
of  children,  see  ch.  .".,  sec.  S.  (a),  note.  For  the  effect  of  the  nuirriage 
of  an  infant  upon  parental  (ontrol,  see  Wilkinson  v.  Delllnger,  12()  N.  C. 
•ttVJ,  :•..'.  S.  K.  SI!);  State  v.  Lowell.  80  N.  \V.  S77,  If,  L.  11.  A.  440;  White 
V.  Henry,  24  Me.  r.:n.  Smith's  Cases  on  L.  P..  6!>;  Aldrecht  v.  Bennett, 
(i:J  N.  n.  4ir>,  smith's  t\vses,  71;  Com.  v.  Craliam.  ir)7  Mass.  73,  31  N.  E. 
700,  Smith's  Cases,  72,  IG  L.  R.  A.  578,  inserted  al  ch.  (>.  sec.  2,  (c),  post; 
Schouler.  Uom.  Rel.  370.  The  law  seems  to  be  settled,  that  marriage 
emanciiKites  an  infant  daughter.  Some  authorities  hold  that  it  does  not 
emancipate  an  infant  son;  some  hold  that  it,  does;  and  still  others  hold 
that,  while  it  does  not  completely  emancii)ate  him.  still  the  infant  must 
be  allowed  to  support  his  wife  and  children  from  his  earnings  before  the 
parent  can  api)roi)riate  such  earnings.  For  the  rights  of  a  testamentary 
guardian  to  the  custody  of  his  wards,  see  In  re  Young.  120  N.  C.  151,  2() 
S.  E.  G93.  Death  of  the  respondent  abates  the  i)roceedings  in  habeas 
corpus  for  the  custody  of  children.  Brown  v.  Rainor,  108  N.  C.  204,  12 
S.  E.  1028.  For  the  jurisdiction  of  the  courts  of  a  state  in  which  the 
child  is  temporarily  sojourning,  see  10  L.  R.  A.  (N.  S.)  690,  and  note. 
For  who  may  sue  out  habeas  corpus  for  the  custody  of  an  infant  or  on 
its  behalf,  see  9  L.  R.  A.  (N.  S.)  1173.  For  the  constitutionality  of  stat- 
utes regulating  the  custody  of  infants  for  their  well-being— committing 
them  to  training  schools,  etc.;  and  for  the  effect  of  such  statutes  on  the 
child's  constitutional  liberty  and  the  parent's  right  of  custody,  control, 
etc.,  see  18  L.  R.  A.  (N.  S.)  886,  and  note.  See  "Habeas  Corpus,"  Cen- 
tury Dig.  §  84;  Decennial  and  Am.  Dig.  Key  No.  Series  S  99;  "Parent  and 
Child,"  Cetnury  Dig.  §§  4-32. 


I 


(h)  Enticing  and  Harboring  Children. 

BUTTERFIELD  v.  ASHLEY  et  al.,  6  Cushing   (Mass.),  249.     1850. 

What  Constitutes  Enticing,  etc.    Remedy.     Form  of  Action.     Gist  of  the 

Action. 

[Trespass  on  the  case  for  enticing  plaintiff's  son  from  his  employment. 
Judgment  against  defendant,  and  he  appealed.     Reversed. 

The  plaintiff  sues  for  the  alleged  enticing  of  his  son,  who  was  a  minor 
and  the  servant  of  the  plaintiff.  The  proof  was  that  there  was  no  en- 
ticing but  that  the  son  left  his  father  and  applied  to  defendants  for 
employment.  The  defendants  at  first  refused  to  employ  him  but  after- 
wards did  so  upon  his  statement  that  his  father  was  anxious  that  they 
should  do  so.  This  statement  was  untrue.  The  judge  charged  that 
plaintiff  could  recover  upon  these  facts,  notwithstanding  the  bona  fides 
of  the  defendants  in  their  belief  that  the  son's  statement  was  true.] 

Metcalf,  J.  ...  a  master  may  maintain  an  action  on  the 
case  against  one  who,  knowing  that  another  is  his  servant,  entices 
him  away  from  his  service,  or  retains  and  employs  him  after  he 
has  left  that  service  without  being  enticed  away;  and  also  against 
one  who  continues  to  employ  his  servant,  after  notice  that  he  is 
such,  though  the  defendant,  at  the  time  of  retaining  or  employing 
him,  did  not  know  him  to  be  a  servant ;  and  a  father  is  the  master 
of  his  minor  child,  within  these  rules  of  law.  The  books  of  entries 
contain  forms  of  declarations  adapted  to  these  three  distinct  causes 
of  action.     And  a  plaintiff  generally  inserts  at  least  two  counts 


.•nVc.  2  h.]  RELATl^^:  KiGHxy.  525 

in  his  declaration ;  one  for  enticing,  and  another  for  employing  or 
harboring ;  so  that  he  may  succeed  on  the  latter,  though  he  may 
fail  to  support  the  former.  But  iu  either  form  of  declaring,  it  is 
a  material  and  necessary  allegation,  that  the  defendant  knew,  at 
the  time  of  the  enticing,  employing,  or  harboring,  that  the  party 
enticed  away,  employed,  or  harbored,  was  the  servant  of  the  plain- 
tiff; or  that  he  afterwards  had  notice  thereof,  and  continued  to  em- 
ploy or  harbor  the  servant  after  such  notice.  And  such  knowledge 
or  notice  must  he  proved  in  order  to  sustain  the  action.  See  8 
Wentw.  PI.  438;  2  Chit.  PI.  (6  Am.  ed.)  645.  646;  1  Blk.  Com. 
429;  3  lb.  142;  Fawcet  v.  Beavres.  2  Lev.  63;  Blake  v.  Lanyon, 
6  T.  R.  221 ;  Reeves  Dom.  Rel.  291 ;  Sherwood  v.  ITall,  3  Sumner. 
127,  Fed.  Cas.  No.  12.777;  Ferguson  v.  Tucker,  2  Har.  &  Gil.  182; 
Conant  v.  Raymond.  2  Aik.  243;  Fores  v.  Wilson.  Peake's  Cas.  55. 
The  gist  of  an  action  like  that  now  before  us  is.  says  Lord  IMans- 
tield.  "that  the  defendant  has  enticed  away  a  man  who  stood  in  the 
relation  of  .servant  to  the  plaintiff."  Hart  v.  Aldridge,  Cowp. 
54,  56.  And  the  enticing  must  be  proved.  3  Stark.  Ev.  1310; 
Stuart  V.  Simpson.  1  Wend.  376.  Now  what  is  meant  by  "enticiner 
away  from  the  service"  of  another?  So  far  as  we  know,  the  word 
' '  entice ' '  has  no  technical  meaning.  But,  in  a  deehiration  like  that 
in  this  ease,  it  must  mean  something  ciuite  different  from  a  reluc- 
tant emplojTuent  of  another's  sei-vant.  under  a  belief  that  the  mas- 
ter has  consented  to  that  employment.  The  word  is  ofen  joined, 
in  the  precedents  of  forms,  with  the  words  "solicit,  seduce,  per- 
suade, and  procure;"  and  it  evidently  imports  an  active  and 
wrongful  effort  to  detach  a  servant  from  his  master's  service,  by 
offering  inducements  adapted  to  that  end.  In  Keane  v.  Boycott. 
2  II.  Bl.  oil.  Eyre,  C.  J.,  describes  enticement  and  its  effects  as  a 
di.ssolution  of  the  relation  of  ma.ster  and  servant  "officiously." 
We  see  no  evidence  of  enticement  in  the  i)rcsent  case.  The  son  had 
wrongfully  left  his  father's  service,  before  he  was  employed  by 
the  defendants;  so  that  the  plaintiff's  declaration  is  not  sustained 
by  the  proof.  If  evidence  of  the  mere  employment  of  another's 
servant,  knowing  him  to  be  such,  would  support  a  declaration  for 
enticing  him  from  his  master,  there  would  be  no  necessity  for  a 
count  which  omits  the  allegation  of  enticement,  and  charges  only 
a  retaining,  employing  or  harboring.  Besides,  if,  in  the  opinion 
of  the  jury,  the  defendants  believed  that  the  plaintiff  had  fully 
consented  to  their  employing  his  son.  then  the  material  averment 
in  tlie  d(,'elar;iti(m.  that  they  well  knew  that  he  was  in  plaintiff's 
service,  was  not  proved,  but  was  disproved.  For  it  is  impossible 
that  they  should  know  him  to  be  in  the  .service  of  one  whom  they 
believed  to  bave  dispensed  with  his  services.    New  trial  ordered. 

Sep  notes  to  next   case.   post.     Sep  "Parent   anrl  rhilfl,"  Centiiry   Dip. 
5§  182-188;  Decennial  and  Am.  Dig.  Key  No.  Series  ?  IS. 


526  KKi,\'i'i\K  inciiTS.  \('li.  <). 

MACKK  V.   HOLLAND.  L'T  N.  .1.    L.  86,  93-95.     ISfyS. 
AliductiO}).     History,   ctr..   of   Ihr    Itfiiiidii   ft»\      l-Jssciil inis   tn    Recovery. 

I  Action  on  tlif  tas(>  for  ilu-  rmiililc.  malicious,  and  wrongful  seizint; 
ami  (arryin.i;  away  Ilit»  Iiirt't>  iiiraiii  chililifu  and  sorvaiUs  of  the  plain 
tiff.  WMilifl  against  ilic  (it't'tMulant.  .Motion  l>y  dcrcndaiil  for  a  new 
trial,  which  motion  was  transferred  to  the  supreme  court  for  its  advisory 
opinion.  Motion  refused.  Only  a  pait  of  the  oi)inion  is  here  inserted. 
The  defendant  was  the  lirolher-in-law  of  the  i)laintiff.  The  idaintiff's 
wife  left  him  and  the  children;  and  afterwards  she  and  the  defendant 
fori  ildy  seized  the  cliildren  and  carried   them  out  of  the  state.  | 

KlmkIx.  J.  I>cf(irt'  lilt'  alidlitioti  of  llic  tciitifc  in  cliivalry.  it  was 
hclil.  as  a  (loctfiiic  oi'  llic  coiimioii  law.  that  llic  ahdiiclioii  of  his 
lieir,  wa.s  ati  iiijui\'  for  wliicli  the  fatlici-  might  iiiaiiitaiii  an  action 
and  recover,  hy  way  of  daniaiics.  the  valne  of  his  riprht  of  niarriagc. 
Reeves,  in  liis  work  on  Doincstic  I^'lations.  2I>3.  siigfifcsts  tliat.  in- 
asnnicli  as  all  the  children  are  lieirs  in  tliis  country,  tlie  action  may 
be  sustained  for  takiiii;  away  any  of  llicm.  I>ut  the  damaf^es  for 
the  abduction  of  the  heir  were  restricted  to  the  value  of  the  mar 
riasre;  and  the  father  beinj;  no  longer  entitled  to  any  such  value, 
the  taking  away  and  marrying  his  heir  does  him  no  injury  for 
which  a  civil  action  will  lie  upon  that  principle.  '>  C-oke,  lOcS;  !) 
Coke.  113;  10  Coke.  130;  Cro.  Eliz.  55,  849.  In  llic  case  of  liar- 
ham  V.  Demiis.  Cro.  Fdiz.  770,  the  declaration  was  in  trespass,  by 
a  father  for  taking  and  imprisoning  his  daughter,  without  alleg- 
ing her  to  be  his  heir  or  any  loss  of  service,  and  damages  were  as- 
sessed for  the  taking  and  imprisoning  separately.  Three  of  the 
judges  were  of  the  opinion  that  the  action  could  not  be  sustained 
Glanville  held  that  "the  father  hath  an  interest  in  every  one  of 
his  children,  to  educat(>  them  and  provide  for  them,  and  he  hath 
his  comfort  by  them;  wherefore  it  is  not  reasonable  that  any 
should  take  them  from  him.  and  to  do  him  such  an  injury,  but 
that  he  shoidd  have  his  remedy  to  punish  it."  The  case  was  there- 
ui)on  adjourned,  and  was  afterwards  settled  by  arbitrament. 
8  Hlk.  Com.  141,  gives  the  weight  of  his  authority  1o  the  opinion 
of  Glanville,  and  T  think  it  is  to  be  regretted  that  this  reasonable 
doctrine  did  not  prevail.  There  does  not  seem,  however,  to  have 
been  any  case  in  Kngland  or  America,  where  a  father  has  recov- 
ered damages  for  the  abduction  of  his  children,  the  uniform  lan- 
guage of  the  eases  being  that  he  can  only  sustain  his  action  where 
there  has  been  acturdly  or  constructively  a  loss  of  service.  In  the 
case  of  Hall  v.  Hollander.  4  Bar.  &  Cress.  6fi0.  the  court  of  king's 
bench,  in  Hngland.  sustained  the  nding  of  the  majority  of  the 
judges  in  Harham  v.  Dennis  as  clearly  law.  And  subsetptently,  in 
the  case  of  Griinudl  v.  Wells.  7  IMan.  &  G.  1033.  the  court  of  com- 
mon pleas  held  the  same  doctrine.  The  case  of  TTall  v.  Hollander 
has  been  somewhat  questioned  in  some  of  the  American  cases,  btit 
the  areneral  doctrine  has  been  sub.stantially  adhered  to.     .     .     . 

!\ruch  stress  has  been  laid,  by  the. counsel  for  the  defendant,  on 
the  fact  that  he  acted  in  aid  of  and  in  conjunction  with  his  si.ster. 


Sec.    2    C.J  RELATIVE   RIGHTS.  527 

the  mother  of  the  ehildren.  This  eireiimstanee  was  suhmitted  to 
the  jury,  a.s  entitled  to  be  eonsidered  in  mitigation  of  damages. 
Further  than  this  it  could  not  go.  The  right  of  the  father  was 
clearly  paramount  to  that  of  the  mother;  and  there  was  no  reason 
to  doubt  that  the  defendant  purposely  aided  in  taking  the  children 
against  the  father's  consent.  Although  in  cases  where  a  child  is 
before  the  court  by  ^nrtue  of  a  habeas  corpus  they  will  exercise  a 
discretion,  and  permit  the  child,  if  of  tender  years,  to  remain  un- 
der the  care  of  the  mother;  yet.  if  it  is  actually  in  the  custody  of 
the  father,  so  absolute  is  his  right  considered,  that  they  will  not 
interfere  to  remove  it,  and  it  is  strongly  doubted  whether  they 
have  the  power  to  do  it.  State  v.  Stigall.  2  Zab.  286;  Hackwell's 
case,  22  E.  L.  &  E.  R.  39o.     .     .     .     New  trial  refused. 

In  the  principal  case  it  is  held  that  punitive  damages  were  properly 
allowed.  It  is  also  held  that  loss  of  services  must  be  proven,  though  such 
loss  may  be  inferred  when  the  children  are  minors  and  residing  with 
the  father.  For  the  measure  of  actual  damages,  as  distinguished  from 
punitive  damages,  in  such  cases,  see  the  principal  case  and  also  Clark  v. 
Bayer.  32  Ohio  St.  299.  .30  Am.  Rep.  593;  which  last  case  holds  also  that 
one  who  stands  in  loco  parentis  may  maintain  an  action  for  abduction, 
and  that  the  action  rests  upon  the  right  of  the  plaintiff  to  the  services 
of  the  child  anrl  not  upon  actual  services. 

To  entice  a  child  from  its  parents  was  not  a  crime  at  common  law; 
but  to  abduct  or  entice  a  child  under  fourteen  years  of  age  is  made  a 
crime  in  North  Carolina.  Revisal,  sec.  33.58;  State  v.  Rice,  76  N.  C.  194. 
To  abduct  is  to  take  and  carry  away  a  child,  either  by  fraud,  persuasion, 
or  open  violence.  State  v.  George,  93  X.  C.  567.  To  kidnap  a  child  is 
also  made  criminal  in  North  Carolina.  Revisal,  sec.  3634.  To  kidnap  is 
to  forcibly  abduct  or  steal  away  a  man.  woman,  or  child  from  their  own 
lountry  and  send  them  into  another,  according  to  Blackstone;  though^ 
under  modern  statutes,  the  term  is  used  very  much  in  the  same  sense 
as  to  abduct— and  the  taking  from  ane  eountry  or  state  to  another  is 
not  always  an  essential  ingredient.  2  Bouv.  L.  D.  91;  24  Cyc  797.  The 
mere  employment  of  a  minor  is  neither  enticing  nor  kidnapping:  and 
where  there  is  no  enticing  there  is  no  wrong  to  be  remedied.  State  v. 
Chisenhall.  106  N.  C.  676,  11  S.  E.  518;  Williams  v.  Railroad,  121  N.  C. 
512,  28  S.  E.  367.  1  L.  R.  A.  (N.  S.)  205,  and  note  (what  constitutes 
enticing),  2  lb.  362,  and  note  (right  of  mother  to  sue  while  the  father 
is  living).  See  'Parent  and  Child."  Century  Dig.  §§  182-186;  Decennial 
and  Am.  Dig.  Key  No.  Series  §  18. 


(c)  Seduction. 

BRIGGS  V.  EVANS,  27  N.  C.  16.     1844. 
Form  of  .Action.     Father's  Ififfht  to  Recover.     Basis  of  the  Action.     Fig- 
ment of  the  Law.     Basis  of  Damages.     Adult  and  Minor  Daughter. 

(Action  on  the  case  for  seduction  of  plaintiff's  daughter.  Verdict  and 
judgnif-nt  against   the  dcf'-nihiiit,   and   be  a|)p<'aloil.     AfTininMl. 

Thf'  defendant  seduced  the  plaintiff's  duiigbter  two  nioiitiis  before  she 
was  of  age  and  while  she  was  living  with  her  father  as  a  member  of  his 
family.  The  daughter  was  delivered  of  a  child  In  due  course  of  gesta- 
tion.    She   went    to   live   with    her   grandmother   before  the   birth   of  the 


528  ui;i.\i'i\  i;  i»'i(iiiTS.  [Ch.  6". 

rhihl.  lint  alttT  the  biitli  she  nnunioil  to  hor  father's.  She  beeaine  of 
age  in  November.  ISM,  and  this  action  was  coninienceil  in  March,  1842. 
Tiiert*  was  no  contract  of  liirinu;  l)ctween  the  fatlier  aiul  dauKhter,  but 
slie  lived  as  one  of  tlie  faniil.v  and  performed  various  domestic  duties 
for  liim.  I 

Nasij.  ,).  'I'lii-('t'  (il)jt'cliiuis  wvvc  iirj^cd  hd'ofc  the  superior 
court.  Tln'  til  St.  hcciuise  the  action  oiij^ht  to  liave  been  trespass 
and  not  case:  the  sccdiid.  because  the  action  could  not  be  sus- 
tained belore  the  birth  of  tlie  chihl;  and  tliird.  l)ecaiise  the  action 
could  not  hv  sustained  without  proof  of  an  actual  eonti'act  for 
services  aftt-r  tlie  daughter  came  of  age.  These  objections  were 
overruled  by  the  presiding  judge,  and  we  think  very  properly. 

Tt  is  unnecessary  to  ]>oint  out  the  disi  inguishing  marks  between 
the  actions  of  tr(>spass  and  ease,  and  the  necessity,  in  ordinary 
cases,  of  adopting  the  form  of  action  appropriate  to  the  cause  of 
complaint.  It  is  admitted  by  llic  IcxI  writers,  and  decided  in 
many  cases,  that  the  plaint ilT.  in  an  action  for  seduction,  may 
adopt  either  form  at  his  optit)n.  Tie  may  either  bring  trespass 
for  the  direct  injury,  laying  it  with  a  per  quod  servitium  amisit, 
or  in  case  for  the  consequential  damage.  3  Stephens.  N.  P.  2351. 
2354.  That  tresjja.ss  may  be  brought,  is  .shown  by  the  eases  of 
Woodward  v.  Walton,  2  N.  R.  476;  TuUedge  v.  Wade,  3  Wilson, 
18;  and  that  ease  may,  by  Dean  v.  Peel.  3  East.  43;  Ileavitt  v. 
Prime.  21  Wend.  79; 'Martin  v.  Payne,  9  Johns.  387;  Speight  v. 
Olivera,  3  Stark.  435,  by  Abbott.  C.  J.;  Holloway  v.  Abell  32 
E.  C.  L.  R.  615.  and  by  many  other  cases.  In  Chamberlain  v. 
Hazelwood.  7  Dow.  Prac.  cases,  cited  in  3  vol.  of  Stephens,  N.  P. 
2353,  Mr.  Baron  Parker  declares  that,  although  there  may  have 
been  no  direct  adjudication  on  the  subject,  it  had  been  the  con- 
stant practice  with  pleaders  to  declare  in  either  way.  These  au- 
thorities abundantly  show  that  the  action  was  properly  brought  in 
case. 

The  second  exception  is  equally  as  untenable  as  the  first.  Tt 
assumes  that  the  only  consequential  injury  to  the  father,  of  which 
he  has  a  right  to  complain,  consists  in  the  loss  of  the  services  of  his 
daughter  and  the  expenses  he  may  incvir  during  her  confinement. 
This  certainly  is  not  so.  Tf  it  were  so.  and  pregnancy  did  not  re- 
sult froTu  the  seduction,  the  father  would  have  no  action.  All  the 
authorities  show  that  the  relation  of  master  and  servant  between 
the  parent  and  the  child  is  but  a  figment  of  the  law,  to  open  to  him 
the  door  for  the  redress  of  his  injury.  Tt  is  the  substratuin  on 
which  the  action  is  built.  The  actual  damage  wliich  he  has  sus- 
tained, in  many,  if  not  in  most  ca.ses,  exists  only  in  the  humanity 
of  the  law,  which  seeks  to  vindicate  his  outraged  feelings.  He 
comes  into  covrf  as  a  master — lie  goes  before  the  jnr]i  as  a  father. 
He  must,  indeed,  show  that  his  child  stood  to  him  in  the  relation 
of  a  servant:  but  it  matters  not  how  trivial  the  services  she  ren- 
dered— though  it  may  have  consisted  but  in  pouring  out  his  tea — 
he  is  entitled  to  his  action.  Carr  v.  Clark.  2  Chit.  261  ;  Mann  v. 
Barrett,  6  Esp.  23.     So  it  has  been  decided  that  the  father  need 


Sec.    2    C]  KEI.ATIVE    RIGHTS.  529 

iidt  show  any  actual  serviee  rendered,  if  at  tlie  time  of  the  seduc- 
tion she  lived  with  her  father  or  was  under  his  eontrol.  ]\Iaunder 
V.  Xun.  M'.k  :\I.  323.  cited  3  Stephens,  N.  P. ;  Mann  v.  Barrett,  and 
llolloway  V.  Abell.  Upon  this  objection,  however,  there  is  an  ex- 
press authority,  that  the  father  can  maintain  the  action  before  the 
confinement  of  his  daughter,  even  th.ojigh  lie  has  turned  her  out 
of  doors,  per  Lord  Denman  in  Joseph  v.  Coweu.  cited  2  Step. 
X.  P.  2354.  and  Roseoe  on  Ev.  483.  Both  u]>on  authority  and  rea- 
son then,  this  objection  cannot  be  sustained. 

So  neither  can  the  third.  In  no  ca.se  is  an  actual  contract  be- 
tween the  father  and  the  daughter  necessary  to  maintain  the  ac- 
tion. Before  the  child  attains  the  age  of  twenty-one  years,  the  law 
gives  the  father  dominion  over  her.,  and.  after,  the  law  presumes 
the  contract,  when  the  daughter  is  so  situated  as  to  render  services 
to  the  father,  or  is  under  his  eontrol ;  and  this  it  does  for  the  wisest 
and  most  benevolent  of  purposes,  to  preserve  his  domastic  peace, 
by  guarding  from  the  spoiler  the  purity  and  innocence  of  his 
child.  If  this  were  not  so.  in  those  cases  where  the  degradation 
would  carry  the  largest  portion  of  anguish  and  distress,  the  un- 
fortunate parent  would  be  without  redress,  if  his  daughter  were 
iivcr  twenty-one  years  of  age.  That  the  law  is  not  as  the  defendant 
contends,  is  shown  by  many  of  the  cases  cited  ufion  the  other 
points.  To  these  may  be  added,  Bennett  v.  Alcot,  2  T.  R.  166 ; 
Xicholson  V.  Stryker.  10  Johns.  115;  IMorgan  v.  Dawes,  4  Cow.  417. 
In  this  ca.se  the  daughter  lived  in  her  father's  house  at  the  time  ol" 
the  seduction,  under  his  control  and  in  the  performance  of  actual 
services. 

Here  this  opinion  might  be  closed,  but  for  another  part  of  the 
charge.  The  presiding  judge  told  the  jury  that,  before  the  daugh- 
ter became  of  age.  the  action  might  be  sustained  in  his  paternal 
character  for  the  loss  of  her  services,  and  after  she  came  of  age, 
it  might  be  sustained  by  him  as  master,  for  services  lost.  The  dis- 
tinction is  new  to  us.  We  have  been  able  to  find  no  case  in  which 
it  is  recognized.  On  the  contrary,  the  whole  history  of  the  action 
clearly  shows  that  it  rests  upon  the  assumed  or  actual  relation  of 
jnaster  and  servant,  and  that,  as  well  before  the  daughter  has  at- 
tained twenty-one  as  after.  We  notice  this  part  of  the  charge,  not 
Ijccau.se  it  at  -dW  enters  into  the  decision  of  this  case,  as  presented  to 
us  by  the  parties,  but  because  we  are  not  Avilling  it  should  be  sup- 
y)osed  we  acfjuiesce  in  its  correctness.  The  defendant  did  not  ex- 
cept to  it.  and  in  the  case  of  King  v.  Ring.  20  X.  C.  'M^'\.  the  court 
say.  "the  I'ule  of  this  court  is.  1o  regard,  as  nearly  as  we  can.  the 
••}ise  made  by  the  judge  in  the  light  of  a  bill  of  exception  foi-  speci- 
licd  errors."  and  none  others  are  cf)nsidcrcd  here,  unless  they  ap- 
pear upon  the  I'ccor'd  strictly  so  c;ille<l.  The  oiiIn'  way  in  which  it 
••ouifl  have  been  important  in  tliis  case  was.  as  it  might  have  af- 
jected  the  (|;im;iges ;  and  the  defendant's  not  I'Xcepling  is  strong 
evidence  that  it  did  not  alTect  liiiii  injuriously.  We  see  no  error 
in  the  opinion  of  tlie  presiding  jiidL'e  in  tin'  points  excepted  to. 
JiidLriiient  ariirmed. 
Remedies — 34. 


530  liKl.ATIVK    KKiUTS.  |  (  7( .    (/. 

Wlu'tlior  the  action  slioiihi  l)t»  trespass  vi  ot  ariuis  or  lrosi)ass  on  the 
case  lor  seduclioii  of  a  datiixluer  or  servant,  was  one  on  which  there  was 
Kreaf  conllict  of  authority.  See  M'Clnre's  Extrs.  v.  Miller.  11  N.  C.  i:?:^. 
ami  note  at  p.  i:?S.  For  a  very  full  (liscnssion  of  this  question,  see  also 
25  Am.  &  Enp;.  Enc.  L.  201.  That  i)unitive  daniast^s  may  be  recovered 
by  the  father,  see  Scarlett  v.  Norwood,  11.")  N.  C.  2S4.  20  S.  E.  4r);t;  Snider 
V.  Newell.  lo2  N.  C.  at  p.  624 — that  either  trespass  or  case  will  lie,  is 
approved  in  this  case  at  i).  61.').  44  S.  E.  i'A.  See  "Seduction,"  Century 
Dis.  §§  0   IC.  LT);    Decennial  and  Am.  TUg.  Key  No.  Series  §§  7,  8.  12. 


IRWIN  V.  DP:ARMAN,  11  East.  23.     1809. 
A<-tio)i  hii  One  in  T.oco  Parentis.     Damages. 

[Action  on  the  case  for  seduction  of  plaintiffs  adopted  daughter.  Ver- 
dict against  defendant,  who  moved  for  a  new  trial.     Motion  denied. 

The  girl  seduced  was  a  daughter  of  a  deceased  fellow-soldier  of  the, 
plaintiff.  Plaintiff  adopted  her  as  his  own  child,  and  at  the  time  of  the 
seduction  she  lived  with  him  and  performed  household  services  for  him. 
The  only  damage  proven  was  the  loss  of  the  girl's  services  for  five 
weeks  and  the  expenses  of  her  confinement,  which  plaintiff  ]iaid.  Ver- 
dict was  for  one  hundred  pounds.! 

Lord  ELLENBORoran.  C.  J.  Tliis  has  always  boon  considered  as 
an  action  siii  goneris.  where  a  person  standing  in  the  relation  of  a 
parent,  or  in  loco  parentis,  is  permitted  to  recover  damages  for  an 
injury  of  this  nature  ultra  the  mere  loss  of  service.  But  even  in 
the  ca.se  of  an  actual  parent,  the  loss  of  service  is  the  legal  founda- 
tion of  the  action.  And  however  difficult  it  may  be  to  reconcile  to 
principle  the  giving  of  greater  damages  on  the  other  ground,  the 
practice  is  become  inveterate  and  cannot  now  be  shaken.  And 
having  been  considered,  in  the  case  of  Edmondson  v.  ^fachell.  to 
extend  to  an  aunt,  as  one  standing  in  loco  parentis.  T  think  that 
this  plaintiff,  who  had  adopted  and  bred  up  the  daughter  of  a 
friend  and  comrade  from  her  infancy,  seems  to  be  eriually  entitled 
to  maintain  the  action,  on  account  of  the  loss  of  service  to  him. 
aggravated  by  the  injury  done  to  the  object  on  whom  he  had  thus 
placed  his  affection. 

See  also  as  to  the  action  by  one  who  stands  in  loco  parentis,  Kinney  v. 
Laughenour,  89  N.  C.  36.5,  which  holds  that  while  a  stepfather,  or  any 
other  i)erson  who  stands  in  loco  parentis,  may  recover  for  seduction; 
still,  the  girl  must  be  living  in  his  family,  or  be  absent  temporarily  with 
his  consent,  and  under  his  control,  or  no  recovery  can  be  had.  If  the 
girl  be  seduced  while  in  the  service  of  a  third  person,  the  stejjfather,  etc., 
cannot  maintain  an  action  for  seduction,  although  she  returns  to  his 
house  and  is  there  delivered  of  a  child  as  the  result  of  the  seduction, 
and  is  there  cared  for  during  her  confmement.  Ibid.,  citing  .5  Wait's 
Act.  &  Def.  660,  661;  Wood's  Mast.  &  Serv.  sec.  24.5.  The  case  also  ap- 
liroves  Briggs  v.  Evans,  27  N.  C.  16,  inserted  supra.  See  "Seduction," 
Century  Dig.  §  46:  Decennial  and  Am.  Dig.  Key  No.  Series  §  20. 


Sec.    2    C]  RELATIVE   RIGHTS.  531 


SNIDER  V.  NEWELL,  132  N.  C.  614,  44  S.  E.  354.     1903. 

FnU  Revieto  of  the  Laic  of  deduction;  Who  Can  Mmntain  an  Action  for ; 
Xecessaiy  Allegations  of  the  Complaint ;  Figment  and  Quaint  Fic- 
tions of  the  Law;  Services.     Mental  Anguish. 

[Action  by  the  father  for  the  seduction  of  his  infant  daughter  while 
she  lived  with  him.  Defendant  demurred  to  the  evidence.  Demurrer 
sustained.  Judgment  of  nonsuit  against  plaintiff,  and  he  appealed.  Re- 
versed. 

The  judge  held  that,  while  plaintiff  had  proven  the  seduction  and  con- 
sequent mortification  suffered  by  him,  there  was  no  proof  that  he  had 
lost  any  portion  of  the  services  of  his  daughter  by  reason  of  the  defend- 
ant's having  seduced  her.  The  facts  appear  in  the  beginning  of  the 
opinion.] 

Connor,  J.  This  is  an  action  prosecuted  by  the  plaintiff  for  the 
recovery  of  damages  alleged  to  have  been  sustained  by  reason  of 
the  seduction  by  the  defendant  of  his  daughter,  whereby  he  "lost 
the  services  of  his  said  daughter,  and  the  reputation  of  his  family 
was  thereby  greatly  injured,  and  he  suffered  great  mental  anguish 
and  humiliation."  The  defendant  admitted  that  he  had  illicit  car- 
nal intercourse  with  the  daughter,  but  denied  that  the  plaintiff 
lost  her  services  thereby,  or  suffered  otherwise.  The  plaintiff  in- 
troduced evidence  tending  to  show  that  his  daughter,  when  about 
eighteen  years  of  age,  was  seduced  and  debauched  by  the  defend- 
ant; that  he  had  repeated  acts  of  sexual  intercourse  with  her  in 
the  plaintiff's  house,  in  which  his  daughter  resided  as  one  of  his 
family;  that  such  intercourse  was  had  at  night,  the  defendant  go- 
ing to  the  room  of  the  daughter,  entering  through  her  bedroom 
window;  that  the  plaintiff'  knew  nothing  of  the  defendant's  con- 
duct until  it  had  continued  about  a  year,  when  he  charged  the  de- 
fendant with  it.  when  he  admitted  the  truth  of  the  charge.  The 
plaintiff  testified  that  he  was  greatly  shocked;  that  the  matter 
greatly  pressed  on  his  mind,  and  he  thought  tliey  were  all  dis- 
grai'('(l :  that  the  daughter  was  prior  to  the  sexual  intercourse  with 
the  defendant,  chaste,  pure,  and  virtuous;  that  defendant  is  a 
married  man.  The  defendant  introduced  no  testimony,  but  moved 
the  court  to  dismiss  the  action  as  upon  a  nonsuit.  The  court  al- 
lowed the  motion,  the  i)laintiff  excepted  and  appealed. 

Tlie  judgment  of  his  honor  is  based  upon  the  conclusion  of  law 
Ihat  llie  plaintiff  bad  not  shown  any  loss  of  .service,  or  any 
diminution  of  the  daughter's  capacity  to  serve  him.  and  could  not, 
for  llie  other  injuries  alleged,  maintain  the  action.  The  denuir- 
rer  to  the  evidence  admits  thetrutli  of  the  plaintiff's  testimony,  to- 
getlier  witli  every  reasonable  inference  to  be  drawn  therefrom 
Ttiost  favorable  to  tlie  |.l;iiiit  ilV.  Imt  j. resents  tlie  question  whether 
the  plaintiff's  testimony  is  suflicicnt  to  base  a  finding  of  such  loss 
of  service  as  is  necessary  to  Tuaintain  the  action.  The  |)laintiff  has 
alleged  a  loss  of  service,  mental  anguish,  and  iiiort ifieation.  We 
have  been  unable  to  find,  after  a  very  eaiefnl  atid  diligent  search, 
a  case  in    Hngland   or   America   in   wliidi   the  dcclaratinii   or  com- 


582  ia;i.Aii\  i:  inciii's.  |('/(.  d. 

])laint  has  t'ailod  lo  allelic  loss  ol"  service.     The  adidii  at  eoininon 
law  was  trespass  vi  et  annis.  or  li-espass  on  the  ease  per  ((uod  sei'vi- 
tiiiiu  aniisil.     Uriirirs  v.  Kvaiis.  L'T  N.  C.  l(i.     The  prravaiiieii  oi'  the 
aetion  was  that  the  ilaii.u:hter  was  the  servant  of  the  i)laiiit  ilT",  and 
that  hy  lier  seduetioii  he  lost   her  services.     'P.wi.ou,  ('.  J.,  in  Mc- 
Clure's  Executors  v.  Miller.  11    N.  ('.   ].V.l  says:  "it   is  character- 
izod  hy  a  sensihle  wi'iler  as  one  ol'  the  '(|naiiitest    lictions'  in  the 
world  that  satisfaction  can  only  he  come  at  hy  the  ralher's  hrin^j- 
in»r  the  action  atrainst  the  si>d\icor  for  the  loss  of  his  daughtei-'s 
services  dnriiiij;   her   piciiiiancy   and   inirlnrinti'."      In    Kiiniey   v. 
lianirhenour.  .S!)   N.  C.  :{(!;").  it   is  said:  "The  action   foi-  seduction 
iloes  not  irrow  out  of  tht^  relation  of  i>arent  and  child,  hut  that  of 
master  and  servant  and  the  loss  of  services.     It  is  true  that  this  is 
a  fiction  of  the  law."     in   Hood  v.  Sudderth.  Ill    N.  ('.  215.  IC 
S.  K.  'VM.  (Mark.  J.,  said  ariiuendo:  "It  is  true  that  at  common 
law  an  action  for  seduction  could  technically  only  be  brought  hy 
a  father,  master,  or  employer,  and  that  damages  were  alleged  per 
([Uod  servitium  amisit  for  value  of  services  lost.     This  though  in 
fact  no  sei'vices  were  lost,  and  (^ven  when  a  woman  was  of  fidl  age. 
and  the  fathei-  was  not  entitled  to  recover  services  of  any  one  elsi-. 
It  was  well  understood  that  this  was  a  mere  fiction,  and  danuiges 
were  awarded  for  wi-ong  and  injury  done  hei'. "     Tlu;  (|uestion  de- 
cided in  that  case  does  not  arise  upon  this  record.     In  Scarlett  v. 
Norwood.  115  N.  C.  284.  20  R.  ¥..  459,  there  was  an  allegation  of 
loss  of  service,  seduction,  etc..  "thereby  damaging  said  plaintiff, 
and  for  medical  care,  nursing,  tendance."  etc.     The  action  was 
brought  by  the  father.     In  Al)l)ott  v.  Hancock.  128  N.  C.  9!).  81 
S.  E.  2()8.  the  ])lain1iiV  alleged  that  her  daughter  was  in  her  actual 
service,  residing  with  her  in  New  Berne,  and  being  under  twenty- 
one  years  old.  and  unmarried.     In  Willeford  v.   Bailey   (at  this 
term).  48  S.  K.  !)28.  there  was  an  allegation  of  loss  of  service,  ab- 
duction, etc..  the  action  being  l)rought  by  the  father,  the  girl  being 
under  twenty-one  years  of  age.     Nash,  J.,   in   Briggs  v.   Evans, 
supra,  says:  "It  is  but  a  figment  of  the  law  to  open  the  door  for 
the  redress  of  his  in.iury.    It  is  the  sub.stratum  on  which  the  action 
is  built.     .     .     .     1I(^  comes  into  court  as  a  master;  he  goes  be- 
fore the  iurv  as  a  father."     The  case  of  Anthony  v.  Norton.  HO 
Kan.  841 '.  56  Pac.  529,  44  L.  R.  A.  757.  72  Am.  St.  Rep.  860.  un- 
mistakably  holds   that   "the   action   could  be    maintained   on   the 
bare  relation  of  parent  and  child  aloiie. " 

We  ai'c  not  called  upon  to  say  moi-e  llian  that  courts  should 
move  forward,  and  yet  cautiously,  in  dispensing  with  even  "fic- 
tions." We  mnst  bear  in  mind  that  the  law  of  procedure  as  well 
as  substantive  law  is  not  a  thing  to  be  manufactured,  but  is  the 
result  of  growth  and  careful  conservative  progress.  While  we 
find  no  difficulty  in  holding  that  "it  is  not  necessary,  in  order  for 
a  parent  to  maintain  an  action  for  th<'  seduction  of  his  daughter, 
that  he  i)rove  actual  services  or  the  loss  thereof."  it  is  sufficient 
that  it  be  shown  that  the  child  is  a  daughter  of  the  pei'son  suing. 


I^ec.    2    C]  RELATIVE    RIGHTS.  ^^'^'i 

and  residing  in  liis  family  as  such,  or  is  elsewhere  with  his  consent 
and  approval     Kogers  on  Domestic  Rehitions,  §  839.     We  care- 
fully refrain  from  advancing  further  than  is  necessary  in  this 
case.     It  would  not  require  any  considerable  foresight  to  see  a 
large  yielding  of  suits  for  seduction  l)rought  by  collateral  rela- 
tions upon  the  suggestion  of  loss  sustained  in  social  position,  busi- 
ness relations,  mortified  sensibilities,  etc.     We  have  a  striking 
illustration- of  this  in  Yoimg  v.  Tel.  Co..  107  X.  C.  370,  11  S.  E. 
1044.  9  L.  R.  A.  669.  22  Am.  St.  Rep.  883,  in  which  it  was  held 
that  a  husband,  to  whom  a  message  had  been  sent  notifying  him  of 
the  sickness  of  his  wife,  could,  in  an  action  for  failure  to  deliver 
promptly,  recover,  in  addition  to  nominal  damages,  compensation 
for  mental  anguish.     Since  the  decision  of  that  case,  we  have  suits 
for  "compensation  for  mental  anguish"  brought  by  persons  of  al- 
most everv  kind  and  degree  of  kinship,  and  we  have  good  reason 
for  thinking  that  "the  end  doth  not  yet  appear."     It  is  undoubt- 
edly true  that,  as  we  come  into  a  clearer  view  of  social,  domcslic. 
and  business  relations,  with  their  resulting  rights  and  duties,  the 
courts  will  guard  these  relations,  and  protect  them  by  appropriate 
remedies,  both  preventive  and  remedial.     In  doing  so.  the  princi- 
ples underlying  our  jurisprudence  nuist  not  be  violated,  or  senti- 
mental emotions  be  made  cause  of  actions;  nor  must  we  permit 
the  tenderest  and  most  sacred  relations  of  life  to  become  sources  of 
profit  and  speculation.     In  the  view  which  we  take  of  this  case. 
the  plaintiff  was  entitled  to  maintain  his  action  upon  his  allega- 
tion and  proof.    We  find  abundant  authority,  both  in  and  beyond 
this  state,  to  sastain  this  conclasion.     In  McDaniel  v.  Edwards. 
29  X.  C.  408,  47  Am.  Dec.  331.  Ruffin.  C.  J.,  says:  "When  the 
daughter  is  living  with  the  father,  whether  within  age  or  of  full 
age,  she  is  deemed  to  be  his  servant,  for  the  purposes  of  this  ac- 
tion, in  the  former  case  absolutely,  and  in  the  latter  if  she  render 
the  smallest  assistance  in  the  family — as  pouring  out  tea.  milking, 
and  the  like.''    In  Kennedy  v.  Shea,  110  :\Iass.  150,  Ames.  J.,  said : 
"AccoT-ding  to  numerous  decisions  of  the  courts  of  New  Yoi'k. 
Pennsylvania,  and  some  other  states  of  the  Union,  this  relation  is 
.sufficiently  proved  by  the  evidence  that  the  daughter  was  a  minor. 
and  that  Jier  father  had  the  right  to  her  services."     In  Hartley  v. 
Richtmyer.  4  X.  Y.  38,  53  Am.  Dec.  338,  Branson,  C.  J.,  says: 
"Since  it  has  been  settled  that  the  value  of  the  serv'ices  actually 
lost  does  not  constitute  the  measure  of  damages  when  the  action 
is  brought  by  the  father,  it  has  been  held  sufficient  for  him  to 
show  that  the  d;nighter  was  under  age,  and  lived  in  his  family,  at 
the  time   of  her  seduction,   without   proving  that    she   had    be"M 
accustomed  to  render  service.     It  has  been   lliouglil   enough  that 
the  father  was  entitled  to  her  servicer,  and  might  have  recpiired 
them  if  lie  bad  elioseii  to  do  so."     See.  also,  notes  to  this  case,  53 
Am.  Dec.  338.    In  Martin  v.  I'nyne,  !)  Jolius.  387.  6  .\iii.  Dec.  288. 
Spencer.  J.,  .says:  "Slie  was  his  servant  d(>  jure,  though  not  do 
faetf>.  at  the  time  of  the  injury;  and.  being  his  .scM-vaut   de  jure. 


5;U  IlELATIVE    KKJHTS.  [CIt.    (). 

tlu'  (li't'ciulant  lias  douv  an  at'l  wliicli  has  tU'privcd  thr  rather  ol" 
liis  ilauii;hlor's  sorvii'i's.  and  wliieh  he  iiii<ihl  have  exjietod  but  for 
tliat  injury."    Coon  v.  MolVct.  'A  N.  J.  Law,  583,  4  Am.  Dec.  392. 

The  I'-nirlisli  eases  are  I'cjnally  as  clear  ui)on  Ihis  point.  In 
Fores  v.  Wilson.  I'eake.  N.  I'.  Cases,  55,  Lord  Kenyon  lielil  "that 
there  nuist  subsist  some  relation  of  master  and  servant;  yet  a  veiy 
slitiht  relation  was  sutlieient.  as  it  had  been  determined  wlien 
ilan,i,diters  of  the  hiu:h(>st  and  most  opuh'ut  i'amilies  hav(>  been  se- 
dueed.  the  parent  may  maintain  an  action  oji  the  supposed  relation 
of  master  aiul  servant,  thouijh  every  one  must  know  that  such  a 
child  cannot  be  treated  as  a  menial  servant."  In  Maunder  v. 
Venn,  1  ]\Ioody  &  M.  323  (22  Com.  Law  Kep.),  it  is  beld  that  it  is 
not  necessai-y  to  show  any  acts  of  service  done  by  the  daughter. 
It  is  enouijh  that  she  lives  in  the  father's  family  under  such  cir- 
cumstances that  he  has  a  ri^rht  to  her  services.  This  case  is  singu- 
hirlv  like  the  ease  before  us.  It  is  said  in  the  course  of  the  plain- 
tilf 's  proof,  a  difficulty  occurred  in  making  out  any  acts  ot  serv- 
ice of  the  daughter.  It  being,  however,  proved  that  the  seduction 
took  place  while  she  was  residing  with  the  plaintiff,  and  forming  a 
liart  of  his  family,  Littledale.  J.,  interposed,  and  said  that:  "The 
proof  of  any  acts  of  service  was  imnecessary.  It  was  sufficient 
that  she  was  living  with  her  father,  forming  part  of  his  family, 
and  liable  to  his  control  and  demand.  The  right  to  the  service  is 
sufficient."  Judge  Cooley  thus  sums  up  the  law:  "The  father  su- 
ing for  this  injury  in  the  case  of  a  daughter,  actually  at  the  time 
being  a  member  of  his  household,  is  entitled  to  recover  in  his  ca- 
pacity of  actual  master  for  a  loss  of  service  consequent  upon  any 
diminished  ability  in  the  daughter  to  render  service.  That  an  ac- 
tual loss  is  suffered  under  such  circum.stances  the  law  will  conclu- 
sively presume,  and  evidence  that  the  daughter  was  accustomed  to 
render  no  service  will  not  be  receivecL"  Cooley  on  Torts,  p.  221  ; 
Pollock  on  Torts,  p.  27. 

We  thus  see  that,  while  the  courts  have  protested  against  the 
rule  of  law^  requiring  the  allegation  of  the  fiction  upon  which  the 
action  is  based,  they  have  wisely  wrought  out  the  substantial  rem- 
edy by  recognition  of  the  relation,  with  all  of  its  incidents,  rights, 
and  duties,  of  parent  and  child.  It  is  difficult  to  conceive  how  a 
daughter  who  has  been  seduced  and  debauched  as  the  testimony  in 
this  case  shows  can  be  said  not  to  have  had  her  ability  to  serve  her 
father  diminished;  hence  we  place  our  decision  upon  the  allega- 
tion and  testimony  in  the  record.  His  honor  was  in  error  in  sus- 
taining the  dennirrer  to  the  evidence,  and  the  case  should  have 
been  submitted  to  the  jury  under  proper  instructions.  There 
must  be  a  new  trial. 

See  2.5  Am.  &  Eng.  Eno.  Law,  193  et  seq.  For  the  English  law  on  the 
subject,  see  Eversley's  Dom.  Rel.  (2d  ed.),  pp.  559-562.  Where  plain- 
tiff's daughter,  fourteen  years  of  age,  was  seduced  by  a  master  to  whom 
she  was  apprenticed,  it  was  held  that  the  father  could  not  recover. 
Dain  v.  WycholT,  7  N.  Y.  192,  Smith's  Cases  on  L.  P.  98.  A  father  may 
recover  for  the  seduction  of  his  married  daughter  if  she  be  separated 
from  her  husband  and  living  with  the  father  as  his  servant.     Harper  v. 


Sec.  ;2  c]  relative  rights.  535 

Luffkin.  7  Barn.  &  C.  387;  Kirk  v.  Long,  7  U.  C.  C.  P.  363;  Anderson  v. 
Rannie.  12  lb.  536.  cited  in  21  L.  R.  A.  (N.  S.)  at  pp.  265,  266.  See 
•Seiliiciion,"  Century  Dig.  §§  9-16;  Decennial  and  Am.  Dig.  Key  No. 
Series,  §§  7,  8. 


BARTLETT  v.  KOCHEL,  88  Ind.  425.     1882. 
Action  by  Both  the  Father  and  the  Child. 

[Action  by  the  father,  Kochel.  for  the  seduction  of  his  infant  daugh- 
ter whereby  he  lost  her  services.  Verdict  and  judgment  against  Bart- 
lett  and  he  appealed.  Affirmed.  By  a  statute  of  Indiana  an  unmarried 
female  is  permitted  to  recover  for  her  own  seduction.  The  girl,  for 
whose  seduction  her  father  sues  in  this  action,  had  brought  an  action 
in  her  ow-n  behalf  against  Bartlett  and  recovered  damages  for  her  se- 
duction. Her  father  was  her  next  friend  in  that  action.  The  judgment 
in  that  action  was  relied  upon  by  Bartlett  as  a  defense  to  any  further 
recovery  in  this  action.  Such  defense  was  held  to  amount  to  nothing, 
and  Kochel's  demurrer  to  that  portion  of  the  answer  in  which  it  was 
pleaded,  was  sustained.! 

HowK,  C.  J.  .  .  .  It  needs  no  argument,  we  think,  to  show 
that  the  cotut  coniinitted  no  error  in  sustaining  the  demurrer  to 
these  paragraphs  of  the  answer.  The  next  friend  of  an  infant 
plaintiff  is  not  a  party  to  the  action  in  such  a  sense  as  that  the 
judgment  therein  rendered  could  be  pleaded  in  bar  of  any  cause 
of  action  he  miglit  linve  against  the  same  defendant,  growing  out 
of  the  same  transaction.  Besides,  the  cause  of  action  in  favor  of 
an  unmarried  female,  for  her  cum  seduction,  is  purely  statutory, 
and  she  "may  recover  therein  such  damages  as  may  be  assessed 
in  her  favor"  (Civil  Code  of  1852.  §  24;  §  263.  R.  S.'lSSl)  :  while 
the  cause  of  action  in  favor  of  the  father  of  an  infant  daughter, 
for  debauching  and  getting  her  with  child,  is  of  common  law  ori- 
gin, and  he  recovers  in  such  action,  in  theory  at  least,  for  his  loss 
of  her  services  and  the  expenses  incident  to  her  lying-in  or  con- 
tinement.  etc.  Pruitt  v.  Cox,  21  Ind.  15;  Pelkner  v.  Scarlet,  29 
Ind.  154;  Taylor  v.  Shelkett.  66  Ind.  297. 

It  seems  to  us.  therefore,  that  the  cause  of  action  in  favor  of  the 
unniJirried  female  and  the  cause  of  action  in  favor  of  the  father, 
although  founded  on  the  same  tran.saction.  are  widely  different 
each  from  the  other,  and.  certainly,  the  parties  to  the  two  actions 
are  not  the  same.  The  paragraphs  of  the  answer  under  considera- 
tion, therefore,  were  not  good  i)leas  of  former  adjudication,  and 
the  demurrer  thereto  was  coi-i-cctly  sustained. 

Under  the  error  assigned  u]X)n  the  overruling  of  the  motion  for 
a  new  trial,  the  (nily  poinf  made  by  the  appellant's  counsel  in  ar- 
I^ument  is.  that  the  court  erred  in  instructing  the  jury,  in  sub- 
stance, as  follows:  "In  this  case,  if  you  find  from  a  pre|)Oii(leranee 
of  the  eviflence.  thai  llie  defendant  begot  plaintiff's  daughter  with 
child,  undi-r  llic  circiiinsljiiices  substantially  alleged  i?i  llic  com- 
plaint, and  in  eoii.scfiucriec  of  which  the  plain! ilT  lost  the  services 
of  his  dauglili')-.  the  plaiutifT  will,  in  this  action,  be  entitled  to  re- 
cover damages  for  such  .services  lost,  if  you  find  any  such  exist,  in 


~yMi  KKl-ATIVK    KKiHTS.  [CIl.    <). 

this  case.  I'vcn  thoii^li  llic  s.-iid  scxu.il  iiil(Mroiu*s(',  lli.il  |)ro(lii(H'(l 
said  I'liilil.  was  oc^'asioiifd  ;is  imicli  by  I  he  misfoiuliu't  ol"  said 
dauirhtcr.  or  1)\'  \\\v  pi'oiiiptiiiiis  ol'  hn-  own  lascivious  dosiri's.  as 
that  of  the  tlofoiuhmt.  In  sucii  a  case,  as  against  her  lallicr.  she 
has  no  rifjlit  to  conscnl,  and  hor  act  in  consent iiij;  to.  or  even  in 
prodiieinir.  tlie  criminal  connection,  was  a  nullity."  The  evidence 
is  not  in  the  i-ecord.  and.  thercfoi-e.  the  only  (|U(\stion  I'oi"  decision 
is  whether  or  not  the  instruction  is  erroneous  in  the  ahsti'act.  or  in 
any  possihle  view  of  the  ca.se.  All  that  the  appellant's  coun.sel 
have  said  in  their  brief  in  i-elation  to  the  insti'uetion  is  comprised 
in  the  stateuient  that  llirn  Iliin1{  the  court  eri-ed  in  so  insti-uetiiii,' 
tlie  jnry.  We  are  of  opinion,  however,  that  the  instruction  is  not 
erroneous.  In  MeAulay  v.  Birkhead,  35  N.  C.  28,  which  was  an 
action  by  a  father  for  the  seduction  of  his  infant  dan^diter,  the 
court  said:  "AVhatevei-  bearine:  the  forward  and  ind(>lieate  con- 
duct of  the  i)laintiff  "s  danj^hter  ought  to  have  had,  on  I  Ik  qiifslioii 
of  damages,  it  ccrtainhj  had  none  on  the  question  of  his  right  of 
action.  In  respect  to  him,  she  had  no  right  to  consent,  and  her  act 
in  consenting,'  to.  or  evtMi  procuring,  the  criminal  connection  was 
annuity;  so  the  defendant  nnist  stand  as  a  wrongdoer,  fi-om  whose 
act  the"  plaintiff  ha.s  snffered  damage."  Shattuck  v.  INTyers.  ^'^ 
Tnd.  46;  Prnitt  v.  Cox.  snpra.  We  find  no  error  in  the  record  of 
this  cause.    The  judgment  is  affirmed,  with  costs. 

That  a  woman  may.  in  the  teeth  of  the  old  law  and  the  maxim  volenti 
non  fit  injuria,  recover  for  her  own  seduction,  has  been  established  by 
recent  decisions  in  North  Carolina,  which  decisions  have  been  followed 
in  some  of  the  other  states,  and  this  doctrine  seems  destined  to  supplant 
the  old  law  everywhere,  see  Hood  v.  Sudderth,  111  N.  C.  215,  16  S.  E. 
397;  Scarlett  v.  Norwood.  115  N.  C.  285,  20  S.  E.  459;  Willeford  v.  Bai- 
ley. 132  N.  C.  402,  43  S.  E.  928.  Whether  or  not  both  the  female  and  her 
father  may  recover  for  her  seduction  while  she  is  an  infant,  is  discussed 
In  Scarlett  v.  Norwood.  115  N.  C.  285,  20  S.  E.  459.  The  action  for  se- 
duction sounding  in  tort,  the  defendant  may  be  arrested  under  proceed- 
ings in  arrest  and  bail.  Hoover  v.  Palmer,  80  N.  C.  313;  Kinney  v. 
Laughenour,  !)T  N.  C.  325.  2  S.  E.  43.  If  the  father  has  been  adjudged 
a  lunatic,  or  if  he  be  a  nonresident,  the  mother  may  maintain  an  action 
for  the  seduction  of  her  infant  daughter.  Abbott  v.  Hancock,  123  N.  C. 
99,  31  S.  E.  268.  The  action  by  the  woman,  for  her  own  seduction, 
abates  at  her  death;  but  the  parent's  action  does  not  abate  upon  the 
child's  death.  Scarlett  v.  Norwood.  115  N.  C.  285,  20  S.  E.  459.  That 
under  the  old  law  a  woman  could  not  recover  for  her  own  seduction,  see 
Tiffany's  Pers.  &  Dom.  Rel.  279;  Bish.  Non-Ck)nt.  Law,  sees.  57,  386; 
Schouier  Dom.  Rel.  (5th  ed.),  sec.  261;  Eversley's  Dom.  Rel.  560.  The 
old  rule  that  the  father  could  not  recover  as  father  but  only  as  master, 
is  styled  an  "outworn  fiction"  in  Willeford  v.  Bailey,  132  N.  C.  p.  404, 
43  S.  E.  928.  and  a  "feigned  issue"  in  Hood  v.  Sudderth,  111  N.  C.  at 
p.  220,  16  S.  E.  397.  Effect  of  proof  that  intercourse  was  by  force- 
rape — to  defeat  the  action.  18  L.  R.  A.  (N.  S.)  587,  and  note.  See 
".Judgment,"  Century  Dig.  §  1123;  Decennial  and  Am.  Dig.  Key  No 
Series  §  584. 


Sec.  ,:?  d.]  relative  rights.  537 


(dj  Death  or  Injury  of  Child  by  Act  of  Another.     Eight  of  Par- 
ents to  Recover  for. 

KILLIAX  V.  RAILROAD.  128  X.  C.  261,  38  S.  E.  873.     1901. 
Death   of  Child   Through   Xegligence  of  Another. 

I  Action  by  the  father  to  recover  damages  for  the  death  of  his  child 
through  the  alleged  negligence  of  defendant.  Judgment  of  nonsuit 
against  plaintiff,  from   which  he  appealed.     Affirmed.] 

Clark.  J.     This  is  an  action  by  a  father  for  the  negligent  kill- 
ing of  his  son.    Upon  the  evidence  the  plaintiff  was  nonsnited,  and 
appealed;  but  in  this  court  the  defendant  interposed  a  piv^liniin- 
ary  plea,  ore  teniis.  to  dismiss  the  action  becau.se  the  eoniplaint 
does  not  state  facts  sutificieut  to  constitute  a   cause   of   action. 
Rule  27  of  this  court   (27  S.  E.  viii.)  ;  ^Manning  v.  Railroad  Co., 
122  X.  C.  825.  28  S.  E.  963.     The  Code  (§  U98)   provides  that 
whenever  "the  death  of  a  person  is  caused  by  a  wrongrul  act.  neg- 
lect, or  default  of  another, ' '  an  action  therefor  may  be  brought  by 
"the  executor,  administrator  or  collector  of  the  decedent."     Sec- 
tion 1400  provides  that  "the  plaiutiflF  in  such  action  uiay  recover 
such  damages  as  are  a  fair  and  just  compensation  for  the  pecu- 
niary injury  resitlting  from  such  death,"  and  section  1500  pro- 
vides for  the  application  and  distribution  of  such  recovei'y.     At 
common  law.  this  action  could  not  have  been  maintained.     BaloM- 
V.  Bolton.  1  Camp.  493.  in  which  Lord  Ellenborough  tersely  stated 
the  doctrine  of  the  common  law  to  be,  "In  a  civil  suit,  the  death 
of  a  human  being  cannot  be  complained  of  as  an  injury."    Where 
the  injur>'  subsequently  resulted   in   death   the   action    abated.- — 
"Actio  personalis  moritur  cum  persona."     Hence,  though  many 
courts  doubted  the  soundness  of  the  reasoning  as  ajiplied  to  this 
class  of  cases,  it  was  iniiformly  held  in  England  and  this  country 
that  the  right  of  action  cea.sed  upon  the  death  of  the  injni'i'd  i)ar1\ . 
8  Am.  &  Eng.  Enc.  Law  (2d  ed.),  S55.  and  a  page  of  authoi-itits 
there  cited. — especially  Carev  v.  Railroad  Co..  55  IMass.  475.   48 
Am.  Dec.  016;  Eden  v.  Railroad  Co.,  53  Ky.  204;  Hyatt  v.  Ad- 
ams. 16  Mich.  ISO.     In  Insurance  Co.  v.  Brame.  95  1'.  S..  at  page 
756.  24  L.  Ed.  582.  it  is  said:  "The  authorities  are  so  numerous 
and  so  uniform  to  the  proposition  that  by  the  common  law  no  civil 
action  lies  for  an  injury  which  results  in  dcalh.  Ilial  it  is  impossi- 
ble to  spcHk  of  it  as  a  j)ro|)osition  ojx'ii  1o  (|U('stion.     it   has  been 
decided  in  many  cases  in  the  I'lngiish  courts  and  in  man.\'  of  the 
state  courts,  and  no  deliberate,  well-considered  decision  to  the  con- 
trary is  to  be  found."     It  is  true,  the  father  was  cntith'd  to  the 
servMces  of  his  son.  if  he  had  lived,  till  his  majority,  but  wheji  the 
death  of  the  son  ensued  Hh-  cause  of  action  abated.     It    is  said   in 
Hyatt  V.  Adau'S.  16  Mich.  180.  upon  a  review  n\'  tlie  iMi'rlish  au- 
thorities   (C(M)lev.   J.,   cducurring) .    that    one   esse,   and    only   one 
(Baker  v.   Bolton.   su|>ra).   lieM    that   at    coiinnon    law   the    father 
could  recf>ver.  after  ttie  death  of  the  child,  even   foi-  the  value  of 


538  KEi.A'nvK  ivMciiTs.  |(7r  6'. 

his  siTviiH's  iVdiii  tilt'  t  iinc  of  I  lie  iiijuiy  up  Id  1  lio  (.late  ol'  t  lie  deal  li  ; 
but.  as  luM'c  1li(>  death  was  iiislaiilaiicdus.  that  case  docs  no!  appl^. 
In  MiiLrhiiid  lliis  rule  ot"  Ihc  couuikui  law  was  chauii;!'!!  hy  Lord 
(.'anipbi.'irs  act  il>  «Js:  \0  X'icl.K  whifh  ixavc  the  i-i^lil  oi'  adidu  fee 
iujurics  sustained  by  uc«rlcet  oi-  w  rouirrul  act  ol'  aiiothci-,  uotwitli- 
standiuj;  tln>  death  ol'  the  ])ci's()ii  injui'ed.  That  act  bcfj^au  by  ex- 
pressly recitiuir  that  at  loinnidii  law  an  action  coidd  not  be  inain- 
lained  in  such  cases.  This  act  has  been  copied,  with  many  varia- 
tions, in  the  states  oi"  tlu'  I'nion.  but  in  nearly  every  instance  such 
acts  gfivc  the  riirht  of  acti(tn  to  the  ])ersoual  representative.  Tt  has 
been,  as  a  consequence  of  what  has  been  said  above,  held  that  the 
stattite  confeis  a  new  rii»ht  ol'  action  which  did  not  exist  before. 
and  must  be  strictly  followed.  8  Am.  «.^-  En^'.  lOnc.  Law  (2d  ed.), 
858.  Hence,  where  the  right  of  action  is  given  to  the  i)ersonal 
representative,  "tlie  parent  cannot  maintain  it,  even  when  the 
statute  expi-essly  ])i'ovi(h's  that  the  i-ecovery  shall  be  for  his  or  her 
beuetit.  In  such  cases  only  the  executor  or  administrator  can  sue.'" 
8  Am.  t^-  Kna:.  Enc.  Law  (2d  ed.),  8!)].  and  cases  cited  upon  that 
and  two  following  pages.  In  this  state  the  remedy  was  first  given 
by  St.  1854.  c.  39  (Rev.  Code,  c.  1.  §^  8-10),  which,  with  .some 
modifications,  are  now  §§  1498-1500  of  the  Code.  By  these,  as  al- 
ready said,  the  action  must  be  brought  by  the  personal  represent- 
ative. The  plaintiff's  counsel  cited  us  to  no  case  in  this  state, 
except  Russell  v.  Steamboat  Co.,  126  N.  C.  961.  36  S.  E.  191,  in 
which  the  })oint  does  not  arise  and  w^as  not  decided.  The  cases 
cited  by  them  from  other  states  are  either  recoveries  for  loss  of 
service  after  the  death  of  the  child  and  up  to  the  death  (8  Am.  & 
Eng.  Enc.  Law.  856),  or  where  the  statute  confers  the  right  of  ac- 
tion upon  the  parent  (8  Am.  &  Eng.  Enc.  Law,  895).  In  this  state 
it  has  been  held,  as  in  all  others,  that  the  right  of  action  did  not 
exist  at  common  law.  Collier  v.  Arrington's  Ex'rs,  61  N.  C.  356; 
Ik'st  v.  Town  of  Kinston.  106  N.  C.  205.  10  S.  E.  997;  TTowell  v. 
Board.  121  N.  C.  362,  28  S.  E.  362.  The  right  conferred  by  statute 
is  plainly  given  to  the  personal  representative  only.  Let  it  be  en- 
tered: Action  dismissecl. 

For  ?  ruling  to  the  effect  that  a  parent  may  recover  expenses  incurred 
in  consequence  of  the  negligent  killing  of  his  minor  child  and  also  for 
the  loss  of  lime  on  the  part  of  the  parent  incident  to  such  an  event,  see 
R.  R.  Co.  V.  Covenia,  29  S.  E.  219,  40  L.  R.  A.  253,  citing  Dennis  v.  Clark, 
2  Cush.  347,  48  Am.  Dec.  671.  For  a  full  discussion  of  the  matter  cov- 
ered by  the  principal  case,  see  R.  R.  Co.  v.  Beall,  42  S.  W.  1054,  41  L.  R.  A. 
807.  See  19  L.  R.  A.  (N.  S.)  633;  9  lb.  1193,  and  notes.  See  "Death," 
Century  Dig.  §  43;   Decennial  and  Am.  Dig.  Key  No.  Series  §  31. 


DONAHOE  V.  RICHARDS,  38  Me.  376,  Smith's  Cases  L.  P.  82.     1854. 
Injury  to  Child,  Which  Causes  Damage  to  Child  Only. 

fA  father  sued  a  school  committee  for  alleged  improper  expulsion  of  his 
infant  child  from  a  public  school.  Judgment  of  nonsuit  against  the 
plaintiff,  and  he  appealed.     Affirmed.] 


Sec.    2    d.]  RELATIVE    RIGHTS.  539 

Appletox.  J.  .  .  .  The  quest  iou  i)resented  is,  whether  the 
father,  if  the  expulsion  were  wrongful,  has  thereby  received  any 
such  injury  as  will  entitle  him  to  pecuniary  compensation.  A 
minor  child  is  subject  to  the  commands  of  its  father  during  minor- 
ity, and  the  father  is  entitled  to  its  services.  Joeing  entitled  to  such 
services  he  can  maintain  an  action  for  any  wrongful  act  done  to 
the  child,  by  which  it  is  disabled  or  made  less  able  to  render  its 
due  and  accustomed  service.  The  loss  of  service  in  such  case  is 
held  to  be  the  gist  of  the  action.  Hall  v.  Hollander,  4  J^ar.  k 
Cress.  660.  This  principle,  however,  has  been  so  far  extended  as 
to  enable  the  father,  when  the  child  is  too  j'^oung  to  render  any 
service,  to  recover  in  case  of  a  bodily  injury  for  the  trouble  and  ex- 
pense he  may  have  incurred  in  the  care  and  cure  of  the  child. 
Dennis  v.  Clark.  2  Gush.  3-1:7.  But  in  such  case  he  cannot  recovei- 
for  the  injury  done  to  his  parental  feelings,  or  for  the  pain  and 
suffering,  or  tlie  circumstances  of  insult  and  aggravation  with 
which  the  infliction  of  the  injury  may  have  been  attended.  Flem- 
ington  V.  Smithers.  2  C.  &  P.  292 ;  Whitney  v.  Hitchcock,  4  Denio. 
461.  For  injury  to  the  person,  the  reputation,  or  the  property, 
the  suit  must  be  in  the  name  of  the  child,  and  the  damages  be 
awarded  in  accordance  with  the  circumstances  which  may  have 
accompanied  and  aggravated  the  wrong. 

In  this  ease  there  is  no  act  done  by  which  the  ability  of  the  child 
to  render  service  is  dimini.shed.  The  school  is  for  her  benefit  and 
instruction.  The  education  is  given  to  her.  and  if  wrongfully  de- 
pi-ived  thereof,  the  loss  of  such  deprivation  falls  on  her.  The 
wrong  committed,  the  injury  done,  is  done  to  her  alone;  and  if  her 
rights  have  been  violated,  she  alone  is  entitled  to  compensation. 
TJie  claiin  of  a  plaintiff,  under  circumstances  like  those  in  the 
present  case,  has  heretofore  been  examined  and  determined  by 
courts  entitled  to  the  liighest  consideration,  and  with  an  entire 
uniformity  of  result.     .     .     .     Nonsuit  confirmed. 

See  Spear  v.  Cunimings,  23  Pick.  224,  and  Sherman  v,  Charlestown. 
S  Ciish.  161,  which  are  cited  in  the  principal  case.  See  "Schools  and 
School  Di.stricts,"  Centiuy  Dig.  §  347:  Decennial  and  Am.  Dig.  Key  No. 
Series  §  177. 


WILTOX  V.  .MIDDLESEX  R.  R.  CO.,  12.5  Mass.  130,  Smith's  Cases  L.  P. 

83.     1878. 
In  III)]!  to  Child  Cnvabiq  Jlnmonr  In  Both  Parent  and  Child. 

[The  father  of  an  infant,  child  sued  for  damages  resulting  to  him  from 
alleged  negligence  of  the  defendant,  whereby  the  child  was  injured, 
.hidgnient  against  the  defendant.  Defendant  alleged  exceptions.  Excep- 
t  ions  overruled. 

The  child  was  twelve  years  old  when  injured.  She  recovered  five 
thousand  dollars  from  the  defendant  for  the  same  injuries  which  were 
the  basis  of  this  action.  Her  father,  the  present  plaintiff,  acted  as  her 
next  friend  in  the  action  in  which  she  recovered  the  damages.  That 
recovery  was  relied  iipon  as  a  <lefenso  to  this  action;  but  the  judge  ruled 
that  if  was  no  bar  to  this  action,  and  that  the  father  could  recover  the 


5-40  ici:i.  \i'i\  i:   ix'uari's.  |(7/.  (i_ 

■■reasonable  valuf  ol'  the  rliiUi's  not   oarnings  over  and  above   wluvt,  bul 
lor  the  aicidvnt.   lier  snpport    wonM    liave  cost    hini."| 

lioun.  J.  .  .  .  ir  lilt-  (Icreiuliiiit 's  scivaiit.  in  the  course  ol' 
his  eniploynieiil .  cai^elcssly  ran  over  llie  child,  and  did  an  injury 
to  her  which  resulti'd  in  a  loss  ol"  service  lo  the  parent,  the  derencl- 
aut  is  liahh'.  whctlly  irrespective  of  llie  ipieslion  wlielher  such 
child  was  a  passeni;-er.  'Plie  previous  suit  is  not  a  hai-  to  tlie  |)res- 
ent.  'Pile  money  which  the  plaint ilf  received  in  the  i'ornier  action 
is  not  his  niom'y  ;  nor  can  he  appro|>riale  it  to  the  payment  ol'  lahor 
which  th(>  child  was  hound  to  perrorm.  The  measure  of  damages 
in  the  former  action  was  the  injuiy  to  tlu'  child,  and  not  the  in- 
jury to  the  father.  It  is  analoii'ous  to  the  cases,  formerly  rpiite 
frequent,  in  which,  foi*  injuries  to  a  wife,  the  hushand  and  wife 
must  join  for  personal  injuries  to  the  wife;  hut.  for  the  expenses 
ineident  thereto,  the  luishand  nnist  l)rin<i:  liis  sole  action  in  his 
own  name.  .  .  .  The  principles  act(Hl  ui)on  hy  the  presiding' 
judge  were  (piite  sufHeiently  favorahle  to  the  defendant.  Excep- 
tions overruled. 

That  one  action  lies  b.v  the  child  for  its  suffering  and  injury,  and  an- 
other action  lies  by  the  parent  for  loss  of  service  and  for  expenses  in- 
curred, see  Scarlett  v.  Norwood.  11;')  X.  C.  at  p.  286,  20  S.  E.  4r)9;  Cuming 
v.  Brcokl.  City  R.  R.  Co.,  109  N.  Y.  95.  16  N.  E.  65;  21  Am.  &  Eng.  Enc.  L. 
1044;  6  L.  R.  A.  (N.  S.)  552,  and  note.  As  to  recovery  by  the  parent 
if  the  child  be  too  young  to  earn  anything  at  the  time  of  the  injury, 
consult  Russell  v.  Steamboat  Co.,  126  N.  C.  961.  36  S.  E.  191,  citing  Hurst 
V.  Detroit  R.  R.,  84  Mich.  5o9,  48  X.  W.  44,  and  see  also  Dennis  v.  Clark, 
2  Cush.  347,  Smith  Cases  on  L.  P.  84,  which  limits  the  father's  recovery, 
in  such  cases,  to  expenditures  incident  to  the  injury  of  the  infant,  and 
shows  that  the  English  law  allowed  the  father  nothing  in  such  cases,  as 
that  law  stood  in  1848;  and  see  also  Cuming  v.  Brookl.  City  R.  R.,  supra, 
which  says  that  the  English  doctrine  denies  the  right  of  the  parent  to 
recover  even  for  expenses  incurred  by  reason  of  the  child's  injury,  if  the 
child  be  too  young  to  render  services;  and  holds  that  in  New  York  the 
parent  may  recover  not  only  for  expenditures  rendered  necessary  by  the 
injury  to  the  child,  but  for  estimated  prospective  earnings  of  the  child. 
See  29  Cyc.  16?.8,  1651.  See  "Judgment,"  Century  Dig.  §  1123;  Decennial 
and  Am.  Dig.  Key  No.  Series  §  584. 


WILLIAMS  V.  RAILROAD,  121  X.  C.  512,  28  S.  E.  367.     1897. 
117) en  the  Parent  Cannot  Recover. 

[Action  by  the  father  for  damages  resulting  to  him  from  the  injury 
of  his  son  while  employed  by  the  defendant  without  the  father's  permis- 
sion. There  was  no  proof  of  any  negligence  of  the  defendant.  .Judg- 
ment against  plaintiff,  and  he  appealed.  Affirmed.  The  facts  appear  in 
the  opinion.  | 

Clark.  J.  The  defendant  employed  the  minor  .son  of  the  plain- 
tiff. The  son  told  the  defendant's  representatives  that  his  fathei' 
con.sented  to  his  working  for  himself,  but  in  fact  his  father  did 
not  know  of  the  defendant's  employing  his  son  ;  and  the  latter  was 


Sec.    2    C]  RELATIVE    RIGHTP.  541 

injured  while  in  the  defendant's  service,  but.  it  is  admitted,  with- 
out any  uep:lis:enee  on  the  part  of  the  defendant  or  of  its  servants. 
The  plaintiff  sues  for  loss  of  services  after  and  in  consequence  of 
the  injury.  For  the  services  the  son  had  rendered,  compensation 
Iielonged  to  the  father;  but.  as  the  loss  of  further  services  was 
caused  by  an  injury  which  was  not  caused  by  the  fault  of  the  de- 
fendant, it  cannot  be  held  liable  for  such  loss.     No  error. 

See  "Parent  and  Child,"  Century  Digest.  §§  86-90;   Decennial  and  Am. 
Dig.  Key  Xo.  Series  §  7. 


(r)   Parent's  Right  to  Earnings  of  Child. 

BENSON   v.   REMINGTON,  2   Mass.   113,   Smith's  Cases   L.   P.   51.     1806. 
Father's  Riglit  to  Recover  Child's  Earnings. 

[Assumpsit  by  the  father  for  earnings  or  wages  of  his  minor  child,  a 
daughter,  alleged  to  be  owing  by  the  defendant.  Verdict  against  the  de- 
fendant, who  moved  for  a  new  tial.  Upon  that  motion  the  opinion  is 
written.  Motion  overruled,  and  judgment  against  the  defendant  on  the 
verdict. 

Plaintiff  forsook  his  wife  and  children.  The  defendant  in  commiser- 
ation for  the  destitute  condition  of  one  of  the  children  thus  forsaken, 
took  it  and  cared  for  it  for  some  years.  The  plaintiff  returned  in  July, 
1801.  and  demanded  that  defendant  pay  him  wages  for  the  time  fhe 
fhild  had  been  with  the  defendant.  That  matter  was  dropped  and  plain- 
tiff received  nothing.  Plaintiff  then  consented  that  the  child  should  re- 
main with  the  defendant  until  such  time  as  the  plaintiff  chose  to  take 
it  away.  This  was  all  that  was  said  or  agreed  to.  The  child  remained 
v.ith  the  defendant,  under  this  arrangement,  for  three  years  and  five 
months.  The  plaintiff  claimed  compensation  for  the  child's  services  for 
this  period.  There  was  a  verdict  against  the  defendant  subject  to  the 
opinion  of  the  court  as  to  whether  or  not  the  i)laintiff  could  recover.l 

Sedgwick.  J.  I  will  not  say  that,  where  a  parent  wholly  aban- 
dons his  child,  as  the  defendant's  counsel  seems  to  suppose  tlie 
plaintiff  has  done  here,  he  has  a  right  to  the  earnings  of  such  child. 
This  is  not.  however,  the  present  case.  It  appeared  that  plaintiff 
had  paid  attention  to  the  child.  Everything  that  had  taken  place 
relative  to  1he  services  of  the  daughter,  antecedent  to  July.  1801. 
was  then  comprcjuiised  between  th(^  ])a)'ties,  and  the  daughter  con- 
tinued in  the  .service  of  the  defendant  three  years  and  five  months 
under  a  new  agreement,  or,  to  say  llic  least,  luidn'  a  caution  from 
the  plaintiff  thai  his  legal  claims  were  not  waived.  The  plaintiff 
was  r(,'spoiisible  for  any  necessary  expenses  of  his  child;  and  siidi 
expenses,  if  any  had  been  incurred,  were  i>roper  to  be  submitted 
to  the  jur\',  l)y  way  of  set-off  again.st  this  dem.iinl  for  wages — of 
the  amount  of  l»o1h  which.  Ihey  were  the  i-egular  and  competent 
judges.  I  see  no  l"oundali(»n  to  doubt  of  Ihe  cori'cetness  of  the  d<'- 
cision  of  the  judge  at  the  liial.  and  am  lliricfore  against  setting 
aside  the  verdict. 

See  "Parent  and   Child,"   Century    Dig.    gss    70  8.':    Decennial    and    Am 
Dig.  Key  .\o.  Series  58  5.  f5. 


542  Ki;i.\'i'i\K  i^'Kiirrs.  \<'h.  (>. 


M.  CAKR  V    N    \-  1'    WOKSTKn  MIl.LS,  lit  K.   I.   117.  ."):'.  All.  i'.L'O.  GO  1..  R. 

A.    122.     lltO'J. 

Miithri's   h'lijfit  lo  thv   Kaniiinis  of  Her  Child. 

I  Plaintill'.  who  is  a  mari'it'd  woman,  living  witli  Ium-  liiisband,  brought 
this  action  of  trespass  on  tlu>  rase  to  recover  (laniaf;es  lor  a  loss  of  serv 
ices,  etc.,  of  the  minor  child  of  herself  and  husband,  resulting  from 
ail  injury  caused  by  the  alleged  negligence  of  the  defendant.  Ver- 
dict against  the  defendant,  who  asked  for  a  new  trial,  and  upon  this 
|)etilion  the  opinion  is  written.  'Pliei-e  were  a  number  of  ])olnts  raised, 
and  a  new  trial  awarded  on  a  point  not  germane  to  the  question  under 
consideration  in  this  section.  Only  so  much  of  the  opinion  as  discusses 
the  rights  of  a  mother  to  the  services  and  earnings  of  her  minor  child, 
is  here  inserted.     The  facts  ai)pear  in  the  opinion.! 

TlLl-lNUiiA.sr.  .J.  .  .  .  I  )i'rcii(l;i!i1  "s  counsel  slarls  out  with 
the  broad  contention  tluit  tlic  net  ion  will  not  lie,  on  the  ground 
that  the  phiintiff.  ;i.s  tlu>  mother  of  said  Sarah,  is  not  entitled  lo 
maintain  it:  First,  because  she  was  not  bound  to  support  her 
child,  Sarah;  and.  second,  because  the  ri|i>ht  of  action  for  h)ss  of 
service,  haviiii?  become  vested  in  the  father  durin<;  his  lifetime, 
eoiild  not  become  divested  and  vest  in  the  mother  after  his  death. 
TTavintr  Itikeu  Ibis  position  at  the  jury  trial,  the  defendant  ob- 
jected to  the  introduction  of  any  testimony  as  to  damages.  And 
as  the  trial  court  overruled  this  objection,  subject  to  exception  by 
the  defendant,  the  first  question  which  logically  presents  itself  is 
whether  the  action  will  lie. 

1.  That  at  the  eounuoii  law  the  father  is  entitled  to  the  benefit 
of  his  minor  children's  labor  while  they  live  with  liim  and  are 
supported  by  him.  there  can  be  no  doubt.  Tlis  right  to  their  serv- 
ices, like  his  right  to  their  custody,  rests  upon  the  parental  duty  of 
maintenance,  and  is  said  to  fuinish  some  compensation  to  him  for 
his  own  services  rendered  to  the  child.  Schouler,  Dom.  Rel.  (5th 
ed.),  §  252;  Brown  v.  Smith.  10  R.  I.  81f).  33  Atl.  466,  30  L.  R.  A. 
680.  The  mother,  on  the  other  hand,  not  l)eing  thus  bound  for  the 
maintenance  of  her  minor  children,  has  no  implied  right,  at  the 
common  law,  to  their  .services  and  earnings.  The  common-law  doc- 
trine as  thus  briefly  stated,  however,  has  been  greatly  relaxed  by 
modern  decisions  in  this  country,  if  not  in  England;  and  the 
strong  tendencv  of  the  courts  in  this  country,  as  well  stated  by 
Field.  C.  J.,  in'  PTorgan  v.  :\lills.  158  Mass.  402,  33  N.  E.  581,  35 
Am.  St.  Rep.  504.  "is  to  give  to  a  widow  left  with  minor  children, 
who  keeps  the  family  logether  and  supports  herself  and  them  with 
the  aid  of  their  services,  very  much  the  same  control  over  them 
and  their  earnings  during  their  minority  and  to  impose  on  her,  to 
the  extent  of  her  ability,  much  the  same  civil  responsibility  for 
their  eduention  and  maintenance,  as  are  given  to  and  imposed  on  a 
father."  The  chief  justice  then  stated  the  opinion  of  the  court  in 
that  case  to  be  as  follows:  "We  are  of  opinion  that  when  a  minor 
child  lives  with  its  mother,  who  is  a  Avidow,  and  the  child  is  sup- 
ported by  the  mothe)-.  and  works  for  her  as  one  of  the  family,  the 


Sec.   2   C]  RELATIVE  RIGHTS.  543 

mother  is  entitled  to  recover  for  the  loss  of  services  of  the  child, 
and  for  labor  performed  and  expenses  reasonably  incnrred  in  the 
care  and  cure  of  the  child,  so  far  as  they  are  the  consequences  of 
an  injurj^  to  the  child  negligently  caused  by  the  defendant."  Thi^ 
statement  of  the  law  is  abundantly  supported  by  the  authorities 
cited  in  the  opinion,  and  by  numerous  others  which  might  be 
added.  See  17  Am.  &  Eng.  Enc.  Law  (1st  ed.)  p.  387,  and  cases 
collected  in  notes  1  and  2 ;  Drew  v.  Railroad  Co.,  26  N.  Y.  49 ;  Mc- 
Elmurray  v.  Turner,  86  Ga.  215,  12  S.  E.  359;  2  Kent,  Comm. 
205,  206';  Nightingale  v.  Withington,  15  Mass.  274,  8  Am.  Dec. 
101;  Railroad  Co.  v.  Cook.  63  ]Miss.  38;  Commissioners  v.  Hamil- 
ton, 60  ^Id.  340,  45  Am.  Rep.  739 ;  Kennedy  v.  Railroad  Co.,  35 
Hun,  186;  :\roritz  v.  Garnhart.  7  Watts.  302.  32  Am.  Dec.  762; 
Furman  v.  Van  Sise,  56  X.  Y.  435.  15  Am.  Rep.  441  ;  IMatthews  v. 
Railway  Co..  26  ]Mo.  App.  75. 

2.  It  being  well  settled,  then,  that  a  widow  may  maintain  an 
action  for  loss  of  services  of  her  minor  child,  the  next  question 
which  arises  is  whether  the  plaintiff  can  maintain  her  action,  the 
cause  of  which  accrued  prior  to  the  death  of  her  husband.  The  an- 
swer to  this  question,  in  so  far  as  it  relates  to  the  plaintiff's  right 
to  recover  for  loss  of  service,  etc.,  prior  to  the  death  of  the  father, 
depends  primarily  uiion  the  relation  which  existed  between  the 
mother  and  daughter  at  the  time  of  the  accident  as  to  the  right  of 
service ;  that  is,  whether  the  mother  or  the  father  of  the  girl  at  that 
time  was  legally  entitled  to  her  services.  And  as  the  father  was 
presumably  ontitlod  thereto,  it  devolves  upon  the  plaintift'  to 
prove  that  he  had  in  some  way  relinquished  his  right  or  conferred 
it  upon  her.  While  the  right  to  the  child's  services  is  naturally  in 
the  father.  h(!  can  doubtless  surrender  this  right  to  another  by 
contract  oi-  otherwise,  in  various  ways,  as  (a)  by  binding  the  child 
as  an  apprentice  ( Allies  v.  Railroad  Co.,  117  IMass.  541,  19  Am. 
Rep.  426)  ;  (b)  bv  allowing  another  person  to  so  act  that  he  stands 
in  loco  parentis  (Whitaker  v.  Warren.  60  N.  H.  26,  49  Am.  Rep. 
302).  This  prinr-iple  is  fully  recognized  in  Morse  v.  Welton, 
6  Conn.  547.  16  Am.  Dec.  73,  where  it  was  held  that  the  right  of  a 
parent  to  the  services  of  his  minor  children  "is  bottomed  on  his 
duty  to  maintain,  protect,  and  educate  them.  .  .  .  But  this 
riirht  and  this  duty  may  be  transferred  to  another,  and  may  be  re- 
linr|uished  1o  a  child."  The  law  doubtless  is,  however,  that  the 
fatlier  cannot  permanently  transfer  his  rights  and  duties  to  an- 
other, except  by  deed.  State  v.  Libbey,  44  N.  H.  321,  82  Am.  Dec. 
223. 

[FACTS.]  The  testimony  upcn  wiiirli  llir  i.laintitl'  relies  to 
show  that  the  services  of  Sarah  belonged  to  Ikt  at  Ihe  time  of  the 
arcirh-Mt  is  to  the  effect  that  the  i)laintifT  is,  and  long  has  lieen,  the 
i-c!il  bead  of  tlie  family:  that  she  owns  Ihe  properly,  takes  care  of 
tlie  family,  and  pays  the  bills;  and  llial.  ])y  cxi.ress  direction  from 
tlic  father  in  his  lifetime,  she  was  entitled  to.  and  did,  receive  .all 
r»f  thf  caniings  of  the  daughter.  Sarah.  She  employed  the  phy- 
sifian   who  has  attcndoil   thr-  daiiLdili-r  siiifc  llic  aci-idcnt.   and    is 


'>44  KKi.A'rn  i:  km(;iii"s.  fC'A.  (k 

porsini.-illy  rcsjioiisil)!*'  to  iiiiii  Tor  liis  sorvieos.  Dr.  O'lvcctV  IcsH- 
lios  tliJit  lie  rcndtMt'd  iiis  services  ;it  the  rciiiiosi  ^)\'  the  iiH»tli(>r:  Ihiit 
till'  iiitrlif  lu'  Wiis  cjilK-d  he  s;i\v  the  i-nsc  wmilil  he  pi-oloiiircd.  ;iii(l 
he  hiul  .-I  liilk  willi  llic  iiinllici-.  nnd  sin  told  liiin  she  Wiiiilcd  liiiii  lo 
attend  luT  daii^litcr.  iuid  woidd  sec  liiiii  paid;  and  lliat  liis  serv- 
ices have  been  cliarired  to  liei'.  The  lestiiiioiiy  fiirthei"  shows  that 
the  fatlier  had  no  pro|)er1y.  atid  no  income  except  liis  cnrrcr.l 
earninfrs.  In  view  of  this  stale  of  the  ijimoI'.  |)laintiff\s  eounsol 
contends  that  the  \\ai>es  of  Sarah  were  the  ])roperty  of  tlie  mother, 
for  the  recovery  of  which  she  could  have  maintained  an  action, 
in  other  words.  tlu>  contention  is  that  the  arran^'ement  and  nnder- 
standin?  luMween  the  fathei"  and  mother  of  Sarah  as  to  her  wapres. 
taken  in  connection  with  the  other  facts  aforesaid,  aiiionntod  to  a 
relinqui.shnient  by  the  father  of  his  right  to  the  danjjhter's  serv- 
ices and  eaiiiini>s  and  an  assignment  thereof  to  the  mother,  and 
hence  that  the  latter  can  recover  for  the  loss  thereof.  We  think 
this  is  so.     .     .     . 

See  Hammond  v.  Corbett,  50  N.  H.  501,  S  Am.  Rep,  288,  where  there  is 
a  more  elahorale  discussion  of  the  mother's  rights.  That  case  does  not 
go  to  the  full  length  of  the  ijrincipal  (ase,  because  in  that  case  the  father 
was  dead,  and  the  right  of  the  mother  while  the  father  is  alive,  was 
not  presented.  For  a  mother's  rights  in  North  Carolina,  see  .Jordan  v. 
Coffield,  70  N.  C.  110;  In  re  Lewis,  88  N.  C.  31;  Revisal.  sec.  1765;  Mor- 
decais  Law  Lect.  389.  See  "Parent  and  Child,"  Century  Dig,  §§  86-99; 
Decennial  and  An).  Dig.  Key  No,  Series  §  7, 


BROWN  V.  RAMSAY,  29  N.  J.  L.  117,  119-121.     1860. 

When  is  the  Father  Entitled  to  the  Services  and  Earnings  of  His  Adult 

Children? 

I  The  plaintiff  sued  to  recover  the  value  of  work  done  by  his  adult 
son  who  lived  with  plaintiff  and,  on  account  of  weakness  of  mind,  was 
cared  for  and  treated  l)y  i)laintiff  as  if  he  were  still  a  minor.  There  w-as 
judgment  against  the  defendant,  who  took  the  case  to  the  supreme  court 
by  certiorari.     Affirmed.]  • 

Whelplev.  J.  .  .  .  The  court  innst  have  decided  that  the 
son  was  non  compos  mentis,  incapable  of  takino-  care  of  himself  or 
of  making  any  valid  contract,  and,  as  such,  is  still  sub  potcstate  pa- 
tris.  like  an  infant.  The  right  of  a  father  to  the  services  of  his  sane 
child  ceases  at  twenty-one.  It  is  then  the  right  of  the  child  to  be 
emancipated,  to  be  thenceforth  his  own  master,  make  his  own  con- 
tracts and  receive  into  his  own  hands  the  fruit  of  his  own  labor. 
But  arriving  at  the  age  of  twenty-one  is  not  ipso  facto  emancipa- 
tion. The  child  may  elect  still  to  remain  the  servant  of  the  father, 
to  abi(h'  under  his  roof,  and  to  receive  sustenance  and  support 
from  him.  Tn  such  a  ca.se  he  is  not  emancipated,  and  the  father  is 
liable  for  his  support  and  entitled  to  receive  his  earnings.  Over- 
seers of  Alexandria  v.  Overseers  of  Bethlehem,  1  TTarr.  122.  This, 
it  is  true,  was  a  settlement  ca.se,  but  it  seems  to  me  that  the  prin- 
ciples upon  which  it  was  decided  rule  this  cjise.     That  case  holdii 


S(C.    2    e.]  RELATIVE    RIGHTS.  545 

distinctly  the  doctrine  that  Mttiiiniiig  tho  ago  of  twenty-one  is  not 
('inaneii)ati(in  ;  that  whether  it  is  so  or  not,  is  a  question  to  be  set- 
tled by  the  eireumstances  of  the  case;  that  it  requires  the  election 
of  the  child  to  make  it  emancipation,  and  that  an  idiot,  or  person 
of  such  weak  mind  as  to  be  incapable  of  making  the  election,  is 
not  emancipated,  and  cannot  be.  at  attaining-  that  age.  so  far  as  to 
prevent  the  acquisition  of  a  derivative  settlement.  That  case.  I 
think,  was  rightly  decided. 

But  I  am  by  no  means  prepared  to  liold  that  an  imbecile  child 
over  twenty-one  years,  not  residing  with  his  father  and  sui)ported 
by  him.  cannot  be  emancipated  by  the  act  of  the  father  turning 
him  out  of  his  family  and  from  the  shelter  of  his  roof,  and  refus- 
ing to  maintain  him.  so  far  as  to  enable  him  to  sue  for  his  own 
wages.  In  such  a  case  the  emancipation  would  be  complete  even 
without  the  assent  of  the  child,  for  the  connnon-law  lia1)ility  of  the 
father  to  suppoi-t  liis  child  ceases  when  he  attains  his  majority;  he 
is  no  longer  lial)le  because  of  the  infancy  of  the  child.  ^lills  v. 
Wyman.  3  Pick.  207.  and  cases  there  cited:  Cook  v.  Bradley, 
7  Conn.  §7;  1  Parsons  on  Cont.  259.  After  that  tiiiu'  it  requires 
either  the  express  or  tacit  assent  of  the  father  to  the  continuance 
of  his  child  in  the  ivlation  of  his  unemancipated  servant.  That 
assent  may  be  manifested  hy  permitting  the  child  to  i-emain  in  his 
family  as  before,  supported  and  sustained  l\v  him.  The  female 
children  of  many  parents  often  I'cmain  in  this  way  unemancipated 
long  after  attaining  maj<n'ity.  rendering  service  to  the  father  and 
supported  by  him.  and  for  such  services  so  rendci'cd  it  has  been 
held  that  no  action  lies.  Ridgway  v.  English.  2  Zab.  416.  The 
law  will  not  presume  any  change  in  the  existing  i-elation  of  parent 
and  child  from  the  mere  fact  that  the  child  is  twenty-one. 
Whether  emancipation  has  taken  ])lace  or  not  must  l)e  a  (|uestion 
of  fact,  not  of  law. 

Tn  this  case  there  was  proof  before  the  court  that  the  child  had 
always  lived  with  and  been  su})ported  by  thi^  father,  although  he 
had  occasiotially  worked  out  and  received  liis  own  wages;  but  the 
latter  fact  would  iiol  oT  itself  prove  emancipation.  Fpon  the  evi- 
dence before  tliem.  the  c(Mirt  might  lawfully  decide  that  the  rela- 
tion of  a  non-emancipated  child  still  subsisted,  and  we  must  pre- 
sume they  did  so  decide.  The  judg)nent  of  the  common 
I)leas  must  be  affinned. 

'I'hc  |)riii(ii);il  case  is  a  peculiar  one.  in  that  the  adult  (liild  was  of 
unsound  mind.  That  children  inrai):iide  of  taivinp  cai-e  of  tlienisclves  by 
reason  of  mental  or  bodily  infirmity  are  not  emancipated  by  arriving  at 
age,  is  stated  to  be  the  law  in  a  note  to  7  L.  R.  A.  176,  citing  several 
(ases  from  Pennsylvania  and  on*-  from  Vermont  in  siui!)ori  of  the  state- 
ment . 

That  persons  occupying  the  relation  of  one  family  cannot  recover 
from  each  other  for  services  or  board,  in  the  absence  of  a  contract  or 
understanding  to  that  effect,  is  well  settled;  but  arriving  at  age  ordi- 
narily worUs  a  conudcte  emanci|iat  ion.  and  the  right  of  the  jiarenl  to 
his  adult  child's  services  then  c(>ases.  as  does  also  his  linbility  for  such 
child's  support.  Schouler,  Doni.  Rel.  sec.  269;  Smith's  Cases  L.  P.  74-78; 
Mordecai's  L.  L.  109  111.  For  further  discussion  see  L'9  f'yc  1672;  21 
Remedies — '.i'j. 


546  IIELAIIVK    HKill'lS.  \('ll.    a. 

Am.  &  Kiis-  Kiu'.  1^.  10r>lt;  11  h.  U.  A.  (N.  S. )  87:!,  and  elaborate  note. 
See  Tareiit  and  Child,"  Century  Dig.  §§  70-85,  1G3  175;  Decennial  ami 
Am.  Dig.  Key  No.  Series,  §§  5.  (i,  IG. 


TKW.  MFG.  CO.  V.  JAMES.  91  Tenn.  154.  18  S.  W.  202.  15  L.  R.  A.  211. 

1892. 

Hmanripatioii  of  Infants.     Effect  of  ou  Parent's  Right  to  Earnings. 

(Minnie  .Tames,  by  her  next  friend,  sued  in  quantum  meruit  for  worlc 
and  labor  done  by  lier  lor  the  Tenn.  Mfg.  Co.  .Judgment  against  the 
eompany.  The  tompany  carried  the  case  to  the  supreme  court  by  writ 
of  error.     Reversed. 

The  contract  by  which  Minnie  .Tames  was  employed  was  in  writing 
executed  by  her  and  her  father  also.  Tt  contained  a  clause  by  which 
wages  earned  and  unpaid  should  be  forfeited  by  certain  acts  of  the  em- 
ployee. By  this  clause  there  was  a  forfeiture  of  the  wages  sued  for. 
The  judge  below  ruled  that  the  contract  in  question  was  with  the  minor 
and  that  she  could  repudiate  it.  Only  a  part  of  the  opinion  is  here  in- 
serted.] 

LuRTON,  J.  .  .  .  The  eirenit  judge  beinjt;  of  opinion  that 
the  eontraet  wa.s  invalid,  as  beintj  one  witli  a  iiiinoi-  wlio  liad  a  le<?al 
rifjht  to  repudiate  same,  gave  .iudsniciit  for  the  ])huntiff.  In  this 
we  think  his  honor  erred.  If  the  contract  had  been  alone  with  the 
minor,  she  mig^ht  undoubtedly  repudiate  it.  and  recover  upon  a 
<iuantum  meruit.  The  law  would  give  the  infant  the  privilege  of 
judging  wlietlier  such  a  contract  was  beneficial  or  not.  and  of 
avoiding  it  if  she  elected  to  do  so,  and  recovering  the  value  of  her 
services  as  if  she  worked  without  any  contract.  10  Amer.  &  Eng. 
Enc.  Law.  tit.  "Infant."  But  this  contract  was.  in  law.  with  the 
father,  who  agreed  that  the  wages  in  law  due  to  him  might  be  paid 
over  to  his  child,  "subject  to  all  the  conditions  of  this  contract."' 
The  wages  of  a  minor,  peculiar  circumstances  out  of  the  way,  are 
due  to  the  father.  This  springs  from  his  legal  duty  to  support  and 
educate  his  child.  He  may  permit  the  minor  to  take  and  use  his 
own  earnings.  This  is  called  "emancipation,"  and  emancipation 
will  be  a  defen.se  to  the  father's  suit  for  the  minor's  wages.  It 
may  bp  express  or  implied:  entire  or  partial.  Tt  may  be  condi- 
tional. It  may  be  in  writing  or  oral ;  for  the  whole  minority  or 
for  a  shorter  term;  as  to  a  part  of  the  child's  Avages  or  as  to  the 
whole.  Emancipation  will  not  enlarge  the  minor's  capacity  to  con- 
tract ;  it  simply  precludes  the  father  from  asserting  his  claim  to 
the  wages  of  his  child.  Bish.  Cont.  §  898.  If  one  employ  a  minor 
with  notice  of  the  non-emancipation  of  the  infant,  it  will  be  no 
defense  to  the  father's  suit  for  the  wages  that  the  child  has  re- 
ceived them.  On  the  other  hand,  payment  to  the  father  will 
be  no  deff^nse  to  the  minor's  suit,  if  the  employer  knew  of  the  fact 
of  emancipation.  These  principles  of  the  common  law  are  well 
settled,  and  have  not  been  affected  by  statute.  Cloud  v.  Hamilton, 
n  Humph.  10.').  The  cases  in  America  are  colloeted  in  a  note  to 
Wilson  v.  :\IcMillan.  35  Amer.  Rep.  117. 


JSCC.   2   e.]  KELATIVK    RIGHTS.  547 

In  view  of  these  principles,  we  must  construe  the  contract  of 
the  father  as  an  emancipation,  subject  to  the  conditions  as  to  dam- 
ages in  case  his  child  shall  quit  without  cause  and  without  the 
stipulated  notice.  It  is  as  mui-h  as  if  he  had  said:  "Mj-  child  is  a 
minor.  As  such.  I  am  entitled  to  her  wages.  I  am  willing  that 
she  shall  work  in  j'our  mill,  and  that  the  wages  she  may  earn  shall 
be  paid  to  her.  I  agree  that  she  shall  comply  with  this  contract, 
and,  if  she  does  not,  then  the  wages  legally  due  me  shall  oe  de- 
tained by  you  to  the  extent  provided  in  the  contract  I  make  for 
her,  and  only  such  wages  paid  to  her  as  I  would  be  entitled  to  re- 
ceive if  the  contract  were  exclusively  with  me."  This  was  a  con- 
ditional emancipation,  imder  a  special  contract  made  by  and  with 
the  father  for  himself  and  his  child.  Her  emancipation  was  par- 
tial. The  father,  having  a  legal  right  to  her  entire  wages,  has 
stipulated  that  none  shall  be  paid  her  beyond  the  sum  due  under 
this  agreement  with  him.  If  this  contract  is  binding  on  him.  the 
minor  cannot  recover  beyond  its  limits.     .     .     . 

[The  contract  was  held  to  be  a  valid  one  and  binding  on  the  father, 
and,  hence,  a  bar  to  the  action  for  the  reasons  given.] 

See  "Parent  and  Child,"  Century  Dig.  §§  70-76,  165-175;  Decennial 
and  Am.  Dig.  Key  No.  Series  §§  5,  16. 


COMMONWEALTH  v.  GRAHAM,  157  Mass.  73,  31  N.  E.  706,  16  L.  R.  A. 

578.     1892. 

Marriage.  Hoic  Far  an  Emancipation. 

f Prosecution  under  a  statute,  for  non-support  of  wife.  Verdict  of 
guilty.     Defendant  alleged  exceptions.     Exceptions  overruled. 

The  defendant  married  when  he  was  nineteen  years  old,  and  without 
the  consent  of  his  father.  After  his  marriage  his  father  still  took  most 
of  his  wages.  He  requested  the  judge  to  charge  that  his  marriage  with- 
out his  father's  consent  did  not  work  an  emancipation  and  entitle  him 
to  his  earnings.     The  marriage  was  solemnized  in  Maine. 1 

Field,  C.  J.  .  .  .  The  consequences  of  this  marriage  nuist 
be  the  .same  as  if  it  had  been  solemnized  in  this  commonwealth; 
and  the  presiding  justice,  therefore,  correctly  ruled  that  this  mar- 
riage "impo.sed  upon  the  dc^fendant  all  the  duties  and  responsi- 
bilities of  the  marilal  relation." 

The  real  question  is  whether,  when  a  minor  son  marries  without 
the  consent  of  his  father,  and  the  father  never  consents  to  it,  and 
needs  the  son's  wages  for  his  su]ii)ort  and  the  support  of  his  fam- 
ily, the  father  is  entitled  to  the  son's  wages  during  minority  in 
jireference  to  the  wife,  who  also  needs  the  wages  for  her  support. 
The  ruling  was  that  the  "wife  would  be  entitled  as  of  right  to  re- 
ceiv(!  su|)i)orl  fi'om"  hei-  husband,  and  that  he  "would  be  entitled 
as  of  right  to  such  poi-lion  of  his  wages  as  to  enable  him  to  support 
his  wife;  tliat  the  father  could  only  claim  tlic  rest."  Tt  seems  to 
be  settled  that  the  maniage  ol'  a  minor  son.  w  illi  llie  consent  of 
his   fjitlier.   works  an   <iii;iiieipat  ion  :   ;ni(l    il    is   nitl    i-li'iii-  tli;it    the 


548  KKi..vi'i\K  ivit;iirs.  |(7/.  6. 

innrrinjjr  ot"  ;i  iiiiiuir  son  w  itlidul  tiis  father's  ((iiiscnt  docs  not  liavc 
the  same  elVeet.  allhtuiiili  the  ileeision  in  White  \.  lleiii-y.  24  Mr. 
"vH.  is  contra.  It  has  been  sai(i  that  "the  hnsliand  Ix'eonies  the 
head  of  a  new  faniilv.  His  new  reh-ilions  to  his  wife  and  children 
ereati>  ohli«iations  and  duties  wliich  re(|uire  him  to  l)e  niasler  of 
himself,  his  time,  his  h-ihor.  eafnin,us.  and  condnet."  .Sherlmrne 
V.  Ilarthmd.  'M  \'t.  ^^2^.  Tlicrc  seems  to  l)e  litth-  d(>ul)t  that,  wlicn 
an  infant  (h-uiirhtci-  mai-ries.  shi'  is  emancipated  from  the  control 
of  her  |»arents.  Aldrieh  v.  Hennetl.  Ci'A  \.  11.  41");  Hun-  v.  AVilson. 
IS  Tex.  -Mu:  i'oreh  v.  Kries.  IS  X.  J.  K.|.  204;  Hex  v.  Wilminiiton. 
,-)  Ham.  .t  Aid.  52;");  Kex  v.  Eveiton.  1  Hast.  .")2(i ;  Northlield  v. 
Hrookli(<ld.  .")()  Vt.  (i2.  See.  however,  Hahin  v.  I.o  HIanc,  12  La. 
Ann.  ;^()7.  The  meaninii'  of  emancipation  is  ii(»t  that  all  the  dis- 
abilities of  infancy  ai'e  removetl,  hut  that  the  infant  is  freed  from 
])ai-ental  control,  and  has  a  ri<rht  to  his  own  earnin<:s.  In  Taindoii 
V.  Hlymonlh,  1")  .Mass.  204.  it  was  inlimaled  that  the  mai-i-iagc  of  an 
infant  son  with  the  consent  of  the  fathei-  entitled  the  sou  to  Ids  own 
earninirs  for  the  support  of  his  family;  and  in  Davis  v.  Caldwidl. 
12  Cush.  ")12,  it  was  said  that  an  infant  husband  is  liable  for  neces- 
saries fuinished  for  himself  and  his  family.  It  is  clear,  we  think, 
that  it  is  the  duty  of  an  infant  husband  to  support  his  wife,  and 
that,  if  he  have  ])ro])erty  and  a  <j:uardian.  it  is  the  duty  of  the 
eruardian  to  ap]-)ly  the  income,  and.  so  far  as  is  necessary,  the 
principal,  of  his  ward's  i)roperty.  to  the  maintenance  of  the  ward 
and  his  family,  under  Pub.  St.  c,  139,  §  30.  We  are  of  opinion 
that  these  considei-ations  make  it  necessary  to  hold  that  an  infant 
husband  is  entitled  to  his  own  wages,  so  far  as  they  are  necessary 
for  his  own  support  and  that  of  his  wife  and  ehildi'cn.  even  if  he 
married  without  his  father's  consent,  and  that  th(>  ruling  of  the 
court  was  sufficiently  favorable  to  the  defendant.  AVhether  sound 
policy  does  not  require  that  in  every  case  in  which  the  marriage 
is  valid  an  infant  husl)and  should  be  entitled  to  all  his  earnings 
nee'd  not  now  be  decided.    Exceptions  overruled. 

As  to  how  far  marriage  effects  an  emancipation,  see  also  the  note  to 
State  V.  Stisall,  22  N.  .J.  L.  286,  inserted  at  ch.  6.  sec.  2,  (a).  Not  only 
may  emancipation  be  effected  by  contract  between  parent  and  child,  but 
also  by  cruelty,  neglect,  abandonment,  etc.,  on  the  part  of  the  parent — 
leaving  the  child  to  shift  for  itself,  or  treating  it  so  badly  that  it  is 
justified  in  law  in  leaving  the  i)arent.  So,  acting  in  so  depraved  a  man- 
ner as  to  make  it  improper  for  the  child  to  live  with  its  father,  will 
work  an  emancipation.  Atwood  v.  Tlolcomb.  39  Conn.  270,  Smith's  Cases 
L.  P.  65,  68;  Nightingale  v.  Withington,  15  Mass.  272;  note  in  35  Am. 
Rep.  117. 

"A  father  may,  by  agreement  with  his  minor  child,  relinquish  to  the 
child  the  right  he  has  to  his  services  and  earnings,  and  he  will  afterward 
have  no  right  to  claim  his  wages  from  his  employers,  but  the  child  may 
claim  and  recover  them  in  his  own  name  for  his  own  benefit.  Such  an 
agreement  ojierates  as  a  release  of  the  father's  right,  and  he  has  no 
power  to  reclaim  or  resume  it  afterward.  Preston,  Touchstone,  307: 
Litt.  sec.  367;  nor  will  his  right  revive,  unless  from  the  actual  agreement 
of  the  minor  or  one  fairly  inferable  from  the  circumstances  and  conduct 
of  the  parties.  An  agreement  of  the  father  with  his  son  stands  on  a 
different  ground  from  his  agreement  with  a  third  i)erson,  to  give  up  to 


iiCC.    3    a.]  RELATING    RIGHTS.  549 

him  the  control  of  his  child  for  a  limited  time  or  during  minority.  As 
between  them,  the  right  of  the  father  over  his  child  has  been  held  a 
personal  trust  which  cannot  be  transferred  unless  by  indenture  under 
statute,  and  which  it  has  been  held  the  father  may  resume  at  pleas- 
ure, .  .  .  though  upon  this  point  the  decisions  do  not  agree."  Hall 
V.  Hall,  44  X.  H.  293,  Smith's  Cases  on  L.  P.  78.  79. 

As  the  earnings  of  a  minor  child  belong  to  the  father,  he  cannot  give 
such  earnings  to  the  child,  after  they  have  been  paid  or  earned,  any 
more  than  he  can  give  away  any  other  property,  in  violation  of  the 
statute  of  13  Elizabeth,  which  makes  void,  as  to  creditors,  all  disposi- 
tions of  property  made  with  intent  to  hinder,  delay,  or  defraud  the  cred- 
itors of  the  donor,  etc.;  but  there  is  a  great  difference  between  that 
which  is  already  earned  and  the  prospective  earnings  of  a  child.  The 
creditors  of  the  father  have  no  right  to  the  services  of  the  child,  for  the 
child  is  not  the  property  of  the  father.  Therefore,  if  the  father  eman- 
cipate the  child,  its  earnings  subsequent  to  such  emancipation  are  free 
from  the  claims  of  the  father's  creditors.  Winchester  v.  Reid,  53  N.  C. 
377,  57  Pac.  908:  4.5  L.  R.  A.  64.');  note  at  i)p.  117-121  of  35  Am.  Rep., 
where  will  be  found  a  very  valuable  condensed  statement  of  the  law 
governing  the  rights  of  all  concerned  in  the  earnings,  status,  etc.,  of  an 
emancipated  child,  as  well  as  what  constitutes  emancipation  of  a  minor. 
See  also  29  Cyc.  1672  et  seq.  See  "'Parent  and  Child,"  Century  Dig.  §  73; 
Decennial  and  Am.  Dig.  Key  No.  Series  §  5. 


Sec.  3.     ]\Iaster  and  Servant. 
(a)  Master's  Liabilitij  to  Servant  on  Contract. 

SMITH  V.   LUMBER  CO..  142  N.  C.  26,  54  S.  E.  788.     1906. 

Remedies  of  Servant  for  Breach  of  Contract  of  Hiring.  Entire  Con- 
tracts. Wages  Payable  in  Installments.  Constructive  Service.  Duty 
of  Discharged  Servant  to  Seek  Other  Employment.  Estoppel  hy 
Judgmetit  on  One  Installment. 

[Action  for  one  hundred  and  fifty  dollars  alleged  to  be  due  upon  a 
contract  of  hiring.  Verdict  and  judgment  against  defendant,  and  de- 
fendant ap|)faled.     Affirmed,  except  as  to  one  point. 

Plaintiff  alleged  that  he  was  employed  by  the  defendant  for  the  term 
of  four  months  at  $75  a  month;  that  he  was  i)aid  for  the  first  month, 
and  then  discharged  without  cause;  that  he  failed,  after  diligent  elTort, 
to  obtain  other  employment;  that  he  sued  for  the  second  installment  of 
wage.s  and  obtainfd  judgment.  The  ])laintiff's  term  of  service  liegan 
on  Feb.  5,  1904,  and  he  was  paid  for  the  month  ending  March  5,  1904. 
r'"'or  the  wages  due  on  April  5,  he  brought  suit  on  May  5,  at  which  time 
there  was  also  due  the  wages  for  the  month  ending  May  5,  which  were 
not  iiirluded  in  the  suit.  He  now  sues  for  the  wages  due  on  May  5,  and 
for  the  amount  due  on  .Tune  5.  Although  there  were  two  installments 
due  on  May  5 — when  he  brought  his  first  action — only  one  was  included 
in  the  suit.  The  defendant  insisted  that  by  failing  to  sue  for  the  Ihiid 
installment,  which  was  due  wlu'n  bo  sued  for  the  second,  the  judgment 
rendered  for  the  second  installment  was  res  judicata  and  an  esloi)pel 
as  to  all  installments  due  at  the  time  that  action  was  commenced.  Tim 
judge  ruled  otherwise,  and  so  liistnictcd  the  jiiiy  on  llif  fonilli  issue. 
which  wa.H  Bulnnittf'd  to  raise  this  fiucstion. 

The  defendant  also  Insisted  that  plaintiff  could  not  sue  for  the  install- 
ments as  they  fell  due,  but  could  only  sue  in  quantiim  meruit  or  foi- 
damages  for  breach  of  contract;  and,  that  having  brought  suit  on  one  in- 


550  KKi-.vnvK  ijKiiii's.  \('h.  a. 

stnllnu'nt,  siuh   au-tion   was  a  complete  bar   lo   any    I'liither   reeovery   on 
the  lonliaet.     The  judge  ruled  against    this   position. 

l)n  the  third  issui',  whieh  was  as  to  iiow  nuicli  the  plaintil't'  was  en- 
titled to  recover,  the  det'endani  requested  the  judge  to  charge  that,  if 
the  plaintiff  did  not  try  to  get  work  alter  his  discharge,  he  could  recover 
nothing  in  this  action.     The  judge  retMised  this  request.! 

\V.M.Ki:i{.  fT.  "When  this  i-nsc  \v;is  hd'oi-c  tis  ;il  the  hist  tenii 
(140  X.  ('.  M7\  ;">;>  S.  K.  2:VA).  it  ;ii)i)(>iire(l  by  adiiiissioii  ol"  Ww 
jiai-tii's  thai  the  phiintiff  luul  l)r()ti<;lil  suit,  boforo  the  magistrate 
at'toi-  .Iiiiii'  10.  1!)04.  and  at  a  tiiiic  when  tlio  last  installmenl  hail 
fallen  (hic.  aiul  it  was  Ihen  contended  with  nnieh  foroo  that  liaviiu.^' 
sued  for  one  of  tlie  inslallnu'iils.  when  all  were  due,  and  re(H)vered 
.luds^nK'nt,  the  ])laintiff  could  not  sue  and  recover  for  any  other 
installment,  because,  to  ])revent  unnecessary  and  oppressive  litiga- 
tion, the  law  couslrui's  the  former  adjudication  to  be  a  full  satis- 
faction and  a  com])ii'te  bar.  The  position,  whether  intrinsically 
correct  or  not,  seems  to  be  sustained  bv  high  authority.  Jarrett  v. 
Self,  00  N.  C.  478;  Keams  v.  TTeitman,  104  N.  C.  332.  10  S.  E. 
407;  ]\rePhail  V.  Johnson.  109  N.  C.  571.  13  S.  E.  799;  2  Parsons. 
Cont.  464:  Freeman.  Judgments.  §  240;  Ref.  Dutch  Church  v. 
Browni,  54  Barb.  (N.  Y.)  191;  Am.  &  Eng.  Enc.  Law  (2d  ed.). 
p.  791  and  note  1.  Tt  now  appears  from  the  testimon.v  thai  llir 
suit  l)efore  him  was  actually  connneured  on  INFay  5th.  and  the  de- 
fendant contends  thai  having  lecovered  judgment  if  for  but  1h  ' 
amount  of  one  installment,  the  plaintiiif  cannot  again  sue  for  lb- 
other  installment  which  was  then  due,  upon  the  principle  just 
mentioned,  and  that  the  judgment  should  be  reduced  by  the 
amount  of  one  installment,  or  $75.  So  that  we  must  now  decid' 
the  question.     .     .     . 

In  this  case,  the  suit  was  connnenced  on  May  5th  as  the  sheriff 
received  the  sunmions  from  the  clerk  on  that  day.  The  plaintiff's 
term  of  sen-ice  began  on  Fel)ruaiy  5th,  and  the  third  month  ex- 
pired on  May  4th,  so  that  the  salary  of  the  third  month  w^as  du  ■ 
immediately  on  the  expiration  of  that  day,  and  suit  could  thei-i - 
fore  have  been  brought  for  the  same  on  the  fifth  day  of  that  month. 
"Where  wages  are  by  express  stipidation  jiayable  at  stated  pe- 
riods during  the  term,  the  w^ages  for  any  period  are  due  and  pay- 
able immediatelv  on  the  completion  thereof."  20  Am.  &  Eng. 
Enc.  (2d  ed.)  21  ;  White  v.  Atkins.  8  Tush.  fMass.)  367-371  : 
Harris  v.  Blen.  16  :\Ie.  175;  Green  v.  Robertson.  64  Cal.  75.  2S 
Pac.  446.  As  one  full  month's  work  had  been  performed,  one  full 
month's  pay  was  then  due  and  demandable.  The  plaintiff,  there- 
fore, could  have  recovered  the  amount  of  both  the  second  and  third 
installments  in  the  suit  brought  on  the  5th  of  May,  and  is  cons<'- 
quently  barred  from  the  recovery  of  either  one  of  them  in  this  ac- 
tion, under  the  principle  settled  by  the  authorities  above  cited. 

The  defendant  also  r-ontended  that  the  plaintiff  could  not  sue 
on  the  successive  installments  a,s  they  fell  due,  but  must  sue  on  a 
quantum  meruit  or  for  damages  for  the  breach  of  the  contract, 
and  that  his  reeoverv  for  the  one  installment  was  a  complete  satis- 


Sec.    3    a.]  RELATIVE    RIGHTS.  551 

faction  of  all  damages  arisiiio:  from  the  breach  of  the  contract,  as 
his  recovery  in  either  of  the  other  two  forms  of  action  would  have 
been.     We  do  not  assent  to  this  proposition  in  its  entirety.     Nu- 
merous and  well-considered  authorities  hold,  ip  accordance  with 
what  we  consider  the  correct  principle  and  the  better  reason,  that 
when  the  contiact  is  entire  and  the  services  are  to  be  paid  for  bj^ 
installments  at  stated  intervals,  the  sei^'ant  or  emplo.ye,  "vvho  is 
wrongfully  discharged,  has  the  election  of  four  remedies:  (1)  He 
may  treat'  the  contract  as  rescinded  by  the  breach  and  sue  innne- 
diatcly  on  a  (luantum  meruit  for  the  services  performed,  but  in  this 
case  he  can  recover  only  for  the  time  he  actually  served.     (2)  He 
may  sue  at  once  for  the  breach,  in  which  case  he  can  recover  only 
his'  damages   to   the   time   of    bringing   suit.       (3)    He  may  treat 
the  contract  as  existing  and  sue  on  it  at  each  period  of  payment 
for  the  salary  then  due.     (We  do  not  consider  the  right  to  proper 
deduction  in  this  case,  as  it  is  not  now  presented).     (4)  He  may 
wait  until  the  end  of  the  contract  period,  and  then  sue  for  the 
breach,  and  the  measure  of  damages  will  be  prima  facie  the  salary 
for  the  portion  of  the  term  unexpired  when  he  Avas  discharged,  to 
be  diminished  by  such  sum  as  he  has  actually  earned  or  might  have 
earned  by  a  reasonable  effort  to  obtain  other  employment.     This 
rule  as  thus  stated,  is  supported  bv  the  great  weight  of  authority, 
14  A.  &  E.  Enc.  (1st  ed.).  797  :  20  A.  &  E.  Enc.  (2d  ed.),  36  et  seq., 
and  it  is  clearlv  i-ecognized  and  adopted  by  this  court  in  ^Farkham 
v.  :\larkham.  110  N.  C.  356.  14  S.  E.  063.    The  difficulty  in  estab- 
lishing the  right  to  sue  upon  the  contract  for  the  whole  amount  of 
the  wages  originated   in  the  doctrine  of  "constructive  service." 
The  law.  in  theory  at  lea.st.  required  that  the  servant  wrongfully 
dismissed  before  the  expiration  of  his  term  must  kec])  himself  in 
readiness  at  all  times  to  perform  the  required  service,  and  an  aver- 
ment that  h(^  had  done  so  was  necessary  in  an  action  on  the  con- 
tract for  a  breach.    By  a  fiction  of  the  law.  his  constant  readiness 
to  perform  was  considered  e<iuivalcnt  to  actual  service,  so  as  to  en- 
able him  to  recover  the  full  amount  of  the  wages,  the  same  as  if 
the  service  had  been  actually  performed,  and  it  was  so  construed 
by  the  courts,    liut  this  principle  was  inconsistent  Avith  the  rule  as 
to  the  measure  of  dauiages.  which  permitted  the  ma.ster  to  show  in 
diminution   of  the  sen^ant's  recovery  for  wages  that   the   latter 
cither  obtained  or  could  have  obtained  other  employment,  inas- 
much as  to  be  always  strictly  ready  he  must  be  always  idle.     The 
two  refiuircmcnts  of  the  law  could  n(»t  reasonably  and  logically 
.-ocxi.st.  and  for  this  rea.son  the  doctrine  of  constructive  service, 
Hrst  asserted  by  Lord  Ellenboi-ough  in  Gandell  v.  Pontigney.  4 
fami).  375.  was  repudiated  in  later  eas<'s  and  the  servant's  remedy 
was  restricted  to  either  a  quantum  meruit   (if  he  elects  to  rescind 
the  contract)    ov  an   action   for  the  dan)ages  resulting  from   the 
breach,  and  his  rigiit  to  :iii  iielK,!!  for  the  wages,  treating  the  eon- 
tract  as  construct  ivelv   perrorme(l.   was  denied.     Coodman   v.   Pe- 
cock.  15  Q.  v..  74;  ("uticrv.  Powell.  2  Smith's  L.  C  (!Mh  ed.).  1245; 
20  A.  &  E.  Enc.  40. 


"i">-  RKI.ATIVI-    KK^ITS.  \(']\.    G . 

Tliis  oourt  ivfo«rnizo(l  tin-  tloctiiiu'  of  coiistniclivc  scrvici'  iti 
lU'udrii'ksun  v.  AikIitsoik  50  X.  C.  24(1.  jiiid  I'.iiiikli'.v  v.  S\vic;e- 
^(.H)d.  (if)  N.  ('.  ()2().  Id  the  oxlciit  of  cxprcs.sly  iissci't in^  tlic  rijj;lit  of 
tlu*  servant  t(»  ivcoviT  llic  I'lill  iiiiiouiil  of  the  \vaj,'(>s  for  llu'  iiiicx- 
pirod  portitm  of  llic  Icnii.  pi-ovidcd  his  art  ion  is  l)i-ou^lit  afliT  llu; 
I'ud  of  tho  h'liii.  vwu  lliou^li  thero  had  In  rn  no  .ichi.tl  service  dur- 
iuLT  that  time.  Tho  case  of  Cosli^an  v.  K'aili'oad,  '1  Dcnio  (N.  Y.) 
liO;).  4;)  Am.  Dec.  758.  is  citt'd  and  ai)pr(ivcd  in  llcndrit'kson  v.  An- 
ilersou.  and  in  tliat  ea.si'  the  tiortrinc  is  thus  stated:  "Where  one 
contracts  to  employ  another  for  a  eeitain  time  at  a  speeilied  com- 
pensation and  dist4iai't>es  him  without  cause  heCoi-e  the  expiration 
of  the  tinu'.  he  is  in  general  hound  to  |)ay  the  full  amount  of  wages 
for  the  whole  time.''  The  court  also  thei-e  holds  that  the  s»iid 
amount  may.  of  course,  be  diminished  by  showing  that  the  servant 
has  duiing  the  same  i)eriod  engaged  in  other  business.  This  rub' 
for  the  measure  of  tlie  danuiges  accruing  for  a  wrongful  dismissal 
is  surely  the  equitable,  and.  we  think,  the  correct,  one.  whatever 
may  be  the  true  principle  upon  which  it  should  be  held  to  rest.  If 
the  doctrine  of  constructive  service  is  illogical,  in  view  of  the  right 
of  the  master  to  have  the  damages  diminished  by  showing  that  the 
servant  engaged  in  other  business  and  conseijuently  was  not  al- 
ways ready  to  perform  the  service,  it  does  not  follow  that  the  rule 
itself  as  to  the  damages  is  not  a  souiul  one.  for  other  cogent  rea- 
sons may  and  have  been  assigned  in  its  sui)port.  As  a  master  has, 
by  his  wrong  in  breaking  the  contract,  prevented  the  servant  from 
completing  the  work  for  which  he  had  stipulated,  the  measure  of 
the  servant's  damages  would  be  the  amount  which  he  will  actually 
sustain  in  consequence  of  the  defendant's  default,  and  that  is  the 
amount  of  the  wages  he  would  have  earned  had  the  contract  been 
fulfilled.  Laying  down  the  rule  in  ITendrickson  v.  Anderson, 
supra,  this  court  said:  "It  woidd  seem  to  be  a  dictate  of  reason 
that  if  one  party  to  a  contract  be  injured  by  the  breach  of  it  by  the 
other,  he  ought  to  be  put  in  the  same  condition  as  if  the  contract 
had  been  fully  performed  on  both  sides.  He  certainly  ought  not  to 
be  a  loser  by  the  fault  of  the  other;  nor  can  he  be  a  gainer  without 
introducing  into  a  broken  contract  the  idea  of  something  like  vin- 
dictive damages.  The  true  rule  then  is  to  give  him  neither  more 
nor  le.ss  than  the  damages  which  he  has  actually  sustained,  and  so 
we  find  the  authoiities  to  be." 

The  court  then  holds,  as  we  have  shown,  that  the  damages  are 
the  full  amount  of  wages  for  the  whole  time,  less  the  amount  re- 
ceived or  which  could  have  been  realized  from  other  employment. 
The  I'ight  to  full  damages,  measured  by  the  w.ige  rate,  arises  from 
the  ma.ster's  breach,  and  his  wrongful  act  in  preventing  the  sei'V- 
ant  from  performing  the  service.  He  will  not  be  permitted  to  take 
advantage  of  his  own  wrong  and  to  allege,  in  his  defense  and  to 
defeat  a  clear  right,  a  nonperformance  by  the  servant,  which  has 
proceeded  from  his  own  unlawful  act.  especially,  when  he  at  the 
same  time  insists  that  the  servant  .should  have  obtained  other  em- 
ployment in  order  to  reduce  the  damages.     We  have  held  that  a 


Sec.    3    a.]  RELATIX'E    RIGHTS.  553 

party  to  a  broken  L-ontract.  wlio  is  unable  to  fulfill  it  by  reavson  of 
the  wrongful  ac-t  of  the  other  party,  may  recover  for  profits  lost  as 
well  as  gains  prevented,  if  they  ai-e  reasonably  certain,  such  as 
those  to  be  received  from  outstanding  contracts  for  the  sale  of 
goods  at  a  fixed  price.  AVin.ston  C.  M.  Co.  v.  W.  T.  Co..  Ul  X.  C. 
284.  53  8.  E.  885;  Johnson  v.  Railroad  Co..  140  X.  C.  574.  53  S.  E. 
362.  And  yet,  in  that  class  of  cases,  the  service  contracted  for  was 
not  fully  performed.  So  here  the  employe,  by  no  fault  of  his  own, 
loses  his  wages  which  are  fixed  by  the  contract,  and  their  amount 
should  be  the  ti'ue  measure  of  his  damages  under  the  ordinary 
rule  obtaining  in  the  case  of  other  contracts.  He  could  not  re- 
cover these  damages  before  the  expiration  of  his  term  because  of 
the  other  rule  that  the  master  is  entitled  to  diminish  them  by  the 
amount  he  may  or  could  have  received  from  other  employment 
which  cannot  be  determined  until  the  full  period  is  at  an  end. 
Before  that  time  the  amount  would  be  speculative.  But.  at  the 
end  of  the  term,  there  is  no  sound  reason  why  he  should  not  be  en- 
titled prima  facie  to  the  full  amount  of  wages,  unless  we  make  his 
condition  worse  than  it  would  have  been  if  the  contract  had  not 
been  broken  by  the  master.  Tt  would  be  an  aggravation  of  the 
latter 's  wrong,  if  we  hold  that  he  may  profit  by  it.  and  it  would 
further  present  the  tenijjtation  to  bi-eak  such  contracts.  Every 
dictate  of  reason  and  right  requires  that  the  rule  should  stand,  even 
if  the  original  reason  assigned  for  it  must  fail.  We  may  discard 
the  reason  as  illogical,  but  not  the  i-ule.  which  is  necessary  to  do 
justice  and  to  promote  fair  dealing.  The  doctrine,  as  we  have 
stated  it.  has  been  accepted  by  this  court,  as  the  authorities  we 
have  cited  shov\',  and  we  believe  that  it  is  su.stained  l>y  the  1)es1- 
considered  cases  in  othei-  jurisdictions.  Tn  20  A.  &  E.  Eiic.  p.  37. 
it  is  said:  "Whci-e  the  action  is  bj-ought  subsequent  to  the  expira- 
tion of  the  term  of  employment,  the  decisions  are  practicallv  unani- 
mous to  the  effect  that  the  measure  of  damages  is  jn'ima  facie  the 
wages  for  the  unexpired  poi-tion  of  the  term,  this  amount  to  be 
diminished  by  such  sums  as  the  servant  has  earned  or  might  have 
earned  by  a  rea.sonable  effort  to  obtain  other  employment  iij  the 
same  line  of  business."  Wilkinson  v.  Black,  80  Ala.  320;  Mc- 
:\rullan  v.  Dickinson  Co.  rMiini.).  G2  X.  W.  120.  27  L.  R.  A.  409, 
51  Am.  St.  Rcf).  511  ;  Hale  on  Damages.  67.  Numerous  cases  are 
collected  in  the  notes  to  be  found  in  20  A.  &  E.  p.  37,  and  we  refer 
to  them  without  any  particular  enumei-ation  here.  Tn  Pierce  v. 
T.  C.  T.  &  R.  Co..  173  F.  S.  1.  19  Sup.  Ct.  335.  43  L.  Ed.  591.  the 
court  applying  the  nde  that  in  an  action  for  breach  of  contract 
the  amount  which  would  have  been  received  if  the  contract  had 
been  kept  is  the  measure  of  damatrcs  if  it  is  broken,  lield  Ihat  the 
st-rvant  is  eiililled  to  receive  llie  full  amount  of  wngfs.  subject  to 
propr-r  deduelions.  even  when  the  suit  was  broughl  for  the  bi'eaeh 
prior  tf>  the  expiration  of  the  full  period  of  service.  Wlien  there 
is  a  breach  of  the  contract  by  the  master  a  liability  arises  out  of 
his  implied  underlaking  to  indenuiify  the  servant  against  all  loss 
i-'snltini.'    ti"<iiii   bis  wro(i<_'.   Jiiel    tlii>   indrniiiit  \    iiia\    .-H'crue  lo  Ihe 


5a4  REl.AI'lN  K    IvUillTS.  \('li,    (i_ 

servant  by  installinciit.s  ami  is  coiiliimiii^'  in  its  n.iliirc.  .McMiillaii 
\.  DirkiiisuM  Co.  i.MiiiiiJ.  (IL*  X.  W.  iL'O,  'JT  L.  R.  A.  4()!>,  51  Am. 
St.  lu'p.  .Ml.  'IMu'  lad  llial  llic  plaiiitilV  sued  and  rceoverod 
.;udg'iiuMit  till-  llic  si'coiid  iiistalhncnl  is  no  Itar  to  tliis  suit  as  to 
the  ouo  riMiiaiuinir.  or  llu-  last,  inslallincnt.  i'or  tli<'  latter  was  not 
tluMi  dnc.  and  that  judiiincnt  settled  nothini;'  exeeitt  as  to  the  see- 
ond  and  third  numtlis'  wa^es  which  were  then  dne  and  unpaid. 
It  would  be  strange,  indeed,  if  the  ])laintin'  could  be  barred  by 
that  judjrnient  when  at  the  time  it  was  obtained  he  could  not  have 
sued  I'or  till'  last  installmeiit .  The  law  is  the  other  way.  It  has 
been  so  expressly  (.leeided.  Aiiiilield  \.  .\ash.  ;{]  .Mi.ss.  3G1  ;  Isaacs 
V.  Davies,  68  Ga.  ](5!);  J^a  ("oursier  v.  Russell.  S2  Wis.  265.  52 
N.  W.  176;  Strauss  v.  .Meertief,  64  Ala.  21)9.  H8  Am.  Rep.  8.  Tlie 
jirineiple  results  fi'om  the  ri<^'ht  to  sue  as  the  installments  become 
vine.  .Markham  \ .  ,Mai-kham.  supra.  This  disposes  oi"  the  first  and 
second  prayers  for  instructions. 

The  instruction  requested  in  the  third  prayer  was  properly  re- 
i'used.  as  the  duty  of  the  employe  to  seek  other  employment  could 
be  considered  only  in  dimijiulion  of  damages,  lie  might  not  have 
))Geii  able  to  get  employment  if  he  had  made  proper  effort,  or  not 
as  good  wages.  "A  recovery,  of  course,  cannot  be  entirely  de- 
feated by  showing  tliat  the  servant  obtained  or  could  have  ob- 
tained other  employment ;  but  it  is  always  competent  for  the  mas- 
ter to  show  these  facts  in  mitigation  of  damages;  the  burden  of 
])roof  in  all  cases  being  upon  him."  20  A.  &  E.  Ene.  p.  37. 
IMaintitf  was  entitled,  at  least,  to  nominal  damages  for  the  bi-eaeh. 
Id.  note  3.     .     .     . 

The  court  committed  an  error  in  its  charge  to  the  .jury  upon  th.- 
fourth  issue,  as  the  suit  before  the  justice  constituted  a  bar  to  the 
recovery  of  the  third  installment  of  wages,  which  under  the  errone- 
ous instruction  was  included  in  the  V(!rdict  and  became  aftei'wards 
a  part  of  the  judgment.  There  must  be  a  new  trial  as  to  the  fourth 
issue,  unless  the  plaintiff  thinks  he  w  ill  be  unable  to  show  a  state 
of  facts  different  Fi-om  those  which  now  appear  in  respect  to  the 
actual  time  of  i.ssuing  the  summons  in  the  foriner  suit,  and  agre;'s 
before  the  opinion  is  certified  to  the  court  below  to  remit  the 
amount  of  the  third  installment,  in  which  case  the  judgment  \\ill 
be  reduced  accordingly,  and.  as  thus  modified,  it  will  be  affirmed. 
and  so  certified.     New  trial. 

If  the  wages  1)e  payable  in  installments  and  the  servant  be  wrong- 
I'ully  discharged,  or  quit  for  justifiable  cause,  before  the  expiration  of  his 
term  of  employment,  the  servant  may  recover  on  each  installment  as  it 
matures.  McMulIan  v.  Dickinson,  G2  N.  W.  120,  27  L.  R.  A.  409;  which 
is  directly  contrary  to  the  ruling  in  Maryland.  Olmstead  v.  Bach  &  Son, 
27  Atl.  .501.  22  L.  R.  A.  74.  See  Morderai's  L.  L.  128-131,  for  the  doc- 
trines announced  in  the  principal  case.  The  rule  as  to  constructive  serv- 
ice is  this:  The  servant  who  is  wrongfully  discharged,  or  who  quits  for 
proper  cause,  nnist  e.xercise  reasonable  diligence  in  seeking  employment 
of  not  lower  grade,  and  his  recovery  will  be  diminished  by  the  amount 
he  did  so  earn  or  might  have  earned.  The  burden  is  on  the  master  to 
show  what  was  or  could  have  been  thus  earned  bv  the  servant.     Ha.ssard- 


Sec.  3  a.]  relative  rights.  55o 

Short  V.  Haidison.  114  N.  C.  482,  19  S.  E.  728;  same  case.  117  N.  C.  60, 
65,  23  S.  E.  96;  Oldham  v.  Kerchner,  81  N.  C.  at  pp.  432-433;  Mordecai's 
L.  L.  12.5.  128-131;  Maynard  v.  R.  W.  Corset  Co.,  200  IMass.  1.  6,  85  N.  E. 
877,  879,  which  last  case  says:  "Where  one  is  under  contract  for  per- 
sonal service,  and  is  discharged,  it  becomes  his  duty  to  dispose  of  his 
time  in  a  reasonable  way,  so  as  to  obtain  as  large  compensation  as  pos- 
sible, and  to  use  honest,  earnest,  and  intelligent  efforts  to  this  end.  He 
cannot  voluntarily  remain  idle  and  expect  to  recover  compensation  stipu- 
lated in  the  contract  from  the  other  party.  Olds  v.  Mapes-Reeve  C.  Co.. 
177  Mass.  41,  .58  X.  E.  478;  Ransom  v.  Boston.  192  Mass.  299,  78  N.  E. 
481;  same  case,  196  Mass.  248,  81  N.  E.  998.  The  amount  of  the  damages 
is  to  be  determined  by  the  wages  which  he  would  have  earned  under  the 
contract,  less  what  he  did  in  fact  earn,  or  in  the  exercise  of  proper  dili- 
gence might  have  earned,  in  another  employment.  Cutter  v.  Gillette, 
163  Mass.  95,  39  N.  E.  1010.  It  seems  to  be  the  generally  accepted  rule 
that  the  burden  of  proof  is  upon  the  defendant  [master]  to  show  that 
the  plaintiff  found,  or,  by  the  exercise  of  proper  industry  in  the  search, 
could  have  procured  other  employment  of  some  kind  reasonably  adapted 
to  his  abilities,  and  that  in  the  absence  of  such  proof  the  plaintiff  is  en- 
titled to  recover  the  salary  fixed  by  the  contract.  Milage  v.  Woodward, 
186  N.  Y.  252.  78  X.  E.  873;  Porter  v.  Burkett,  65  Tex.  383;  Bennett  v. 
Morton,  46  Minn.  113,  48  N.  W.  678;  Beisel  v.  Vermillion  F.  El.  Co.,  102 
Miun.  229,  113  X.  W.  575;  Hendrickson  v.  Anderson,  50  N.  C.  246;  Troy 
Co.  V.  Logan,  96  Ala.  619,  12  So.  712;  Fitzpatrick  S.  B.  G.  Co.  v.  McLaney, 
153  Ala.  586,  44  So.  1023;  King  v.  Steiren,  44  Penn.  St.  99;  Barker  v. 
K.  Ins.  Co.,  24  Wis.  630,  638;  Hamilton  v.  Love,  152  Ind.  641,  53  N.  E. 
181,  54  X.  E.  437;  Mathesius  v.  B.  H.  R.  R.,  96  Fed.  792;  Winkler  v.  Ra- 
cine W.  &  C.  Co..  99  Wis.  184.  74  X.  W.  793;  Larkin  v.  Hecksher,  22 
Vroom,  133.  16  Atl.  703;  Rosenberger  v.  P.  C.  Ry.,  Ill  Cal.  313,  43  Pac. 
963;  Roberts  v.  Crowley,  83  Ga.  429,  7  S.  E.  740;  Realty  Co.  v.  Ellis,  4 
Ga.  App.  402.  61  S.  E.  832;  Fuller  v.  Little,  61  111.  21;  Saxonia  M.  &  R. 
Co.  v.  Cook,  7  Colo.  569,  4  Pac.  1111;  Chisholm  v.  P.  B.  Assur.  Co.,  112 
Mich.  50,  55.  70  X.  W.  415;  Boland  v.  Glendale  Q.  Co..  127  Mo.  520,  30 
S.  W.  151;  Chamberlain  v.  Morgan,  68  Penn.  St.  168;  Latimer  v.  York 
C.  Mills,  66  S.  C.  135,  44  S.  E.  559." 

See  further,  as  to  actions  on  installments,  Farnham  v.  Hay,  3  Black- 
ford, 167,  inserted  at  ch.  8,  sec.  2,  post,  and  notes  to  that  case.  See 
8  L.  R.  A.  (X.  S.)  1004,  and  note  (master's  waiver  of  right  to  discharge 
and  his  condonation  of  breach  of  duty  by  servant);  6  lb.  49.  5  lb.  439, 
579,  and  elaborate  notes  (servant's  remedy  for  wrongful  discharge); 
6  lb.  82,  and  note  (measure  of  damages  for  wrongful  discharge);  5  lb. 
439,  6  lb.  94,  and  notes  (servant's  duty  to  seek  employment).  See  "Mas- 
ter and  Servant,"  Century  Dig.  §§  41-61;  Decennial  and  Am.  Dig.  Key 
No.  Series  §§  34-46. 


CHAMBLEE  v.  BAKER,  95  X.  C.  98,  100-103.     1886. 
T'hitire  Contracts.     Remedy. 

[Action  on  a  f|"<'iiilnni  nieruil  for  services  rendered.  .Judgment  against 
defendant,  and  be  aiipcalcd.     AdirniPd. 

Plaintiff  was  hirod  in  February  to  work  on  defendant's  farm  lor  the 
term  ending  with  the  current  year.  It  was  agreed,  at  the  trial,  tliat  the 
contract  was  an  entire  rnnlrart.  By  the  terms  of  this  contracl.  jdaintiff 
wa.s  to  be  paid  "ten  dollars  i)er  month."  Plaintiff  quit  the  defendant's 
service,  without  legal  excuse.  l)etore  the  end  of  his  term  of  emi)Ioyment. 
The  defendant  suffered  no  loss  by  the  plaintiff's  c|uilting.  The  vahie  of 
plaintiff's  services,  for  the  llnie  he  worked  for  defendant,  was  seventy 
dollars.  Tie  had  been  paid  twenty  dollars,  and  he  sued  for  the  balance 
i\nf'  bini.  I 


55()  HEi.ATivK  Kuari's.  \('li.  a. 

Smith.  C.  .1.  .  .  .  Tlu'  ;i|ti)rll.iiil  insists,  tlial,  the  coiitraet 
hoiiiir  sptHMJil  ftir  ljil>or  for  the  t'litirc  iTsidiic  of  llic  \r:\y.  Iliou^li 
tho  t'oinpt'iisalioM  is  nu'asurctl  1)\  inotillis.  the  plainlilV.  liaviii<r  U'l'l 
l)of()Jv  tlu'  expiration  of  tlic  time  "wiIIkmiI  Ir^ial  excuse."  cannot 
recover  l\>i-  tlie  partial  service   |>erl'ornie(l. 

The  ircneral  rule  is  thus  laid  tlowii.  and  is  sustained  1»\  numer- 
ous adjudications  i-ited  in  the  American  Kditors'  Notes  to  the  cas  ' 
of  Cutter  V.  rowell,  2  Smilli's  Leading'  Castas.  1  :  "I'.ut  if  there  ha-; 
heen  an  entire  executory  contract,  and  the  plaintilT  lia.s  performed 
a  part  of  it.  and  then  wiirully  rel'uses.  without  le^'al  excuse,  and 
airainst  the  defendant's  consent,  to  perfoi-m  llu'  I'est.  he  ean  re- 
cover notliinu.  eithei-  in  iicneral  or  s|)(>eial  assumpsit."  The  same 
i\de  lias  been  repeatedly  reeognized  and  acted  on  in  this  court,  the 
more  recent  cases,  wherein  references  to  othei's  may  l)e  found,  he- 
'\ng  Thigpen  v.  Leifjli.  !);i  N.  C  47.  and  Lawrence  v.  ITesler.  Ih.  7!). 
Indeed,  so  strino:ent  was  the  former  jn-actice,  that  in  an  action 
upon  a  special  contract  to  pay  for  services  to  be  reiuh'red,  and 
which  were  renih-red.  no  evidence  in  defcMise  or  to  reduce  the  re- 
covery, was  admissil)h'  to  prove  inattention,  neglect,  wasted  time 
or  other  misconduct  of  the  plaintiff,  and  dereliction  in  the  under- 
taken dutv.  and  the  defendant  was  driven  to  a  separate  action  for 
redress.  ITobhs  v.  Kiddick.  -')()  X.  C.  80.  Tt  is  otherwise  under  the 
present  system,  and  the  entire  dispute,  involving  opposing  de- 
mands, is"  now  adjusted  in  a  single  suit.  This  is  some  relaxation 
of  the  doctrine  regarding  special  contracts,  and  the  enforcement 
of  the  obligations  they  create. 

The  manifest  injustice,  upon  such  technical  gi'ounds.  of  refus- 
ing all  compensation  for  work  done  and  not  completed,  or  for 
goods  supplied  short  of  the  stii)ulated  (|uantity.  and  of  allowing 
the  party  to  ai>propriate  them  to  his  own  use.  without  ])aying  any- 
thing, has  been  often  felt  and  expressed  by  the  judges,  and  a  mode 
sought  bv  which  the  wrong  coidd  be  remedied.  The  mischief  is  ad- 
verted to  bv  this  court,  in  Gorman  v.  Bellamy,  82  N.  C.  496.  when 
referring  to  the  case  of  Dumott  v.  Jones.  28  ITow.  (U.  S.)  220.  and 
IMonroe  v.  Philips.  8  Ellis  and  lilack.  739,  this  language  is  used: 
"The  inclination  of  the  courts,  is  to  relax  the  stringent  rule  of  the 
common  law.  which  allows  no  recovery  upon  a  special  unper- 
formed contract,  nor  for  the  value  of  the  work  done,  because  the 
special  excludes  an  implied  contract  to  pay.  In  such  case,  if  the 
party  has  derived  any  benefit  from  the  labor  done,  it  would  be 
unjust  to  allow  him  to  retain  it  without  paying  anything.  Ac- 
cordingly, restrictions  are  i}nposed  upon  the  genei-al  rule,  and 
it  is  confined  to  contracts  entire  and  indivisible,  and  when,  by  the 
nature  of  the  agnjement  or  by  express  provision,  nothing  is  to  be 
paid  till  all  is  performed." 

If.  by  the  terms  of  the  agreement,  certain  sums  are  due  on  per- 
formance of  certain  pai-ts  of  the  work,  thus  sevei-ing  the  considera- 
tion, separate  actions  are  maintainable  for  each.  And  in  the  con- 
struction of  the  agreement,  the  court  will  be  guided  b,\  a  respect 
to  general  convenience  and  ei|uity.  and  the  reasonableness  of  the 


Sec.    3    b.]  RELATIVE   RIGHTS.  557 

particular  case.  Thus,  the  moditied  rule  lias  been  declared  to  be. 
that  thoucrh  the  consideration  and  contract  be  entire  by  the  appar- 
ent terms  of  the  agreement,  yet  such  may  be  the  circumstances  as 
to  entitle  the  plaintitf  to  a  ratable  com]iensation  for  ])art  perform- 
ance. So,  the  inference  [is],  that  comj)ensation  is  payable  in  in- 
stallments at  certain  periods,  as  weekly  or  monthly,  according  to 
service;  unless  there  is  a  clear  and  distinct  understanding  that 
compensation,  as  a  unity,  is  demandable  only  at  the  ex]nration  of 
the  full  period  of  service.  These  views  are  presented  in  the  able 
discussion  in  the  note  from  which  we  have  extracted  a  part,  and 
rest  npon  a  series  of  adjudications  cited. 

In  our  case,  the  plaintitf's  wages  are  measured  by  monthly  sums, 
and  for  two  months  of  his  work  he  has  received  full  compensation. 
This  indicates  an  understanding  between  the  parties,  that  the 
wages  were  to  be  paid  as  the  work  progressed  and  as  the  plaintiff's 
necessities  may  have  required,  and  that  he  should  not  be  delayed 
until  the  end  of  the  year.  The  defendant  loses  nothing  by  the 
plaintiff's  leaving,  nor  is  it  stated  that  the  departure  was  against 
the  defendant's  will.  Under  these  circumstances,  and  to  avoid 
manifest  injustice,  we  hold  the  ruling  to  be  right,  and  that  there 
is  no  error.     The  judgment  must  be  affirmed. 

For  further  discussion  of  the  doctrine  of  Entire  Contracts,  see  5  L.  R.  A. 
(N.  S.)  524,  and  elaborate  note;  3  Page  on  Cont.  sec.  1487;  Mcintosh  on 
Cent.  543;  Mordecais  L.  L.  118,  119;  Tussey  v.  Owen.  139  N.  C.  457,  52 
S.  E.  128;  Cranmer  v.  Graham,  1  Blackf.  406,  inserted  at  ch.  8,  sec.  3,  (a). 
See  "Master  and  Servant,"  Century  Dig.  §§  90-102;  Decennial  and  Am. 
Dig.  Key  No.  Series  §  73. 


(b)  Master's  Liability  to  Servant  in  Actions  E.r  Delicto. 

HOBBS  V.  RAILROAD.  107  N.  C.  1,  12  S.  E.   124.     1890. 

Fellow- Servant   Doctrine.     History.     The   Rule   and   its   Limitations   or 

Exception's. 

fAction  for  damages  arising  from  the  alleged  negligence  of  the  de- 
fendant. The  fellow-servant  doctrine  was  relied  on  as  a  defense.  .Tudg- 
ment  against  defendant,  overruling  its  demurrer,  and  defendant  ap- 
pealed.    Reversed. 

The  complaint  alleged  that  the  plaintiff,  a  fireman,  was  injured  by  the 
negligence  of  the  engineer,  under  whose  direction  and  control  he  was 
placed  in  defendant's  servifp;  that  the  engineer  negligently  ordered  him 
to  go  out  upon  the  engine  and  oil  certain  machinery  while  (he  engine 
was  In  swift  motion;  that  thereafter  the  engineer,  while  the  plaintiff  was 
out  on  the  engine,  negligently  slopi)ed  it  so  that  the  plaintiff  was  in- 
jured thereby.  The  defendant  demurred,  on  the  ground  that  the  com- 
plaint did  not  state  facts  suffirient  to  fonstitute  a  cause  of  action.) 

Cl.vrk.  J.  Ill  this  case,  as  in  Ilairins  v.  Ivailroad  Co..  lOH  N.  C. 
7h',~.  11  S  Iv  |{cp.  r)!')0.  jl  is  set  ou1  in  the  complaint  llial  the  in- 
jury to  the  jilaintiff.  who  was  a  fireman,  as  in  that  case  a  brake- 
irian.  was  caused  by  the  negligence  of  the  enginci-r.  This  case 
nuist  be  governed  by  that.    AVhile  it  is  not  always  ea.sy  to  draw  the 


558  RKi.A'rni;  kmciits.  \('Ii.  b'. 

liiu'  Ix'twcfii  wlml  coiislitutt's  ;i  fellow -sci'VJiiit  .-iiul  wlint  ;i  siipci-ioi' 
employe,  or  vii-e  |>iiiiri|)al,  tlir  n-l.-itioii  Itct  w  I'cii  ;i  hrnkcin.-m  or 
tireiiinn  miuI  the  htcoiiiol  ivc  (•iiuinei'r  is  well  settled  to  he  th;il  of 
li'llow-siMVJints.  It  Wiis  so  held  in  the  lii'st  ease  uii  the  sui)jeet 
(Murray  v.  l\aihH)ad  Co..  1  .M<.Mul.  :\^^>).  and  has  heen  repeatedly 
and  unil'(H-nil\'  so  ruled  since  i  .Jorthui  v.  Wells,  :5  AVoods,  527. 
Fed.  ('as.  No."  7,525;  Uidl  v.  iJailroad  Co..  (i7  .\lu.  2(l(i:  Railroad 
V.  llandnian,  l;{  Lea.  42:5:  Henry  v.  Kailroad  Co..  4!)  .Midi.  4!I5, 
18  N.  W.  \\rp.  S82;  Paulmier  v.  "l^iilroad  Co.,  M  N.  J.  Law.  Lll  ; 
Railroad  Co.  v.  Llliott,  1  Cold  fill  :  Jones  v.  Yeaf,n'r.  2  Dill.  (14. 
Fed.  Cas.  No  7.510;  Caldwell  v.  iirown.  58  I'a.  St.  45:{ ;  Railroad 
Co.  V.  Rush,  15  Lea,  J45;  Railroad  Co.  v.  AValler,  4S  .Ma.  45!); 
Howard  v.  Kailroad  Co.,  2(5  Fed.  Kep.  887;  Kailroad  Co.  v.  lilolni. 
73  Tex.  ()87.  11  S.  W.  Rep.  S(i7.  1889.)  And  there  are  many 
others.  In  Dobbin  v.  Railroad.  81  N.  C.  44t).  it  is  held  that,  to 
make  the  eompany  liable,  the  negligent  employe  must  be  some- 
thing more  than  a  mere  foreman  over  other  hands;  and  in  Kirk  v. 
Railroad  Co..  1)4  X.  C.  ()25.  Smith.  C.  J.,  says:  "The  operation  of 
the  principle  |of  non-liability  of  master  for  negligence  of  fellow- 
servant  1  is  not  alt(!red  by  the  faet  that  the  servant  chargeable  with 
negligeuce  is  a  servant  of  superioi-  authority,  whose  lawful  direc- 
tions the  other  is  bound  to  obev."  The  same  view  is  hold  in  Webb 
V.  Railroad  Co..  07  N.  C.  387.  2  S.  E.  Rep.  440.  by  the  i)resent  chief 
justice,  although  in  the  latter  case  the  negligent  servant  had  au- 
thority to  employ  and  dismi.ss  the  injured  emi)loye.  The  principle 
above  quoted  from  Kirk  v.  Railroad  Co.  is  fully  sustained  by 
AVhart.  N<'i,^  §  229;  Wood.  Mast.  &  S.  §  487;  Cooley,  Torts,  p]). 
548,  544;  Shear.  &  R.  Neg.  §  100;  Pierce.  R.  R.  806;  AVright  v.  Rail- 
road Co.,  25  N.  Y.  546.  and  cases  cited.  It  is  not  necessary  to  draw 
the  line  in  this  ca.se.  as  the  relation.ship  of  the  parties  liei-e  falls 
clearly  on  the  side  of  their  being  fellow-sei'vants.  TIkmv  is  no 
allegation  here  that  the  com|)any  exposed  the  plaintiff  to  unusual 
and  unnecessary  risks,  or  that,  knowing  that  the  engineer  was 
unfit  or  incapable,  they  retained  him  in  their  .service.  Indeed,  the 
services  appear  to  have  been  those  incident  to  the  scoi)e  of  plain- 
tiff's employment  as  fireman,  and  the  injury  was  caused  by  negli- 
gence of  the  engine(;r.  his  fellow-servant.  The  allegations  in  the 
complaint  that,  "as  such  fireman,  the  ])laintiff  was  under  the  di- 
rection and  control  of  the  locomotive  engineer,"  and  that  "engine. 
with  train  of  freight  cars  attached,  were  managed,  controlled,  and 
conducted  by  said  engineer,  and  other  agents  and  servants  of  de- 
fendant company."  in  no  wise  distinguish  the  case  from  the  oi-di- 
nary  one  of  fireman  and  engineer.  The  doctrine  that  a  master  is 
not  liable  to  an  emjjloye  for  the  negligence  of  a  co-employe  rests 
upon  the  principle  that  a  man.  as  a  rule,  is  no  more  liable  for  the 
wrongs  done  by  another  than  he  is  for  his  debts.  There  are  some 
exceptions  to  the  rule,  among  them,  for  instance,  that  passengers 
injured  by  the  negligence  of  .servants  of  a  common  carrier  can 
recover  damages  of  the  carrier,  because  of  the  breach  of  the  con- 
tract of  safe  carriage,  and  so  where  a  stranger  is  injured  by  the 


Sec.    3    b.]         {  RELATIVE  RIGHTS.  559 

nets  of  a  .servant  within  the  scope  of  his  employment.  This  last 
is  upon  the  ground  of  public  policy,  and  also  because,  as  to  the 
stranger,  the  ser^'ant  is  the  agent  of  the  master.  An  efit'oi-t  to 
make  a  further  exception  so  as  to  make  the  common  master  liable 
to  a  servant  for  an  injury  done  him  by  the  negligence  of  a  fellow- 
sen'ant  first  came  before  the  courts  in  England,  in  IS'^T.  in  the 
case  of  Priestley  v.  Fowler.  'A  ^lees.  &  W.  1.  in  which  Lord 
Abixger  f Sir. James  Scarlett),  in  a  veiy  able  opinion,  pointed  out 
the  inconveniences,  and  often  the  great  injustice,  which  would  be 
produced  if  the  master  were  held  responsible.  The  principle  laid 
down  was  that  a  servant,  on  entering  upon  his  emiiloyment.  con- 
tracted with  a  view  to  the  ordiiuiry  risks  of  such  employment ;  and 
further  that  it  was  public  policy  that  it  should  be  so.  since,  if.  for 
injury  to  a  servant  by  negligence  of  his  fellow,  be  could  not  hold 
the  master  liable,  servants  would  be  prompted  by  their  own  in- 
terests to  observe  want  of  skill  oj-  care  on  the  part  of  their  fellows, 
and  promi)tly  report  the  same.  This  principle  was  also  laid 
down,  without  any  knowledge  of  the  "Westminster  decision,  by  the 
supreme  coui"t  of  South  Carolina  in  ^lurray  v.  Railroad  Co.. 
1  Mc^Mul.  385  (1841).  and  applied  to  railroad  corporations  (the 
case  was  that  of  a  fireman  injured  by  the  negligence  of  an  en- 
gineer), and  followed  by  the  able  opinion  of  Shaw.  C.  J.,  in  Fai-- 
well  v.  Railroad  Co..  4  Mete.  (Mass.)  49.  It  was  ai^plied  to  the 
railroads  in  England,  in  1850.  in  the  case  of  Hutchinson  v.  Rail- 
road Co..  5  Exch.  343.  Since  then  the  same  ruling  has  been  made 
in  a  lontr  line  of  decisions  so  that  Gray.  J.,  in  Randall  v.  Rail- 
road Co..  109  U.  S.  478.  3  Sup.  Ct.  Rep.  322.  well  says  that  "the 
rule  of  law  is  now  firmly  established  that  one  who  enters  the  serv- 
ice of  another  takes  upon  himself  the  ordinary  risks  of  the  negli- 
gent acts  of  his  fellow-servants,  in  the  course  of  his  employment." 
There  are  modifications  where  the  fellow  servant  is  acting  as  ])rin- 
cipal.  or  alter  ego.  also  when  the  master  furnishes  machinery 
which  he  knows,  oi-.  with  care,  ought  to  have  known,  to  be  de- 
fective, or  retains  an  unfit  (ir  iticompetent  servant,  who  does  the 
injury,  or  exposes  the  servant  to  unusual  risks,  not  contemplated 
by  the  scope  of  his  employment.  But  the  present  case,  as  we  have 
seen,  docs  not  come  within  any  of  these.  Xotwith.standing  that 
the  general  rule  of  nonliability  of  the  master  is  so  well  settled,  it 
is  still  fref|uently  urnred  that,  as  to  railroads,  there  should  be  an 
exception  made.  Hut  whatever  may  be  argued  in  favoi*  of  or 
against  the  propi-iety  of  such  exception,  the  courts  have  not  felt 
authorized  lo  make  it.  The  change,  wherevei-  it  has  Ixcii  made, 
has  come  by  legislative  enactment.  Tn  Georgia.  Ihe  cmiimoM  law 
has  been  repealed  by  sections  2083  and  3030  of  the  Code,  which 
|)n»vide  11i;it  wlien  an  employe  of  any  railroad  com]KUiy  is  in- 
jured by  annther  emplnye.  without  any  default  or  negligence  on 
liis  f)wn  part,  the  company  is  liable  for  damages,  as  to  iiassengers. 
fnr  iniuries  caused  by  want  of  due  care  and  diligence.  Similar 
provisions  liave  been  adf)j)ted  in  several  other  states  (^TcKinney. 
I-'.'I low-Servants.  ^§  100-109).  and  in  flicir  .-oui'ts  are  to  lie  found 


.")<t(l  RKrAI'IVK    IJK.IITS.  \('li,    (), 

llif  (li'cisiniiv  whicli  arc  in  coiillii-!  with  (Uirs.  Wlu'iTvcr  Ihc  foiii- 
iiuui  law  Ikin  n'liiaiut'tl.  as  in  this  slate,  iiiichaii^-cd  l)y  stiitiitc.  the 
httUliniis  111'  ihc  t-tmi'ts  ai'c  in  snlislantial  cdii  I'drniit  v  lo  (»\irs.  The 
conuuon-law  nih'  lias  also  Itccn  \fiy  nuich  nindilicd  in  l']n<i'laii(l 
liy  slatiitury  enactment  (tlic  l']ni|)l(»ycrs'  Liahility  Act  ol'  1880, 
conniionly  kiinun  as  the  "(JIadstnnc  Act");  and  that  fact  must 
1)0  (.'OUsicU'rcd  with  reference  to  all  the  latci-  lMi<,disli  decisions. 
'rii(>  demurrer  should  have  lieeii  sustained.      iMror. 

See  "Masier  and  Seivani,"  Century  Dig.  §§  422-514,  567-573;   Decennial 
and  Am.  Dig.  Key  No.  Series  §§  18G  198.  216. 


RAILROAD  CO.   v.   KEARY,   'A   Ohio   St.   202,   212.      1854. 
77/ ('  Fellow-Servant  Doctrine  Criticised. 

Ranney.  J.  I  After  referi'iuy:  to  a  number  of  eases  which  sus- 
tain the  (lec'triiu^.j  We  ent(U'tain  the  hiiihest  respect  for  these 
courts,  and  theii-  uiidi\ide(l  o])iuious  upon  any  (piestion  arising 
upon  iu-iuci])Ies  of  the  conuiion  law.  would  cause  us  to  hestitate 
long  before  we  differed  from  them.  But  even  upon  such  a  (pies- 
tion, we  should  be  compelled  to  follow  the  dictates  of  our  own 
understandings;  and  the  more  especially  should  we  feel  at  perfect 
liberty  to  do  so.  wlien  they  did  not  ])rof(^ss  to  base  their  decisions 
upon  any  settled  principle  of  law,  but  undertook  to  declare  a  new 
rule  for  their  action.  If  such  a  rule  did  not  seem  to  us  consistent 
with  the  analogies  of  the  law.  and  calculated  to  promote  justice, 
we  should  feel  liound  to  reject  it.  Tpon  this  question,  we  find  no 
occasion  to  dej^art  from  established  principles.  It  lies  upon  those 
who  deny  the  defendant  in  error  the  benefit  of  these  principles,  to 
show  some  good  reason  for  the  exclusion.  We  have  carefully  ex- 
amined all  these  cases,  and  can  find  in  none  of  them  any  such 
reason,  or  any  denial  of  the  principle  upon  which  we  base  this  de- 
cision. AVhile  we  cannot  approve  all  that  is  said  in  some  of  them, 
no  one  of  them  has  determined  the  (juestion  now  l)efore  us.  Priest- 
ley V.  Fowlei'  was  decided  in  1837.  and  is  the  first  case  to  be 
found  in  the  English  books  where  th<>  limitation  of  the  liability  of 
the  master  is  even  hinted  at.  That  action  was  brought  by  a  serv- 
ant against  his  master,  for  the  negligence  of  another  servant  in 
overloading  a  van.  by  which  tlie  ])laintifT  was  injured.  It  was 
held  that  the  action  could  not  t)e  maintained.  Chief  Baron 
Abinger.  in  delivering  the  opinion,  says:  "There  is  no  precedent 
for  the  action  l»y  a  .servant  against  a  master.  We  are  therefore  to 
decide  the  (luestion  upon  general  [irinciples ;  and  in  doing  so  we 
are  at  lil>erty  to  look  at  the  conseciuences  of  a  decision  one  way  or 
the  other."  He  accordingly  kwked  at  the  conserpiences,  with  a 
view  to  the  fictunl  state  of  Enfjlish  society,  and  concluded  they 
would  carry  him  to  an  "alarming  extent."  After  referring  to 
several  instances  where  the  liability  of  the  master  would  attach, 
he  concludes  that  "the   inconvenience,   not  to  say   absurdity   of 


S(C.    o    b.]  RELATIVE    KKillTS.  561 

these  e<>nse(iuenees. '"  afford  a  sufficient  argument  against  the  ac- 
tion. It  ean  admit  of  very  little  doubt  that  holding  the  relation 
of  master  and  servant  to  exist  between  the  buyer  and  seller  of  a 
coaeh  or  a  harness  (instances  put  b\'  his  lordship)  would,  indeed, 
be  both  inconvenient  and  absurd.  It  is  unnecessary  to  examine,  at 
any  length,  the  other  cases  decided  in  that  court.  Upon  a  similar 
state  of  facts  they  each  follow  and  affirm  the  doctrine  of  Priest- 
ley V.  Fowler. 

As  iluse  cases  were  decickd  upon  no  setihd  principle  of  the 
common  law,  hut  upon  general  principles,  with  a  view  to  conse- 
quences. I  may  be  permitted  to  refer  to  the  opinion  of  another 
court,  equally  learned  and  able,  sitting  in  the  same  kingdom  aiid 
subject  to  review,  if  I  am  not  mistaken,  in  the  same  ultimate  tri- 
bunal. In  the  case  of  Dixon  v.  Ranken.  1  Am.  Railway  Cas.  569, 
detei-mined  by  the  highest  court  in  Scotland,  as  late  as  1852.  the 
doctrines  of  the  English  cases  were  repudiated,  and  an  exactly 
contrary  decision  made.  The  lord  justice  clerk,  after  referring  to 
the  English  decisions,  proceeds  to  say:  "The  master's  primary 
(ibligation  in  every  contract  of  service,  in  which  his  workmen  are 
employed  in  a  hazardous  and  dangerous  occupation  for  his  in- 
terest and  i>rofit.  is  to  provide  for  and  attend  to  the  safety  of  the 
men.  That  is  his  first  and  leading  obligation,  paramount  to  that 
even  of  i)aying  for  their  labor.  This  obligation  includes  the 
duty  of  furnishing  good  and  sufficient  machinery  and  apparatus, 
and  of  keejiing  the  same  in  good  condition,  and  the  more  rude 
and  cheaj)  the  machinery,  and  the  more  liable  on  that  account 
to  cau.se  injury,  the  greater  his  obligation  to  make  up  for  its  de- 
fects by  the  attention  neces.sary  to  prevent  such  injury.  In 
his  obligation  is  included,  as  he  cannot  do  everything  himself,  the 
duty  to  have  all  acts  by  others  whom  he  employs  done  properly 
and  cai-el'ully  in  order  to  avoid  i-isk.  This  obligation  is  not  less 
than  the  obligation  to  ])rovide  foi-  the  safety  of  the  lives  of  his 
servants  by  fit  machinei'y.  The  other  servants  are  employed  by 
him  to  do  acts  \\hi<'b.  of  course,  he  cannot  do  himself,  but  they  are 
acting  fr>r  him.  and  instead  of  himself,  as  in  his  hands.  For  their 
careful  and  cautious  attention  to  duly,  and  for  their  want  of  vigil- 
ance, and  for  their  neglect  of  precaution  by  which  danger  to  life 
may  be  caused,  he  is  just  as  much  responsible  as  he  would  be  foi' 
such  niiscondn<-t  on  his  own  i)art  if  he  were  actually  working  or 
pnjsent.  And  this  ])ai-ticnbii'l.\-  holds  as  to  the  ])erson  he  inli'usts 
with  the  direction  and  conli-ol  ovei-  any  of  his  woi'kiiieii.  and  who 
r('j)resen1s  him  in  sni-li  ;i  matlei-."  .\\\<\  lie  ;i(ids:  "Tliei'.'  have 
been  many  cases  in  Scotland  at  all  pei'iods.  and  dnrim:  the  last 
fifty  years  a  ver\'  large  number,  which  jjroceeded  on  this  as  a  fixed 
principle  of  the  law   as  to  the  contract  of  service." 

Tiord  C'ockbni-ti.  alli'i-  staling  that  "the  plr.i  Itial  Ihe  master  is 
not  liable,  rests  solely  on  the  autlmrity  of  two  or  three  vi-ry  recent 
decisions  of  Knulish  courts."  sa\s:  "if  this  be  the  law  of  iMigland, 
f  s[)eak  of  it  with  all  due  respect.  I'nl  it  is  most  certaiidy  not  the 
law  of  Seothiiid.  I  drly  juiy  industry  to  priMhice  ;i  sinirle  decision. 
Remedies — 35. 


5J)2  i;i:i.  \  ri\  k  uRiiiTS.  \('li.   (>. 

or  (.lii'tuiii.  »ti-  iiist  it  III  ioii.-il  iiulicat  imi,  or  iiiiv  Iimcc  ol'  aii\  an 
tluu'itv  to  tliis  ctVcct.  ov  of  tliis  toiulciu'v,  from  the  wliolt^  nin^e  oi' 
our  law.  It'  such  an  idea  exists  in  our  syst(Mn.  il  lias,  as  yet, 
lurkt'tl  uiuU'tiH'Icd.  ll  has  iicvor  hccn  t'ondtMiiiicd.  l)iM'aiis(>  it  has 
iu>vt'r  IxH-n  stated."  After  alludin<;  to  the  Taet  that  the  rule  had 
l)e(Mi  pressed  upon  tlie  court,  not  oidy  on  account  of  the  weiylit.  of 
KuLrlish  authority,  hut  for  its  own  inhei'cMit  justice,  he  procei^ds: 
"This  last  reconinieudatiiMi  fails  with  nie.  hecaus**  T  think  the  jus- 
tice of  the  thinsj  is  exactly  in  the  opposite  direct  ion.  1  liavi-  rarely 
eoiue  uimn  any  principle  that  seems  less  I'cconcilahle  to  lej;al  rea- 
son. I  can  conceive  some  reasoniufjs  for  exempting  the  emi)loyer 
from  liahility  altogethei'.  hut  not  one  for  exem])tin<r  him  only  when 
those  who  act  for  liim  injure  one  of  themselves.  It  rather  seems 
to  me  that  tliese  are  tlie  very  persons  who  have  the  stron<;est  claim 
upon  him  for  reparation,  heeause  they  incui"  danfjer  on  his  ac- 
count, and  certainly  are  not  understood,  hy  our  law.  to  come  un- 
der any  eni?aQ:ement  to  take  these  risks  on  themselves." 

Such  is  the  divei-sity  of  opinion,  not  only  as  to  the  existence  of 
the  doctrine,  hut  also  as  to  its  justice  and  projiriety.  found  to  ob- 
tain in  two  of  the  learned  courts  in  Gi'cat  Urilain;  both  uncon- 
trolled by  any  statutor3'-  regulation,  or  other  consideration  pecul- 
iar to  the  .system  of  law  administenMl  by  either;  but  each  deter- 
mining the  obligation  arising  from  a  relation,  founded  upon  con- 
tract, which  must  be  the  same  in  England  and  Scotland. 
While  the  principle  of  respondeat  superior  is  as  old  as  the  law  it- 
self, it  is  everywhere  admitted  that  no  sucb  exception  to  its  opera- 
tion as  i.s  now  contended  for.  was  ever  asserted  until  the  case  of 
Priestley  v.  Fowler  was  decided.     . 

TVardex.  J.  .  .  .  By  the  case  of  Priestley  v.  Fowler.  3  M. 
&  W.  1.  and  the  American  cases  which  have  followed  it.  the  maxim 
to  which  T  have  referred  [(pii  facit  per  alium.  facit  per  se]  is  so 
restricted  as  to  deny  the  liability  of  a  master,  in  any  case,  for  the 
negligence  of  one  of  his  servants  whereby  another  sustained  in- 
jury. This  court,  as  I  understand  the  effect  of  the  decision  just 
pronounced,  refuses  so  to  qualify  the  rule,  hut  docs  confine  the 
liahility  of  one  who  is  the  employer  of  several  persons,  for  the 
negligence  of  one  of  his  employes  whereby  another  is  hurt,  to 
cases  in  ^rhich  he  wlw  was  damaged  was  subordinate  to  the  negli- 
gent agent  or  servant. 

T  have  been  unable  to  satisfy  myself  with  either  restriction.  T 
think  none  such  is  made  liy  law.  or  demanded  by  public  policy. 
That  in  England,  a  menial  servant  could  not  have  an  action 
against  his  master  foi-  the  negligence  of  a  fellow-servant,  of  the 
like  state  and  condition  with  himself,  does  not  strike  me  as  a  novel 
view  of  the  law ;  though,  so  far  as  T  know,  it  had  never  been  taken 
before  the  days  of  Lord  Abinger.  The  reasoning  of  that  learned, 
but  somewhat  eccentric  judge,  does  not.  indeed,  very  strongly 
lead  my  mind  toward  any  such  conclusion ;  for  his  whole  opinion 
is  but  one  of  the  many  instances  of  how  little  some  of  the  most 
shining  talents  of  the  advocate  appear  to  iirejiare  their  possessor 


Sec.    3    h.]  RELATIVE   RIGHTS.  563 

for  the  office  of  the  judge.  But  a  view  of  the  English  legal  and 
social  system  reveals  some  apparently  valid  reasons  for  denying  a 
right  of  action  by  a  domestic  servant  against  his  ma.ster  for  negli- 
gence, whether  of  the  master  or  of  another  servant.  "Were  such 
an  action  brought  in  an  English  court,  there  would  be  vividly 
present  to  the  judge  all  the  features  of  that  division  and  subdivi- 
sion of  the  English  people  into  classes,  which  has  survived  every 
shock  given  to  the  constitution,  and  resisted  every  reform  at- 
tempted in  the  state.  From  the  highest  of  the  degrees  of  nobility 
and  honor  derived  from  the  king  as  their  fountain,  there  is  a  long 
descent  through  the  ranks  of  dignity  and  worship,  and  even 
through  the  condition  and  esteem  of  tradesmen,  artificers,  and 
laborers,  down  to  the  lowest  estate  held  by  the  menial  servant. 

Putting  aside  for  the  present.  Avhat  suggestions  of  policy  would 
arise  out  of  the  intimate  and  familiar  character  of  the  relation- 
ship between  master  and  servant.  I  should  not  be  astonished  be- 
yond measure  to  find  that  the  contempt  in  which  the  class  of  me- 
nial servants  was'anciently  held,  had  so  continued  down  to  1837, 
that  even  then  the  assertion  of  a  claim  by  an  individual  of  that 
cla.ss,  founded  on  the  negligence  of  his  master,  would  have  en- 
countered some  opposition  from  that  reverence  for  rank,  which 
must  have  entered  into  the  constitution  of  any  English  tribunal 
whatever.  Descendants  of  the  servi,  the  villeins,  and  born  thralls. 
who  led  the  hard  life  of  servitude  throughout  the  governmental 
changes  of  ancient  times  in  England,  menial  servants  had  a  very 
poor  estimate  in  legal  regard.  Their  condition  is  treated  of  by 
Blackstone  in  immediate  connection  with  that  of  slaves  and  vil- 
leins. They  were  not  left  to  their  own  volition  as  to  serving  or 
not  serving.  All  single  men,  between  twelve  years  old  and  sixty, 
and  married  ones  under  thirty  years  of  age,  and  all  single  women 
between  twelve  and  forty,  not  having  any  visible  livelihood,  were 
compellable,  Ijy  two  justices,  to  go  out  to  service,  in  husbandry  or 
certain  specific  trades,  for  the  promotion  of  honest  industry. 
1  BIk.  425,  426.  The  contract  of  hiring,  where  no  1-iiiiitation  was 
expressed,  was  construed  with  reference  to  a  supposed  duty  of  ths 
ma.ster.  to  pi'otect  his  dependents  throughout  lln'  changes  of  the 
year,  whether  there  was  work  to  be  done  or  not.  Ibid.  No  mas- 
ter could  put  away  his  ser^'ant.  or  servant  leave  his  master,  after 
being  so  retained,  either  before,  or  at  the  end  of  his  term,  without 
a  (|uarter's  warning,  unless  u|)on  reasonable  cause,  to  be  allowe;! 
by  a  justice  of  the  peace,  although  they  might  paif  by  consent',  or 
make  a  special  bargain.  Ibid.  Such  a  servant  had  no  clear  right 
iA  action  foi-  a  moderate  con-cction  by  his  uiaster — in  some  in- 
slan<-c.s.  thai  exercise  of  authority  was  clearly  lawful.  Tlie  mas- 
ter could  iustifv  a  batterv  in  defense  of  his  servant.  .iihI  Hie  sen- 
ant  the  like  in  defense  of  his  ma.ster.  In  these  respects,  and  m 
the  enforcement  of  strict,  cbedietice  and  outwafd  reverence,  the 
master  aliiMtsI  stood  in  loco  parentis,  in  a  word,  the  menial  serv- 
ant was  so  far  a  member  i.f  tlie  household,  that  liladsstoiie  evi- 
dently looks  upon  his  master  as  llie  patei  f;iiiiili;is  even  as  to  liim. 


5H4  KEi-ATiVK  Kiciri's.  [Ch.  0. 

1  lUk.  A'.W.  We  bi'jriu  now  to  appreciali'  llu  ludicrous  al.iini  of 
l.onl  Abiniicr,  at  what  lie  su))|ios(>s  to  in'  some  ol'  the  cousi'tiuciuv^-; 
of  allowing'  a  sci'vant  to  sur  liis  inastrr  i'or  \\\v  ni'^lijit'ucc  of  a 
fellow-servant.  We  can  dist-ovcr  wliose  interests  he  has  in  mind. 
and  what  is  the  soui-ce  of  iiis  anxiet.w  whi'ii  he  says:  "Tiie  master. 
t\>r  exam]>le.  wouhl  he  iiahh>  to  the  servant  Tor  the  ne^iijfenee  of 
the  chamiiermaid  in  pnltinix  him  into  a  danip  hed."  etc. 

Ill  any  view  I  tai<e  of  tliis  (|nestion,  the  I'i^dit  of  the  i)hiintiir 
nnist  he  as  broad  as  I  have  stated.  1  disa{>;ree  to  tlie  restrietion  o!' 
tiiat  riirlit.  b(>causc  I  believe  that  there  ean  be  found  to  warrant 
such  limitation,  no  inle  of  law.  no  maxim  of  any  system  of  .jni'is- 
prndence  whatevi'i'.  ,ind  no  eonsideiat  ion  of  i)ublie  poliey.  J  think 
it  is  a  noveltx  in  the  law.  restinji;  on  a  doubtful  foundation  of 
justice,  and  makini:'  a  discoi<l  in  the  system  into  which  it  has  been 
forced.  On  the  other  band,  a  wise  and  salutary  maxim  seems  to 
establish  the  i-iirht  as  I  believe  it  to  exist.  And  if  that  right  has 
not  been  pronounced  by  the  ancient  oracles  of  the  law,  the  connnou 
sense  and  connnon  humanity  of  such  as  tempt  men  into  hazardous 
employments,  constantly  recojiiiize  the  answering  duty,  and  es- 
tablish precedents  of  its  obligation  none  the  less  valuable  becaus,' 
they  do  not  enter  into  the  books  of  reports. 

See   "Master  and   Servant,"  Century   Dig.   §§   318-534;    Decennial   and 
Am.  Dig.  Key  No.  Series  §§  159-201. 


HANCOCK  v.  RAILROAD,  124  N.  C.  222,  32  S.  E.  679.     1899. 
The  ''Fellow-Servant  Act." 

[Action  for  damages  caused  by  negligence  of  a  fellow-servant.  Ver- 
dict against  defendant,  who  moved  in  arrest  of  judgment.  Motion  over- 
ruled, .ludgment  against  defendant  and  it  appealed.  Affirmed.  The 
case  is  inserted  because  it  passes  upon  the  Fellow-Servant  Act,  Revisai, 
sec.  2646.1 

Clark.  J.  The  decision  of  this  ease  depends  upon  chapter  50, 
Priv.  Laws  1897. — "An  act  to  prescribe  the  liabilities  of  railroads 
in  certain  eases."  This  statute,  connuonly  known  as  the  "Fellow- 
Servant  Act,"  was  ratified  on  the  23d  day  of  February.  1807, 
and  provides: 

"Section  1.  That  any  servant  or  employe  of  any  railroad  com- 
pany operating  in  this  state,  who  shall  suff<M'  injury  to  his  person, 
or  the  personal  representative  of  any  such  servant  or  employe, 
who  .shall  have  suffered  death  in  the  course  of  his  services  or  em- 
ployment with  said  company  by  the  negligence,  carelessness  or 
incomi)eteney  of  any  other  servant.  (iii[(loye  or  agent  of  the  com- 
pany, or  by  any  defect  in  the  machinery,  ways  or  appliances  of  th  i 
company,  shall  be  entitled  to  maintain  an  action  against  such 
company. 

"Sec.  2.  That  any  contract  or  agreement,  expressed  or  implied, 
made  by  an  employe  of  said  company  to  waive  the  benefit  of  thf^ 
aforesaid  section  shall  be  null  and  void." 


Sec.    3    b.]  RELATIVE    RIGHTS.  565 

The  plaintiff  was  injured  in  the  service  of  the  defendant  sinc^ 
the  ratification  of  this  act.  The  defendant  contends  that  the  in- 
jury was  caused  by  the  negligence  of  a  fellow-sers'aut  of  the  plain- 
tiff, to  wit,  a  brakeniau  on  the  passenger  train,  in  leaving  the 
switch  open,  whereby  the  hand  car  was  derailed.  Its  counsel  cites, 
inter  alia.  Ponton  v.  Railroad  Co.,  51  N.  C.  245;  Pleasants  \'. 
Railroad  Co.,  121  N.  C.  492,  28  S.  E.  267.  and  Wright  v.  Railroad 
Co.,  122  X.  C.  852,  29  S.  E.  100,  which  sustain  the  contention  that, 
if  the  injury  was  thus  caused,  the  action  could  not  have  been 
maintained  at  common  law.  The  defendant  excepts  as  to  above 
.statute,  which  the  judge  held  confers  a  right  of  action  in  such 
case,  because:  "(1)  It  is  a  private  act,  and,  as  such,  under  sec- 
tion 264  of  the  Code  of  North  Carolina,  it  should  have  been 
pleaded.  (2)  Whether  this  act  is  public  or  private,  it  is  unconsti- 
tutional and  void  when  applied,  in  a  ease  like  this,  to  fellow-serv- 
ants of  a  'raih'oad  company  operating  in  this  stale,'  upon  the 
ground  that  it  'undertakes  to  confer  upon  servants  and  employes 
of  such  companies  separate  and  exclusive  privileges  from  the  rest 
of  the  conunuuity  engaged  in  similar  private  employment,  which 
are  denied  even  to  servants  and  employes  of  railroad  construction 
companies  and  of  street  railroad  and  railroad  bridge  companies, 
and  partnerships  operating  lumber  and  mining  railroads,  since  its 
provisions  are  confined  strictly  to  railroad  companies,'  and  there- 
fore  violates   article    1,    §    7.   of   the   constitution    of   the   state." 

As  to  the  second  ground  of  exception,  nothing  in  this  case  re- 
([uires  us  to  pass  upon  the  questions,  which  cannot  arise  upon  the 
facts  herein,  whether  the  fellow-servant  act  applies  to  street  rail- 
roads, partnerships  operating  lumber  and  mining  railroads,  rail- 
road construction  companies,  and  railroad  bridge  companies,  and 
whether  tlic  defendant  can  set  up  the  defense  of  a  knowledge  of 
defective  machinery  by  the  plaintiff'  and  assumption  of  i-isk.  l^v- 
yond  controversy,  the  plaintiff  was  in  the  employment  of  "a  rail- 
road conjpany  operating  in  this  state"  when  injured.  These 
matters  m;iy  possibly  come  up  for  adjudication  when  the  facts  of 
.some  case  pi-(.'sent  the  question,  but  in  the  meantime  "suflicienL 
unto  the  day  is  the  evil  thereof.'" 

As  to  the  other  question  learnedly  argued  in  the  brief,  whether, 
under  the  fellow-sen'ant  statute,  the  defendMut  can  plead  contribu- 
tory negligence  on  the  part  of  the  servant  injured,  there  can  be  no 
doubt.  The  st^itute  goes  no  further  than  to  remove  the  defense 
that  th(!  in  jurv  was  sustained  by  the  negligence  of  a  fellow  servant. 
The  rjefendant  does  not  take  his  own  ai'gument  on  this  ])oiiit  seri- 
ousl}' ;  I'or.  ill  faet,  he  sets  up  the  |)lea  of  eoiil  rihiilory  negligence. 
and  an  issue  1  hereon  was  submitled  to  the  juiy,  and  found  in 
favor  of  tile  plaint  ilV. 

We  sec  no  <rround  for  the  defendant's  eont(Mition  that  the  act 
in  tiiiestion  violates  ailiele  1,  )5  7.  of  the  .\ort  h  Carolina  eonstitu- 
tioti.  by  "conferring  exclusive  jirivileges  upon  miy  set  of  men." 
The  law  exempting  a  master  from   lialiility   to  a  servant    for  the 


566  RELATivi:  icujiiTs.  \('li.  a. 

nejjligoiu'o  of  a  ft'llow-si'iA  ant  is  by  Judicial  construetioii  and  of 
rcuuparativi'ly  I'cccnt  orij^in.  Its  liisloi'v  is  I  racinl  in  Ilohljs  v. 
Railroad  Co.."  107  X.  (".  1.  V2  S.  Iv  I'JI.  Its  cxtciil  has  hci'ii  dill'er- 
»'n1ly  oiitliiu'd  in  dilVi'i-ciit  slates  by  jiidieial  ooiistruction,  and  in 
several  states  it  has  been  restricted  by  legislative  enactment  so  as 
not  to  extend  to  employes  of  raili'oad  eoiiipanies.  as  has  now  been 
done  in  this  state.  As  the  oi'ij^inal  <j;round  of  the  decision  w;is 
that  a  servant  knew  the  character  for  care  of  his  fellow-servant, 
and  entered  sei-vice  with  a  view  to  that  risk,  the  courts  them- 
selves miirht  loixically  have  lone:  since  modified  the  rulin<?  not  to 
extend  to  an  employment  like  that  of  railroads,  embracing  many 
thousands  of  eni]iloyes.  and  ex])osing  its  servants  to  peculiar  risks. 
The  fellow-servant  .kI  now  in  question  applies  to  a  well-defined 
class,  and  o|)erates  ('([ually  as  to  all  within  that  class.  Indeed,  any 
act  incor[)oralini!;  a  company  confers  special  privileges  upon  the 
stockholders,  but  not  exclusive  privileges,  within  the  meaning  of 
the  constitution.  "We  fail  to  see  in  this  act  any  conferring  of  "ex- 
clusive privileges."  within  the  language  or  intent  of  the  constitu- 
tional provision  in  question  (Broadfoot  v.  Town  of  Fayetteville, 
121  N.  C.  418,  28  S.  E.  515)  ;  and  similar  fellow-servant  acts,  al- 
most in  totidem  verbis,  in  other  states,  have  been  held  by  the  fed- 
eral supreme  court  to  be  not  in  conflict  with  the  "equal  pi-olcc- 
tion"  clause  of  the  fourteenth  amendment.  Our  statute  specifies 
"servants  or  employes  of  any  railroad  company  operating  in  this, 
state,"  etc.  The  Kansas  statute  (1  Gen.  St.  1889,  p.  415),  which 
uses  the  words.- "every  railroad  company  organized  and  doing 
business  in  this  state  shall  be  liable,"  etc.,  was  held  valid  in  Rail- 
way Co.  v.  Mackey,  127  IJ.  S.  205,  8  Sup.  Ct.  1161  ;  and  the  Iowa 
statute  (Code  1873,  §  1307),  which  uses  the  words,  "every  cor- 
jioration  operating  a  railroad  shall  be  liable,"  etc.,  w-as  sustained 
in  Railway  Co.  v.  Ilerrick.  127  U.  S.  211,  8  Sup.  Ct.  1176;  and 
both  cases  have  been  very  recentlv  reviewed  and  reaffirmed  in 
Railroad  Co.  v.  Mathews,  165  V.  S.'l.  25,  17  Sup.  Ct.  243,— all  of 
which  have  been  lately  cited  as  authority  by  this  court  in  Broad- 
foot  V.  Town  of  Fayetteville,  at  page  422,  121  N.  C,  and  pag(? 
516,  28  S.  E.  In  another  recent  case  (Railroad  Co.  v.  Pontius, 
157  U.  S.  209,  210,  15  Sup.  Ct.  586),  the  federal  supreme  court, 
through  Chief  Justice  Fuller,  approving  Railway  Co.  v.  Mackey, 
127  U.  S.  205,  8  Sup.  Ct.  1161,  has  thus  stated  the  ruling  with  ap- 
proval: "As  to  the  objection  that  the  law  (the  Kansas  statute 
above  cited)  deprived  railroad  companies  of  the  equal  protection 
of  the  laws,  and  so  infi'inged  the  fourteenth  amendment,  this 
court  held  that  legislation  which  was  special  in  its  character  was 
not  necessarily  within  the  constitutional  inhibition,  if  the  same 
rule  was  applied  under  the  same  circumstances  and  conditions; 
that  the  hazardous  character  of  the  business  of  operating  a  rail- 
road seemed  to  call  for  special  legislation  with  respect  to  railroad 
corporations,  having  for  its  object  the  protection  of  their  em- 
ployes a.s  well  as  the  safety  of  the  public;  that  the  business  of 
other  corporations  was  not  subject  to  similar  dangers  to  their  em- 


Sec.    3    h.]  RELATIVE   RIGHTS.  567 

ployes;  and  that  such  legislation  could  not  be  objected  to  on  the 
gromid  of  making  an  nnjust  discrimination,  since  it  met  a  par- 
ticular necessity,  and  all  railroad  corporations  were,  without  dis- 
tinction, made  subject  to  the  same  liability."  The  attack  of  the 
defendant's  counsel  upon  the  constitutionality  of  the  fellow-serv- 
ant act  has  been  delivered  with  force  and  ability,  but  we  cannot 
perceive  that  the  reasoning  in  the  above  decisions  of  our  highest 
federal  court  is  otherwise  than  sound.     .     .     . 

Ill  what  is  known  as  "The  Ross  Case,"  decided  in  1884,  112  U.  S.  377,. 
5  Sup.  Ct.  184,  the  supreme  court  of  the  United  States  decided  that  all 
servants  of  a  common  master  were  not  fellow-servants  within  the  fellow- 
servant  doctrine;  but  that  where  one  servant  was  subordinate  to  an- 
other— under  the  authority  of  another — the  common  master  was  liable 
for  injuries  suffered  by  the  subordinate  in  consequence  of  the  negligence 
of  the  superior  servant.  This  ruling  was  overturned  in  1899,  by  the  same 
court,  in  New  England  R.  R.  v.  Conroy,  175  U.  S.  323,  340-347,  20  Sup.  Ct. 
8.5.  By  the  Act  of  June  11,  1906,  34  U.  S.  Stat.  232.  common  carriers  en- 
gaged in  interstate  commerce  were  made  liable  to  their  employes  re- 
gardless of  the  fellow-servant  doctrine.  This  act  was  declared  to  be  un- 
constitutional, in  part,  in  "The  Emi)loyers"  Liability  Cases,"  207  U.  S. 
463,  28  Sup.  Ct.  141.  Thereupon  by  the  Act  of  April  22.  1908,  the  statute 
was  re-enacted  in  terms  thought  to  meet  the  objections  to  its  constitu- 
tlonalitj'. 

For  the  fellow-servant  doctrine  in  general,  see  26  Cyc.  1276.  For  the 
North  Carolina  law  on  the  subject,  see  Mordecai's  L.  L.  140-154.  See  17 
L.  R.  A.  (N.  S.)  773,  1  lb.  288,  2  lb.  751.  10  lb.  1043,  20  lb.  322,  331,  and 
notes  (selection  and  retention  of  fellow-servants);  S  lb.  631,  13  lb.  1214, 
20  lb.  39.  22  lb.  738.  and  notes  (general  doctrine);  1  lb.  696,  6  lb.  452, 
12  lb.  1040,  15  lb.  479,  17  lb.  117,  18  lb.  478.  and  notes  (the  doctrine  as  af- 
fected by  statutes);  1  lb.  682.  4  lb.  1161.  7  lb.  651.  13  lb.  1196,  16  lb.  146, 
17  lb.  334,  20  lb.  354,  434,  1180,  21  lb.  601.  and  notes  (who  are  fellow- 
servants);  1  lb.  669,  670,  8  lb.  798,  10  lb.  1103,  11  lb.  840.  15  lb.  439. 
17  lb.  542,  568,  18  lb.  279,  and  notes  (for  what  acts  of  fellow-servants 
the  master  is  liable).  *If  the  master's  negligence  be  the  proximate 
cause  of  the  injury,  the  concurring  negligence  of  a  fellow-servant  is  no 
defense.  H.  &  B.  Car  Co.  v.  Przezdziankowski.  170  Tnd.  1.  8,  83  N.  E.  626. 
citing  3  Ell.  on  R.  R.  (2d  ed.),  s.  1306;  see  also  2  L.  R.  A.  (N.  S.)  647, 
4  lb.  516,  and  notes,  iov  further  discussion  of  the  subject  of  concurring 
negligence.  See  ":Master  and  Servant,"  Century  Dig.  §§  354-374;  Decen- 
nial and  Am.  Dig.  Key  No.  Series  §§  17S-184. 


YOUNG  v.  CONSTRUCTION  CO.,  109  N.  C  618,  14  S.  E.  58.     1891. 
Machinery,  etc.     Master's  Liability. 

f  Action  for  damages  sustained  by  a  servant  in  using  an  implement  fur- 
nished by  the  ma-ster.  which  was  alleged  to  be  improper  and  unsafe. 
Verdict  and  judgment  against  defendant,  who  appealed.     Reversed. 

Plaintiff  was  injured  by  the  slipping  of  a  green  round  pole  substituted 
for  a  jack  in  raising  cross-ties.l 

;Mkrrtmon.  C.  J.  The  eoiDplaint  alleges  that  at  the  time  the 
l.laiutifT  sus1;iijird  tin-  injuries  comphiined  of  the  derendant's  la- 
borers fhe  b('ir)g  one  of  thou)  were  engaged  in  "raising  cross-ties. 
etc..  nnd  leveling  t])e  roadbed."  etc.  Now.  in  view  of  the  nature 
of  such  employment,  and  the  pole  used  as  a  lever  in  the  eonnec- 


51)8  RELATIVE    RKIlirs.  \('h.    (i. 

tioii  as  ilosi'i-il)o(l  in  llu'  iMnnplaiiil.  and  accc^ptiiii;  nil  the  cvidciirc 
in  rospoi't  to  its  uso  as  \v\n\  \\v  lliinU  the  (-(tui't  ouj^lit  to  have  loM 
tlu»  jury  that  tlu'  pole  was  an  appropriate  iiiipUMneiil.  and  not  dan- 
jriTous  for  the  purposes  to  wliieli  it  was  api^lied.  All  the  evidonee 
pertinent  went  to  show  thai  the  laborers  were  en<;aifed  in  raisini; 
the  traek  of  the  road,  and  that  they  used  the  pole  to  prize  it  up, 
plaeinsz  the  (MuI  of  it  under  a  cross-tie.  In  its  iiiitni'e  the  ap|)liea- 
tion  and  use  of  the  pole  were  simple  and  appropriate,  and  the  evi- 
donee went  to  prove  the  same  faet.  That  "jaeks''  or  other  instru- 
mentalities mijijht  have  been  employed  elTeetively  to  I'aise  tlie 
tratk  did  not  make  it  neg:ligent  to  employ  the  lever, — another  aj)- 
pro|)riate  means.  The  eoui't  ought  not.  thei-efore,  to  have  modi- 
tied,  as  it  did.  the  instruction  the  defendant  i'e(pi(>sted  it  to  p;ive 
the  ,ii"'y.  The  third  issue  sulunitted  to  the  Jury  had  reference  to 
whether  or  not  the  plaintiff  had  knowledfjc  of  the  nature  and  use 
of  the  pole  as  a  lever.  As  to  this  the  court  "told  tlie  jury  that  he 
knew  of  no  witness  who  gave  direct  testimony  tending  to  show 
that  the  plaintiff  knew,  or  had  good  reason  to  know,  of  the  nature 
and  character  of  the  implement  used  by  him  and  consent  to  use 
the  same,  and  called  ujion  defendant's  counsel  to  point  out  such 
evidence."  AVe  thiidc  there  was  such  evidence,  and  that  what  the 
court  said  in  that  respect  may  have  misled  tiie  jury  to  the  preju- 
dice of  the  defendant.  They  saw  that  the  court  was  of  opinion  that 
there  was  not  such  evidence ;  and,  after  tlie  colloquy  with  counsel, 
they  saw  that  the  court  was  still  not  well  satisfied  as  to  its  char- 
acter. This,  no  doubt.  impres.sed  the  jury.  There  was  certainly 
evidence  that  the  plaintiff  was  present.  The  pole  was  there  plainly 
to  be  seen,  as  was  also  its  purpose  and  application.  He  was  di- 
rected to  join  in  its  use,  and  he  did  so.  Surely  these  facts  consti- 
tuted some  evidence  tending  to  prove  that  he  knew  of  the  charac- 
ter of  the  pole  he  aided  in  using,  and  that  he  consented  to  help  in 
the  use  of  the  same.  The  pole  and  its  use  were  simple,  easy  to 
be  seen,  and  understood  at  a  glance.  It  may  be,  however,  that  the 
plaintiff  did  not  observe  them  Avith  scrutiny*  though  there  was 
evidence  that  he  and  the  other  laborers  were  cautioned  to  be  care- 
ful. But,  be  this  is  it  may,  there  was  evidence  appropriate  and 
pertinent  to  go  to  the  jury  without  such  possible  prejudice  as  to 
its  character  and  sufficiency.  There  is  error,  and  without  advert- 
ing to  other  exceptions  we  are  of  opinion  that  the  defendant  is  en- 
titled to  a  new  trial,  and  so  adjudge.  To  that  end  let  this  opinion 
be  certified  to  the  superior  court.     It  is  so  ordered. 

See  "Master  and  Servant."  Century  Dig.  §§  171-263,  1010-1031;   Decen- 
nial and  Am.  Dig.  Key  No.  Series  §§  101-129,  286. 


AVERY  V.  LUMBER  CO.,  146  N.  C.  592,  595,  60  S.  E.  646.     1908. 
Machinery,  etc.     Master's  Liability.     Servant's  Duty. 

[Action  for  damages  sustained  by  a  servant  in  using  an  implement  fur- 
nished by  the  master,  which  was  alleged  to  be  improper  and  unsafe. 
Verdict  and  judgment  against  defendant,  who  appealed.     Affirmed. 


.Sfr.    S    b.]  RELATIVE   RIGHTS.  5ti9 

Plaintiff  was  an  ordinary  green  hand,  with  no  knowledge  of  machinery. 
He  was  ordered  to  oil  a  machine  called  an  edger,  and  in  doing  so  his  arm 
was  cut  oft  by  the  machine.  The  only  imi)lement  that  plaintiff  saw  about 
the  machine,  for  oiling  it.  was  a  bottle.  There  should  have  been  a  "squirt 
can"  for  such  work,  as  to  use  a  bottle  was  dangerous,  especially  if  used 
by  one  not  accustomed  to  oiling  such  a  machine.] 

Browx.  J.  .  .  .  The  specific  negligence  of  which  phiintiff 
coniplain.s  is  that  the  defendant  failed  to  furnish  a  safe  and  suit- 
able appliance  with  which  to  oil  the  edger,  and  one  in  general  use 
for  such  purpose.  Phillips  v.  Iron  Works.  146  N.  C.  217.  59  S.  E. 
660.  It  has  become  elementary  in  the  doctrine  of  neglitfence  that 
the  master  owes  a  duty,  which  he  cannot  safely  neglect,  to  furnish 
proper  tools  and  appliances  to  his  servant.  Shaw  v.  Mfg.  Co.,  146 
N.  C.  2.So.  59  S.  E.  676:  Phillips  v.  Iron  Wroks.  supra;  Ward  v. 
Mfg.  Co..  128  X.  C.  248.  31  S.  E.  495. 

While  the  evidence  may  be  contiicting,  there  is  abundant  proof 
to  go  to  the  jury  that  the  defendant  failed  to  furnish  the  necessary 
oil  squii-t  can  in  conunon  use  for  oiling  such  machinery,  and  that 
such  negligence  caiLsed  the  injury  to  plaintiff.  We  do  not  mean  to 
hold  that  it  was  defendant's  duty  to  have  squirt  cans  all  over  the 
mi  11.  or  that  under  ordinary  cireum.stances  a  workman  should  not 
hunt  for  one  rather  than  use  a  bottle.  That  feature  of  the  defense 
was  submitted  to  the  jury  under  proper  instruction.  But  tlie 
plaintiff's  evidence  tends  to  prove  that  he  was  a  "green  hand" 
placed  luider  Kennedy's  direction  in  operating  the  edger.  and 
that  he  had  .seen  the  latter  repeatedly  use  the  same  bottle  in  oiling 
the  machine.  The  plaintiff'  had  a  right,  therefore,  to  sui)pose  that 
the  bottle  was  the  appliance  furnished  by  defendant  foi-  the  pur- 
pose of  oiling  the  eclger.  and  that  it  was  in  common  use  for  such 
purpose.  It  is  immatei'ial  to  determine  whether,  strictly  speak- 
ing. Kennedy  stood  in  the  relation  of  vice  principal  to  the  plain- 
tiff or  not.  Kennedy  was  his  innnediate  "boss."  in  charge  of  the 
machine  where  i)laintift'  was  working  under  Kennedy's  clirection, 
and  Kennedy  had  the  i-ight  to  direct  him  to  oil  the  machine.  He 
did  not  oil  it  officiously.  l)ut  in  the  line  of  duty,  if  his  evidence  is 
to  be  believed.  We  think  his  honor,  therefore,  veiy  properly  over- 
ruled the  motion  to  nonsuit. 

Airiong  other  instructions  the  court  charged  the  jury  Ihat.  if  the 
injury  was  accidental,  and  not  caused  by  defendant's  negliii'eiicc. 
tlu?  plaint  i If  could  not  recover.  Ppon  the  issue  of  contributory 
negligence,  among  other  instructions  the  court  chai'g(?d  that  "it 
was  |)l;iintiff's  duty  to  b(^  can^fnl  and  guard  against  accidents; 
Hjid,  if  the  jury  find  from  the  evidence  thai  plaijit  iff  knew  the  man- 
ner in  which  the  i-i\\i\'y  mnchine  onghl  to  be  oiled,  oi-  ought  to  have 
known  tluit  it  w;is  diinu'erous  to  get  on  top  of  tlic  machine  and 
pour  oil  down  on  the  collais.  and  that  by  iook-ing  iind  by  using 
ordinary  earr-.  that  is.  such  care  as  a  i-easonably  prudent  man 
wonld  use  under  like  circumstances,  he  could  have  seen  this  dan- 
ger and  failed  to  do  so.  then  he  was  guilty  ol"  negligence.  ;uid  the 
jury  will  jinswer  the  second   issue  '  Ves. ' 


1)70  KKi.  \i'i\  !•.  Kiciri's.  \<'li.  a. 

The  charge  of  tlio  roiirt  u]Hn\  llic  issues  espi-cially  those  as  to 
noirlisrcncf  aiul  fOiitril)uloi-y  iit'<r|iir(«iic(>.  is  iniusually  1"iill  and 
dear.  It  prt'st'iiteil  coiTeclls  ami  iiilcllificnlly  In  llic  jury  every 
jiliasi'  of  the  ease.  To  review  it  winiid  he  only  to  reilerato  wliat 
has  hoon  so  often  stated  in  the  opinions  of  this  eonrl.  whieli  seem 
to  have  heen  earel'idlv"  foMowed  and  applied.  I'pon  an  examina- 
tion of  the  entire  I'eeord.  we  lind  no  crroi*. 

In  Nail  v.  Brown.  150  N.  V.  at  hot.  p.  .');'>."..  (i4  S.  E.  435,  Brown,  .1  ,  gives 
the  t'ollowin.c;  elear  sinniuary  of  the  law:  "Where  there  is  one  applianee 
only  which  is  apjiroveil  and  in  general  use  tor  pert'orniing  a  certain  func- 
tion it  is  the  master's  duty  to  use  it.  Where  there  are  several  appli 
ances  used  for  the  same  jiurpose.  all  of  which  are  api)roved  ami  in  gen- 
eral use,  the  master  tills  the  measure  of  his  duty  if  he  exercises  reason- 
able care  in  making  a  selection.  It  is  culpable  negligence  which  makes 
him  liable, — not  a  mere  error  of  judgment.  We  think  this  is  the  consen- 
sus of  the  best  authorities.  Home  v.  Power  Co.,  141  N.  C.  .50.  53  S.  E. 
658;  Phillips  v.  Iron  Works,  140  N.  C.  217.  5!t  S.  E.  660;  Young  v.  Constr. 
Co.,  109  N.  C.  618,  14  S.  E.  58;  Harley  v.  Car  Co.,  142  N.  Y.  31,  36  N.  E. 
813;  O'Neill  v.  R.  R.,  66  Neb.  638,  92  N.  W.  731."  In  connection  with  this 
summary  it  must  be  remembered  that  the  liability  of  a  railroad  company 
operating  in  North  Carolina,  for  injuries  suffered  by  its  servants  by  rea- 
son of  any  defect  in  the  machinery,  ways,  or  appliances  of  the  com!)any, 
is  fixed  by  sec.  2646  of  the  Revisal,  which  is  quoted  in  Hancock  v.  R.  R., 
124  N.  C.  222,  32  S.  E.  679,  inserted  supra  in  this  section. 

See  12  L.  R.  A.  (N.  S.)  853,  861.  and  notes  (when  the  relation  of  master 
and  servant  exists);  1  lb.  944,  0  lb.  602.  492,  787.  11  lb.  7:'.8.  13  lb. 
384.  668,  14  lb.  972.  15  lb,  812,  1109.  16  lb.  128,  140.  715,  978,  984,  1084. 
17  lb.  104,  19  lb.  242,  20  lb.  473,  21  lb.  774,  22  lb.  582,  634,  738,  917,  951. 
and  notes  (dutv  of  master  to  provide  a  safe  place  to  work  and  safe, 
apiiliances);  3  lb.  209,  8  lb.  284.  19  lb.  997,  21  lb,  89,  22  lb.  738,  23  lb. 
1071,  296,  and  notes  (duty  of  master  to  warn  servant  of  dangers  and  to 
instruct  minors,  etc.,  in  use  of  machinery,  etc.);  (151  N.  C.  31),  6  lb. 
337,  16  lb.  214,  23  lb.  171.  1022,  and  notes  (res  ipsa  loquitur):  6  lb.  981. 
9  lb.  338.  12  lb.  461,  1038,  15  lb.  443.  784,  and  notes  (liability  of  master 
to  his  servant  for  injuries  resulting  from  the  master's  violation  of  Em- 
I)loyers'  Liability  Acts,  Child-Labor  Laws,  and  statutes  providing  for 
safeguards  in  the  operation  of  factories,  mines,  etc.,  and  in  the  con- 
struction of  buildings,  operating  machinery,  etc.);  9  lb.  338,  and  elab- 
orate note  (master's  liability  to  servant  for  violation  of  statutes  not 
expressly  conferring  a  right  of  action  upon  the  servant) ;  12  lb.  1038, 
and  note  (effect  of  Employers'  Liability  Act  upon  the  servant's  common 
law  remedies);  7  lb.  ;!37,  11  lb.  182,  and  notes  (validity  of  contracts 
exempting  the  master  from  liability  for  negligence);  11  lb.  182.  and 
elaborate  note  (contracts  requiring  the  servant  to  look  to  relief  funds, 
etc.,  instead  of  to  the  master,  for  injuries  suffered;  and  for  releases  ob- 
tained by  the  master  by  proper  or  by  devious  methods).  See  "Master 
and  Servant."  Century  Dig.  §§  171-263;  Decennial  and  Am.  Dig.  Key 
No.  Series  §§  101-129. 


(c)  Bemedy  of  the  Master  Again.^t  the  Servant. 

"Breach  of  Contract  by  Workmen. — Tntimately.  indeed  insep- 
arably, connected  with  the  le^al  position  of  trades  unions  is  the 
question  of  the  legal  consequences  formerly  attaching  to  the  breach 
on  the  part  of  a  workman  of  his  contract  with  his  master,  in  the 
making  of  whieli  he  was  permitted  so  small  a  share.     At  the  com- 


Sec.    3    C]  RELATIVE    RIGHTS.  571 

mencement  of  the  19tli  ceutuiy  the  Aet  of  the  twentieth  year  of 
Geo.  II.  c.  19.  Avas  still  in  force.  By  this  Act,  the  justices  of  the 
peace  for  their  counties  were  to  deci(l(^  all  disputes  between  masters 
and  workmen  arising  out  of  their  contracts  of  service.  A  breach  on 
the  master's  part  was  punishable  by  damages,  but  a  breach  on  the 
workman's  part  was  a  criminal  offense  punishable  by  imprison- 
ment and  flogging. 

"This  Act  has  been  spoken  of,  with  somewhat  grim  humor,  as  the 
Act  introducing  the  principle  of  arbitration  between  master  and 
workman.  By  a  statute  passed  in  the  year  1823  justices  were  given 
power  to  deal  with,  and  to  punish  by  imprisonment,  breaches  of 
contract  on  the  part  of  workmen  in  refusing  to  enter  into,  or  in 
quitting  the  master's  service.  Such  was  the  state  of  the  law  until 
the  year  1867.  The  remedy  of  a  servant  against  his  master  was 
always  a  civil  remedy,  whilst  that  of  the  master  against  the  servant 
was  "always  of  a  criminal  nature.  Until  the  year  1848  (Jer-yis' 
Act)  whilst  masters  upon  complaint  were  brought  before  justices 
on  summons,  workmen  were  always  brought  before  them  on  war- 
rant, and  until  the  year  1867  the  proceedings  took  place  in  private. 
The  combined  result  of  the  statute  and  common  law  was  that  in- 
dividual breach  of  contract  by  a  workman  was  punishable  by  stat- 
ute, concerted  breach,  either  by  statute  or  as  a  conspiracy. 

"In  the  year  1867  Avas  passed  the  statute  called  'Lord  Elcho's 
Act,'  abolishing  imprisonment  for  breach  of  contract,  except  in 
case  of  what  was  called  aggravated  breach  of  contract.  In  the 
year  LS7-4  a  Royal  Commission  recommended  that  proceedings 
against  workmen'for  breach  of  contract  should  be  divested  entirely 
of  a  penal  character.  The  report  made  by  this  Commission  led  to 
the  pa.ssing  of  the  two  statutes.  'The  Employers  and  Workmen  Act. 
1875.'  and  'The  Conspiracy  and  Protection  of  Property  Act.  1875.' 
the  first  to  regulate  the  civil,  the  second  to  regulate  the  criminal 
questions  arising  out  of  contracts  of  service,  made  between  em- 
ployers and  employed — as  they  Avere  therein  for  the  first  time 
calfed. 

"The  former  of  these  Acts  gives  jurisdiction  to  the  county 
courts,  and  a  limited  jurisdiction  to  justices,  in  disputes  between 
employers  and  workmen,  but  such  proceedings  were  henceforth  to 
be  of  a  civil  and  not  of  a  criminal  nature;  the  second  declares  that 
an  agreement  or  combination  to  do  any  act  in  furthoran<^o  of  a 
trade  dispute  shall  not  render  the  person  committing  it  indictable 
for  r-onspiraey.  if  sueh  act.  committed  by  one  person,  would  not  be 
}»unishable  as  a  crime. 

"These  lattf-r  words  may  almost  be  described  as  'The  Workmen's 
Charter  of  Liberty.'  for  they  dispose  at  once  and  forever  of  the 
contention  1li;it  a  eombinalion  to  do  acts,  not  illegal  in  themselves, 
is  entitled  to  be  regarded  by  the  law  as  a  'conspiracy.'  There  are 
two  exceptions:  First.-  Breach  of  eonlraet  havintr  the  efTect.  or 
likely  to  have  the  efTect.  of  depriving  the  public  of  (Mther  gas  or 
water.  Second.- -P.reaeh  of  contract  which  the  workman  has  rea- 
sonable cause  to  believe  will  endanger  life,  or  cause  serious  bodily 


572  wKi.ATni'.  iv'Kiiri's.  \('li.  a. 

injury  ov  tMiiliiMircr  \  ;ihi;il)lf  proiH-rty.  'Plir  specific  olVciiscs  of 
vidlciu'c.  iiil  imi(l;il  ioii.  Ix'srit  iiiu'.  clc.  ;iit  set  (Uit  niul  (•.ircruUy  dc- 
tiiicd. 

■' Thus  was  secured  to  workiiieu  iil'tcr  ;i  Idiii:  st  ru^^LvIe  llie  i'iiL!:lil  of 
coml)inaliou  in  protivtien  or  ad\  aiicciiicnt  ol'  tlieir  inlerests.  a 
Icijal  recoiiiiit  itui  of"  llieii*  ti'ade  societies,  and  e(|ualit\'  of  contract. 
Tlie  stafeineni  ol"  .Mr.  Hisraeli  -  as  lie  llien  was  af  tlie  ^lansion 
House  dinner,  in  tlic  yeai"  IST").  eoufained  nioi'(^  trnlli  than  does 
some  posf-iirandiai  oratorw  when  he  said  :  '  l^'oi-  the  liist  lime  in  fhe 
liisfory  of  fliis  cotuiti'y  tiie  eMiph)yer  and  the  employed  sit  undei- 
Cipial  hnvs. '  The  nienil)ei's  of  trades  unions  have  since  fhe  (h'cision 
of  the  House  of  Lords  in  Aden  v.  Fh)od  heen  further  protected 
from  civil  liahility  in  respect  of  their  conihinations.  even  where  the 
motive  jn'omptinjr  their  acts  is  malicious,  provided  fhe  acts  them- 
selves are  not  unlawful."  A  Cenfurv  of  Law  K^'foi-m.  i)p.  251 
254. 


1<:X  PARTE  HOLL.XFAX.  79  S.  C  9,  60  S.  E.  19,  21  L.  R.  A.   (N.  S.)   242. 

1908. 

Statutes  Making  It  a  Crime  for  a  Servant  to  Break  His  Contract  With 
the  Master.  Imprisonment  for  Debt.  I.Wi  and  IJ/th  Amrndts.  Const. 
U.  S. 

(Habeas  corpus  to  obtain  release  from  imprisonment  imder  a  sen- 
tence for  violating  a  contract  of  service.  Prisoner  discharged.  Only 
selections  from  tlie  opinion  are  liere  inserted.] 

Woods,  J.  .  .  .  Section  357  of  the  Criminal  Code  of  1902. 
the  statute  under  which  the  petitioner  was  convicted,  and  which  is 
here  attacked,  is  as  follows:  "Any  lahorei"  workinfj'  on  shares  of 
crop  or  for  wages  in  money  or  other  valuable  consideration  under 
a  verbal  or  written  contract  to  labor  on  farm  lands,  who  shall  re- 
ceive advances  either  in  money  or  supplies  and  thereafter  wilfully 
and  without  .just  cause  fail  to  perfoi-m  the  reasonable  service  re- 
quired of  him  by  the  terms  of  the  said  contract  shall  be  liable  to 
prosecution  for  a  misdemeanor,  and  on  conviction  shall  be  pun- 
ished by  imprisonment  for  not  less  than  twenty  days  nor  more  than 
thirty  days,  or  to  be  fined  in  the  sum  of  not  more  than  twenty-five 
dollars  nor  more  than  one  hundred  dollars  in  the  discretion  of  the 
court :  Provided,  the  verbal  contract  herein  referred  to  shall  be 
witnessed  by  at  least  tw^o  disinterested  witnes,ses." 

The  first  question  is  whether  this  statute  violates  section  24  of 
article  1  of  the  state  constitution,  which  provides:  "No  person 
shall  be  imprisoned  for  debt  except  in  cases  of  fraud."  The  act 
refers  exclusively  to  a  farm  laborer  working  for  a  consideration 
under  a  contract,  who  (1 )  "sliall  receive  advances  in  money  or  sup- 
plies, and  (2)  thereafter  wilfully  and  without  just  cause  fail  to 
perform  the  reasonable  service  required  of  him  by  the  terms  of  the 
said  contract.  "It  will  be  observed  the  statute  does  not  require  for 
the  completion  of  the  crime,  proof  of  the  making  of  fhe  contract 


Sec.    3    C]  RELATIVE    RIGHTS.  573 

and  the  obtaining  of  the  advances  on  the  faitli  of  it  with  the  inten- 
tion formed  at  the  time  not  to  perform  the  service.    Such  action  as 
that  on  tlie  part  of  the  laborer  would  be  fraudulent,  and  a  statute 
providing  for  its  punishment  would   not  violate  a  constitutional 
provision  allowing  impi  isoiiment  foi-  distil  in  cases  of  fraud.     But 
the  act  under  consideration  provides  imprisonment  as  a  punish- 
ment for  conduct  after  the  contract  has  been  made  and  the  work  be- 
gun, and  the  important  inquiries  are.  tirst.  is  the  conduct  so  made 
criminal  a  failure  to  pay  a  debt?  and.  second,  is  such  conduct  con- 
sistent with  good  faith,  with  entire  absence  of  fraud  t    If  these  in- 
(juiries  are  to  be  answered  in  the  affii'mative.  then  it  follows  that 
the  acts  should  be  declared  unconstitutional  as  ])roviding  for  im- 
prisonment for  debt  without  proof  of  fraud.    The  statute  does  not 
go  to  the  extent  of  requiring  the  laborer  to  pay  the  advances  in 
labor,  and  therefore  there  is  nothing  to  prevent  his  discharge  of  the 
debt  for  advances  in  the  same  manner  as  other  debts  arc   dis- 
charged.   It  is  equally  clear  that  the  service  due  by  the  laborer  un- 
der the  contract  is  also  a  debt  within  the  meaning  of  the  constitu- 
tion.    Debt  is  that   which  is  due   from   one   person   to   another, 
whether  money,  goods,  or  services,  and  whether  payable  at  present 
or  at  a  future  time.    Century  Dictionary  ;  13  Cyc.  309,  and  authori- 
ties cited.    The  term  "debt."  within  the  meaning  of  the  constitu- 
tion, is  generally  held  to  embrace  oljligations  arising  out  of  con- 
tract, and  to  exclude  liability  for  tort  and  for  fines  imposed  for 
crime.     Carr  v.  State.  34  L.  R.  A.  634.  note ;  State  v.  Brewer,  38 
S.  C.  263.  16  S.  E.  1001.  19  L.  R.  A.  362.  37  Am.  St.  Rep.  760. 
Therefore,  beyond  dispute,  the  laborer  referred  to  in  the  statute 
falls  under  the  terms  of  the  constitution  as  a  person  who  by  his  con- 
tract incurs  a  debt  for  advances  received  liy  him  and  for  labor 
which  he  promises  to  perform.     For  the  mere  failure  to  discharge 
these  debts  the  constitution  forbids  his  imprisonment.     If.  how- 
ever, the  laborer  contracts  such  a  debt  fraudulently  or  fraudu- 
lently avoids  the  discliartiv  of  it.  he  falls  without  liie  ])rotection  of 
the  constitution.     .     . 

It  is  strenuously  argued,  however,  that  the  act  does  not  ]U'o- 
vide  for  imprisonment  for  debt  under  civil  process,  and  that  the 
general  assembly  may  make  an  act  ei  iminal  and  punishable  by  iiii- 
])risonment  which  is  not  fraudulent  and  recognized  as  morally 
wrong.  The  i)ower  of  the  general  as.sembly  to  make  an  act  crim- 
inal, whieh  was  before  innoeent.  is  familial'.  Hut  Ihe  h^gislative 
power  to  make  acts  criminal  and  punishable  by  impi'isoiniienl  can- 
not be  extended  to  an  invasion  of  the  I'ights  guaranteed  the  citizen 
by  the  constitution.  It  is  imi)ossil)le  to  frame  a  xalid  stalule  ])un- 
ishing  by  imprisitMinenl  the  exei-eise  of  the  right  to  i-eligious  lib- 
erty, or  the  riglit  to  petition  Ww  the  i-edi-ess  of  grievances,  or  th(^ 
right  to  be  exempt  fi'om  imprisonment  I'or  dilil.  rxci'pt  in  cases  ot 
frajid.  These  ai-e  all  constitutional  I'ights.  whieh  caiuiol  li<' 
abridged  under  the  t-'uise  of  h-gishition  ;igains1  ciinie.  The  exei- 
cise  of  them  cannot  l)e  crime. 

The  resj)ondents  urged  thai  imprisonment  for  the  failure  to  per- 


r>74  KKI.XI'IVK    KKilll'S.  \('ll.    (>. 

t'oriu  personal  sci'vifc  has  Itccn  sustained  liy  the  suiu-ciiic  coiirl  of 
the  I'liittHl  Staffs  in  the  cast'  of  Ixohcilson  v.  Ualtlwiii,  Ki")  I'.  S. 
L'T").  17  Slip.  Ct.  ;?LMi.  41  L.  K(l.  71.").  Tliis  is  true  Tliat  i-aso  cloos 
hold  oonstitutioual  an  act  of  conurcss  aiitlioriziuii'  puiiisliincnt  by 
iinprisoniiuMit  of  dcsortinii  sailors.  l»ut  the  const  it  lit  ion  of  the 
I'uitcd  States  contains  no  provision  asiaiiist  imprisonment  for 
debt.     .     .     . 

I  After  discussiuu'  llie  \ali(lit>  of  tlie  statute  unth'r  llie  l:^th  and 
14tli  ainoiidiiuMits  to  the  const  itnl  ion  of  the  I'liitod  States  and  the 
acts  o\'  i'on,<ri*ess  forhiddiu.u  peoiiaiit'.  etc..  tlie  opinion  coiudu(h's:| 
\Vc  coiu'ludo  that  tlie  statute  iiiuler  wliich  the  defendant  was  con- 
victed is  invalid.  I)ei-aiise  opposed  to  section  24.  article  1.  of  the 
constitution  ot"  the  state,  to  the  thirteeiilh  amendment  to  the  con 
stitution  of  the  Tnited  States  and  the  act  of  conj^ress  passed  in 
pursuaneo  thereof,  known  as  the  "peona<;e  statute."  and  to  the 
fourteenth  ainendiiient  of  the  constitution  of  the  United  States,  and 
section  5,  article  1.  of  the  constitution  of  this  state.  It  may  he.  in 
tlie  long  run.  the  welfare  of  all  the  i)eople  and  the  development  of 
the  neerro  race  in  virtue  and  strenirth  would  have  been  better  pro- 
moted by  laws  ini])osin2,'  upon  the  peo|)le  of  that  race  on  their  einer- 
jjence  from  slaveiy  a  decree  of  restraint  and  discipline  under  rij^id 
laws  for  their  protection.  But  that  rpiestion  is  not  for  the  court. 
The  constitutions  of  the  I'nited  States  and  of  this  state,  as  they 
are.  must  control  the  courts;  and  the  fundamental  ])rinciple  of 
these  constitutions  is  that  tlie  welfare  of  all  the  people  is  |)romot"d 
by  the  enjoyment  of  etpial  liberty  by  all  alike,  and  that  even  if 
prosperity  is  not  always  promoted  by  constitutional  tiuarantees. 
liberty  is  better  than  ])ros]ierity. 

The  opinion  of  the  court  is  that  the  prisoner  be  discharged. 

[In  the  coui'se  of  the  opinion  it  is  said:]  Finally,  we  consider 
whether  the  statute  is  opposed  to  the  fourteenth  amendment  to  the 
con.stitution  of  the  United  States  and  section  5  of  article  1  of  the 
constitution  of  the  .state  as  denying  to  a  farm  laborer  falling  under 
it  the  equal  protection  of  the  laws.  We  incline  to  the  opinion  that 
a  statute  not  admitting  of  this  objection  could  be  framed,  making 
criminal  and  i)unisliable  by  imi)risonnient  a  farm  laborer's  fraud  in 
obtaining  advances,  and  a  landlord's  fraud  in  contracting  with  a 
laborer,  and  that  it  would  be  no  valid  objection  to  such  a  statute 
that  it  did  not  apply  to  all  perNons  or  even  to  all  laborers  and  em- 
ployes. 

The  opinions  in  the  principal  case  are  very  conipiehensive  and  cite 
and  review  a  great  many  authorities.  They  should  be  carefully  read 
because  of  their  invaluable  and  unanswerable  arguments  in  protecting 
the  liberty  of  the  citizen.  See  also  note  to  the  principal  case  in  21 
L.  R.  A.   (X.  S.)    242;    lb.  259. 

That  such  legislation  is  invalid  under  the  constitution  of  North  Caro- 
lina is  ruled  in  State  v.  Williams,  I.jO  N.  C.  S02,  63  S.  E.  949.  It  wil! 
1)e  seen  that  the  North  Carolina  statute,  Revisal,  sec.  3367,  is  framed 
to  meet  the  suggestion  in  the  principal  case  that  such  laws  would  not 
violate  the  14th  Amendment,  if  aimed  at  master  and  servant  alike. 

In  Robertson  v.  Baldwin,  16.5  T".  S.  275,  at  p.  281,  17  Sup.  Ct.  329,  we 


Sec.    3    C]  '  RELATIVE    RIGHTS.  575 

find  this:  -The  breach  of  a  contract  for  personal  service  has  not  been 
recognized  in  this  country  as  involving  a  liability  to  criminal  punish- 
ment, except  in  case  of  soldiers,  sailors,  and  possibly  some  others;  nor 
would  public  apinian  tolerate  a  statute  to  that  effect."  '"The  contract 
of  a  sailor  has  always  been  treated  as  an  exceptional  one  and  involving, 
to  a  certain  extent,  the  surrender  of  his  personal  liberty  during  the  life 
of  the  contract."     Ibid,  headnote  4. 

The  loth  Amendment  to  the  Const,  of  U.  S.  forbids  slavery  or  other 
involuntary  servitude,  except  as  a  punishment  for  crime.  Sections  1990 
and  r)526  of  the  U.  S.  Rev.  Stat,  prohibit  peonage.  These  sections  are 
held  to  be  constitutional  in  Clyatt  v,  U.  S.,  197  U.  S.  207,  25  Sup.  Ct. 
429.  Peonage  is  defined  to  be  "a  status  or  condition  of  compulsory 
service,  based  upon  the  indebtedness  of  the  peon  to  the  master.  The 
basal  fact  is  indebtedness."  197  U.  S.  at  p.  215,  25  Sup.  Ct.  430.  See 
oO  Cyc.  1382.  for  a  full  discussion  of  peonage.  See  ch.  11,  sec.  1,  post, 
'Arrest  and  Bail."  See  "Constitutional  Law,"  Century  Dig.  §§  150- 
151^/^;  Decennial  and  Am.  Dig.  Key  No.  Series  §  83;  "Master  and  Serv- 
ant," Century  Dig.  §  75;    Decennial  and  Am.  Dig.  Key  Xo.  Series  §  67. 


THE  CASE  OP"   MARY  CLARK,   1   Blackford,   122.     1821. 
Specific  Performance  of  Contract  to  Serve. 

[Habeas  corpus  proceedings  to  obtain  freedom  from  the  detention  of 
a    master.     .Judgment    against   applicant,    who    appealed.     Reversed. 

A  colored  free  woman  bound  herself  to  serve  the  respondent  for 
twenty  years  as  housemaid.  She  concluded  to  break  her  covenant  and 
quit  the  service.  The  respondent  insisted  upon  a  specific  performance 
of  the  covenant  of  service  and  a  consequent  right  to  detain  the  appli- 
cant.] 

IIoLM.vx.  J.  .  .  .  We  .shall  discard  all  di.stinetions  that 
might  be  drawn  fi-om  the  color  of  the  appellant,  and  consider  this 
indenture  as  a  writing  obligatory,  and  test  it,  in  all  its  bearings, 
by  the  principles  that  are  applicable  to  all  cases  of  a  similar  na- 
ture. It  is  a  covenant  for  personal  service,  and  the  obligee  re- 
«iuires  a  specific  performance.  It  may  be  laid  down  as  a  general 
rule,  that  neither  the  common  law  nor  the  statutes  in  force  in  this 
state  recognize  the  eoercion  of  a  specific  performance  of  contracts. 
The  principal,  if  not  the  only  exce})tions  to  this  general  rule,  are 
statutory  provisions,  few,  if  any  of  which  are  applicable  to  this 
state,  and  none  of  them  has  any  bearing  on  this  case.  Apprentici^s 
sire  compellnble  to  a  specific  perfoi'iiiance  of  the  articles  of  appren- 
ticeship, tint  their  ease  rests  on  pi'ineiples  of  a  diiVereiil  natnr(\ 
They  are  not  considered  as  performing  a  contract  of  1  licit-  ow  n.  but 
acting  in  conformity  to  the  will  of  those  whose  right  and  duty  it 
was  to  exact  oljedienee  from  them.  That  right  and  duly  existed 
by  nature  in  tiie  i)ar(.'nt,  and  ai-e.  by  legal  regulations.  1  ransfei-able 
to  tile  master  during  the  minority  of  the  child;  ami  when  Irans- 
ferred.  either  by  the  parent,  or  tho.se  who  stand  in  loeo  parentis, 
the  duty  of  obedience  arises,  and  is  enforced  on  tlie  ground  of  pa- 
rental authority,  and  not  on  the  priticipli'  ol"  sj ilie  perfoi'iiiaijce 

of  contracts;  and  cannot  be  urged  as  an  exeeption  to  the  ruli'.  that 
tlie  coercion  of  a  speeilie  j)err(>niian<'e  tif  ecmtraels  is  not  contem- 


r>7()  KKI.A'I'IV  i:    HKJHl'S.  '  \Ck.    6. 

platt'il  ill  liiw.  Tlic  iMsc  dl"  soldicis  imd  s.iilors  dcpoiids  on  iijitionnl 
polii'V.  ;iii(l  cjiiiiint  l>c  usftl  ill  lln'  ('hici(l;il  idU  rl'  iii.it  1  ci's  of  priviilc 
liszlit. 

'riuTf  iiic  soiiii'  fctvciiniits  tliiil  iii;i\  111'  s|)t'cilit'iiliy  ciiroict'd  in 
otpiit  V  :  ImU  llii'\  iirc  nl"  ;i  vci'v  dillcii'iil  ii.iliiic  lioiii  I  lie  coiitracl 
bi't'orc  \is.  Tlifv  arc  iiiosliy  covriianls  lor  llic  ctiiivcyaiicc  (if  ri'al 
estate,  and  in  no  t'a.sc  liavc  any  i-chilioii  lo  tlic  pcrsoii.  lint  if  the 
law  wtMe  silent,  tlu'  policy  of  cnfin-ciiii!;  a  s|)ccilic  performance  of  a 
covcninit  ol'  tins  n.itiirr.  would  sett  le  this  (| nest  ion.  Whenever  eon- 
tractin<r  parlies  dis;iirri'e  ;i!)on1  the  pei-roi-niance  of  their  contract, 
nnd  a  eonrt  of  justice  of  necessity  intei-poses  lo  settle  their  dilTerent 
riirhts.  their  leelinL''s  become  irritated  atiainst  each  other,  and  the 
losin*};  jKirty  feels  mortified  and  de<j;raded  in  beins;  compelled  to 
perform  for  the  other  what  he  had  previously  i-efnscd.  and  the 
more  especially  if  that  performance  will  place  him  frecpiently  in 
the  presence  or  nnder  the  direction  of  his  adversary.  Bnt  this 
state  of  degradation,  this  irritation  of  feelint;-.  could  be  in  no  other 
case  so  manifestly  expt'rienc( d.  as  in  the  case  of  a  connnon  servant, 
where  the  master  would  have  a  eontinnal  right  of  eonnnaud,  and 
the  servant  be  compelled  to  a  eontinnal  obedience.  Many  cove- 
nants, the  breaches  of  which  are  only  rennmerated  in  damages, 
might  be  speeitieally  performed,  either  by  a  third  i)eison  at  a  dis- 
tance from  the  adversary,  or  in  a  short  space  of  time,  lint  a  cove- 
nant for  service,  if  performed  at  all,  must  be  personally  jierformed 
under  the  eye  of  the  master ;  and  might,  as  in  the  case  before  us,  re- 
quire a  number  of  years.  Such  a  performance,  if  enforced  by  law. 
would  produce  a  state  of  servitude  as  degi-ading  and  demoi-alizing 
in  its  eonse(iuenees.  as  a  state  of  absolute  slavery;  and  if  enforced 
under  a  government  like  ours,  which  acknowledges  a  personal 
equality,  it  would  be  productive  of  a  state  of  feeling  more  discord- 
ant and  irritating  than  slavery  itself.  Conse((uently.  if  all  other 
contracts  were  specifically  enforced  by  law.  it  would  be  impolitic 
to  extend  the  principle  to  contracts  for  personal  services.  Very 
dissimilar  is  the  case  of  apprentices.  They  are  minors,  and  for  the 
want  of  discretion,  are  necessarily  nnder  the  control  of  parents, 
guardians,  or  masters;  and  obedience  is  exacted  from  them, 
whether  considered  as  children,  wards,  or  apprentices.  They  are 
incapable  of  regulating  their  own  conduct,  and  are  subjected  by 
nature  and  by  law  to  the  government  of  others;  and  that  govern- 
ment, in.stead  of  humbling  and  debasing  the  mind,  has  a  tendency 
to  give  it  a  regular  direction,  and  a  suitable  Snergy  for  future 
usefulness,  lint  it  is  not  the  ma.ster  who  in  this  case  applies  for 
legal  aid.  lie  has  not  appenled  to  a  court  of  justice  to  obtain  a 
specific  performance  of  this  indenture.  All  he  asks  from  the  con- 
stituted authorities  is,  that  they  would  withhold  their  assistance 
from  his  servant.  Does  this  alter  the  case  in  his  favor?  Is  it  more 
consistent  with  good  policy,  that  a  man  possessing  the  power, 
should  be  left  to  enforce  a  specific  perfoi-mnnce  of  a  contract  in  his 
own  behalf,  than  that  the  ofTicers  of  justice,  on  a  full  consideration 
of  his  case,  should  enforce  it  for  him  ?    These  questions  are  not  only 


Sec.    3   v.]  RELATIVE   RIGHTS.  577 

easily  answered  in  the  negative,  but  their  reverse  is  unquestionably 
true.  Deplorable  indeed  would  be  the  state  of  society,  if  the  ob- 
ligee in  ever.A'  contract  had  a  right  to  seize  the  ])erson  of  the 
obligor,  and  force  him  to  comply  with  his  undertaking.  In  con- 
tracts for  personal  service,  the  exercise  of  such  a  right  would  be 
most  alarming  in  its  consequences.  If  a  man,  contracting  to  labor 
for  another  a  day,  a  month,  a  year,  or  a  series  of  years,  were  liable 
to  be  taken  by  his  adversary,  and  compelled  to  perform  the  labor, 
it  would  either  put  a  stop  to  all  such  contracts,  or  produce  in  their 
performance  a  state  of  domination  in  the  one  party,  and  abject 
humiliation  in  the  other.  AVe  may,  therefore,  unhesitatingly  con- 
clude, that  when  the  law  will  not  directly  coerce  a  specific  per- 
formance, it  will  not  leave  a  party  to  exercise  the  law-  of  the  strong, 
and  coerce  it  in  his  own  behalf.  A  state  of  servitude  thus  pro- 
duced, either  by  direct  or  permissive  coercion,  would  not  be  con- 
sidered voluntary  either  in  fact  or  in  law.  It  presents  a  case  w'here 
legal  intendment  can  have  no  operation.  While  the  appellant  re- 
mained in  the  service  of  the  obligee  without  complaint,  the  law  pre- 
sumes that  her  service  was  voluntarily  performed;  but  her  applica- 
tion to  the  circuit  court  to  be  discharged  from  the  custody  of  her 
ma.ster.  establishes  the  fact  that  she  is  willing  to  serve  no  longer; 
and,  while  his  state  of  the  will  appears,  the  law  cannot,  by  any  pos- 
sibility of  intendment,  presume  that  her  service  is  voluntary.  The 
case  of  an  apprentice  presents  a  different  state  of  things.  The 
minor  is  considered  as  having  no  legal  will.  He  has  neither  the 
power  nor  the  right  of  choosing  whether  he  will  obey  or  disobey 
the  connnands  of  his  master.  The  law,  therefore,  on  account  of  the 
immaturity  of  his  will,  cannot  presume  that  any  of  his  services  are 
involuntarily  performed.  The  appellant  in  this  case  is  of  legal 
age  to  regulate  her  own  conduct ;  she  has  a  right  to  the  exercise  of 
volition ;  and.  having  declared  her  will  in  respect  to  the  present 
ser\'ice.  the  law  has  no  intendment  that  can  contradict  that  declara- 
lion.  AVe  nuist  take  the  fact  as  it  appeai-s,  and  declare  the  law  ac- 
cordingly. The  fact  then  is.  that  the  appellant  is  in  a  state  of 
involuntary  servitude;  and  we  are  bound  by  the  constitution,  the 
supreme  law  of  the  land,  to  discharge  her  therefrom.  Judgment 
reversed. 

For  when  one  who  has  contracted  to  serve  one  person  exclusively, 
will  be  enjoined  from  serving  another,  see  chap.  8,  sec.  9.  post. 

In  Casey  v.  Rol.ards,  f.o  X.  C.  434,  43G,  it  is  said:  'In  the  case  of  Phil- 
lips V.  Mnrphey.  49  N.  C.  45,  it  was  decided  that  a  deed  made  by  a  free 
negro,  of  his  serviies  for  a  term  of  years,  did  not  operate  to  mal<e  a 
slave  of  him,  or  to  i)as.s  a  property  in  him;  but  simply  to  give  the 
prant(r'  a  right  to  his  services  >ipon  an  executory  agreement,  for  a 
bleach  of  which  an  action  of  covenant  would  lie.  So,  in  tlie  case  be- 
fore us.  the  deed  for  services  for  a  term  of  years  does  not  alter  the  so- 
cial or  |)()lili«al  'onilition  of  the  negro.  No  other  or  different  legal 
consequences  result  from  his  agreement,  tlian  if  it  liad  been  entered 
into  by  a  white  man.  Both,  upon  a  breach  of  it,  are  sul)ject  to  be  sued 
for  damages.  Neither  is  subject  to  have  enforced  against  him  a  spe- 
cific execution."  See  "Specific  Performance,"  Century  Dig.  §§  206-210; 
Decennial  and  Am.   Dig.  Key  No.  Series  §  73. 

Remedies — 37. 


57b  RKl.ATIVK    l^KillTS.  \  (' ll .    6. 


((/)  Mdsltr's  h'ifiht  to  Kroncnilion  Afioliisl  I  Ik    S<rntiil. 

S.MIPIl   \.    FOR  AX.    <:;  ronn.   2Jt.  21  Am.  Hop.  G47.     1875. 

LinbiUti/  of  a  Servant  to  a  Master  Who  Has  Been  Mulcted  in  Damages 

for  Sennint's  Neuliffenec. 

(Trespass  on  the  case  by  a  carrier,  for  damages  resulting  troni  the  neg- 
liseiice  of  ito  servant  in  liandllng  a  piano.  .Judgment  against  defendant, 
who  moved  in  error.     Motion  overruled  and  judgment  affirmed. 

The  defendant's  negligence  caused  the  piano  to  be  injured.  The  plain- 
tifT  i)aid  the  shipper  for  the  injury  done,  witliout  any  litigation.  The 
defiMidant  insisted  that,,  as  the  master  paid  damages  without  compul- 
sion of  legal  proceedings,  the  master  could  not  recover  frou)  him,  the 
servant,  the  amount  so  paid.l 

Park,  C.  J.  If  the  plaiiitifl's  in  this  case  had  been  the  owners 
of  the  piano,  which  was  injured  throvifjh  the  carelessness  of  the  de- 
fendant, it  would  be  clear  that  the  defendant  would  be  liable  to 
them  for  the  amount  of  the  damaire  done  to  the  jn-opertv;  for  a 
hired  servant  is  as  much  bomid  to  exercise  reasonable  care  not  to 
injure  the  property  of  his  employer  while  engaged  in  his  service, 
as  he  is  to  exercise  such  care  in  relation  to  the  i)roperty  of  other 
persons.  There  is  nothing-  implied  in  the  contract  of  employment 
which  ab.solves  him  from  such  responsibility,  but.  on  the  contrary, 
the  implication  is  that  he  undertakes  to  exercise  such  care. 

But  it  is  said  that  the  liability  of  the  defendant  to  the  i^laintifCs 
in  this  case  ai^ises  from  the  supposed  liability  of  the  plaintiffs  to 
the  person  whose  property  was  injured  by  the  carelessness  of  the 
defendant  while  engaged  in  their  business,  and,  this  being  the  case, 
that  the  liability  of  the  plaintiffs  must  first  be  established  in  a  suit 
brought  by  the  owner  of  the  })r()perty  against  them,  and  the  amouni 
of  the  damages  ascertained  before  a  suit  can  be  sustained  by  the 
plaintiffs  against  the  defendant.  It  is  unnecessary  to  determine 
how  this  would  be  in  an  ordinary  case  of  a  liability  of  a  master  for 
the  negligence  of  his  servant,  as  where  the  servant  in  driving  the 
master  negligently  runs  into  the  carriage  of  another  and  injures 
it.  There  the  master  is  liable  in  damages  for  the  act  of  the  serv- 
ant, and  the  servant  to  the  master  for  whatever  loss  he  is  subjected 
to  by  the  servant's  negligence.  Here,  however,  another  element 
comes  in.  The  j)laintiffs,  being  common  carriers,  had  a  special 
property  in  the  piano  and  could,  as  such  special  owners,  maintain 
an  action  against  the  servant  for  an  injury  by  his  negligence  lo 
such  sjjccial  property.  And  besides  this,  the  plaintiffs,  by  reason 
of  their  undertaking  as  common  carriers,  were  liable  to  the  owner 
of  the  piano  for  its  destruction  or  injury,  even  though  it  had  been 
destroyed  in  the  hands  of  the  seinant  with  no  fault  of  his,  as  where 
the  hor,ses  he  was  drivintr  had  run  away  and  broken  the  piano  in 
pieces,  in  spite  of  his  careful  driving  and  in  his  efforts  to  control 
them.  The  liability  of  the  plaintiffs  stands  upon  its  own  ground, 
their  implied  contract  to  deliver  the  piano  in  good  condition  at  its 
place  of  destination,  in  spite  of  all  obstacles  except  those  caused  by 


Sec.    3    d.]  RELATI\^   RIGHTS.  579 

the  act  of  God  or  of  a  public  enemy.  And  this  liability  rests  upon 
no  other  ground  where  the  delivery  is  prevented  by  the  negligence 
of  their  servant.  He  is  liable  to  them  for  his  negligence,  they  to 
the  o\\Tier  for  non-performance  of  their  undertaking. 

But  the  two  kinds  of  liability  have  this  in  common,  that  where, 
as  here,  the  carrier  fails  to  deliver  the  property  solely  because  of 
its  destruction  or  injury  by  his  servant,  the  amount  of  damage  to 
which  the  cai'i-icr  is  liable  at  the  suit  of  the  owner  is  precisely  the 
same  as  that  to  which  the  servant  is  liable  at  the  suit  of  the  carrier. 
And  upon  this  fact  the  counsel  for  the  defendant  base  their  claim 
that  the  plaintiffs  should  have  first  had  their  liability  and  the  ex- 
act amount  of  it  established  in  a  suit  at  law  before  they  could  main- 
tain a  suit  against  the  defendant.  But  the  reason  of  the  thing  is 
wholly  against  this  claim.  In  the  firet  place,  if  the  plaintiffs  were 
liable  to  the  owner  of  the  piano,  it  is  absurd  to  require  the  owner 
to  bring  a  suit,  and  the  plaintiffs  to  defend  against  it,  and  finally 
pay.  after  a  judgment  and  with  costs,  what  they  were  perfectly 
willing  to  pay  at  the  outset,  and  what  the  judgment  would  show 
they  were  legally  bound  to  pay.  And  in  the  next  place,  the  judg- 
ment would  not  establish  the  liability  of  the  defendant.  That,  as 
we  have  seen,  would  stand  upon  its  own  ground,  and  his  negligence, 
on  which  alone  his  liability  Avould  rest,  would  not  even  enter  into 
the  suit  against  the  plaintiffs  as  a  matter  for  consideration.  He 
could  still,  in  the  suit  against  him.  deny  the  fact  of  his  negligence^ 
and  could  prove  the  amount  of  the  danuige.  All  this  he  could  do  if 
the  plaintiffs  had  settled  with  the  owner  without  suit.  If  in  such 
settlement  they  had  paid  the  owner  more  than  the  actual  damage, 
such  payment  woidd  not  have  bound  the  defendant.  He  would  be 
liable  to  them  only  for  the  actual  damage.  If,  however,  they  had 
settled  with  the  owner  for  less  than  the  real  damage,  they  could  re- 
cover of  the  defendant  no  more  than  the  damages  paid.  The  dam- 
age which  the  defendant  is  to  pay  is  the  actual  damage  to  the  plain- 
tiffs. That  of  course  cannot  be  greater  than  the  sum  they  have  had 
to  j>ay.  though  it  may  be  less,  if  they  have  unnecessarily  and  of 
their  own  folly  paid  more  than  they  were  obliged  to  pay.  They 
were  bound  to  i»ay  the  actual  damage  done  to  the  i)iano.  and  if  they 
got  oft'  M-ith  ])aying  less,  then  they  were  themselv(>s  danuiged  so 
mueh  less,  and  could  recover  only  such  reduced  sum  From  Ihe  de- 
fendant. 

Tutil  the  idainliffs  have  settled  with  the  owner  il  is  to  be  pre- 
sumed that  they  will  be  eomiielled,  eitliei-  upon  a,  voluntary  settle- 
ment or  upon  suit,  to  pay  the  owner  the  actual  damage.  If  the  de- 
fendant had  reason  to  suppose  that  a  settlement  could  be  effected 
for  a  less  sum.  he  could  himself  settle  with  the  owner,  and  save  the 
I»laintiffs  from  the  necessity  of  paying  damages  al  all;  and  this  it 
would  be  ef(ually  his  duty  ;ind  his  intei-est  to  do.  \Vc  lliink  lliere  is 
no  error  in  the  judgment  complaiiied  of. 

Sfc  also  Mcarcs  v.  f'omrs.  of  \Vlliiiinp;ton.  ?A  N.  C.  at  p.  70.  whore  it  is 
said  Ijy  Pparson,  .T.:  "If  the  worl<  lie  done  accnrdinB  to  tin;  directions  of 
the  siipprior  and  the  aRont  is  sued  and  i»ays  damages,  he  has  his  redress 


580  RKLA'i'iN  I'.  iJiciri's.  \('h.  (>. 

against  the  suiu'i  iin-;  if  tlio  work  is  tloiio  contrary  to  llie  directions  of 
tlio  suptMior  anil  the  siipciinr  is  sued  an<l  i>ays  damages,  he  has  liis  re- 
dross  against  tlie  agent." 

In  W'iswall  v.  Brinson.  :?2  N.  C.  at  p.  f).')."!,  rearsoii,  .1.,  again  says: 
"Wlien  one  i)roenres  worl;  to  be  done,  if  a  third  person  lie  injured  by  the 
negligence  er  want  of  skill  of  Ihe  persons  (Mni)loyed.  the  person  for  whos(> 
benefit  and  at  whose  instance  the  work  is  done,  must  make  compensation. 
The  party  injured  may  sue  the  person  whose  negligence  was  the  imme 
diate  cause  of  the  injury.  So  may  the  employer,  if  he  is  compelled  to 
pay  the  damage;"  and  speaking  of  the  employer's  remedy  against  the 
employee,  he  says,  at  p.  .">()2:  "He  select(Ml  his  man;  the  work  was  done 
tor  his  benclit;  and  he  can  be  indemnified  l)y  the  person  he  employed. 
unless  he  be  insolvent;  and  if  so,  it  was  his  folly  to  emi)loy  an  insolvent 
man."  See  Mordecai's  L.  L.  85.  For  a  ruling  on  an  allied  subject,  see 
Brown  v.  Louisburg,  12(1  N.  C.  701,  :^6  S.  E.  166.  See  "Master  and  Serv- 
ant." Century  Dig.  §  \'2'M:  "Indemnity,"  Decennial  and  Am.  Dig.  Key 
Xo.  Series  §  '[?,. 


(e)  Bcmcdics  of  Boih  Master  and  Servant  AqainsI  Third  Persons. 

BURGESS  v.  CARPENTER,  2  S.  C.  7,  16  Am.  Rep.  643.     1870. 

Remedy   of  Master  Whose  Servant  Is  Disabled  by  a   Tort  of  Another. 

Menial  Servant. 

[Action  on  the  case  for  damages  resulting  from  defendant's  wounding 
one  in  the  employ  of  plaintiff.  .Tiidgment  of  nonsuit  against  plaintiff, 
and  he  appealed.     Affirmed.  I 

Wright.  J.  This  was  an  action  bron<;lit  to  recover  damages 
which  phiiiititt'  claimed  to  have  sustained  by  reason  of  a  gunshot 
wound,  charged  to  have  been  infiicted  by  defendant  upon  one 
Henry  Burgess,  who  was  a  contractor  with  phiintiff,  in  common 
with  other  persons,  for  a  share  of  the  crop,  whicli  all  parties  to  the 
contract  were  laboring  lo  raise  at  the  time  tiie  gunshot  wound  was 
said  to  have  been  infiicted  upon  the  said  Henrj''  Burgess. 

It  was  claimed  by  plaintiff,  that  the  said  Henry  Burgess  was  his 
servant,  inasmuch  as  he  had  contracted  v>"ith  him  to  raise  a  crop. 
The  relation  of  master  and  servant,  as  it  existed  in  England,  was 
wholly  different  from  the  relation  of  employer  and  employed  as  it 
exists  in  this  country.  At  common  law.  in  England,  the  master 
might  bring  an  action  for  damages  against  a  third  pai'ty  for  any 
loss  he  might  have  sustained  by  reason  of  such  party  unlawfully  in- 
juring or  interfering  with  his  servant  or  servants;  l)ut  this  power. 
given  the  master,  was  only  to  be  exercised  toward  menial  serv- 
ants— domestics  infra  moenia.  It  was  a  relation  which  the  com- 
mon law  classed  with  the  relation  of  "par-ent  and  child."  The 
master  was  held  to  stand  in  loco  parentis.  No  such  relation  existed 
between  the  plaintiff  and  Henry  Burgess.  In  Pennsylvania,  in  a 
case  under  the  intestate  law  of  April.  1704.  in  which  a  preference 
is  given  to  the  wages  of  .servants,  the  coiu'ts  have  restricted  the 
term  "servant"  used  in  the  act  to  "persons  employed  in  the  house 
and  about  the  intestate's  person,"  in  order  that,  when  disea.se  had 
rendered  the  master  helpless,  there  miglit  be  an  additional  reason 


.VCC.    3   e.]  RELATIV'E   RIGHTS.  581 

to  attention  on  the  part  of  the  domestic  or  menial.  A  case  arose  in 
which  a  barkeeper  brought  suit  for  his  wages,  and  Chief  Justice 
Gibson  and  Justice  Duncan,  of  the  supreme  court,  decided  that  he 
had  preference  under  the  law,  because  his  position  as  barkeeper 
brought  him  within  the  term  ■'servant.''  as  his  duties  as  such  made 
him  a  domestic.    Boniface  t.  Scott,  3  S.  &  R.  352. 

Chief  Justice  Gibson  says,  in  Pennsylvania  none  are  called 
"servants  whose  persons  are  not  subjected  to  the  coercion  of  the 
master,  whether  the  business  in  which  they  are  employed  be  servile 
or  not.  No  person  to  whom  wages  could  be  due  for  his  services 
would  endure  the  name,  as  it  would  be  considered  offensive,  and  a 
term  of  reproach.  I  take  all  who  are  employed  for  hire  in  the  do- 
mestic concerns  of  the  family,  in  whatever  station  they  may  be,  to 
be  servants,  entitled  to  a  preference  under  the  act.  Neither  do  I 
apprehend  it  to  be  necessary  that  the  occupation  of  such  persons 
should  be  excliLsively  confined  to  the  family.  The  clerk  in  a  count- 
ing house,  etc.,  is  exclusively  concerned  with  the  occupation  or 
trade  by  which  his  employer  gets  his  living ;  and  there  being  noth- 
ing of  a  domestic  cast  in  the  nature  of  his  services,  he  would  not 
fall  within  the  act.  If.  in  this  country,  a  tavern  were  a  separate 
establishment,  unconnected  v>'ith  the  domestic  scene,  I  should  sup- 
pose the  plaintiff'  not  entitled  to  a  preference ;  but  the  contrary  is 
the  fact ;  with,  perhaps,  the  exception  of  one  or  two  large  establish- 
ments in  Philadelphia,  the  concerns  of  the  family  are  so  blended 
that  it  is  impossible  to  separate  them,"  etc. 

In  the  same  case.  Justice  Duncan  says:  "The  term  'servants,' 
whose  wages  under  the  act  of  1794,  are  ranked  with  physic  and 
funeral  expenses,  to  be  paid  out  of  the  intestate's  estate,  has  re- 
ceived a  judicial  construction  in  Ex  parte  ]Measau,  5  Binn.  167.  It 
has  been  held  to  embrace  only  those  who,  in  common  parlance,  are 
called  sen^ants ;  that  is,  as  I  understand  the  opinion  of  the  court, 
hirelings,  who  make  a  part  of  a  man's  family,  employed  for  money, 
to  a.ssist  in  the  economy  of  the  familv  or  in  matters  connected  with 
it." 

Henry  Burgess  being  exclusively  concerned  in  the  cultivation  of 
soil  and  the  proceeds  arising  therefrom,  and  there  being  no  domes- 
tic ca.st  within  the  nature  of  his  services,  he  does  not  fall  within  the 
class  to  which  the  term  "servant"  can.  in  any  sense,  be  applied. 
Tie  wa.s  a  party  to  the  contract,  and  liable  for  any  breach  of  good 
faith  on  his  part  to  comply  with  the  terms  of  that  contract ;  and  the 
plaintiff,  being  also  a  party  to  the  same  contract,  sustained  the 
same  relation  to  Henry  Burge.ss  that  Henry  Burgess  did  to  him; 
therefore,  each  was  sui  juris,  and  neither  the  servant  of  the  other. 
Henry  Burgess  beincr  a  free  man.  and  competent  to  make  n  con- 
traet.  is  i-espousible  fnr  his  own  actions,  and  has  the  legal  I'iglit  of 
action  against  the  defendant  for  any  private  injury  he  has  sus- 
tained at  his  hands.  As  each  of  tii{>  parties  to  the  contract  con- 
tributed his  special  portion  of  tlie  m(\->ns  necessary  to  tlie  produc- 
tion of  the  rroj),  and  each  was  to  receive  his  special  portion  after  an 
ef|uitab]e  division,  if  there  was  a  loss  it  was  a  conuuon  loss;  and  if 


r>S'J  KKi.A  ri\  i:   HKiiii's.  \('li.  6. 

\\w  dctViulant  I'omniitttMl  ;m  iiiihiw  I'ul  ;icl  wliich  was  the  oauso  of 
sucli  loss,  llu'ii  llir  parties  to  lln'  ftmlract.  si-vrrally,  liave  llic  It^tral 
liirlit  of  action  airainst  Ihe  dereiulaiil   I'oi"  dainaircs. 

This  eoiirt  lioUliiiir  lliat  on  the  statcnuMit  of  the  i>laintilT  lif  had 
no  oauso  of  aotion.  it  nia<lc  no  ditVoronoo  at  what  slago  of  the  o.as(i 
tlio  judiro  below  onhM-ed  llie  nonsnil.  and  his  inttM-jiosition.  stated 
in  tile  iirief.  did  not  i>re.iudiee  the  plaintiff.  'I'lic  motion  is  dis- 
missed. 

See  Huff  v.  Watidns.  15  S.  C.  82.  distinguishing  the  principal  case. 
In  26  Cyc.  1580,  note  41,  it  is  said  that  the  rule  that  the  master's  right 
of  recovery,  for  injuries,  etc.,  to  his  servants,  is  confined  to  menial  serv- 
ants, no  longer  holds:  but  no  authority  is  cited.  In  a  letter  from  Mr.  E.  D. 
Smith,  of  the  American  Law  Book  Company,  to  the  editors,  is  the  fol- 
lowing: "The  statement  in  2G  Cyc  1580,  note  41,  'but  such  limitation  is 
not  now  recognized,'  is  amply  supported  by  authorities  but,  as  you  say, 
they  are  for  enticement  and  torts  other  than  personal  injuries  to  the 
servant.  1  have  made  a  very  thorough  search  in  all  available  sources 
and  have  been  unable  to  find  a  case  similar  to  Burgess  v.  Carpenter. 
2  S.  C.  87,  16  Am.  Rep.  643.  Huff  v.  Watkins,  15  S.  C.  82,  is  an  action  for 
enticement." 

It  is  held  in  Walker  v.  Cronin,  107  Mass.  at  p.  567,  that  to  entice  any 
servant  to  leave  his  master  is  actionable — whether  the  servant  be  a 
menial  servant  or  not.  For  a  general  discussion  of  the  master's  right 
to  recover  for  injuries  to  his  servant,  see  20  Am.  &  Eng.  Enc.  Law,  184; 
25  lb.  218;  26  Cyc.  1580.  The  principal  case  is  doubted  in  Haskins  v. 
Royster.  70  N.  C.  601.  inserted  post  in  this  subsection.  See  "Master  and 
Servant,"  Century  Dig.  §§  1281,  1282;  Decennial  and  Am.  Dig.  Key  No. 
Series  §§  336,  337. 


THE  QUEEN  v.  DANIEL,  6  Modern,  182.     1705. 
Remedy  of  the  Master  Whose  Servant  Is  Enticed  to  Quit  His  Service. 

Per  Totam  Curiam. — This  term,  the  indictment  is  naught. 
First.  The  enticing  an  apprentice  or  a  servant  to  depart  from  his 
master,  is  not  an  offense  of  a  public  nature,  but  the  party 's  remedy 
is  by  an  action  upon  his  case,  which  he  may  well  maintain. 
Secondly.  A  common  action  of  trespas.s  will  not  lie  for  enticing  an 
apprentice  or  servant  from  his  master.  Bwt  if  one  will  take  away 
my  servant  or  apprentice  by  force,  trespass  will  lie  for  the  matter, 
declaring  upon  the  force,  per  quod  servitium  a  mi  sit.     .     .     . 

In  an  action  for  enticing,  persuading,  and  procuring  a  servant  to  quit 
the  service  of  the  master,  it  is  said  to  be  necessary  that  plaintiff  allege 
and  prove  that  the  defenaant  had  knowledge  or  notice  that  the  relation 
of  master  and  servant  existed.  Clark  v.  Clark,  63  N.  .J.  L.  1,  42  Atl.  770. 
citing  Blake  v.  Lanyon,  6  T.  R.  221;  2  Chit.  PI.  643,  note  (e);  8  Went. 
458.  But  in  an  action  for  seducing  a  daughter  it  is  not  necessary  to  al- 
lege or  prove  that  the  defendant  knew  or  had  notice  that  the  daughter 
was  the  servant  of  the  plaintiff.  Ibid.,  citing  22  Chit.  PI.  644,  n.  a,  and 
Sm.  Mast,  and  Servt.  *175.  See  "Master  and  Servant,"  Century  Dig. 
SS  1283-1285,  1288;  Decennial  and  Am.  Dig.  Key  No.  Series  §§  339,  340. 
343. 


Sec.  3  e.]  relative  rights.  583 

HASKINS  V.  ROYSTER,  70  N.  C.  601.     1874. 

Remedy  of  Master  WJiose  Servant  Is  Enticed,  etc.    Intermeddlers. 

[Action  by  a  master  for  damages  resulting  from  alleged  enticing. 
Judgment  against  the  plaintiff,  and  he  appealed.     Reversed.] 

KoDMA-N.  J.  We  lake  it  to  be  a  settled  principle  of  law  that  if 
one  contract  upon  a  consideration  to  render  personal  services  for 
another,  any  third  person  who  maliciously,  that  is,  without  a  law- 
ful justilicalion,  induces  the  j^arty  who  contracted  to  render  the 
service  to  refuse  to  do  so,  is  liable  to  the  injured  party  in  an  action 
for  damages.  It  need  scarcely  be  said  that  there  is  nothing  in  this 
principle  inconsistent  with  personal  freedom,  else  we  should  not 
tind  it  in  the  laws  of  the  freest  and  most  enlightened  states  in  the 
world.  It  extends  impartially  to  every  grade  of  service,  from  the 
most  brilliant  and  best  paid  to  the  most  homely,  and  it  shelters  our 
nearest  and  tenderest  domestic  relations  from  the  interference  of 
malicious  intermeddlers.  It  is  not  derived  from  any  idea  of  i)rop- 
erty  by  the  one  party  in  the  other,  but  is  an  inference  from  the 
obligation  of  a  contract  freely  made  by  competent  persons. 

"We  are  relieved  from  any  labor  in  finding  authorities  for  this 
principle  by  a  very  recent  decision  ol'  the  supreme  court  of  ]\lassa- 
chiLsetts,  in  which  a  learned  and  able  judge  delivers  the  opinion  of 
the  court.  Waiiver  v.  Cronin,  107  Mass.  555.  That  case  was  this: 
The  plaintiffs  declared  in  substance  that  they  were  shoemakers  and 
employed  a  lai'go  number  of  i)er.sons  as  bottomers  of  boots  and 
shoes,  and  defendant,  unhiwfully  and  intending  to  injure  the  plain- 
titf  in  liis  business,  persuaded  and  induced  the  persons  so  em- 
ployed to  abandon  the  employment  of  tiie  plaintiff,  whereby  plain- 
tiff was  damaged,  etc.  A  second  count  says  that  plaintiff  had  em- 
ployed certain  persons  named  to  make  up  stock  into  boots  and 
shoes,  and  defendant  well  knowing,  etc.,  induced  said  persons  to 
refu.sc  to  make  and  finish  such  boots  and  shoes,  etc.  Third  count  is 
not  material  to  be  noticed.  The  defendant  demurred.  The  court 
lield  eacli  of  the  coinits  good. 

I  shall  make  no  apology  foi-  (|Uoting  copiously  from  this  opinion. 
because  the  liigh  re.speetability  of  the  court,  and  the  learning  and 
care  with  which  the  question  is  di.scussed,  make  the  decision  em- 
inently an  authoi'ity. 

"This  (th(!  declaration)  sets  forth  sufficiently  (1)  intentional 
and  wilful  acts.  (2)  calculated  to  cause  damage  to  the  plaintiffs  in 
their  lawful  business.  (3)  done  with  the  unlawful  purpose  to  cause 
such  damage  ;ind  loss,  witbout  right  or  justifiable  causi'  on  the  i^art 
of  the  defendant  (  whi<-li  constitutes  malice),  and  (4)  actual  dam- 
age  and  loss  result  intr.  The  general  principle  is  announced  in  Com. 
Dig.,  action  (»n  the  case.  .\.  In  all  cases  where  a  man  has  a  tenip(»i-al 
loss  or  daiiia<_'e  hy  the  wrdug  of  anotlK-r.  he  may  have  an  ad  ion 
upon  the  case  p.  he  repjiired  in  diimages.  The  intentional  causing 
such  loss  to  ;niotlier.  without  justifiable  cause,  and  wilh  the  mali- 
cious purj)ose  to  inflict  it.  is  of  itself  a  wrong.     Sec  ('ai<'W  v.  Iiufh- 


584  UEI.ATIVK    RIOUTS.  \('ll.    6. 

orforil.  10(»  Mass.  1,  10,  11.  Thus  cvory  ono  luks  an  t'(|ual  rii^lit  to 
oiiiploy  worUiiuMi  in  his  l)iisiiios.s  or  service;  ami  it'  hy  the  exercise 
of  this  rijjht  in  such  manner  as  lie  nuiy  see  tit.  ])ers<)ns  ai'e  induced 
to  leave  their  (Mnployment  elsewhere,  iii»  w  roii'i'  is  done  to  him 
whose  employment  Ihcy  leave,  unless  a  contract  exists  l)y  whit-h 
such  tither  person  has  a  leiral  \'\^^\\\  to  the  I'ui'ther  continuance  of 
tlu'ir  services.  If  such  a  conlract  exists,  oix  who  IxHowiiujli/  and 
intcntioiiallji  i)ri>cnres  it  to  be  violated,  may  he  held  liable  for  the 
wron.iT,  althou«rh  he  did  it  for  the  i)urpose  of  pi'omotiug  his  own 
business. 

"Every  one  has  the  right  to  enjoy  the  fruits  and  advantages  of 
his  own  enterprise,  industry,  skill  and  credit.  lie  has  no  right  to 
l>e  jn-otected  against  competition ;  but  he  has  a  right  to  be  free  from 
malicious  and  wanton  interference,  disturbance  or  annoyance.  If 
disturbance  or  loss  come  as  a  result  of  coiuj)ctition.  or  the  exercise 
of  like  rights  by  others,  it  is  damnum  absque  injuria,  unless  some 
superior  right  by  contract  or  otherwise  is  interfered  with.  But  if 
it  come  from  the  merely  wanton  or  malicious  acts  of  others,  with- 
out the  justification  of  competition  or  the  service  of  any  interest  or 
lawful  purpose,  it  then  stands  upon  a  different  footing,  and  falls 
within  the  principle  of  the  authorities  Hrst  i-eferred  to. 

"It  is  a  familiar  and  well-established  doctrine  of  the  law  upon 
the  relation  of  master  and  servant,  that  one  who  entices  away  a 
servant,  or  induces  him  to  leave  his  master,  may  be  held  liable  in 
damages  therefor,  provided  there  exists  a  valid  contract  for  con- 
tinued service  knouyti  to  the  defendant.  It  has  sometimes  been  sup- 
posed that  this  doctrine  sprang  from  the  English  statute  of  laborers 
and  Avas  confined  to  menial  service.  But  we  are  satisfied  that  it  is 
founded  upon  the  legal  right  derived  from  the  contract,  and  not 
merely  upon  the  relation  of  master  and  servant,  and  that  it  applies 
to  all  contracts  of  employment,  if  not  to  contracts  of  every  de- 
scription." 

In  Hart  v.  xVldridge,  Cowp.  54,  it  was  applied  to  a  case  very 
much  like  the  present.  In  Gunter  v.  Astor,  4  J.  B.  Moore,  12,  it 
w^as  applied  to  the  enticing  away  of  workmen  not  hired  for  a  lim- 
ited or  constant  period,  but  w^ho  worked  by  the  piece  for  a  piano 
manufacturer.  In  Shepperd  v.  Wakeman,  Sid.  70.  it  was  applied 
to  the  loss  of  a  contract  of  marriage,  by  reason  of  a  false  and  ma- 
licious letter  claiming  a  previous  engagemimt.  In  Winsmore  v. 
Greenbank.  AVilles.  577,  the  defendant  was  held  liable  in  damages 
for  luilawfully  and  unjustly  "procuring,  enticing  and  persuad- 
ing" the  plaintiff's  wife  to  remain  away  from  him,  wherein'  he 
lost  the  comfort  and  society  of  his  wife,  and  the  profit  and  advan- 
tage of  her  fortune.  Barbee  v.  Armstead.  o2  N.  C.  530.  In  Lumlv 
V.  Gye,  2  El.  &  Bl.  216  (20  Eng.  L.  &  E.  168).  the  plaintiff  had 
engaged  ]\Ii.s.s  "Wagner  to  sing  in  his  opera,  and  the  d(;fendant 
knowingly  induced  her  to  break  her  contract  and  refuse  to  sing. 
It  was  objected  that  the  action  would  not  lie,  because  her  contract 
was  merely  executory,  and  she  had  never  actually  entered  into  the 
.service    of   the    plaintiff;    and    Coleridge    J.,    dissented,    insisting 


Sec.  3  e.]  relative  rights.  585 

"that  the  only  foundation  for  such  an  action  was  the  statute  of  la- 
borers, which  did  not  apply  to  a  service  of  that  character :  but  after 
full  disciLssiou  and  deliberation  it  was  held  that  the  action  would 
lie  for  the  damage  thus  caused  by  the  defendant."  To  the  same 
effect  are  Jones  v.  Jeter,  43  Geo.  331.  and  Salter  v.  Howard,  lb. 
601,  in  both  which  cases  the  servants  enticed  were  employees  in 
husbandry.  The  only  case  to  the  contrary  that  we  are  aware  of  is 
Burgess  v.  Carpenter,  2  Rich.  S.  C.  7 ;  but  the  authorities  relied  on 
in  that  ease  seem  to  us  not  in  point.  And  although  this  action  is 
not  brought  under  our  Act  of  1866,  Bat.  Rev.  eh.  TO  [Revisal 
sees.  3365,  3374],  yet  that  act  is  evidence  of  the  connnon   law. 

Again  it  is  suggested,  that  the  contractors  of  the  second  part  in 
this  contract  are  croppers  and  not  servants.  By  cropper.  I  under- 
stand a  laborer  who  is  to  be  paid  for  his  labor  by  being  given  a 
proportion  of  the  crop.  But  such  a  person  is  not  a  tenant,  for  he 
has  no  estate  in  the  land,  nor  in  the  crop  until  the  landlord  assigns 
him  his  share.  He  is  as  much  a  servant  as  if  his  wages  were  fixed 
and  payable  in  money.  It  is  unnecessary  to  discuss  the  question 
whether  one  who  maliciously  persuaded  a  tenant  to  abandon  his 
liolding.  would  not  be  liable  in  damages  for  such  officious  inter- 
mt^ddling. 

But  whatever  may  be  the  effect  of  the  provisions  connuented  on, 
as  between  the  parties  to  the  conti-act.  the  authoi-ities  arc  clear  an-l 
decisive  that  a  person  in  the  situation  of  the  defendant  can  take  no 
advantage  from  them.  As  the  case  now  stands,  he  cannot  pretend 
to  play  the  part  of  a  chivalrous  protector  of  defrauded  ignorance. 
For  the  present,  at  least,  he  must  be  regarded  as  a  malicious  inter- 
meddler,  using  the  word  malicious  in  its  legal  sense. 

There  is  a  certain  analogy  among  all  the  domestic  relations,  and 
it  would  be  dangerous  to  the  repose  nnd  happiness  of  families  if 
the  law  permitted  any  man  under  whatever  professions  of  phihin- 
thropy  or  charity,  to  .sow  discontent  between  the  head  of  a  family 
and  its  various  members,  wife,  children  and  .servants.  Interfer- 
ence with  such  relations  can  only  be  justified  under  the  most 
special  circumstances,  and  where  thei-e  cannot  be  the  slightest  sus- 
picion of  a  spirit  of  mischief-making  or  self-interest. 

To  enable  a  plaintiff  to  recover  fi-om  one  who  entices  his  servant, 
it  is  sufficient  to  show  a  subsisting  relation  of  service,  even  if  it  be 
determinable  at  will.  In  Keane  v.  Boycott.  2  II.  Bl.  611,  the  plain- 
tiff sued  a  recruiting  officer  for  enticing  his  servant.  The  servant 
was  an  infant  and  had  been  a  slave  in  St.  Vincents,  whei-e  he  in- 
rlentured  himself  to  ser\-e  the  plaintiff  for  five  years.  The  inden- 
ture of  cf)urse  was  void  uik»ii  ji  <h>ul)le  ground,  but  the  court  held 
the  plaintiff  entitled  to  recover.  Eyre.  C.  J.,  says:  "Tli.'  defend- 
;int  in  this  case  had  no  concern  in  the  relation  between  the  plain- 
tiff anil  his  servant  :  he  dissolved  it  officiously,  iuid.  to  spe;iU  of  his 
conduct  in  the  mildest  terms,  he  cjirried  to.)  f;ir  his  zeal  f.)r  the  re- 
cruiting sennce."  In  Sykes  v.  Dixon.  !l  .\.l  \  Kl.  <i!»3.  that  case  is 
distingin'shed   from   Kejun-  v.   lioycott.   n|...n   the  u'round   that  the 


58li  KKi. Aii\  1-.  lutiiirs.  |(7(.  a. 

siTVant  li;ul  tniiltt'd  liis  iiiJistcr  before  the  tlel'eiulaiit  t-niployed  liiin. 
and  (liei'e  was  tlieii  no  sul)sisl  iii<r  iclalioti  of  service.  In  Kvans  v. 
\Valton,  l2  C.  \\  (11")  ( Iv  L.  U  ) .  it  was  held  not  neeessary  1o  show  a 
valiil  and  bindinir  contract  for  sei\  ice.  Imt  duly  tlie  existence  of 
the  i-eIation.  II'  llie  serxaiil  was  one  at  will,  the  action  could  be 
sustaiiu'd.     Salter  v.  llowai'd.  .'>;{  (ia.  (iOl,  is  to  the  same  <'(Teet. 

Wo  are  of  opinion  that  the  complaint  sets  forth  a  siiflicient  cause 
of  action.     Tlie  .iudtj:meiil  is  rcvei-sed. 

It  will  be  observed  tiiat  the  principal  case  is  bused  ui)on  Walker  v. 
Cronin,  107  Mass.  rifif).  That  case  is  approved  in  Vegelahn  v.  Gnntner, 
IC.T  Mass.  92,  44  X.  K  1077.  inserted  next  following  this  ease.  See,  in 
connection  witli  the  iirinciiial  case.  Mordecai's  L.  L.  l.'")7  161;  Mcintosh 
on  Contracts.  400,  407.  Compare  Francesco  v.  Barnum,  L.  R.  45  C.  D. 
4:^0,  443,  Smith's  Cases  L.  P.  184.  See  "Master  and  Servant."  Century 
Dig.  §  12S3;   Decennial  and  Am.  Dig.  Key  No.  Series  §  330. 


VEGELAHN  v.  GUNTXER,  107  Mass.  92,  44  N.   E.  1077.     1896. 

Master's    Remedy    by   Injunction   jor   Enticing,    Intimidating,    etc..    His 

Servants. 

I  Bill  in  equity  to  enjoin  defendants  from  intimidating  and  interfering 
with  the  employees  of  the  plaintiff,  and  from  doing  all  other  acts  which 
would  tend  to  obstruct  plaintiff  in  tlie  prosecution  of  his  business,  or 
intimidate  or  annoy  plaintiff's  workmen  or  those  who  might  wish  to 
work  for  him.  Decree  against  the  defendants,  and  they  appealed.  Af- 
firmed. 

The  defendants  were  strikers  who  by  various  means  endeavored  to 
prevent  other  workmen  from  taking  their  places.  The  final  decree  was 
as  follows:  "This  cause  came  on  to  be  heard,  and  was  argued  by  counsel; 
and  thereupon,  on  consideration  thereof,  it  is  ordered,  adjudged,  and  de- 
creed that  the  defendants,  and  each  and  every  of  them,  their  agents  and 
servants,  be  restrained  and  enjoined  from  interfering  with  the  plaintiff's 
business  by  obstructing  or  physically  interfering  with  any  persons  in 
entering  or  leaving  the  plaintiff's  premises  numbered  141.  143,  145,  147. 
North  Street  in  said  Boston,  or  by  intimidating,  by  threats,  express  or 
implied,  of  violence  or  physical  harm  to  body  or  property,  any  person 
or  persons  who  now  are  or  hereafter  may  be  in  the  employment  of  the 
plaintiff,  or  desirous  of  entering  the  same,  from  entering  or  continuing 
in  it,  or  by  in  any  way  hindering,  interfering  with,  or  preventing  any 
person  or  persons  who  now  are  in  the  employment  of  the  plaintiff  from 
continuing  therein,  so  long  as  they  may  be  bound  so  to  do  by  lawful 
contract."] 

Allen,  J.  Tbc  principal  ciuestion  in  tbis  ease  is  whetber  tbe  de- 
fendants should  be  enjoined  against  maintaining  the  patrol.  Tbe 
report  show.s  that,  following  upon  a  strike  of  tbe  plaintiff's  work- 
men, the  defendants  conspired  to  prevent  him  from  getting  work- 
men, and  thereby  to  prevent  him  from  carrying  on  his  business, 
unless  and  until  he  should  adopt  a  certain  schedule  of  prices.  The 
means  adopted  vcere  persuasion  and  social  pressure,  threats  of  per- 
sonal injurv  or  unlawful  harm  conveyed  to  persons  employed  or 
seeking  employment,  and  a  patrol  of  two  men  in  front  of  the  plain- 
tiff's factory,  maintained  from  half  pa.st  six  in  the  morning  till 
half  past  five  in  the  afternoon,  on  one  of  the  busiest  streets  of 


Sec.    3    <?.]  RELATIVE    RIGHTS.  oS  I 

Boston.  The  number  of  men  was  greater  at  times,  and  at  times 
showed  some  little  disposition  to  stop  the  plaintiff's  door.  The  pa- 
trol proper  at  times  went  further  llian  siinjile  advice,  not  obtruded 
beyond  the  point  where  the  other  jxTson  was  willing  to  listen;  and 
it  was  found  that  the  patrol  would  probably  be  eontiimed  if  not  en- 
joined. There  was  also  some  evidence  of  persuasion  to  break  ex- 
isting contracts.  The  patrol  was  maintained  as  one  of  the  means 
of  carrying  out  the  defendants'  plan,  and  it  was  used  in  combina- 
tion with  social  pressure,  threats  of  personal  injury  or  unlawful 
harm,  and  persuasion  to  break  existing  contracts.  It  was  thus  one 
means  of  intimidation,  indirectly  to  the  i)laintiff.  and  directly  to 
persons  actually  employed,  or  seeking  to  be  employed,  by  the  plain- 
tiff, and  of  rendering  .such  employment  unpleasant  or  intolerable  to 
.such  persons.  Such  an  act  is  an  unlawfnl  interference  with  the 
rights  both  of  employer  and  of  employed.  An  employer  has  a 
right  to  engage  all  pereons  who  are  willing  to  work  for  him,  at  such 
prices  as  may  be  mutually  agreed  upon,  and  persons  employed  or 
seeking  employment  have  a  corresponding  right  to  enter  into  or 
remain  in  the  employment  of  any  person  oi"  corporation  willing  to 
emplov  them.  These  rights  are  secured  bv  the  constitution  itself. 
Com.  V.  Perrv.  155  IMass.  117.  28  X.  E.  1126;  People  v.  Gillson. 
109  X.  Y.  389.  17  X.  E.  343:  Braceville  Coal  Co.  v.  People.  147  111. 
71.  35  X.  E.  62;  Ritchie  v.  People.  155  111.  98.  40  X.  E.  454;  Low  v. 
Printing  Co.  (Xeb.).  59  N.  W.  362.  Xo  one  can  lawfully  interfere 
by  force  or  intimidation  to  prevent  employers  or  persons  employed 
or  wisliing  to  be  employed  from  the  exerci.se  of  these  rights.  It  is 
in  ^Massachusetts,  as  in  some  other  states,  even  made  a  criminal  of- 
fense for  one.  by  intimidation  or  force,  to  prevent,  or  seek  to  pre- 
vent, a  person  from  entering  into  or  continuing  in  the  employment 
or  a  person  or  corporation.  I'ub.  St.  c.  74.  §  2.  Intimidation  is 
not  limiled  lo  threats  of  violence  oi-  of  physical  injury  to  pei>;on  or 
l)roperty.  It  has  a  broader  signification,  and  there  also  may  be  a 
moral  intimidation  wliicli  is  illctzal.  P;i1  idling  or  ]>icketing.  under 
the  circumstances  stated  in  the  report,  has  elements  of  intimidation 
like  tho.se  which  were  found  to  exists  in  Sherry  v.  Pei-kins.  147 
.Alass.  212.  17  X.  E.  307.  It  was  declared  to  be  unlawful  in  Peg.  v. 
Diuitt.  10  Cox.  Cr.  Ca.s.  592;  Reg.  v.  Tlibbert.  13  Cox.  Cr.  Cas.  82; 
\U"j.  v.  Pauld.  Id.  282.  It  was  assumed  to  be  unlawful  in  Trollo])e 
v.  Trader's  Fed.  (1875)  11  L.  T.  228.  though  in  that  case  the  pick- 
ets were  withdrawn  before  the  bringing  of  the  bill.  The  ])at)'ol  was 
an  uidawful  itilerference  both  with  the  iilainliff  and  wilh  the 
workmen,  within  the  principle  of  many  cases;  and.  when  insti- 
tuted for  the  purpose  of  interf(M'ing  with  his  business.  i1  beciitie  a 
private  Tuiisance.  See  Carew  v.  K'ntliei-loid.  UKi  .Mass.  1  ;  \Valk<'r 
V.  Cronin.  I(i7  .Ma.ss.  555;  I'.arr  v.  Trades  Council  (X.  J.  C^i.).  30 
Atl.  881  ;  :\[urd(.ek  V.  AValker.  152  Pa.  St,  595.  25  Atl.  492;  China 
Co.  V.  Brown.  164  Pa.  Si.  449.  30  Ml.  261  ;  Coeur  D'Alem-  (^cm- 
sol.  &  Mill.  Co.  V.  Miners'  I'liioTi  of  Wai-dner.  51  Fed.  260;  Tem- 
f.erl..n  V.  liussell  [18931.  1  (,).  IV  715;  Floyd  v.  Jiickson  |1S!)5|.  11 
L.  T.  276:   Wright   v    Tbiuiessey.  52   .\lli    f.;i\\   .1.   KM    fa  ease  be- 


5SS  RKI.ATIVK    UICIITS.  \('ll.    (i. 

tore  l>iin»M  rt^lhicU )  ;  .Iiul«rt'  v.  IV'iiiu'tl,  ;>(i  Wkly.  Ixcp.  103;  li.v- 
ons  V.  WilUiiis  |1S!U;|.  1  (Mi.  Sll. 

'Plu'  (Icfciuliiiits  fdiilt'iid  tliiit  llicsc  jifls  wen'  jusliliablc.  liocause 
(hoy  wi'iv  only  sci-kiiiii-  lo  sci-iirt'  heller  WMtjes  for  llioiust  Ivo.-;.  I)y 
oonipoUiiii;  the  phiinlitV  to  aeee]tl  llieir  sehednh'  oL"  wafjes.  This 
motive  or  puij)ose  does  not  justity  nuiinlaiiiin^  a  ])atiol  in  front  ot" 
the  plaintilV's  premises,  as  a  means  of  eaiTyiiiLi:  ont  llieir  con- 
spiracy. A  eomiiinali(Mi  among  persons  merel\  to  ret-'uhite  their 
own  eonduet  is  witliin  allowable  eompetition,  and  is  lawful,  al- 
tliouirh  others  may  ho  indireetly  affected  thereby.  Jint  a  eombina- 
tiini  t(.  k\o  injurious  acts  expressly  dii-t^eted  to  another,  by  way  of 
intimi(.lation  or  eoiistraint.  either  of  himself  or  of  joersons  em- 
ployed or  seeking  to  l)e  employed  by  him,  is  outside  of  allowal)le 
competition,  and  is  unlawful.  Various  decided  cases  fall  within 
the  former  class;  for  txample:  Worthinoton  v.  Warinj;.  157  i\Iass. 
421.  32  N.  E.  74-t;  Snow  v.  Wheeler,  113  iMass.  17'J;  liowen  v. 
.Matheson,  14  Allen.  499 ;  Com.  v.  Hunt,  4  Mete.  (IMass.)  Ill ;  Ilev- 
wood  V.  Tillson,  75  IMe.  225;  Cote  v.  Murphv.  159  Pa.  St.  420.  28 
Atl.  190;  ]?ohn  IManuf  "g  Co.  v.  Ilollis,  54  Minn.  223,  55  N.  W.  1119; 
Steamship  Co.  v.  McGregor  [1892],  App.  Cas.  25;  Curran  v.  Tre- 
leaven  [1891].  2  Q.  B.  545,  561.  The  present  case  falls  within  the 
latter  class. 

Nor  does  the  fact  that  the  defendants'  acts  miglit  subject  them  to 
an  indictment  prevent  a  court  of  equity  from  issuing  an  injunction. 
It  is  true  that,  ordinarily,  a  court  of  equity  will  decline  to  issue  an 
injunction  to  restrain  the  commission  of  a  crime;  but  a  continuing 
injury  to  property  or  business  may  be  enjoined,  although  it  may 
also  be  punishable  as  a  nuisance  or  other  crime.  Sherrv  v.  Perkins, 
147  I\Ia.ss.  212,  17  N.  E.  307;  In  re  Debs,  158  U.  S.  564,  593,  599, 
15  Sup.  Ct.  900;  Baltimore  &  P.  R.  Co.  v.  Fifth  Baptist  Church, 
108  U.  S.  317,  329.  2  Sup.  Ct.  719;  Cranford  v.  Tvrrell,  128  X.  Y. 
341,  344,  28  N.  E.  514;  Gilbert  v.  :\Iickle.  4  Sandf.  Ch.  357 ;  Port  of 
Mobile  V.  Louisville  &  N.  R.  Co.,  84  Ala.  115,  126,  4  South.  106; 
Arthur  v.  Oakes,  11  C.  C.  A.  209,  63  Fed.  310;  Toledo.  A.,  A.  & 
N.  IM.  Ry.  Co.  V.  Pennsvlvania  Co.,  54  Fed.  730,  744;  Emperor  of 
Austria  v.  Day,  3  De  Gex,  F.  &  J.  217,  239,  240,  253 ;  Hermann 
Loog  V.  Bean,  26  Ch.  Div.  306,  314,  316,  317;  Monson  v.  Tussaud 
[1894],  1  Q.  B.  671,  689,  690,  698. 

A  question  is  also  presented  whether  the  court  should  enjoin 
such  interference  with  persons  in  the  employment  of  the  plaintitl' 
who  are  not  bound  by  contract  to  remain  with  him.  or  with  per- 
sons M^ho  are  not  under  any  existing  contract,  but  who  are  seeking 
or  intending  to  enter  into  his  employment.  A  conspiracy  to  in- 
terfere with  the  plaintiff's  business  by  means  of  threats  and  in- 
timidation, and  by  maintaining  a  patrol  in  front  of  his  premises, 
in  order  to  prevent  persons  from  entering  his  employment,  or  in 
order  to  prevent  j)ersons  who  are  in  his  employment  from  continu- 
ing therein,  is  unlawful,  even  though  such  persons  are  not  bound 
by  contract  to  enter  into  or  to  continue  in  his  employment;  and 
the  injunction  should  not  be  so  limited  as  to  relate  only  to  persons 


Sec.    3   €.]  RELATIVE   RIGHTS.  589 

who  are  bound  by  existing  eontracts.  "NYalker  v.  Cronin.  107 
^lass.  555.  5(35:  Carew  v.  Rutherford.  TOO  ^ilass.  1  ;  Sherry  v.  Per- 
kins 147  Mass.  212.  17  X.  E.  307:  Teniperton  v.  Russell  [1893], 
1  q.  B.  715.  728.  731 :  Flood  v.  Jackson  [18951.  11  L.  T.  276.  We 
til.  refore  think  that  the  injunction  should  be  in  the  form  as  orig- 
inally issued.    So  ordered. 

See  same  case,  44  X.  E.  1077,  3.5  L.  R.  A.  722:  Beck  v.  Rwy.  P.  Pro. 
Union,  77  X.  W.  13,  42  L.  R.  A.  407;  Passaic  Print  Works  v.  Ely  &  W.  D. 
G.  Co.,  105  Fed.  163,  44  C.  C.  A.  426.  62  L.  R.  A.  673;  In  re  Debs,  158  U.  S. 
564.  15  Sup.  Ct.  900.  See  5  L.  R.  A.  (X.  S.)  1091,  and  note,  and  at  p.  1161, 
for  full  discussion  of  what  constitutes  enticing,  and  of  the  master's  reme- 
dies both  at  law  and  in  equity.  See  "Injunctions,"'  Century  Dig.  §  172; 
Decennial  and  Am.  Dig.  Key  Xo.  Series  §  99. 


McGURK  V.  CROXEXWETT,  199  Mass.  457,  85  X.  E.   576,  19   L.  R.   A. 

(X.  S.)  561.     1908. 

Remedy  of  Servant  Against  Intermedcller  Who   Causes  His  Master  to 

Discharge  Him. 

[Tort  for  maliciously  causing  plaintiff's  discharge  by  his  employer. 
Judgment  against  plaintiff,  and  he  appealed.  Defendant  also  appealed 
from  an  order  overruling  his  demurrer  to  the  second  count  in  the  dec- 
laration.    Reversed  in  part  and  affirmed  in  part. 

The  first  count  alleged  that  plaintiff  was  employed  by  a  certain  cor- 
poration at  a  certain  salary,  and  that  defendant  "wrongfully,  without 
cause  and  maliciously"  prevented  the  plaintiff  from  performing  his  part 
of  the  fontract,  and,  in  preventing  plaintiff  from  carrying  out  his  agree- 
ment, the  defendant  brought  about  plaintiffs  discharge. 

The  second  count  alleged  that  the  defendant  maliciously  induced  and 
persuaded  ijlaintiff's  employer  to  break  its  agreement  and  to  discharge 
the  plaintiff. 

The  defendant  demurred  for  that:  (1)  The  first  count  failed  to  aver 
any  wrongful  word  spoken  or  written,  or  any  act  done,  by  defendant 
whereby  plaintiff  was  prevented  from  performing  his  contract;  (2)  The 
first  c-ount  also  failed  to  set  out  any  word  spoken  or  written  by  defend- 
ant, or  any  act  done  by  him  which  brought  about  plaintiff's  discharge 
by  his  employer;  (3)  The  second  count  failed  to  aver  any  word  or  act 
of  defendant's  causing  plaintiff  to  be  discharged;  (4)  That  the  declara- 
tion appears  to  be  intended  as  an  aftion  of  slander  or  libel  and  yet  does 
not  set  forth  the  words,  etc.;  (5)  That  the  declaration  sets  forth  no  ac- 
tionable words  or  acts  of  the  defendant;  (6)  There  was  no  allegation  that 
•if'fendant  was  not  an  officer  of,  or  person  in  authority  connected  with, 
the  corr)oration  which  cniitloyed  jjlaintiff;  (7)  The  entire  contract  be- 
tween plaintiff  ami  his  eiiii)loyer  was  not  set  forth.  The  judge  below 
sustained  the  1st,  2nd,  3rd,  and  5th  grounds  of  the  demurrer,  but  over- 
ruled it  on  the  4th,  6th.  and  7th  grounds.) 

SiiKi.DOX.  J.  The  .iudge  of  tlic  superio)'  court  riphtly  declined 
to  sustain  the  defi-ndant '.s  deiiiuncr  (Hi  cither  one  of  tlie  fourth, 
sixtli  and  seventh  <ri'ouiHls  assijrncd.  It  does  not  appear  tliat  the 
action  was  intendccl  In  he  for  shiiidcr-  oi-  libel,  or  for  any  words  or 
stateruonts  uttered  or  publislu'd  b>  tlic  dcl'cndanf  conecrninp:  the 
plaintiff:  and  the  doctrine  nf  .May  v.  Wood.  172  .Mass.  11,  51  N.  E. 
191.  and  Rice  v.  Alhee.  104  Ma.ss.  8H.  41  N.  K.  122.  does  not  apply 


5!)0  K'i:i.  \ri\  I-;  UKiirrs.  |  ('//.  <i. 

hclH'.      'Pile   lulc  of  t  llnsc  cjlscs  ()ll<:lil    iiol    lo  he  cxItMidt'd  to  Jlctious 
not  hroiii,'lit   I'or  slaiulci-  oi"  lil»cl. 

Nor  IS  it  lUH'essjiry  that  tlif  rdiilr.iit  Itclwrcii  I  lie  phiiiitirr  ami 
the  Standard  IMatc  (Uass  Company  should  ho  S(>t  out  in  full  or  hy 
copy;  its  ctVcft.  so  far  as  malorial  to  the  case,  was  suriiricnt ly 
stated. 

It  wouhl  make  m>  dilVcroncc  in  tlic  (hdViulant 's  lial)ility,  if  the; 
fharjjos  in  the  (h'chii'at  ion  wcic  proxcd.  whothcr  lie  was  a  nicn; 
stranirci*  to  the  ph-iintil1"s  conti'act  oi'  an  ol'liccr  or  rciirosontativ^ 
of  tlie  IMatc  (ihiss  ("omjiany.  The  coi'poration  was  in  cither  event 
a  third  person  witliin  the  mi-aninsj  of  i\Ioran  y.  Dunpliv,  177  Mass. 
48'),  5!)  N.  E.  125.  and    l5owen   v.   Hall,  (i  q.   U.   I).  XV}. 

The  seeond  count  ol'  the  declaration  set  forth  a  ^ood  cause  of  ac- 
tion within  tlie  rnle  of  Moran  v.  l)un|)hy.  177  Ma.ss.  485,  5!)  N.  E. 
125,  and  see  the  cases  there  cited.  TIkmc  aic  no  material  differ- 
ences hetwei'M  this  count  and  llic  one  siislaincil  in  lliiil  case.  Tlic 
count  cannot  he  held  had  foi-  tlu'  lack  of  a  direct  averment  tliat  the 
company  did  discharyc  the  i)laintilf  in  conseciucnee  of  wliat  de- 
fenchnit  did.  hecause  that  is  not  stated  as  one  of  the  grounds  of 
demurrer.  The  averments  of  the  count  are  somewhat  meagre; 
hut  it  nnist  he  i-ememhcred  tliat  tlie  defendant  has  the  right  to  ask 
for  a  hill  of  particulars  under  K.  L.  c.  17)],  ij  68. 

Hut  dift'erent  considerations  apply  lo  the  first  count.  It  con- 
tains no  averment  that  tlie  defendant  has  committed  any  act  in 
itself  actionahle.  The  material  avei-mcnt  is  only  that  lie  has 
"wrongfully.  witluMit  cause  and  maliciously  j)revented  the  i)lain- 
tiff  from  further  performing  his  ohligation  under''  a  certain 
agreement  of  emplo\ ment.  and  thus  "brought  about  the  discharge 
of  the  plaintiff,"  and  '"caused  the  ])laintiff  great  damage." 
There  is  no  averment  that  the  defendant  knew  of  the  existence  of 
this  agreement,  unless  that  is  implied  in  the  word  "maliciously." 
We  do  not  doubt  that  there  is  a  right  of  action  for  jnirposely  and 
maliciously  ]>reventing  the  ))erfoi'mance  of  a  contract,  whether  of 
employment  or  othei'wise.  AValker  v.  Cronin.  107  INIass.  555; 
Beekman  v.  Marsters.  195  ^fass.  205.  80  N.  E.  817.  But  where,  as 
under  the  count  now  considered,  this  is  the  sole  cause  of  action 
relied  on,  it  is  essential  both  to  aver  and  j^rove  the  defendant's 
knowledge  of  the  contract  in  ([uestion.  This  was  the  doctrine  of 
both  Walker  v.  (cronin  and  Beekman  v.  .Marsters,  ul)i  supra,  and 
of  Lumly  V.  G.ye.  2  Kl.  >.^  i>l.  21  (i;  and  justice  re<iuii-es  this  doc- 
trine to  be  upheld.  A  defendant  who  has  not  been  guilty  of  con- 
duct otherwise  actionable  ought  not  to  be  held  liable  for  having 
brought  about,  though  wi'ongfully  and  without  cause,  the  breach 
of  a  contract  of  whi<-h  he  had  no  knowledge.  It  follows  accord- 
ingly that  this  count  is  insul'Hcient  unless  it  can  be  said  that  the 
charge  that  the  defendant  "maliciously"  prevented  the  i)laintil!' 
from  performing  his  obligations  luidei-  his  agnjement  necessarily 
imports  an  allegation  that  the  defendant  knew  of  the  agreement 
of  which  he  prevente<l  the  i)ei'formance. 

In  the  opinion  of  the  majority  of  the  court  this  cannot  be  said. 


Sec.  3  ^.]  relative:  rights.  591 

The  natural  meaning  of  the  word  "malieionsly"  is  "wilfully  and 
intentionally."  Commonwealth  v.  Goodwin.  122  ]Mass.  19,  35. 
oited  and  followed  in  Commonwealth  v.  Jones.  174  Mass.  401.  54 
X.  E.  869.  In  a  c-apital  case  tried  before  two  justices  of  this  court, 
the  juiy  were  told  that  the  malice  necessary  to  constitute  the 
crime  of  nuirder  meant  simply  that  the  act  was  "wilfully  done  for 
the  purpose  of  carrying-  out  the  defendant's  own  ends,  regardless 
of  the  rights  of  others;"  and  this  was  sustained  by  the  full  court. 
Commonwealth  v.  Pemberton.  118  :\lass.  36.  37.  39.  40,  43.  It 
means  an  intention  to  do  an  act  which  is  wrongful  to  the  detriment 
of  another,  according  to  the  language  of  Bowen.  L.  P..  in  ]\logui 
Steamship  Co.  v.  .McGregor.  23  Q.  B.  D.  598,  612.  quoted  by  Lord 
Watson  in  Allen  v.  Flood  (1898).  A.  C.  1,  93.  94;  and  see  South 
^Yales  :\lincrs'  Federation  v.  Glamorgan  Coal  Co.  (1905),  A.  C. 
239.  So  it  was  said  l)y  Bayley.  J.  in  Bromage  v.  Prosser.  4  B. 
&  C.  247.  255.  that  "malice  in  coinnion  acceptation  means  ill  will 
against  a  person,  but  in  its  legal  sense  it  means  a  wrongful  act, 
done  intentionally,  without  just  cause  or  excuse."  And  il  was 
said  by  this  i-ourt.  speaking  through  the  present  chief  justice,  of 
the  right  to  dispose  of  one's  labor  as  he  will,  that  "an  intentional 
interference  with  such  a  right  witlioiit  lawful  justification,  is  ma- 
licious in  law.  even  if  it  is  from  good  motives  and  without  express 
malice."  Beriy  v.  Donovan,  188  :\Iass.  353,  356,  74  N.  E.  603, 
604,  and  see  the  cases  there  cited ;  also  those  collected  in  25  Cyc. 
1667.  But  we  liave  been  referred  to  no  case,  nor  have  we  found 
any.  in  which  an  averment  that  the  act  complained  of  was  done 
maliciously  ha.s  been  held  to  include  an  averment  of  knowledge 
of  specific  facts,  when  the  right  of  action  (h'i)t'n(hM!  upon  such 
knowledge.  It  follows  thai  in  ilic  lli'st  count  of  this  di'claratiou 
there  is  no  averment  that  the  (lcfcn(hint  had  knowledge  of  the 
agreement  between  the  plaintift'  and  the  Plate  Glass  Company; 
and  the  count  sets  out  no  cause  of  action. 

The  judgment  entered  for  the  defendant  nuist  be  rev(M-sed ;  the 
the  d(Mnurrci-  to  tlie  first  count  must  be  sustained:  and  that  to  the 
second  count  must  be  overruled. 

See  0  L.  R.  A.  (X.  S.)  and  note.  See  "Master  and  Servant,"  Century 
Dig.  §  1286;   Decennial  and  Am.  Dig.  Key  No.  Series  §  341. 

Action  l)y  llic  blaster  for  ihc  Scduclion  of  his  Female  Servant. 
That  a  parent,  oi-  one  standing  in  loco  i)arcntis  may  recover  for 
the  seduction  of  a  fi'inale.  .see  ch.  6.  ?j  2  (c).  It  is  freqiu'ntly 
stated  by  text  writers  and  in  jinlicial  o|iinions  that  a  uuistei-  may 
recover  for  the  pcdnction  of  his  female  servant,  hut  we  have  found 
no  case  in  which  a  recovery  was  actually  hud  in  such  an  ncti(M) 
iinles<  tlie  |ihiinti(T  was  not  only  master  Iml  ;ilso  a  panmt  or  one 
standing  in  loco  parentis.  In  this  c<mn((lion  ihe  following  ex- 
tract from  a  letter  written  by  Mr.  E.  1».  Smith,  of  Ihc  .\mericMU 
T.aw  I'.ook  Company,  to  the  "editors,  is  of  iiderest:  "In  rejjly  to 
your  (|U('stion  'Is  there  ;iiiy  case  in  the  woidd  in  wliieh  a  master, 


592  ijKi.  \'ii\  i:  Kicii  rs.  |  Ch.  6. 

not  briiii:  ;i  i>;iii'iil,  li;is  Mcliially  rocuviTcil  tor  tlic  scdui'tioii  (  f  his 
feniak'  sfiviiiit/  wr  would  say  tliat  an  .xliausl ivc  search  of  oar 
very  oxtcnsivc  ifsouiffs  has  I'ailrd  so  Tar  lo  reveal  siieh  a  case,  ex- 
cept the  ease  of  Maiivell  v.  Thomson.  W  ('.  <S:  1'.  'Mr.\.  :^04.  31  R.  R. 
G6G,  En.irlish  Kulinjr  Cases,  volume  17.  paixe  af)?."  lint  in  that 
case  it  is  expn-ssly  stated  in  the  opinion  ol"  Abbott.  (^  J.,  that 
the  relation  of  iniele  and  niece  existed  and  the  uncle  was  in  loco 
jiarentis: — thonfjh  the  «;roinul  of  recovery  was.  that  the  plaintiff 
was  also  tin-  master  of  the  jxirl  seduced,  and  the  loss  of  her  serv- 
ices residted  ffiim  llie  seduction. 


(f)  Binuilu  ni   Third  Persons  Against  the  Master  for  the  Acts 
and  Negligence  of  his  Servants. 

WESSON  V.  RAILROAD,  49  N.  C  379.     1857. 
Wheti  Trespass  Yi  Et  Armis,  and  When  Trespass  on  the  Case  Lies. 

[Action  of  trespass  q.  c.  f.  for  acts  of  contractors  who  were  construct- 
ing a  railroad  for  the  defendant.  There  was  no  evidence  that  the  defend- 
ant's officers  either  sanctioned  or  knew  of  the  commission  of  the  acts 
c-omplained  of.  .Tudgment  of  nonsuit  against  the  plaintiff,  and  he  ap- 
pealed.    Affirmed.] 

Pe.vrsox.  J.  There  is  no  error.  A  master  is  not  liable  for  the 
wilful  trespass  of  a  servant.  He  is  liable  in  an  "action  on  the 
case"  for  an  injury,  caused  by  the  ne^lif?ence,  or  unskilfulness  of 
a  servant,  while  doing  his  business.  This  is  an  action  of  trespass 
vi  et  armis.  "There  was  no  evidence  that  the  master  sanctioned, 
or  even  knew  of  the  tresspa&s  in  question."    Judgment  affirmed. 

See  "Master  and  Servant,"  Century  Dig.  §  1232;  Decennial  and  Am. 
Dig.  Key  No.  Series  §  306. 


McMANUS  V.  CRICKETT,  1  East,  106.     1800. 
Master's  Liability  for  the  Wilftil  Acts  of  His  Servant. 

[Action  of  tresi)ass  for  the  wilful  diiving  of  a  chariot  by  defendant's 
servant  against  plaintiff's  chaise.  Verdict  against  the  defendant.  Motion 
by  defendant  to  set  aside  the  verdict  and  enter  a  nonsuit.  On  this  mo- 
tion the  opinion  is  written.     Nonsuit  ordered.] 

Lord  Kf:xvox.  C.  J.  This  is  an  action  of  trespass,  in  which  the 
declaration  charges  that  the  defendant  with  force  and  arms  drove 
a  certain  chariot  against  a  chaise  in  which  the  plaintiff  was  riding 
in  the  king's  highway,  by  which  the  plaintiff  Ava.s  thrown  from  his 
chaise  and  greatly  hurt.  At  the  trial  it  ai)peared  in  evidence  that 
one  Brown,  a  seri-ant  of  the  defendant,  wilfully  drove  the  chariot 
against  the  plaintiff's  chaise,  but  that  the  defendant  was  not  him- 
self present,  nor  did  he  in  any  manner  direct  or  assent  to  the  act 
of  the  serA-ant.  and  the  question  is.  if  for  this  wilful  and  designed 
act  of  the  servant  an  action  of  ti-espass  lies  against  the  defendant, 


Sec.    3  /.]  RELATIVE   RIGHTS.  593 

his  master?  As  this  is  a  question  of  veiy  general  extent,  and  as 
eases  were  cited  at  the  bar.  where  verdicts  had  been  obtained 
against  masters  for  the  mi.sconduct  of  their  servants  nnder  siiiiihir 
cin-um.stances,  we  were  desirous  of  looking  into  the  authorities  on 
the  subject  before  we  gave  our  opinion ;  and  after  an  examination 
of  all  that  we  could  find  as  to  this  point,  we  think  that  this  action 
cannot  be  maintained.  It  is  a  ciuestion  of  very  general  concern 
and  has  been  often  canvassed ;  but  I  hope  at  last  it  will  be  at  rest. 
It  is  said  in  Bro.  Abr.  tit.  Trespass,  pi.  435,  "If  my  servant  con- 
trary to  my  will  chase  my  beasts  into  the  soil  of  another  I  shall 
not  be  punished."  And  in  2  Roll.  Abr.  553,  ''If  my  servant  with- 
out my  notice  put  my  beasts  into  another's  land,  my  servant  is  the 
trespasser  and  not  I — because  by  the  voluntary  putting  of  the 
beasts  there  without  my  assent,  he  gains  a  special  property  for  the 
time,  and  so  to  this  purpose  they  are  his  beasts."  I  have  looked 
into  the  correspondent  part  in  Vin.  Abr.,  and  as  he  has  not  pro- 
duced any  case  contrary  to  this,  I  am  satisfied  with  the  authority 
(if  it.  And  in  Xoy's  ]\Iaxims,  ch.  44,  "If  I  command  my  servant 
to  distrain,  and  he  ride  on  the  distress,  he  shall  be  punished  and 
not  I."  And  it  is  laid  down  by  Holt,  C.  J.,  in  Middleton  v.  Fow- 
ler. Salk.  282,  as  a  general  position,  "that  no  master  is  chargeable 
with  the  acts  of  his  servant  but  when  he  acts  in  the  execution  of 
till-  authority  given  him."  Now  when  a  servant  quits  sight  of  the 
(ibject  for  which  he  is  employed,  and  without  having  in  view  his 
master's  orders,  pursues  that  which  his  own  malice  suggests,  he  no 
longer  acts  in  pursuance  of  the  authority  given  him,  and  accord- 
ing to  the  doctrine  of  Lord  Holt  his  master  will  not  be  answerable 
for  such  act.  Such  upon  the  evidence  was  the  present  case;  and 
the  technical  reason  in  2  Roll.  Abr.  with  respect  to  the  sheep  ap- 
plies here;  and  it  may  be  said  that  the  servant  by  wilfully  driving 
the  charif)t  against  the  plaintiff's  c-haise  without  his  master's  as- 
sent, gained  a  special  property  for  the  time,  and  so  to  that  purpose 
the  chariot  was  the  servant's.  This  doctrine  does  not  at  all 
jiiilitate  with  the  cases  in  which  a  master  has  been  holden  liable 
for  the  mischief  arising  from  the  negligence  or  unskilfulness  of 
his  servant  who  had  no  purpose  but  the  execution  ol!  his  master's 
orders;  but  the  form  of  those  actions  proves  that  this  action  of  tres- 
pass cannot  be  maintained :  for  if  it  can  be  supported,  it  nuist  be 
111)011  the  ground  that  in  trespass  all  are  prin('ii)als;  but  the  form 
(if  those  actions  shows,  that  where  Ihc  servant  is  in  ])oint  of  law  a 
tr('spas.ser,  the  master  is  not  chargeable  as  such;  though  liable  to 
make  a  compensation  for  the  damage  consequential  Trom  his  em- 
ploy iiig  of  ;in  niiskiifiij  or  negligent  servant.  The  act  of  tlu;  mas- 
ter is  the  empl(»ynieiit  <ir  the  siirvant  ;  but  from  that  no  immediate 
l»re.)iidice  {irises  to  those  who  may  suffer  from  some  subsequent  act 
of  the  s  Mvant.  [1  tiiis  were  otherwise  the  |)l;iiiil  ill's  in  the  cases 
iiienlioiierl  in  1  Lord  liaymd.  7.31)  ('one  whei-e  the  servants  of  a 
caniian  tlu'oujzh  negligence  lan  over  a  boy  in  the  streets  and 
maimed  him  :  and  the  other,  wlnic  the  servants  of  .\.  with  his  cart, 
ran  against  the  v.w]  lA'  \\  ■,\\u\  overt  in  ned  it.  It.\  \\hii*h  ;i  pipe  of 
Reniedite — oS.  — 


594  KKI.ATIVK    KIOIITS.  |('^.    () . 

wiiii'  w  MS  spill);  iiiusi  lijivt'  luM'u  iioiisiiilfd  Iroin  llicir  mistaking' 
the  jn'opcr  \'ovu\  of  ju'tioii.  in  hrinijitiij:  an  action  upon  I  he  case,  in- 
stead oi"  an  action  of  trespass;  for  tlicrc  is  no  donlit  of  the  serv- 
ants in  tliosc  cases  licini;  liable  as  ti'(>spassei's.  even  lliouudi  they 
intended  no  niiscliief ;  for  wliicli.  if  it  \v(M'e  nccessai-.v.  Weaver  v. 
Ward,  in  liohart.  KM.  and  Dickinson  v.  AVatson.  in  Sir  Thomas 
Jones.  I'd."),  are  authorit  ies.  lint  it  nuist  not  he  infen-ed  from  this 
that  in  all  cases  w  lici'c  an  actittn  is  hroniiht  a^^'ainst  the  servant  for 
improperly  c(»nductinLr  his  master's  carriage.  I)\-  which  mischic^f 
happens  to  another,  the  action  nuist  he  trespass.  Micliael  v. 
Allestre(\  '2  iiCV.  IT'J,  where  an  action  on  the  case  was  bron<];ht 
ajrainst  a  man  and  his  servant  for  hreakinti'  a  pair  of  hors(>s  in  Lin- 
coln's Tnn  Fields,  where  heinji'  nnmanaiicahle  they  ran  away  with 
the  earria,ire  and  hnrt  the  ]>laintifV's  wife,  is  an  instance  to  show 
that  trespa.ss  on  the  case  may  he  the  proper  form  of  action.  And 
npon  a  (listinction  between  those  cas(>s  wliere  the  mischief  innne- 
diately  proct'cds  from  sometliini;  in  which  the  defendant  is  himself 
active,  and  where  it  may  arise  from  the  neglect  or  other  miscon- 
duct of  the  ]iarty,  but  not  iminediatelx',  and  whicli  ])erhaps  may 
amomit  only  to  a  non-ft>azance.  we  hehl  in  ()t>le  v.  Barnes.  8  Term 
Kep.  1S8.  that  the  plaintitt'  was  entitled  to  recover.  The  ease  of 
Savifrnae  and  Roome.  (>  Term  Rep.  125,  which  was  much  pressed 
as  supporting  this  action,  came  before  the  court  on  a  motion  in  ar- 
rest of  judo-ment ;  and  the  only  (piestion  d(M'ided  by  the  court  was, 
that  the  plaintitf  could  not  have  judgment,  as  it  ap]ieared  that  he 
had  brought  an  action  on  the  case  for  that  which  in  law  was  a  tres- 
pass; for  the  declaration  there  stated  that  the  defendant  by  his 
servant  wilfully  drove  his  coach  against  the  idaintifFs  chaise. 
Day  V.  Edwards.  5  Term  Rep.  fi48.  was  also  mentioned,  which  was 
an  action  on  the  ease,  in  which  the  declaration  charged  the  defend- 
ant personally  with  furiously  and  negligently  driving  his  cart,  tha^^ 
by  and  through  the  furious  negligent  and  imp7Y)])er  conduct  of  the 
defendant  the  said  cart  was  driven  and  struck  against  plaintiff's 
carriage;  and  on  demurrer  the  court  were  of  opinion,  that  the  fact 
complained  of  was  a  trespass.  And  in  the  last  case  that  was  men- 
tioned. Brucker  v.  Froment,  6  Tei'm  Rep.  659,  the  only  point  agi- 
tated was.  whether  evidence  of  the  defendant's  servant  having 
negligently  managed  a  cart  supported  the  declaration,  which  im- 
puted that  negligence  to  the  defendant;  and  the  court  with  reluct- 
ance held  that  it  did.  on  the  authority  of  a  precedent  in  Lord  Ray- 
mond's Reports.  :2()4,  Turberville  v.  Stamp.  In  none  of  these 
cases  was  the  point  now  in  question  decided;  and  those  determina- 
tions do  not  contradict  the  oi)inion  we  now  entertain,  which  is, 
that  the  plaintitif  cannot  recover,  and  that  a  nonsuit  must  he 
entered. 

T'-p  prir.f'iDal  case  is  approved  in  Campbell  v.  Staiert,  6  N.  C.  389,  and 
Parhani  v.  Blackwelder,  30  N.  C.  446;  but  see  the  subsequent  cases  in  this 
subsection.  See  'Master  and  Servant,"  Century  Dig.  §§  1230-1232;  De- 
cennial and  Am.  Dig.  Key  Xo.  Series  §  306. 


Sec.    o    /.]  RELATIVE    RIGHTS.  595 


PIERCE  V.  RAILROAD,  124  X.  C.  83,  94-97,  98,  99,  32  S.  E.  399.     1899. 
Master's  Liability  for  the  Wilful  and  Malicious  Acts  of  His  Servant. 

[Action  for  damages  for  the  death  of  a  boy.  Plaintiff  sues  as  adminis- 
trator of  the  deceased  boy,  under  the  statute.  Verdict  and  judgment 
against  defendant,  and  it  appealed.  Affirmed.  Only  that  portion  of  the 
opinion  which  treats  of  the  wilful  and  malicious  acts  of  a  servant  is 
here  inserted.     The  facts  appear  in  opinion.] 

Clark.  J.  .  .  .  We  will  now  consider  the  second  and  third 
prayers  for  instructions,  which  were:  "(2)  If  the  .jury  believe 
that  the  intestate  of  plaintiff  was  killed  by  the  wanton,  willful,  and 
malicious  act  of  one  of  the  employes  of  the  railroad  comi)any. 
then  the  company  would  not  be  liable,  and  the  jury  should  respond 
to  the  first  issue.  'Xo.'  (3)  If  the  ^wry  find  that  the  intestate's 
death  was  caused  by  the  wanton  and  malicious  act  of  the  fireman, 
and  that  his  act  was  not  done  in  the  furtherance  of  the  business  of 
the  defendant,  they  should  find  the  first  issue  in  favor  of  the  de- 
fendant, 'No.'  "  The  assumption  in  these  prayers  that  the  de- 
fendant is  not  liable  if  the  plaintiff's  intestate  was  killed  by  the 
wanton,  willful,  and  malicious  act  of  one  of  the  employes  of  the 
defendant,  and  especially  if  such  act  was  not  done  in  furtherance 
of  the  business  of  the  defendant,  cannot  be  sustained.  The  true 
test  is.  was  it  done  by  such  employe  in  the  scope  of  the  discharge 
of  duties  assinmed  him  by  the  defendant,  and  while  in  the  dis- 
charge of  such  duties?  "In  furtherance  of  the  business  of  em- 
ployer'' means  simply  in  the  discharge  of  the  duties  of  the  employ- 
ment ;  and  the  court  properly  told  the  jury  that  the  defendant  is 
responsible  for  the  injury,  if  caused  by  the  wrongful  act  of  the 
emplove  wliile  acting  in  the  scope  of  his  employment.  In  Kams- 
den  \.  Railroad  Co.,  104  :\Iass.  at  page  120,  Gray,  J.,  says:  "If 
the  act  of  the  servant  is  within  the  general  scope  of  his  employ- 
ment, the  master  is  equally  liable,  whether  the  act  is  willful  or 
nu-rt'ly  negligent  (Howe  v.  Xewmarch,  12  Allen,  49).  or  even  if  it 
is  contrary  to  an  express  order  of  the  master  (Railroad  Co.  v. 
!)crl)V.  14  How.  468)."  The  rule  is  thus  laid  down  in  2  Wood, 
R.  R.'  (2d  ed.)  ?;  iilfi.  at  p:m<'  1404:  "Where  the  act  is  witiiin  the 
scope  of  the  s<-rvant 's  authority,  express  or  imi)lied,  it  is  imma- 
terial whether  the  injurj'  resulted  from  the  result  of  his  negli- 
gence, or  from  his  willfuhiess  and  wantonness.  Nor  is  it  neces- 
snry  that  the  master  should  have  known  that  the  act  was  to  be 
don.'.  It  is  ('iiough  if  it  is  within  tlic  scope  of  the  sei-vant's  author- 
ity. Thus,  v/here  a  sei'v;iiit  of  ;i  r;iilway  company,  emjiloyed  to 
clciiii  ;uh1  scoiii-  its  cars  and  keep  jx-i-sous  out  of  them,  kicked  a  boy 
11  ycMis  old  ridin  a  r;iilinir  while  the  c;ii's  were  in  motion,  whereby 
he  wiis  thrown  under  the  cjirs  and  killed,  it  w;is  held  that,  the  act 
(although  in  nobody's  line  of  duty)  being  done  in  the  course  of 
the  servjuit's  einj)loynienf ,  the  company  was  ehargeabh*  therefor;" 
eitiritr  Railroad  Co.  v.  TT:H-k.  Hfi  111.  2:?H,  iuid  other  c;ises  as  nuthori- 
ties.       \iM(in'_'-   iii;in\-   o'lier  enses  ;ilitios1    on   "all    fours"   with   the 


31)1)  KKI.AI'lVi:    IJUillTS.  |('^.    6". 

prosi'iit  ;ir.>  Kailrojul  l\>.  v.   Kelly.  :>(i   K;m.  tiri.").   11    i'ac  172,  iu 
wliii-h  it  was  licKl  lliat   '•wlifiv  a   hoy    1.')  years  oUl  fjets  upon  a 
I'roitrht  train  \vioni;rully  and  as  :i  tivspasscr.   Tor  llic  jnirpose  of 
ridinj;  without  payinir  liis  faiv.  and  is  conunandcd  liy  llie  brake- 
uian  to  jump  otTtlic  train  while  in  danircrous  motion,  in  the  night- 
tinu'.  and    in   ohedienee   to   that    eonmiand.   and   in   fear  of  being 
tlirown  otV.  juinits  olV  the  train  and  is  rnn  over  and  injured,  the 
eonipany  is  liable;"  and  it  is  rurlluM-  held  that,  whethei-  the  brake- 
man  "aeted  wantoidy  and  maliciously,  or  mei'i'ly  Failed  to  exercise 
due  care  anil  caution,  the  railroad  company  is  liable"  for  damages 
resulting   from  the  bi-.ikeinan's  eonduet — citing  many  cases.     In 
Rounils  V.  Haili-oad  Co..  ()4  X.  Y.  120.  the  defendant  was  held  lia- 
ble where  the  plaintitf  jumped  upon  tlie  platform  of  a  baggage  car 
to  ride  to  a  ])lace  whei-e  the  cars  were  being  backed  to  make  uj)  a 
train   (this  being  against  the  regulations  of  the  defendant),  and 
the  baggage  master  knocked  him  off,  and  in  falling  he  fell  upon 
some  wooil,  lolled  undei-  the  car.  and  was  injured;  the  court  hold- 
ing that,  to  "make  the  mastei-  liable,  it  is  not  necessary  to  show 
that  it  expressly  authorized  the  ])artieular  act:  it  is  sufficient  to 
show  that  the  servant  was  acting  at  the  time  in  the  general  scope 
of  his  authority;  and  this  although  he  departed  from  his  instruc- 
tions. al)used  his  authority,  was  reckless  in  the  performance  of  his 
duty,  and  inflicted  luinecessary  injury."*    In  Lovett  v.  Railroad 
Co..  i>  Allen,  557,  it  was  held  that  where  a  boy  of  ten  years  old 
Avrongfully  got  upon  a  street  car.  and  the  driver  ordei-ed  him  to 
jump  off  while  running  at  a  dangerous  speed,  the  company  is  re- 
sponsible for  the  injuries  sustained  by  the  boy  in  doing  so,  unless 
it  was  found  tluil   the  injury  was  caused  by  the  boy's  negligent 
manner  of  getting  off.     Another  instance  of  liability  for  injuries 
sustained  by  a  trespasser  fr-om  the  servant's  violently  and  forci- 
bly putting  the  trespasser  off  is  Carter  v.  Railroad  Co.,  8  Am.  & 
Eng.  Ry.  Cas.  347.  which  cites  numerous  precedents  of  like  pur- 
port.    I-5ut  it  is  needless  to  nndtiply  cases.     All  of  them  hold  that 
such  ejectment  is  done  by  the  ser\^ant  in  the  general  scope  of  his 
employment,  and  if  done  recklessly  or  wantonly  and  maliciously, 
and  even  if  in  a  manner  forbidden  by  the  master's  ord<n\s.  the 
company  is  liable  for  the  tortions  act.     The  gronnd  is  that  the 
jjroximate  cause  of  the  injury  is  not  the  trespasser's  wrongfully 
getting  on  the  cars.  l)at  the  tortious  manner  in  which  the  servant 
makes  him  get  off  and  that,  this  act  being  in  the  general  scope  of 
the  servant's  employment,  the  master  is  liable.     In  the  present 
case,  whether  the  child  jumped  off  because  ordered  by  the  brake- 
man,  or  by  reason  of  the  hint  of  a  lump  of  coal  whizzing  by  his 
head,  or  was  actually  struck  and  knocked  off.  this  mode  of  getting 
him  off  the  moving  car  was  tortious,  and  the  defendant  is  liable 
for  the  injury  caused  thereby.     14  Am.  &  Eng.  Enc.  Law,  822. 
823.  and  cases  cited  in  the  notes  thereto;  Pierce,  R.  R.  278,  279; 
Kline  v.  Railroad  Co..  99  Am.  Dec.  282,  and  notes;  Peck  v.  Rail- 
road Co..  70  X.  Y.  587;  Railway  v.  Harris.  122  TT.  S.  597,  7  Sui). 
Ct.  128fi.     Coal  Co.  V.  ITeeman.  86   Pa.   St.  418.  was  a  case  ex- 
aetlv    like   this. — where  the   evidence   was   that   a    brakeman,    by 


S(C.    3   /.]  RELATIVE    KIGHTS.  597 

throwing  coal  at  a  boy  who  was  wrongfully  on  a  moving  train, 
caused  him  to  fall;  and  it  was  held  that  the  company  was  liable 
in  damages  for  the  injury.  The  defendant,  however,  earnestly 
contends  that,  if  the  servant's  act  was  malicious,  the  company 
is  not  liable  for  negligence.  If  that  theory  ever  obtained,  the 
above  authorities  show  that  it  wa.s  contrary  to  reason,  and  has 
been  duly  and  fully  exploded.  The  company  is  not  charged  in 
this  case  with  malice  because  of  the  alleged  malice  of  its  agent, 
and  whether  it  could  be  held  liable  for  punitive  damages  is  not 
before  us.  It  is  certainly  liable  for  compensatory  damages  for 
the  injury  sustained  from  the  tort  of  its  servant. 

[FACTS.]  Here  the  plaintiff's  intestate  was  admittedly  run 
over  and  killed  by  the  defendant's  train.  Upon  the  uncontro- 
verted  facts  of  this  ease,  the  brakeman.  as  a  matter  of  law.  was 
acting  in  the  scope  of  his  general  employment ;  and  the  court 
properly  instructed  the  jury  that  if  the  boy  was  made  to  get  off 
the  car  (though  he  was  on  there  wrongfully)  by  the  act  of  the 
brakeman,  whether  malicious  or  not,  while  the  train  was  moving, 
so  that  the  boy  was  killed  in  consequence  of  so  doing,  the  defend- 
ant was  liable  for  the  damage  caused  by  the  negligent  conduct  of 
its  lessee  in  thus  operating  its  train.  ...  A  careful  considera- 
tion of  the  charge  shows,  besides,  that  there  is  no  error  therein  of 
which  the  defendant  could  complain.     Affirmed. 

That  the  law  is  stricter  upon  railroad  corporations  than  upon  other 
empioyors,  in  the  matter  of  liability  for  the  wilful,  wanton,  and  mali- 
cious acts  of  their  servants,  is  shown  in  Stewart  v.  Lumber  Co.,  146  N.  C. 
47,  59  S.  E.  545,  and  cases  there  cited.  That  case  limits  the  master's 
liability  to  actual  damages  where  the  servant's  act  is  wanton,  wilful,  etc.; 
Ijut  {■omi>are  10  L.  R.  A.  (N.  S.)  at  p.  403.  That  the  servant  must  be  "on 
duty"  at  the  time  of  the  wilful,  wanton,  etc.,  act,  is  held  in  Cook  v.  R.  R., 
128  N.  C.  at  p.  336,  38  S.  E.  925;  Palmer  v.  R.  R.  &  Elec.  Co.,  131  N.  C. 
250,  42  S.  E.  604;  Jones  v.  R.  R.,  150  N.  C.  473,  64  S.  E.  205.  See,  also, 
for  a  discussion  of  the  master's  liability  for  the  wilful  and  malicious 
acts  of  his  servant,  26  Cyc.  1527;  Mordecai's  L.  L.  81-85.  See  4  L.  R.  A. 
(N.  S.)  485,  G  lb.  567,  9  lb.  475,  929,  12  lb.  1155,  13  lb.  1193,  18  lb.  297, 
418.  22  lb.  527,  and  notes  (liability  of  the  master  for  unauthorized  as- 
saults, trespasses,  slanders,  etc.,  committed  by  his  servant  wilfully  and 
maliciously,  or  In  sport;  and  for  the  unauthorized  and  excessive  force 
used  by  his  .servant  in  doing  authorized  acts);  9  lb.  1033,  14  lb.  216, 
and  notes  (liability  of  the  matser  for  his  servant's  negligence,  etc.,  in 
using  an  automobile,  etc.,  of  the  master  for  the  servant's  own  business  or 
pleasure);  10  lb.  367,  933,  and  notes  (master's  liability  to  third  persons 
for  injuries  resulting  from  his  servant's  negligent  use  of  dangerous  in- 
strumentalities, commodities,  etc.,  placed  in  his  hands  by  the  master); 
13  lb.  1132.  6  lb.  544.  4  lb.  651,  13  lb.  572,  10  lb.  033,  23  lb.  28!>,  1056. 
and  notes  flial)ility  of  the  master  for  his  servant's  negligence,  etc.,  in 
the  rule  which  liolds  the  master  liable  for  the  torts  of  his  servant); 
1  lb.  283,  3  lb.  595,  13  lb.  1122,  1177,  14  lb.  913,  16  lb.  255,  816.  17  lb. 
370,  788,  and  notes,  20  lb.  at  p.  547,  147  X.  C.  26.  150  N.  C.  333,  Morde- 
cai's L.  L.  79-81  nndei)endent  contractor  as  distinguisiied  from  serv- 
ant); 12  Fb.  6C9,  775,  and  notes  fwiil  an  action  lie  against  both  master 
and  servant— a.H  joint  defendants— for  the  servant's  torts?).  See  "Rail- 
roads," Century  Dig.  §8  906,  907;  Decennial  and  Am.  Dig.  Key  No.  Se- 
ries §  281. 


,"*>s  TAXOim.i':   niiisoNAi.   i-KonnjTV.  \('h. 


INJURIES   TO   TANGIBLE   PERSONAL   PROPERTY. 


Sec.    1.     Hki'levin.   Detinue,  and   Ali.ikd  TJemedy   in   Equity. 

(Seo  ell.  4.  §  :].  d.  c) 

SCOTT  V.  ELLIOTT,  61  N  C.  104.     1867. 
Who  Can  Maintain  Replevin. 

[Replevin  for  a  steamboat.  Upon  an  intimation  of  the  judge,  the 
plaintiff  submitted  to  a  nonsuit  and  appealed.     Reversed. 

A  sheriff  sold  the  steamboat  under  an  attachment.  The  plaintiff 
bought  it  with  the  understanding  that  if  the  sale  was  not  valid  he 
would  return  the  boat  to  the  sheriff.  The  plaintiff  hired  Williams  to 
take  the  boat  to  Fayetteville  and  placed  the  boat  in  Williaiiis'  ijosses- 
sion  for  that  purpose.  The  sale  was  judicially  determined,  in  another 
action,  to  be  invalid.  The  defendant  got  possession  of  the  boat  and  re- 
fused to  surrender  it  to  the  plaintiff.  The  judge  ruled  that,  as  the  sale 
to  the  ])laintiff  was  invalid,  the  plaintiff  had  no  title  or  interest  which 
would  sustain  his  action  of  replevin  against  the  defendant.] 

Pearson.  C.  J.  One  who  has  possession  of  a  chattel  for  him- 
self, in  respect  to  either  a  special  or  general  property,  may  main- 
tain replevin  or  trovci-.  One  who  has  po.ssessioii  of  a  cliMttel  for 
another,  and  not  for  himself,  cannot  maintain  an  action.  This 
rule  is  settled,  and  the  only  difficulty  is  in  makinc^  its  application. 
Onr  case  falls  under  the  first  hranch  of  the  rule,  as  will  he  made 
apparent  by  citinsr  a  few  instances  under  each. 

A  common  carrier  has  possession  for  himself  in  respect  to  his 
special  property,  and  may  maintain  an  action.  So  one  who  hires 
or  borrows  a  hoisc  is  in  po.ssession  for  himself  in  respect  to  his 
special  property.  Such  is  the  case  in  every  bailment,  and  an  ac- 
tion lies  in  the  name  of  the  bailee,  and  an  indictment  for  lareenv 
may  lay  it  as  his  property.  On  the  other  hand,  an  overseer  holds 
pos.session  for  his  employer  and  not  for  himself,  and  cannot  main- 
tain an  action.  So  one  who  is  driving  the  wagon  of  another  is 
not  in  possession  for  himself,  but  as  the  servant  of  the  other. 
His  possession  is  that  of  the  man  who  hired  him  to  take  charge  of 
the  wagon.  Such  was  the  status  of  Williams  in  our  case.  He 
was  the  mere  servant  of  Scott,  and  his  possession  was  Scott's  pos- 
session. So,  if  the  sheriff  making  a  levy  puts  the  property  in 
charge  of  a  third  person,  who  is  to  deliver  it  on  the  day  of  sale, 
that   person   is  considered   as  a   mere  servant  holding  possession 


Sec.    J.\  TANGIBLE   PERSONAL    PROPERTY.  599 

for  the  sheriff,  and  ha\'ing  no  general  or  special  property  in 
himself.  Sueh  is  the  case  in  9  Mass.  104.  and  the  other  cases 
cited  on  the  arginneut. 

In  our  case  the  sheriff  sold  the  steamer  to  Scott,  and  put  her  in 
his  possession,  with  the  understanding  that  if  the  sale  was  not 
valid,  he  woukl  ivturn  her  to  the  sheriff.  Obviously  Scott  did 
not  take  possession  for  the  sheriff,  but  for  himself  in  res])ect  tO' 
the  general  ownership  which  he  supposed  he  had  acquired.  The 
character  of  his  possession  was  not  at  all  affected  by  the  under- 
standing as  to  the  return  of  tlie  steamer.  The  suit  in  which  the 
validity  of  tlie  sale  is  i)ut  in  contntvei'sy  was  not  deeidcd  until 
December  Term.  1860.  So.  from  the  time  of  the  sale,  1857,  up  to 
I860.  Scott  was  holding  pos.session  "for  himself."  During  this 
time  the  sheriff  had  no  right  to  take  the  boat  from  him.  This  is 
the  test  to  show  that  lie  was  not  the  servant  of  the  sheriff.  Sup- 
pose one  hires  my  horse  for  a  year;  but  agrees  to  return  him  be- 
fore the  end  of  the  year  on  the  happening  of  a  contingency.  Will 
any  one  say  that  lie  is  my  servant,  and  is  liolding  possession  for 
me  and  not  for  himself.'     There  is  ci'ror. 

Replevin  does  not  lie  against  one  who  was  not  in  possession  when  the 
summons  was  issued.  Myers  v.  Credle,  63  N.  C.  504;  Webb  v.  Taylor, 
80  X.  C.  30.'j.  It  lies  for  a  house  severed  from  the  owner's  land,  so  long 
as  the  house  remains,  a  chattel  after  the  removal.  Fitzgerald  v.  An- 
derson, 81  Wis.  1).  344,  51  X.  W.  554,  and  see  Ins.  Co.  v.  Cronk,  93  Mich. 
49.  52  X.  W.  1035.  and  Turner  v.  Mebane,  110  N.  C.  413,  14  S.  E.  974. 
inserted  at  ch.  3,  s.  8.  It  was  held  in  Eisenhauer  v.  Quinn,  93  Par.  38, 
14  L.  R.  A.  (N.  S.)  435,  that  replevin  lies  for  a  house  tortiously 
taken  from  the  land  of  A,  and  ijermanently  fixed  to  the  land  of  B.  See 
the  case  at  ch.  3,  sec.  8,  ante. 

That  detinue  lies  for  a  certain  quantity  out  of  a  large  bulk,  see  Boone 
V.  Darden,  109  X.  C  74.  13  S.  E.  728.  See  "Replevin,"  Century  Dig. 
§§  45-68;  Decennial  and  Am.  Dig.  Key  Xo.  Series  §  8. 


CROUCH   V.  MARTIX,  3  Blackford,  256.     1833. 
Who  Can  Maintain  Detinue. 

[Detinue  by  Martin  against  Crouch  for  unlawfully  detaining  a  mare 
to  his  damage.  Crouch  pleaded  non  detinet.  Verdict:  "We  find  the 
property  to  be  in  the  plaintiff  and  the  value  thereof  to  be  sixty  dollars." 
.Motion  in  arrest  of  judgment.  Motion  overruled,  and  judgment  against 
Crouch,  from   whifh  he  appealed.     Reversed.] 

Stf.vens.  J.  .  .  .  The  only  riuestion  before  this  court  is, 
whetiier  the  vcrdiet  is  sufficient  lo  ;iutlinri/e  the  rendition  of  final 
.iii(l<rment  for  t  he  |ii;iiiit  itV. 

The  issur  in  tliis  ca.se  is.  wtnther  the  defendant  unlawfully  de- 
tained the  pfo|M'rty  (if  the  phiintifT  as  stated  in  the  declaration. 
The  gravjiinen  of  the  issue  is  llie  delenlion.  The  ])lain1ilf.  lo  re- 
eover.  had  to  pro\e  iliree  Ihings. —  1.  property  in  himself;  2,  an 
iwdawful  detenlion  iiy  llie  <lefeiidant;  atid  :?.  the  value.  The  jury 
have  foiwid   Imf    Iwo  of  these   fjicts.     They   li;ive   found   the  prop- 


1)00  TANiillU.K    I'KKSONAL    I'UOl'KUPY.  |(7(.    /". 

('W(/  to  1h>  ill  llu"  plaiiitilV,  and  its  value;  hut  the  milairful  deten- 
tion thoivot'.  wliicli  is  till'  main  and  principal  point  in  issue,  they 
have  not  found. 

A  vordii't  nuist  answer  all  tlie  niatccial  jMunts  in  issue;  hut  a 
ijeneral  vi'nliet.  that  in  substance  eovefs  llic  whole,  is  sut'fici(>nt ; 
jis  in  this  ease,  if  llu>  jui'v  had  sinqdy  found  for  the  |)laiidilV.  and 
found  the  value  of  the  ])roperty.  ete.,  it,  would  have  been  sufli- 
eient  :  for  tlu>  liudini;  for  the  plaintifT  would  have  been,  substan- 
tially, tiudinir  property  in  I  he  plaint  ilT.  and  I  he  ludawi'ul  deten- 
tion of  it  by  the  defeiulant  ;  but  as  it  is.  it  is  wholly  defective. 
The  judirnient   should  havi'  been  arrested.     Jud^nieut  reversed. 

See  ■Detinuo,"'  Century  Dig.  §§  4-11,  44;  Decennial  and  Am.  Dig.  Key- 
No.   Series  §§  ;',  G,  24. 


BRILEY  V.  CHERRY,  13  N.  C.  2.     1828. 

Effect  of  Judgment  in  Detinue  and  Trover  npon  the  Title  to  the  Subject- 
matter. 

[Detinue  for  a  slave.  Verdict  and  judgment  against  plaintiff,  and  he 
appealed.     Affirmed. 

Defendant  pleaded  title  in  himself  under  an  execution  sale  against 
.lackson.  The  phiintiffs  claimed  under  a  judgment  in  their  favor  in 
an  action  of  detinue  against  Jackson,  and  showed  that  defendant  pur- 
chased during  the  pendency  of  that  action.  The  judge  charged  that  the 
fact  that  defendant  bought  pending  that  action  did  not  affect  his  title.] 

Henderson.  J.  A  verdict  and  judgnient  in  an  action  of  de- 
tinue are  conclusive  as  to  the  title  between  the  parties  and  their 
privies.  And  I  think  that  the  action  of  detinue  is  an  affirmance 
of  a  continuing  title  to  the  thing  detained,  and  that  the  plaintiff 
does  not,  as  he  does  in  an  action  of  trover,  disaffirm  a  continu- 
ance of  title  in  himself,  but  maj'  sustain  an  action  for  the  same 
chattel  against  a  third  person,  or  even  against  the  same  party, 
although  he  may  have  obtained  judgment  for  it  before,  provided 
that  .judgment  has  not  been  satisfied ;  and  I  am  at  a  loss  to  under- 
stand the  case  of  Wethers  v.  Wethers,  cited  at  the  bar,  where  the 
executor  of  a  former  plaintiff  brought  an  action  of  detinue 
against  the  executor  of  a  former  defendant,  in  which  the  plain- 
tiff had  recovered  the  same  slave,  and  offered  that  verdict  and 
.iudgment  as  evidence  of  title,  wdiieh  was  rejected  ;  because,  as  is 
said  by  the  court,  it  was  not  declared  on.  I  think  that  it  was 
evidence  of  title  as  much  as  a  bill  of  sale.  And  a  plaintiff  in  such 
case,  and  in  fact  in  every  other,  declares  not  upon  the  evidence, 
but  upon  the  fact.  Privies  in  estate  are  those  wlio  come  in  under 
the  owner,  and  the  estate  stands  buiihened  in  their  hands  with 
those  incumbrances  created  by  him  before  he  parted  with  it. 
Therefore,  if  a  suit  was  pending  against  him  for  the  property 
when  he  parted  with  it.  in  which  there  aftei-wards  was  a  judg- 
ment, that  judgment  relates  to  the  commencement  of  the  suit,  and 
binds  subsef|uent  purchasers. 

But  one  who  comes  in  under  a  sheriff's  sale  at  execution  can- 


Sec.    1.]  TANGIBLE   PERSONAL    PROPERTV.  601 

not  be  called  a  privy,  for  he  is  not  onh^  clothed  with  the  title  of 
the  defendant  in  the  execution,  but  also  with  the  rights  of  the 
creditor,  which  may  be  paramount  to  those  of  the  debtor  quoad 
the  thing  sold.  It  is  to  his  rights  also  that  such  purchaser  suc- 
ceeds, and  therefore  he  is  not  privy  in  estate  to  the  former  owner. 
The  verdict  and  judgment  in  this  case,  therefore,  are  not  evi- 
dence against  the  defendant.     Judgment  affirmed. 

See  •Execution,"  Centur.v  Dig.  §  82G;  Decenuial  and  Am.  Dig.  Key 
No.  Series  §  288;  "Lis  Pendens,"  Century  Dig.  §  51;  Decennial  and  Am. 
Dig.  Key  No.  Series  §  25. 


BETHEA  v.  McLENNON,  23  N.  C.  523,  530-533,  534.     1841. 

Detinue.  Destruction  of  the  Suhject-matier,  by  Act  of  God.  Pendente 
Lite.  Detinue  and  Trover  Distinguished.  When  Optional  with 
Plaintiff  to  Bring  Detinue  or  Trover. 

I  Detinue  for  sundry  slaves.  One  of  the  slaves  died  pendente  lite, 
and  that  fact  was  pleaded  puis  darrein  continuance.  Whether  this  was 
a  good  defense  was,  by  agreement,  submitted  to  the  supreme  court,  along 
with  certain  errors  assigned  in  an  appeal.     Plea  sustained.] 

Gaston,  J.  .  .  .  "We  see  no  sufficient  reason  wliy  tlie  death 
or  destruction  of  the  goods  demanded  may  not  be  pleaded  to  so 
much  of  the  action  as  demands  the  goods,  if  in  law  such  destruction 
is  an  answer  to  that  claiuL  Upon  principle,  it  seems  to  us  that  a 
destruction  by  the  act  of  God  is  in  law  an  answer  thereto.  The 
action  (»f  detinui'  affirms  a  continuing  property  in  the  ]ilaintift'  in 
the  goods  demanded,  and  alleges  the  wrong  to  consist  in  withhold- 
ing from  the  plaintiff  the  possession  thereof.  When  the  goods 
cease  to  be.  the  property  of  the  plaintiff  therein  ceases.  lie  has  no 
light  to  their  possession:  ;md  n]ion  this  appearing,  the  law  would 
he  absurd  in  awarding  that  therefore  the  plaintiff  do  recover  the 
said  goods,  or  the  said  sum  for  the  value  thereof  if  they  may  not  be 
had.  The  act  of  God  does  injury  to  no  man.  AVhen  a  thing  ceases 
to  l)(^  Ijeeause  of  a  dispensation  of  l^rovidence.  there  may  be  loss, 
hut  there  is  no  in juiw  ;  and  this  loss  fails  upon  tlie  owner  of  the 
property.  "We  know  of  no  instance  where  the  hiw  interferes  to 
throw  the  loss  from  him  upon  others,  where  it  is  not  atti'il)utabi.^ 
to  cidpable  act  or  negligence.  Then  it  is  not  a  movo  loss,  but  an  in- 
jury; and  th(!  wrongdoer  is  jnstly  answei'aljle  foi'  it. 

There  is  a  inarked  distinction  between  the  action  of  detinue  and 
that  of  trover,  though,  in  many  ca.ses.  it  is  at  the  option  of  the 
[(hiiiilifT  to  bring  which  he  will.  The  formei-  as.ser1s  a  continuing 
property  in  the  phiint  ill',  and  alleges  the  wi'ong  to  consist  wholly 
in  the  withholding  of  th(!  jjossession  of  his  goods  from  him  by  his 
bailee:  while  the  hitter  affirms  tli;it  ;ilth()ugb  they  were  once  the 
proper  goods  of  the  pbiintiri'.  they  have  hceii  iniide  the  goods  of  tli(! 
ilefcndiint,  and  com|)lairis  of  the  injury  cjinsed  by  this  convei'sion. 

If.   after   being   thus  converted    the   g Is    perish    l)\-   unavoidable 

accident,   the   loss   f;dls    upon    the  defeudanl.    who   li;is   m;ide   them 


i^CL*  ■pwtiim.K   i'i:nst»N  \i.   njopKurv.  \('li.  '"• 

his;  ;iinl  this  mist'\»rtiuit'  sluill  iidt  ixoiu'i'.itc  hiiii  t'idiii  ;iiis\\ ci'iiMjc 
for  the  \vroii»rt'iil  ((invt'ision.  IT  imt  cdiiN ninl.  luil  rt'tiuiiniiiL;'  in 
tilt'  liiiiuls  of  ;i  l>;iilt'i\  tlicy  llu'i-c  pciisli.  Ilir  loss  is  llir  iiiisrort iiin' 
of  tlio  owiuT.  :i)i(l  llic  l);iili't'  is  jiiisw  tTiiltlc  Tof  llif  w  I'oiii:  (h'lciit  ioii. 

In  assert inir  tlu'  Viiluc  of  tlir  irooils.  in  an  adion  of  (Ictiimc.  tlio 
jury  is  to  lind  tlic  pnstiil  valuo.  'Phis  is  manifest  from  the  form 
o\'  the  writ  of  im|Mir>".  which  issues  w  liere  thei'e  has  heen  a  judii- 
nient  for  the  |)hiiiitilf  on  non  sum  infcrmatus.  nil  dieit.  or  denuir- 
rer — from  the  form  ol'  the  verdict,  where  the  jury  find  the  value 
tMi  tlie  trial  of  an  issue,  and  i'roin  the  leians  of  the  final  jud^nieiil. 
It  is  re<nured.  too.  hy  obvious  i-easons  oi'  propriety  (ireal  altera- 
tions may  happen  in  the  value  of  the  Ihinys  demaixh'd,  pendiiiix 
tlie  ;ictii>u  :  and  tiie  ohjecl  oi'  the  action  (so  far  as  I'e^fai'ds  the 
things  themselves)  is  to  retrain  them,  such  as  they  ai'e.  or.  if  tliat 
may  not  he  (h>ne.  tlieii  theii"  value.  If.  in  the  course  of  a  tedious 
action,  a  ]>uny  sla\i'  child  has  jrrown  up  to  vi«iorons  manhood,  it 
woidd  he  a  poor  substitute  for  the  slave  himself  In  «rivo  the  value 
of  what  he  was.  wlnn  the  action  was  instituted.  If.  on  the  con- 
trary, a  viLtorous.  healthy  slave  has  heen  rendered  valueless  hy 
sickness  ami  ilecrepitude.  it  would  he  iniconscientious  to  set  upon 
him  more  than  a  nominal  \alue.  TIow  onaflit  the  slave  to  be  valued 
that  is  no  more?  If  he  were  on  the  brink  of  the  grave  at  the  time? 
of  the  trial,  the  jury  would  discha.i'yc  their  duty  by  valuin<i'  him 
at  five  cents;  but  if  it  is  shown  that.  beft)re  the  trial,  he  had  fallen 
into  the  grave,  is  he  to  be  paid  for  as  of  full  liealth  and  vigor  .^  Is 
there  not  an  absurdity  in  aflixin.ti'  any  \alue  to  what  is  judicially 
ascertained  not  to  exist  .' 

Certainly  when  a  man  detains,  without  just  cause,  the  goods  of 
another,  he  ought  to  be  answerable  to  the  full  extent  of  the  injury 
thereby  inflicted.  And  so  he  is  rendered  through  a  judgment  of 
damages  for  the  wrong,  if  the  wrong  be  o)ie  of  detention  merely. 
Hut  if  the  injury  is  not  only  a  wrong  of  detention,  but  of  conver- 
sion, let  him  then  pay  also  the  value  of  the  property  converted. 
Where  the  owner,  by  reason  of  such  detention,  has  been  deprived 
finally  of  the  thing  detained,  as  hy  voluntaiy  destruction  or 
through  culpable  negligence  of  the  bailee,  it  is  not  very  material  in 
what  form  the  plaintiff  gets  his  recompense ;  but  he  is  not  wholly 
compensated,  unless  he  obtains  both  its  use  while  detained  and  its 
value.  But  when  such  iujnni  has  not  been  inflicted,  he  is  compen- 
sated by  being  ])aid  for  the  wrong  of  which  alone  he  can  complain. 
It  is  not  undeserving  of  consideration,  also,  that  in  many  cases  ac- 
tions of  detinue  are  brought  to  tiy  some  of  the  most  dififieult  ques- 
tions of  title  to  slaves,  and  w  hen  both  parties  are  equally  conscien- 
tious in  asserting  a  claim  thereto.  If.  in  all  cases,  the  holder  is  not 
oidy  to  be  liable,  in  the  event  of  failure,  for  hire,  while  they  are 
in  his  possession,  but  also  to  be  insurer  of  their  lives,  we  drive  him 
to  the  often  inhuman  alternative  of  making  the  most  of  them  by 
sale,  instead  of  keeping  them  to  abide  the  fair  ivsidt  of  the  con- 
test. In  this  case,  it  would  be  manifestly  unjust,  because  of  a  mere 
mistake  of  title,  to  make  him  responsible  for  an  act  of  Providence, 


'Sff.    J.]  TANGIBLE    PERSONAL    I'ROPERTY.  603 

which  HO  pnulence  could  avert,  aiul  which  would  probably  have 
occurred  had  the  possession  been  witli  liis  advei'sary.  It  is  enoufrli 
that  using  the  property  humanely  and  prudently,  he  account  for 
the  use  of  it  while  iu  his  possession,  and  deliver  it  up.  if  it  exist, 
when  the  controversy  is  decided  agaiu'^t  him.  It  would  have  been, 
a  great  relief  to  us  could  we  have  found  any  authorities  in  point, 
to  guide  us  iu  this  intiuiry.  Hut  it  is  extraortlinai-y  how  littk-  is  to 
be  found  in  the  law  books  bearing  directly  upon  this  subject.  The 
action  of  detinue,  by  reason  that  wager  of  law  was  permitted  in  it, 
luis  almost  become  obsolete  in  England — though  very  recently 
there  are  indications  of  a  disposition  to  revive  it.     .     .     . 

After  much  consideration,  our  opinion  is.  that  the  defendant 
may  be  permitted  to  plead  in  an  action  of  detinue,  as  a  plea  since 
the  last  contiiniance.  the  death  of  a  slave  named  in  the  declaration  . 
ami  upon  such  plea  being  found  true,  there  is  to  be  no  assessment 
of  the  value  of  the  said  slave  in  the  verdict,  and  the  plaintiff  shall 
have  judgment  for  damages  only  because  of  the  detention ;  that 
wlien  such  death  has  hap]iened  while  the  slave  was  in  the  defend- 
ant's  po-sse.ssion.  and  without  his  fault,  the  jury  should  be  in- 
structed not  to  include  any  part  of  the  value  of  the  slave  in  the 
estimate  of  damages;  but  if  it  has  happened  because  of  ill-treat- 
ment, or  culpable  neglect,  or  after  a  disposition  of  the  slave  by  the 
defendant,  that  they  be  instructed  that  they  may  include  the  vahie 
in  such  estimate;  and  it  is  further  our  opinion,  that  to  prevent 
surprise,  evidence  ought  not  to  be  received  of  the  alleged  death. 
iHiless  the  matter  be  specially  plead'^d  as  aforesaid.  The  plea  may 
be  received,  if  properly  verified,  at  any  moment  before  the  verdict 
is  rendered.  1  Chit.  PI.  698.  Hut  notwithstanding  the  opinion 
which  we  entertain  on  this  (piestion,  for  the  reasons  heretofore 
mentioned,  the  judcrment  of  the  superior  court  must  be  affirmed 
with  costs. 

See  "Detinue."  Century  Dig.   §§  28.  29;    Decennial  and   Am.  Dig.   Key 
No.   Series  §    17. 


HOL.MES  V.  GODWIN,  69  N.  C.  467,  472.     1873. 

Detinue  and   Claim    and  Delivery   the   Same.     General  Practice.     Form 
of  Judgment.     Damages.     Return  of  Subject-matter. 

f Claim  and  Delivery  for  corn  in  a  crib.  Verdict  and  judgment  against 
tlif'  iilaintiff.  and  he  api)ealed.     Reversed. 

F'laintiff  <  lainied  the  corn  as  rent  due  to  his  intestate.  The  corn  was 
taken  under  the  fiat  of  the  clerk  in  the  ancillary  jiroceeding  of  claim 
and  dplivery.  The  defendant  set  up  as  a  counterclaim  that  the  corn 
so  seized  wa.s  in  his  possession  as  bailee,  and  hence  was  wrongfully 
taken  from  him  by  the  plaintiff.  He  also  denied  that  any  rent  was 
due  to  plaintiff's  intestate.  'I'he  jury  found  for  the  defendant  and  fixed 
the  fiuantity  and  value  of  the  corn  seized.] 

Koi>.\r.\N.  .1.  .  .  .  AVc  now  lake  u|)  the  mjiin  except  ion  of  thi> 
plaintiff,  vi/. :  'rii;il  tin-  jury,  under  Ili<'  inst  riiet  inns  of  the  court. 
a.««sesseil   the  value  of  the  [)rof)ert\'   ;it    the  time   it    was  laK-en    into 


«i(14  T AN(ii»i.i':  I'KusdN  \i.   i'i{()i-i:iM'v.  \('h.  7. 

possession  l)v  'III'  pl.-iiiilitV.  ;iii'l  not  ;i(   llu'  tinii'  oL"  tlir  (rial.     We 
think  thi'  .jncltrc  i-rrod  in  this  i-cspt'ct. 

lu'pli'vin  (.-iiul  tilt'  action  ol'  claim  and  doliviM-y  is  ImiI  a  Ioniser 
naint>  for  the  same  !liinu:).  is  foiuHh'il  on  thi>  I'ijiht  of  the  plaintifl' 
to  till'  possession  of  the  jiroperly.  if  the  (IciViHlant  also  claims 
the  possession,  the  main  issue  is  on  that  rii:ht.  ami  the  |»artv  estah- 
lish.iiiL!;  it  will  have  jndgiiieiit  to  retain  or  to  he  restored  to  the  jios- 
sessioii.  as  the  ease  may  he.  To  avoid  con  fusion,  we  will  conliiK; 
ourselves  te  a  ease  like  the  present,  where  the  plaint  ifT  ohtaine<l 
the  possession,  hut  failed  to  estahlisli  his  riuht  to  it.  In  siieli  ease 
it  was  the  ri«rht  o\'  the  dereiuhnit  to  hnxc  judfjjment  for  the  return 
of  the  pi"operl\'  in  specie,  if  such  reliini  could  he  had.  or  if  it:  could 
not  he.  then  for  the  value  of  the  property.  And  it  is  e(iually  the 
right  of  the  plaint  ill'  to  return  the  property  in  specie,  if  he  can. 
It  follows  that  the  value  must  be  assessed  as  at  the  time  of  the 
trial,  for  the  value  is  only  to  stand  in  lieu  of  the  proptM'ty.  in  case 
it  shall  turn  out  that  it  cannot  he  returned;  and  tlu'  plaintilf  can- 
not compel  the  defendant  to  accept  the  assessed  value  if  he  can  re- 
turn the  property  in  specie;  nor  can  the  defendant  compel  the 
plaintiff  to  nay  the  value,  if  he  offers  to  return  the  property.  This 
is  so.  notwithstandins:  any  deterioration  in  the  article  hy  decay,  or 
external  injury,  or  fall  in  price,  .so  long  as  it  remains  in  specie. 
Prohahly  if  it  appeared  on  the  trial  that  the  property  had  been 
destroyed,  so  that  it  could  not  be  returned  in  specie,  thc^  .inry  would 
be  justified  in  so  tinding,  and  in  giving  the  value  of  the  property 
at  the  time  of  the  taking  and  interest  thereon,  as  damages  for  the 
taking  and  detention.  But  that  was  not  the  case  here.  But  it  does 
not  follow  that  the  owner  is  to  accept  the  property  (deteriorated 
perhaps)  in  satisfaction  of  the  injury.  He  is  entitled  to  full  in- 
demnity. After  finding  the  value  of  the  property,  the  jury  should 
proceed  to  find  the  damages  resulting  from  the  taking  and  deten- 
tion— an  element  of  which  is  the  difference  in  the  value  between 
the  time  of  taking  and  the  time  of  the  trial.  Rowley  v.  Gibbs,  14 
Johns.  385  (that  is.  provided  the  value  be  less  at  the  latter  time; 
if  it  be  greater,  the  rule  would  be  different ;  but  it  is  unnecessary  to 
eonsider  that  ca.se.  except  to  exclude  it  from  the  rule).  The  jury 
may,  if  they  think  proper,  add  to  this,  damages  on  the  basis  of  in- 
terest on  the  value  of  the  property  during  the  detention,  although 
the  calculation  need  not  always  be  on  the  basis  of  interest,  and  in 
many  cases  would  not  properly  be.  Judgment  reversed,  and  ve- 
nire de  novo. 

It  would  seem  that  mental  anguish  is  not  an  element  of  damages  in 
an  action  for  the  unlawful  seizure  and  detention  of  pigs  and  yearlings. 
Chappell  V.  Ellis.  123  N.  C.  259,  31  S.  E.  709.  See  "Replevin,"  Century 
Dig.  §  405;   Decennial  and  Am.  Dig.  Key  No.  Series  §  103. 


S(C.    1.]  TANGIBLE    PERSdNAl,    PROPERTY. 


605 


WILSON  V.  HUGHES,  94  N.  C.  182.     1886. 
Claim  and  Delivery  Under  the  Code  Practice.     Counterclaim. 

[Action  to  recover  possession  of  a  horse.  The  defendant  admitted  the 
title  to  the  horse  to  be  in  the  plaintiff,  but  denied  the  unlawful  posses- 
sion and  holding  thereof  by  defendant,  and  set  up  as  a  counterclaim 
damages  arising  from  alleged  fraud  and  deceit  practiced  upon  defendant 
ly  the  plaintiff  in  the  sale  of  the  horse  in  controversy  to  the  defend- 
ant. Plaintiff  held  a  mortgage  on  the  horse  for  the  balance  of  the  pur- 
chase money.  Several  questions  arose  in  the  case,  but  only  a  portion 
of  the  opinion  is  here  inserted  to  show  the  nature  of  claim  and  delivery 
proceedings.]  ~  ^ 

Merrimox.  J.     "We  observe  that  this  is  called  an   "action  of 
claim  and  delivery."    Properly  and  strictly  speakius:.  there  is  no 
such  action.    The  action  commonly  so  called  is  an  action  to  recover 
the  possession  of  personal  property — some  specific  chattel — and  is 
of  the  nature  of  the  action  of  detinue  under  the  common  law 
method  of  procedure.    "Claim  and  delivery  of  personal  property" 
is  a  provisional  remedy,  incident  and  ancillary,  but  not  essential  to 
the  action.    The  object  of  such  incidental  provision  is  to  enable  the 
plaintiff,  upon  giving  an  undertaking  in  double  the  value  of  the 
property  in  question,  with  approved  security,  as  required  by  the 
statute,  to  obtain  the  immediate  possession  of  the  same,  unless  the 
defendant  shall  give  a  similar  undertaking  and  security  for  its  de- 
livery to  the  plaintiff,  if  it  shall  be  so  adjudged,  and  for  the  pay- 
ment of  such  costs  as  may  be  adjudged  against  him  in  the  action. 
Thus  the  property,  or  the  value  of  it.  is  made  secure  pending  the 
action,  in  such  way  as  to  answer  the  purpose  of  the  final  judgment. 
This  provisional  remedy  is  peculiar  to  the  Code  method  of  proce- 
dure, and  gives  the  action  something  of  the  nature  of  the  action 
of  replevin  at  the  common  law.     "Claim  and  delivery"  of  the 
propertv  may  be  omitted,  and  the  action  may  be  simply  to  recover 
the  possession  of  the  specific  chattel,  as  in  detinue,  or  to  recover 
the  value  of  the  property,  as  in  trover  or  trespass.    In  any  case,  it 
is  incident  to  an  action,  and  provisional  only.    The  Code,  §§  321- 
^.-^r^:  Jarman  v.  Ward,  67  N.  C.  32;  Alsbrook  v.  Shields,  Ibid.  333; 
lToT)per  v.  :^Iiller,  76  N.  C.  402. 

The  court  very  properly  refused  to  give  judgment  for  the  plain- 
tiff upon  the  pleadings,  "because,  while  the  defendant  in  his  an- 
swer admitted  the  allegations  of  the  complaint,  except  so  nnich 
thereof  as  alleged  the  unlawful  ].o.s.S(>ssion  and  detention  of  the 
jiroperty  in  controversy,  he  alleged  a  counterclaim,  and  the  plain- 
tilT's  reply  to  the  same  rai.sed  issues  of  fact  to  be  tried  by  a  jury. 
The  defenrlant  alleged  in  his  counterclaim  that  the  jilaintiff.  for 
the  consideration  spi-eified.  s(»ld  and  delivered  to  tlu'  defendant, 
some  time  before  the  bringing  of  the  action,  a  mare,  the  subject  of 
tlie  action,  representing  her  to  be  sound  in  all  resiiects.  and  giving 
his  warranty  to  that  effect  :  that  afterwards  he  discovered  that  the 
mare  was  verv  unsoinid  and  of  little  value,  and  this  the  i)laintifT 
well  knew  at  "the  time  he  mad.-  the  false  au'l  fraudulent  represen- 


«)()()  rwcim.i';   i'i:K'S(t\  \i.    l•K■tl|■l•;K■|•^ .  \('}i.  7. 

t:lti»»ns  o\'  sduiidiit'ss  Id  tlic  (lcft'ii(l;iiit  ;  aiiil  lli.it  lu'  \v;is  tli(M'(>hy 
>ri-(';itly  (L-miniirdd.  etc  Tliis  allciii'd  t-hrmi,  if  well  I'duiidi'd.  ex- 
isted in  favdi- df  tluMlt't'cnd.-iiit  ;ni<l  ai::iiiisl  the  jilaint  ilVs.  and  thci'd 
iniijht  1)1'  ;i  srvcral  .indirnnMit  as  hctwi'cn  lluMii  in  respect  lliei-cto. 
It  arose  out  of  llie  ti-ansaelidn  set  1'di'th  \u  Ihe  edniplainl.  as  1ht> 
fduudalion  lA'  llie  plaint  itV's  claim,  and  was  cdnnecled  with  tlie 
s\ih.ioi't  t>f  the  aetidii.  It  iniirlil  well  ite  pleaded  as  a  cdnntei-claim. 
Tho  Code.  ^  'J4-I :  llittinsr  v.  Tliaxton.  7_'  X.  C.  54;  Walsh  v.  Hall. 
(;»;  X.  ('.  L':id:  llnrst  v.  l^verelt.  !)1    X.  ('.  :'.!)!).      .      .      .      Keversed. 

See  "Replevin,"  Century  Di.i;.  §  lOfi;   Decennial  and  Am.  Dig.  Key  No. 
Series  §  12. 


WEBB  V.  TAYLOR.  SO  X.  C.  ;)05.     1S79. 
Detinue  and  Clairn  and  Delivery  Under  the  Code  Praetice. 

lAclion  to  recover  possession  of  a  mule.  Demurrer  by  defendant. 
Demurrer  overruled,  and  defendant  api)ealed.  The  facts  apiiear  in  be- 
ginning of  the  opinion.  1 

Smith.  C.  J.  This  action  is  bronfrht  under  C.  C.  P.,  Title  IX, 
eh.  2,  §§  17ri-187.  to  roeover  possession  of  a  nmle.  The  complaint 
allecres  the  takinjx  of  the  nin1e  from  the  ]ilaintitil'  by  the  defendant 
Taylor,  his  snhsecjnent  sellinii'  to  tlie  defendant  TTaysly.  and  the 
possession  of  the  latter.  The  defendant  Taylor  denuirs  to  the 
complaint,  for  that  it  does  not  show  possession  in  him;  and  his  co- 
defendant  answers.  On  the  h(>arinir  of  the  denniri-er  it  was  over- 
ruled and  Taylor  ap]ieals.  AYe  think  there  is  error  in  the  rnline: 
of  the  court,  and  that  npon  the  pleadings  unamended  the  demur- 
rer oufrht  to  have  been  sustained. 

The  frist  of  the  a-tion  is  the  wrong'ful  withholding  of  the  plain- 
tiff's property,  and  the  remedy  souaht.  its  restoraticm  to  the  owner 
with  damages  for  the  detention.  Tt  resembles,  and  under  the  n(^\< 
system  is  substantially  a  substitute  for,  the  forms  of  detinue  and 
replevin  in  use  under  the  old  system  of  practice,  and  affords  the 
same  measure  of  i-elief.  Possession  must  be  averred  and  shown  to 
be  in  the  defendant,  or  that  he  retains  such  control  over  the  prop- 
erty, if  in  the  hands  of  his  bailee  or  agent,  that  it  can  be  surren- 
dered to  the  plaintiff  if  the  court  shall  so  adjudge.  The  authori- 
ties cited  in  the  argument  for  the  appellant  clearly  establish  this 
proposition.  Jones  v.  Green.  20  X.  C.  488;  Charles  v.  Elliott, 
20  X.  C.  606;  Foscue  v.  Eubank.  32  X.  C.  424. 

Tn  Slade  v.  Washburn.  24  X.  C.  414.  it  was  held  thai  a  joint  ac- 
tion of  detinue  would  not  lie  against  two  persons  who  took  certain 
slaves  from  the  plaintiff  at  one  and  the  same  time,  one  defendant 
being  in  possession  of  a  part  of  the  slaves,  and  the  other  defendant 
being  in  possession  of  the  other  slaves;  though  an  action  of  trespass 
could  be  maintained  again.st  both.  The  same  principle  is  applied 
to  the  action  pi-escribed  in  the  Code  in  Ilaughton  v.  Xewberry,  69 
X.  C.  456.  In  that  case  the  plaintiff  sued  to  recover  a  boat  which 
the  defendant  had  sold  to  another  person  before  the;  action  was 
c-oninienced.  and  it  was  deeidi'd  that  as  the  boat  was  not  in  the 


SfC.    7.  J  TANGIBLE    PERSON'AI.    PROPERTY.  607 

possession  nor  under  the  control  of  the  defendant,  the  plaintiff 
could  not  recover  in  this  form  of  proceeding.  In  delivering  the 
opinion  of  the  court.  Pearson.  C.  J.,  says:  "In  face  of  the  fact 
that  the  defendant  did  not  have  possession  at  the  time  of  the 
connnencement  of  the  action,  as  a  matter  of  course  the  plaintiff  was 
not  entitled  to  the  judgment  demanded  in  the  complaint:"  and  he 
adds,  "that  instead  of  demanding  judgment  for  the  recovery  of 
the  po.fsfssion  of  the  hoat  he  ought  to  have  demanded  .judgment 
for  the  value  of  the  boat,  by  way  of  damages,  as  in  an  action  of 
trover,  and  thereupon  asked  leave  to  amend  the  complaint  so  as  to 
conform  it  to  the  proof,  which  would  have  been  allowed  without 
costs  as  the  defendant  could  not  have  been  misled  bv  the  mis- 
prision. C.  C.  P.  §§  128.  129.  182.  Rut  instead  of  this  he  t>.kes 
an  appeal  foi-  the  sujiposed  error  in  ruling  that,  as  the  pleading 
then  stood,  the  plaintiff  could  not  recover." 

Not  only  does  the  plaintiff'  here  fail  to  allege  any  sejiarate  pos- 
session in  the  appellant  or  any  common  possession  in  both  defend- 
ants, but  his  complaint  shows  that  the  appellant  had  sold  the  mule 
to  the  other  defendant  and  had  no  control  over  him.  T^ou  these 
allegations  the  plaintiff'  could  not  maintain  his  action  asfJiinst  the 
appellant  alone,  nor  with  any  more  r'^ason  against  him.  when  asso- 
ciated in  the  action  \\illi  one  wlio  may  be  liable.  Ilis  defense  is 
several  and  equally  available  in  either  case.  The  judgment  must 
be  reversed. 

See  Jarman  v.  Ward,  67  X.  C.  32,  inserted  at  ch.  11,  sec.  2,  post.  That 
flaim  and  delivery  is  an  ancillary  remedy  and  not  the  principal  action 
nor  an  essential  to  the  action  of  detinue,  see  Wilson  v.  Hughes,  94  N.  C. 
182.  next  preceding,  and  Hargrove  v.  Harris,  116  N.  C.  418,  21  S.  E.  916, 
which  says,  "there  is  no  such  thing  as  an  action  for  claim  and  delivery." 

After  obtaining  possession  of  the  subject-matter  of  the  action  by  the 
ancillary  proceeding  of  claim  and  delivery,  the  plaintiff  will  not  be  per- 
mitted to  take  a  nonsuit  and  retain  the  property.  Should  he  abandon 
his  action,  the  defendant  will  be  awarded  a  writ  of  restitution  along 
"  ith  other  relief  which  will  be  afforded  him.  Manix  v.  Howard,  82  N. 
C  12.".  Detinue  and  claim  and  delivery  lie  against  a  sheriff  who  seizes 
the  property  of  one  not  the  defendant  in  execution.  Smithdeal  v.  Wil- 
kerson.  100  X.  C.  52,  6  S.  E.  71.  The  venue  in  detinue  and  claim  and 
delivery  is  regulated  by  Revisal,  sec.  410.  (4).  which  differs  from  the 
statute  in  force  when  Smithdeal  v.  Wilkerson,  supra,  was  decided. 
Rrown  v.  Cogdell.  1^6  X.  C.  ?,2.  48  S.  E.  .",1.5:  see  Pell's  notes  to  Revisal, 
sec.  419,  Ml.  For  Replevin,  Detinue,  and  Claim  and  Delivery,  in  sun- 
dry instances,  see  1  L.  R.  A.  (N.  S.)  474,  6  lb.  556,  and  notes  (against 
nurcha.ser  of  goods  with  fraudulent  intent  not  to  jiay  for  them,  etc.; 
.'^ame  point,  Wilson  v.  "\\niite.  80  X.  C.  280.  Mcintosh  Cont.  297,  and 
note):  8  II).  448,  10  lb.  810,  and  notes  (against  fraudulent  purchaser's 
vpndee):  17  lb.  1032,  and  note  (against  fraudulent  purchaser's  assignee 
in  banknu)tcy»:  )?,  lb.  413,  and  note  (for  chattels  sold  under  mistake 
as  to  iiurrhaser's  identity ;  same,  Xewberry  v.  R.  R.  1?,3  N.  C.  45,  Mcin- 
tosh rnnt.  268 1:  11  lb.  948,  and  note  (for  chattels  sold  upon  cash 
terms— fffect  of  delay  in  bringing  such  action):  3  lb.  138,  and  note  (for 
a  promifisnrv  note):  20  lb.  507,  and  note  (for  title  depds  to  land:  same 
iioint,  r^astfrfif>l(]  v.  Sawyer.  132  X.  (\  258,  and  13.1  X.  C.  42);  23  lb.  144, 
nn.I  not.-  fbilnKiitg  action  for  thp  price  as  waiver  of  (he  right  of  vendor 
in  fondltional  sale  to  recover  the  property  in  specie).  See  "Replevin." 
Century  Dig.  §§  69-82;    Decennial  and  Am.  Dig.  Key  No.  Series  §  9. 


COtS  rANCIHIK     I'KKSONAl.     IMv't  U'KIM'V.  \('h.    7. 


DIKK  1)1"  SDMKRSKT   \.  CDOKSON.  :!    Poere   Willi:iiiis,   \VM^.     1735. 
l\i})n'ihi   in   lUiiiitii  for  Die    Ixidinri/  of  Cliolcls. 


'!>  I 


w  DiiUv  t>r  Soiiicisrl.  ;is  lord  (if  llir  iiiiiinir  (iT  Coi-hridge,  in 
Nortluniilu'rliiiul.  was  ontitlt'il  to  ;m  .ill.ir  piece  iiiade  of  silver,  re- 
markaltle  lor  a  (Jrcek  inscription  and  di'dicalion  to  llercnlos.  His 
jrrace  hecaiue  entitled  to  it  as  ti-casui'e  1 1'ove  within  his  said  manor. 
This  altar  piece  had  been  sold  by  one  who  had  ^'ol  the  ])ossession 
of  it.  to  the  defendant,  a  iroldsniith  at  Newcastle,  but  who  had  no- 
tice of  the  duke's  claim  thereto.  Tlu'  duke  broiijjht  a  bill  in  eijuiLy 
to  coiniiel  the  delivery  of  this  altai-  piece  in  s])eeie.  undefaced. 

The  ilelendant  demurred  as  to  part  of  the  bill,  foi-  that  the  plain- 
titf  had  his  remedy  at  law,  by  an  action  ol"  trover  or  detinue,  and 
ought  not  to  brinjr  his  bill  in  eipiity ;  that  it  was  true,  for  writings 
savonrinsr  of  the  realty  a  bill  would  lie.  but  not  for  anything 
merely  jiersonal.  any  more  than  it  would  I'or  a  horse  or  a  cow.  So. 
a  bill  inight  lie  for  an  heii'loom.  as  in  the  case  of  Pusey  v.  Pusey, 
]  Vern.  278.  And  though  in  trover  the  ])laintift'  could  have  only 
damages,  yet  in  detinue  the  thing  itself,  if  it  can  be  found,  is  to 
be  recovered;  and  if  such  bills  as  the  present  were  allowed,  half  the 
actions  of  trover  would  be  turned  into  bills  in  chancery. 

On  the  other  side  it  was  urged,  that  the  thing  here  sued  for,  was 
a  matter  of  curiosity  and  antiquity;  and  though  at  law.  only  the 
intrinsic  value  is  to  be  recovered,  yet  it  would  be  very  hard  that 
one  who  comes  by  such  a  piece  of  antiquity  by  wa-ong,  or  it  may  be 
as  a  trespasser,  should  have  it  in  his  power  to  keep  the  thing,  pay- 
iuir  only  the  intrinsic  value  of  it;  w^hich  is  like  a  trespasser's  forc- 
ing the' right  owner  to  part  with  a  curiosity,  or  matter  of  antiquity, 
or  ornament,  nolens  volens.  Besides,  the  bill  is  to  prevent  the  de- 
fendant from  defacing  the  altar  piece,  which  is  one  way  of  depre- 
ciating it;  and  the  defacing  may  be  with  an  intention  that  it  may 
not  be  known,  by  taking  out,  or  erasing  some  of  the  marks  or  fig- 
ures of  it ;  and  though  the  answer  had  denied  the  defacing  of  the 
altar  piece,  yet  such  answer  could  not  help  the  demurrer;  that  in 
itself  nothing  can  be  more  reasonable  than  that  the  man  who  by 
wrong  detains  my  property,  should  be  compelled  to  restore  it  t*. 
me  again  in  specie;  and  the  law  being  defective  in  this  particula) . 
such  defect  is  properly  supplied  in  equity. 

^Vherefore  it  was  prayed  that  tlie  demurrer  might  be  overruled, 
and  it  was  overruled  acordingly.      [Talbot.  Ld.  Ch.] 

••With  respect  to  other  chattel  proiierty,  justice  may  be  done  at  law 
hy  damages,  and  therel'ore  equity  will  not  interi)ose:  but  for  a  faithful 
or  family  slave,  endeared  by  a  long  course  of  service  or  early  association, 
no  damages  can  compensate— for  there  is  no  standard  by  which  the  price 
of  affection  can  be  adjusted,  and  no  scale  to  graduate  the  feelings  of  the 
heart. ••  Tavlor,  C.  J.,  in  Williams  v.  Howard,  7  N.  C  at  p.  80.  The 
principal  case  and  Williams  v.  Howard  are  referred  to  with  approval  in 
Paddock  v.  Davenport,  107  X.  C.  at  p.  716,  12  S.  E.  46.''^.  For  further  in- 
formation on  the  question  decided  by  the  principal  case,  see  6  Pom.  Eq. 
Juiisp.    (Eq.  Rem.  vol.  2),  p.   1263,  sec.  748,  notes  and  cross  references. 


Sec.    2.]  TANGIBLE   PERSONAL    PROPERTY.  609 

The  Pusey  horn  case  mentioned  in  Paddock  v.  Davenport,  is  Pusey  v. 
Pusey,  1  Vern.  273.  That  slaves  came  within  the  rule,  see  cases  in 
6  Pom.  Eq.  Jur.  at  p.  1264,  note.  For  the  rule  in  equity  as  to  chattels 
generally,  see  Pom.  Spec.  Perf.  Cont.  sees.  11-15,  and  notes;  26  Am.  & 
Eng.  Enc.  L.  103;  16  Cyc.  49.  See  "Equity,"  Century  Dig.  §  39;  Decen- 
nial and  Am.  Dig.  Key  No.  Series  §  17. 


Sec.  2.     Trover. 

OLIVANT  V.  BERING,  1  Wilson,  23.     1743. 
The  Relief  Afforded  in  Trover. 

In  trover  for  some  pictures,  it  was  moved  that  plaintiff  should 
be  obliged  to  take  the  pictures  and  costs,  upon  an  affidavit  that 
they  are  all  the  goods  that  the  defendant  has  of  the  plaintiff's,  and 
that  not  denied;  but  per  curiam,  this  action  is  for  damages,  and 
you  cannot  oblige  the  plaintiff  to  accept  the  thing  itself.  (In  Bux- 
ton and  Gabell,  Trin.  9  Geo.  1.  trover  for  a  ring;  and  Pas.  9  or  10 
Geo.  2.  in  trover  for  goods,  this  court  refused  the  like  motion.) 

The  ruling  in  the  principal  case  applies  to  actions  in  the  nature  of 
trover  under  the  Code  practice.  Stephens  v.  Koonce,  103  N.  C.  266,  9 
S.  E.  31.5.  See  "Trover  and  Conversion,"  Century  Dig.  §  309;  Decennial 
and  Am.  Dig.  Key  No.  Series  §  69. 


EOYCE  v.  WILLIAMS,  84  N.  C.  275.     1881. 

Trover  and  Tresnass  Distinguished.     Who  May  Maintain  Trover.     Title 

of  Plaintiff.     Title  in  Third  Person  a^  a  Defense. 

[Action  to  recover  the  value  of  cattle  taken  by  defendant  from  the 
I)laintiff  and  converted  to  defendant's  use.  Verdict  and  judgment  against 
defendant,  and  he  appealed.     Reversed. 

The  defendant  justified  taking  the  cattle  by  putting  in  evidence  a 
mortgage  to  Harper  Williams  from  plaintiff's  father,  executed  while  such 
mortgagor  owned  the  cattle.  The  validity  of  the  mortgage  was  denied 
by  the  plaintiff.  The  court  charged  that,  even  if  the  mortgage  were 
valid,  the  defendant  was  not  justified  in  taking  the  cattle,  because  he 
showed  no  authority  from  the  mortgagee,  Harper  Williams,  so  to  do, 
nor  did  he  show  any  right  in  himself.] 

SMiTjr.  ('.  J.  .  .  .  The  action  is  for  property  taken  and 
converted  to  the  defendant's  use,  and  not  for  damages  for  an  in- 
vasion (if  the  phnntiff's  possessory  right,  and  under  the  former 
prar-tice  would  in  forni  be  trover  instead  of  trespass.  The  action 
of  tresfiass  is  for  an  injury  to  the  possession,  and  compensation  in 
damages  is  recov<'reil  against  a  wrong-doer,  coniniensni'ate  willi  llie 
injury  sustained.  In  either  form  of  action,  possession  of  personal 
[roods,  being  |»i-esumi)live  evidence  of  title,  when  not  rebutted,  en- 
titles the  plaintitV  to  recover  in  damages  their  full  value.  But 
when  the  ;i<'tion  is  for  the  cfniveision.  or  a]>]>ro|iriation  of  the 
Remedies— 39. 


610  TANiiiiiiK   i'i:i{soN.\i,   i'iMn.ici'\.  \('li.  7. 

tjooils  ti»  till'  (ict'f'iil.iiit 's  (iwii  us(>.  it  is  ;t  rull  (IcfiMiso  to  slunv  that 
tlu'  y:oo(ls  ht'ldiiii-  to  iiinitlii'i-  person,  imd  tlic  iil;iiiitilV  lias  lut  in- 
terest ill  tlu'iii.  altliouirli  ni»  privity  l)c  shown  to  exist  lietweeii  siioh 
inviiiM-  ami  the  deftMidant .  This  (hietviiie  is  set  Hod  liy  two  adjudi- 
cations in  this  state,  to  wliieh  ahme  we  dcMMii  it  ncM'essarv  to  i-el'er. 

Ill  Laspeyre  v.  .Ahd^'arhmd.  4  X.  (\  (i'JO,  the  action  was  in  trover 
for  a  shivc  in  possession  of  the  plainlilV.  'IMie  (IcfciKhint  showed  no 
tith"  in  liiiiiself.  hut  otVcred  in  I'viihMicc  a  niarria^c^  selth'inent  cn- 
tiM-cd  into  hetwt'cn  the  phiintilV  and  his  wife  ;nid  one  Davis 
whiM'chy  the  sh-ive  was  convey(>(l  to  the  laller.  as  trustee  to  perniil 
the  wife  to  liave  the  ialior  and  prolils  of  the  slaNc  and  lo  aHow  tlie 
shivc  to  he  under  plaintitV's  control.  In  the  superior  court  upon 
tliosc  facts  appearinii'  tlic  phiintilT  was  nonsuite(l.  In  this  court,  on 
the  heariiiiT  of  the  appeal.  Kuflin.  .1..  thus  (h'clai'cs  tlie  law.  in  sus- 
taiiiiii!:-  the  judunient  helow:  "It  is  one  of  the  chara(!teristic  dis- 
tinctions hetwecn  this  action  and  trespass  that  the  latter  may  l)e 
maintained  on  possession;  tlie  former  only  on  ]iroperty  and  the 
riirht  of  ])ossession.  Trover  is  to  personals  what  ejectnieiit  is  to  the 
realty.  In  both,  title  is  indisi>ensal)le.  ll  is  true  that  as  posses- 
sion is  the  strongest  evidence  of  the  ovvneishi|),  i)roperty  may  be 
presumed  from  possession.  And  tlierefore  the  plaintiff  may  not  in 
all  cases  he  hound  to  show  a  good  title  hy  conveyances  against  ali 
tlie  world,  hut  may  recover  in  trover  upon  such  presumption 
against  a  wrong-doer.  Yet  it  is  hut  a  presumption  and  cannot 
stand  when  the  contrary  is  shown.  Here  it  is  comi>letely  rehutted 
by  the  deed  which  shows  the  title  to  be  in  another  and  not  in  the 
plaintiff." 

The  same  point  came  up  in  Barwick  v.  Barwick,  33  N.  C.  80,  and 
was  similarly  decided.  Pearson.  J.,  after  presenting  the  same 
views  as  to  the  law,  ])r()ceeds:  "But  if  it  ap|)ears  on  the  trial  that 
the  plaintiff,  although  in  possession,  is  not  in  fact  the  owner,  the 
presumption  of  title  inferred  from  the  possession  is  rebutted,  and 
it  would  be  manifestly  wrong  to  allow  the  plaintiff  to  recover  the 
value  of  the  ])roperty.  For  the  real  owner  may  forthwith  l)ring 
trover  against  the  defendant  and  force  him  to  pay  the  value  a  sec- 
ond time,  and  the  fact  that  he  had  paid  it  in  a  former  suit  would 
be  no  defense."  lie  adds,  that  trover  can  never  be  maintained  un- 
less a  satisfaction  of  the  judgment  will  have  the  effect  of  vesting  a 
good  title  in  the  defendant,  except  when  the  property  is  restored 
and  the  conversion  was  temporary.  Accordingly  it  is  well  settled 
as  the  law  of  this  state  that  to  maintain  trover  the  plaintiff  must 
show  title  and  a  possession,  or  a  present  right  of  possession." 
.     .     .     Error. 

For  a  good  exijlanation  of  trover,  see  99  Pac.  1089.  23  L.  R.  A.  (N.  S.) 

573. 

In  Russell  v.  Hill,  125  N.  C.  at  p.  472.  34  S.  E.  640,  in  passing  upon  a 
question  somewhat  similar  to  that  presented  in  the  principal  case,  the 
court  say:  'The  i)resent  action  is  in  the  nature  of  the  old  action  of  trover, 
and  before  the  plaintiff  could  recover  in  an  action  of  that  nature  he  had 
to  show  both  title  and  possession  or  the  right  of  possession."  It  is  one 
of  the  characteristic  distinctions  between  trover  and  trespass  that  tres- 


Sec.    2.]  TANGIBLE   PERSONAL    PROPERTY.  611 

pass  may  he  maintained  on  possession ;  trovrr  only  on  property  and  the 
right  of  possession.  Trover  is  to  personalty  what  ejectment  is  to  realty. 
In  both  title  is  indispensable.  Property  may  be  presumed  from  posses- 
sion and  a  plaintiff  may  recover  in  trover  on  such  presumption  without 
proving  his  title  against  all  the  world;  yet  such  presumption  may  be 
rebutted  and,  if  rebutted,  the  plaintiff's  action  fails.  If  title  be  shown 
to  be  in  a  third  person,  the  plaintiff  fails  in  his  action  notwithstanding 
his  possession.  Ibid.  The  gist  of  the  action  of  trover  being  the  conver- 
sion, that  remedy  can  be  pursued  by  that  person  only  who,  at  the  time  of 
the  conversion,  not  only  had  a  general  or  special  proi)erty  in  the  thing 
converted,  but  who  had  also  at  that  time  the  possession  or  right  of  posses- 
sion. If  the  plaintiff  had  such  title,  possession  or  right  of  possession  at 
the  time  of  the  conversion,  his  transfer  of  his  title  to  the  property  con- 
verted— such  transfer  being  made  prior  to  the  commencement  of  the 
action — will  not  defeat  a  recovery  in  trover.  Hamilton  v.  Overton.  6 
Blackford,  206.  Any  bona  fide  possession  will  sustain  the  action  against 
a  mere  wrong-doer.  Coffin  v.  Anderson,  4  Blackford,  at  p.  410.  One  co- 
tenant  may  maintain  trover  against  another,  where  the  defendant  does 
acts  amounting  to  a  denial  of  the  plaintiffs  rights,  or  inconsistent  there- 
with. Waller  v.  Bowling,  lOS  N.  C.  2S9,  12  S.  E.  990.  Under  the  Code 
practice  either  claim  and  delivery  or  an  action  in  the  nature  of  trover 
may  be  prosecuted,  at  the  plaintiff's  election,  in  some  instances.  Als- 
brook  v.  Shields.  67  N.  C.  at  p.  337. 

In  connection  with  the  principal  case  attention  is  called  to  the  follow- 
ing language  in  Coffin  v.  Anderson,  4  Blackford,  at  p.  410:  "Where  the 
plaintiff  in  trover  has  a  title  founded  simply  on  a  bona  fide  possession, 
the  defendant  cannot  defend  himself  by  showing  that  a  third  person,  be- 
tween whom  and  himself  there  is  no  connection,  has  a  better  title  than 
the  plaintiff.  The  question  involved  in  this  instruction  is  not  without 
difficulty.  The  defendant  has  referred  us  to  two  cases  in  which  a  dif- 
ferent opinion  is  expressed  from  that  contained  in  this  instruction. 
These  cases  are,  Schermerhorn  v.  Van  Volkenburgh,  11  Johns.  529,  and 
Tanner  v.  Allison,  3  Dana,  422.  But  there  are  highly  respectable  au- 
thorities on  the  other  side  of  the  question.  The  instruction  is  expressly 
sustained  by  the  opinion  of  Sergeant  Williams  in  his  learned  note  to  the 
case  of  Wilbraham  v.  Snow,  2  Saund.  47,  and  the  several  authorities 
which  he  there  relies  on  in  support  of  that  opinion.  It  is  also  directly 
supported  by  the  oi)inion  of  ^Ir.  Chitty  in  the  first  volume  of  his 
Treatise  on  Pleading.  0  Ix)nd.  ed.  173.  This  instruction  is  also  in  accord- 
ance with  the  opinion  of  Chief  .Justice  Parsons,  delivered  in  the  case  of 
Waterman  v.  Robinson,  5  Mass.  303."  Compare  Barwick  v.  Barwick,  33 
\.  C.  80,  inserted  i)ost  in  this  section. 

"In  an  action  of  trover  or  detinue  the  plaintiff  must  allege  and  show 
title,  and  it  is  oi)en  to  the  defendant,  upon  a  denial  of  the  plaintiff's  title, 
to  show  that  the  property  belonged  to  a  third  person,  without  setting 
n\)  in  his  answer  the  outstanding  title."  Admitting  i)ossossion  in  the 
l)laintiff  at  the  time  of  the  taking  raises  a  presumption  of  title  in  the 
plaintiff  which  the  defendant  has  the  burden  of  rebutting.  'Vinson  v. 
Knight,  137  X.  C.  408,  headnotes,  49  S.  E.  891. 

See  10  L.  R.  A.  (X.  S. )  4.'j8.  and  note  (trover  for  chattels  sold  under 
conditional  sale  and  affixed  to  realty  owned  by  a  third  person);  20  lb. 
35,  and  note  (for  money  collected  by  an  agent  or  attorney).  See  "Tro- 
ver and  Conversion,"  Century  Dig.  §§  163-166;  Decennial  and  Am.  Dig. 
Key  .\o.  Series  §  23. 


TANlill'.l.K    l'KIJS(t.\Al.     I'UOl'KirrV.  \  (' It . 


SIMMONS  V.  S1KI<:S.  21  N.  C.  98.     1811. 

Pnnin,;  thf  Vi>tiorrsion.     When  Trover  and  When  Trespass  uii   the  Case 

Lies  for  Destruetion,  ete.,  of  Bailed  Chattels. 

ITroYiT  lor  :i  dinoo  wliirli  (Iclciiilanl  hnd  lionowcd.  No  domancl  l).v 
plaintirf  and  rol'upal  by  defondant  was  shown.  Verdict  and  judgment 
apainst  deftMidant,  nnd  ho  ai)poaUHl.     AfTirniod. 

While  tlio  canoe  was  in  the  possession  of  tlic  defendant  it  was  de- 
stroyed by  the  act  of  (lod.  or  by  some  tort-feasor,  or  l)y  the  defendant. 
The  defenda.it  insisted  that  there  having  been  no  demand  and  refusal 
of  the  rot  mil  of  the  canoe,  he  could  not  be  held  liable  in  trover  unless 
it  wer(  shown  that  he  destroyed  the  canoe.  The  court  charged  that,  if 
defendant  tlestroyed  the  canoe,  he  was  liable;  and  that  the  fact  jiroven. 
that  the  canoe  was  found  beached  and  broken  up,  was  some  evidence 
that  the  defendant  had  destroyed  it— the  weight  of  such  evidence  being 
entirely  with  the  jury.) 

l).\xiEi,.  .).     This  iiclioii  is  ti'ovoi-.     JT  tiicre  bo  a  doprivation  oT 
proptM'ty  to  the  ])laintilT.  it   will  constitute  a  conversion,  though 
there  be  no  acijuisition  of  property  lo  the  defendant.     Keyvvorth 
V.  Hill.  3  n.  &  A.  687.    If  tlie  property  had  been  lost  by  the  bailee, 
or  stoliMi  from  him.  or  had  been  destroyed  by  accident  or  from 
negligence,  this  action   could  not  have  been  sustained,  but  case 
would  have  been  the  proper  remedy.    2  Saund.  Rep.  47 ;  Packard 
V.  Getman.  4  Wend.  613;  Ross  v.  Joluistoii.  fi  Bur.  2285.     To  sus- 
tain this  action  of  trover,  the  defendant  must  liave  been  proven 
to  have  been  an  actor  and  to  have  made  an  injurious  conversion, 
or  done  an  actual  wrong,    ftalk.  655;  Peake's  Rep.  49.    The  .judge 
informed  the  .jury,  that,  if  they  were  satisfied  from  the  evidence 
that  the  defendant  had  actually  destroyed  tlie  eaiioe.  they  miglit 
find  for  the  ])hrnitiff.    The  defendant,  however,  insisted  that  there 
was  no  evidence  that  he  was  an  agent  in  the  destruction  of  the 
liroperty.  and  that,  without  some  evidence  upon  this  point,  the 
judge  should  charge  the  jury  to  find  for  the  defendant.    The  judge 
said  there  was  some  e\idence  of  a  conversion,  the  w^eight  of  which 
was  left  entirely  with  the  jury.    It  seems  to  us  that  there  was  some 
evidence  from  which  the  jury  might  infer  that  the  defendant  w^a.s 
an  agent  in  the  destruction  of  the  property.     The  defendant  had 
])laced  the  canoe  in  the  dock  of  the  witness,  which  was  a  place  of 
safety,  and  a  short  time  afterwards  it  was  missing,  and  in  two 
months  it  was  found  In-oken  up  on  the  beach.    It  is  not  pretended 
that  the  canoe  was  removed  from  the  dock  by  the  winds — no  pre- 
sumption arises  that  the  liailor  removed  it — the  bailee  had  a  right 
to  remove  it ;  and,  in  the  absence  of  all  other  proof,  the  jury  might 
presume  that  he,  who  had  a  right  to  remove,  did  remove  the  canoe, 
and.  the  canoe  being  afterwards  found  broken  up,  the  jury  might 
presume,  in  the  absence  of  other  evidence,  that  it  was  broken  up 
by  the  agency  of  him.  who  had  the  conti-ol  and  management  of  the 
proiierty.    The  judgment  must  be  affirmed. 

See  "Trover  and  Conversion,"  Century  Dig.  §  99;    Decennial  and  Am. 
Dig.  Key  No.  Series  §  12. 


:SCC.    2.]  TANGIBLE   PERSONAL    PROPERTY.  613 


GLOVER  V.  RIDDICK,  33  N.  C.  582.     1850. 
What  Amounts  to  a  Conversion. 

[Trover  for  the  conversion  of  two  slaves.  Verdict  and  judgment 
against  defendant.     Both  parties  appealed.     Reversed. 

In  1843,  plaintiff  purchased  two  runaway  slaves,  who  were  at  large 
at  the  time  of  such  purcliase.  These  slaves  appeared  in  defendant's 
neighborhood  in  1846-7,  and  passed  for  freemen.  They  exhibited  cer- 
tain papers  which  would  indicate  that  they  were  free.  Defendant  being 
informed  of  these  facts  by  reputable  persons,  gave  these  slaves  certifi- 
cates to  the  effect  that  they  were  free.  The  judge  charged  that  the  giv- 
ing of  these  certificates  amounted  to  a  conversion  of  the  slaves.  This 
charge  is  held  to  be  erroneous.  The  other  points  in  the  case  are  of 
minor  importance.] 

Nash.  J.  None  of  the  acts  of  the  defendant,  wliieh  are  stated  in 
the  ease,  taken  separately  or  together,  amount  in  law  to  a  conver- 
.sion.  A  conversion,  to  subject  a  defendant  in  an  action  of  trover, 
consists  either  in  an  appropriation  of  the  thing  to  the  party's  own 
use  and  beneficial  enjoyment,  or  in  its  destruction,  or  in  exercising 
dominion  over  it  in  exclusion  or  defiance  of  the  plaintiff's  right, 
or  in  withholding  the  possession  from  the  plaintiff  nnder  a  claim 
of  title  inconsistent  with  his  own.  Such  is  IMr.  Greenleaf 's  sum- 
man'-  of  the  acts  of  a  defendant  to  constitute  a  conversion  in  tlie 
sense  of  the  law  of  trover.  2  vol.  Ev.  §  642.  AVhich  one  of  these 
acts,  it  may  be  a.sked.  has  this  defendant  been  guilty  of?  The  de- 
fendant is  a  merchant;  and  in  1846  and  1847  the  negroes  in  ques- 
tion first  appeared  in  his  neighborhood,  claiming  and  acting  as 
freemen.  They  remained  in  that  neighborhood  until  the  8th  of 
November.  1849.  and  during  that  time  worked  for  different  per- 
sons openly.  They  purchased  goods  out  of  defendant's  store  in 
1846  and  1847.  and  settled  and  paid  the  account  of  the  first  year, 
and  exhibited  to  various  persons  free  papers,  as  they  are  called. 
On  the  8th  of  November.  1847.  they  requested  the  defendant  to 
give  them  a  certificate  that  they  were  free,  alleging  that  they  had 
left  their  fi-ee  papers  at  a  house  some  distance  ofi:'.  The  defeiulant 
called  on  his  clei-k  and  a  ]\Ir.  Everitt.  who  was  in  the  store,  and  for 
whom  they  had  worked,  to  state  what  they  knew  of  their  being 
free.  They  both  stated  that  the  negroes  had  pas.sed  as  free  ever 
since  they  had  been  in  the  neighborhood,  and  that  they  had  seen 
their  free  papers  with  the  county  seal  apjiended.  The  defendant 
then  gave  them  the  eei-tificate  set  forth  in  the  case,  in  which  he 
certifies  they  are  free.  This  is  the  onl>'  ad  ni)nn  which  the  |)laiii- 
tiff  relics  to  prove  a  eonversion.  Admit  it  was  a  wrongful  act,  yet 
it  is  not  every  tortious  act  afTcH-ling  the  ])ropei'ty  of  aiKitluM'.  that 
amounts  to  a  eonversion  ;  thus,  cutting  down  his  trees,  without  tak- 
ing them  away,  is  no  ertnvi-i'sion.  flyers  v.  Solebay.  2  Mod.  24.1. 
The  giving  of  the  eertitieate  was  eertainly  a  very  indiscreet  act.  to 
.say  the  least  of  it.  but  it  is  no  eviflence  of  an  act  of  owtuM-.ship  on 
the  part  of  the  defendant — it  expressly  disclaims  it.  Ilis  honor. 
however,  ruled  that  the  giving  the  paper  wi-iting  hy  thi'  <|cfiri(bin1 


i;i4  TANc;iui,K   rKusoN.M.   rK()i'i:iMV.  \('li.  7. 

was  llir  fxrrcist'  of  such  domiiiitMi  oxci'  lln'  slaves  .-is  ainoiliilrd   lo 
a  i'onve'i*sion.     In  lliis  tipinidii   we  lliiiik  llicrc  is  error. 

See  23  1..  K    A.   (X.  S.)  .'iT:'..  and  nolo,     Soo  'Trover  and  Conversion," 
Century  Dij;.  §  ;•:•;    lVe«>nn!al  and  Am.   Di^-  Key  No.  Series  §  12. 


HARWICK  V.  BARWICK,  :\:)  N.  C.  80.     1850. 
]-:ffcvt  uf  JmUjmvnt  in  Trover  on  the  Title  to  the  Suhject-matter.     Meas- 
ure of  Damages.     Gist  of  the  Action.     Title  That   Will  Sustain  Trover. 

[Trover  for  slaves.  Verdiet  and  judgment  against  defendant,  and  he 
appealed.     Reversed. 

Certain  slaves  were  owned  by  Sarali  Sutlon  for  life  with  remainder 
to  her  four  daughters,  one  of  whom  was  the  wife  of  the  defendant.  The 
defendant  and  his  wile  sold  their  interest  in  the  slaves  to  the  plaintiff 
who  took  four  of  them  into  his  i)ossession.  Afterwards  the  defendant 
sold  two  of  these  which  the  plaintiff  had  in  his  possession  to  his  co- 
defendant,  who  took  them  away  from  the  plaintiff  and  carried  them  out 
of  the  state.  The  plaintiff  brought  this  action  of  trover  for  the  two 
slaves  thus  taken  away.  The  defendants  insisted  that  the  plaintiff  did 
not  have,  and  could  not  have,  a  title  and  right  of  possession,  although 
he  did  have  the  actual  possession  of  the  slaves,  because  the  life  tenant 
teas  still  living.  The  judge  charged  that  if  plaintiff  was  in  possession 
of  the  slaves  when  the  defendants  took  them  away,  he  could  recover 
their  value  from  the  defendants,  because  they  were  wrong-doers  who  had 
no  title.l 

Pearson,  J.  .  .  .  The  defendants  excepted  to  the  charge  of 
his  ITonor.  and  we  think  the  exception  well  founded. 

The  bare  }>(^ssessio)i  is  sufjic'icnt  io  maintain  an  action  of  tres- 
pass against  a  wrong-doer,  for  the  gist  of  that  action  is  an  injur;! 
to  the  possession,  and  the  measure  of  damages  is  not  the  value  of 
the  property,  hut  the  injury  done  to  the  plaintiff  hy  having  his 
possession  disturbed.  In  trover,  the  injurij  done  hy  the  ivro)igful 
taking  is  waived,  and  the  plaintiff  supposes  he  l^as  lost  his  prop- 
erty; and  he  alleges  that  the  defendant  found  it  and  wrongfully 
converted  it  to  his  ou-n  use.  So  the  gist  of  the  action  is,  not  that 
the  defendant  having  found  the  property  took  it  into  his  posses- 
sion but  that,  after  doing  so.  he  wrongfully  converted  it  to  his 
own  use,  and  the  measure  of  damage  is  the  value  of  the  property. 

It  is  true,  that  when  nothing  appears  but  the  fact  that  the  de- 
fendant took  the  jiroperty  out  of  tlie  j")ossession  of  the  plaintiff  and 
converted  it  to  his  own  use,  trover  will  lie.  For  the  possession  of 
personal  property  is  prima  facie  evidence  of  title,  and,  in  the 
absence  of  any  proof  to  rebut  this  presumption,  the  person  in  pos- 
session is  taken  to  be  the  owner  and  can  recover  the  full  value. 
But,  if  it  appears  on  the  trial,  that  the  plaintiff,  although  in  pos- 
session, is  not  in  fact  the  owner,  and  that  the  property  belongs  t(^ 
a  third  person,  the  presumption  of  title,  inferred  from  the  posses- 
sion, is  rebutted;  and  it  would  be  manifestly  wnmg  to  allow  the 
plaintiff  to  recover  the  value  of  the  property;  for  the  real  owTier 
may  forthwith  bring  trover  against  the  defendant,  and  force  him 
to  pay  the  value  a  second  time,  and  the  fact  that  he  had  paid  it  in 


Sec.    2.]  TAXGIBI-E    PEUSdXAL    PROI'ERTV.  615 

a  former  suit  would  be  mo  defense.  When  trover  is  brought  and 
the  defendant  satisfies  the  judgrnient,  he  pays  the  value  of  the 
property,  and  the  fiile  is  vested  in  liitii  hif  a  judicial  transfer,  be- 
cause Jir  has  paid  the  price.  Consequently,  trover  can  never  be 
maintained,  unless  a  satisfaction  of  the  judgment  will  have  the 
etfect  of  vesting  a  good  title  in  the  defendant,  except  when  the 
property  is  restored,  and  the  conversion  was  temporary.  Accord- 
ingly, it  is  well  settled  as  the  law  of  this  .state,  that  to  maintain 
trover,  the  plaintiif  nuist  show  title  and  a  possession,  or  a  present 
right  of  pos.session.  Hostler's  Admrs.  v.  Scull.  3  N.  C.  139; 
4  X.  C.  585:  Laspevre  v.  McFarland,  4  N.  C.  620;  Andrews  v. 
Shaw,  14  N.  C.  70. 

There  are  cases  in  the  English  books,  and  in  the  reports  of  some 
of  our  sister  states,  to  the  contrary;  but  we  must  be  allowed  to 
say,  that  the  doctrine  of  our  courts  is  fully  sustained  by  the  reason 
of  the  thing,  and  is  most  consonant  witli  the  peculiar  principles  of 
tliis  action.  The  cases  differing  from  our  decision  are  all  ba^-'ed 
upon  a  misapprehension  of  the  principle  laid  down  in  the  leadnig 
case.  Delimere  v.  Armory.  In  that  case  the  jewel  was  lost,  and 
was  found  by  the  plaintiif.  a  chinuiey  sweeper.  He  had  a  right  to 
take  it  into  possession,  and  became  the  owner  by  the  title  of  occu- 
pancy, except  in  the  event  of  the  true  owner  becoming  known. 
The  former  owner  of  the  jewel  was  not  known,  and  it  was  properly 
decided  that  the  findci-  might  maintain  trover  against  the  defend- 
ant to  whom  he  handed  it  for  inspection,  and  who  refused  to  re- 
store it.  But  the  result  of  that  case  would  have  been  very  different, 
if  the  owner  had  been  known.  The  defendant  could  then  have 
said  to  the  plaintiff,  you  have  no  right  to  make  me  pay  you  tiie 
value,  when  I  must  forthwitii  deliver  up  the  property  to  the 
owner,  or  else  pay  him  the  value  a  second  time. 

The  distinction  between  that  case,  when  the  possessor  was  the 
finly  known  owner,  aiul  the  ordinary  ca.se  of  one  who  himself  has 
the  possession  wrongfully  and  sues  another  wrong-doer  for  inter- 
fering with  his  possession— the  true  owner  being  known  and  stand- 
ing by  ready  to  sue  for  the  property — is  as  clear  as  daylight.     In 
this  case,  for  instaiu-e.  as  the  facts  appeared  on  the  trial,  the  plain- 
liff  was  in  the  wrongful  jjossession,  which  was  disturbed  by  the 
defendant.  ;iii<l  for  that  injury  he  had  a  right  to  recover  in  tres- 
pass.    V,n\  S;irah  Sutlon  was  known  as  the  li'ue  owner,  and  had  a 
right  to  d<Miian(l  lier  pi-operty  of  the  defendants,  or  else  to  recover 
i1s  value,  and  lliey  could  not  protect  themselves  by  showing  that 
Ihey  had  i)ai<l  llie'  full  v;ilue  1o  the  plaintiff,  under  the  coercion  of 
a  jiidgmejit  and  execution.     This  I'csult  would  seem,  by  the  reduc- 
tio  ad  al)sunliMn.  to  .sliou  that  the  iiif<'i'ence  from  the  ease  of  Deli- 
mere V.  Armory,  that  trover  e;in  he  maintained  against  a  wrong- 
doer l)y  one  liJiving  a   uaUed   i»ossession.   when   the  li'ue  owner  is 
known!  is  contrary  to  good  sense.     That  which  is  not  irood  sense,  is 
not  L'ood  law.     The  judgment  nuist  be  reversed,  and  there  nuisl  be 

a  venire  de  novo. 

What   is   said    in    ilie   inincipal    <:iKf>   willi    regard    to   tlie   effert    of   tli© 


Glf)  TANGIKLE    PERSONAIi    PROPERTY,  [Ch.    7. 

jml.muent  in  (rovor.  ami  tho  norossity  of  plaint itfs  showing  titlo  and 
pi>^sossion  or  lislit  of  iwssession.  is  quoted  with  approval  in  Russell  v. 
Hill.  125  X.  C.  at  ii.  M^.  :M  S.  K.  iMu.  and  in  lloyce  v.  Williams.  St  X.  C. 
at  p.  277.  inserted  ante  in  tliis  seetion.  As  is  said  in  Hart)  v.  Fish.  8 
Hlaikf.  4S1.  at  p.  482.  "there  seems  to  be  nuich  uneertainty  and  contra- 
diction in  the  eases  reported  as  to  how  far  or  under  what  clrcunistanees, 
a  judi;nient  in  trt>spass  or  trover  vests  the  ri.u;lit  to  the  property  in  the 
poods  in  the  defendant."  In  that  case,  decided  in  1817.  and  in  the  note 
thereto,  will  he  found  an  elaborate  discussion  of  this  perplexing  and 
unsettled  question.  For  further  light  on  the  subject,  see  1  Gray's  Cases 
L.  P.  11:  28  Am.  &  Eng.  Enc.  L.  738;  Miller  v.  Hyde.  161  Mass.  472,  :{7 
X.  E.  760,  25  L.  R.  A.  42.  In  Cooley  on  Torts,  p.  537,  it  is  said  that  the 
modern  rule  in  England  is,  that  the  judgment  alone  does  not  vest  title 
in  the  defendant;  but  the  satisfaction  of  such  judgment  does  have  that 
effect:  and  such,  he  says,  is  the  rule  in  America  according  to  the  weight 
of  authority.  To  the  same  effect  see  Bish.  Xon-Cont.  L.  §  399.  See 
"Trover  and  Conversion,"  Century  Dig.  §§  119-147,  314;  Decennial  and 
Am.  Dig.  Key  No.  Series  §§  15-17,  70;  "Remainders,"  Cent.  Dig.  §  15. 


GREEXFIEr.<D   BANK  v.   LEAVITT,   17   Pickering,  1.     1835. 
Measin-e  of  Damages  in  Trover.     Return  of  the  Property. 

[Trover  for  packages  of  hank  bills  which  were  converted  by  the  de- 
fendant and  afterwards  returned  to  the  plaintiff.  Verdict  against  the 
defendant,  subject  to  the  opinion  of  the  court.  Judgment  according  to 
the  verdict.  Upon  the  question  as  to  what  judgment  should  be  rendered 
on  the  verdict,  the  opinion  is  written. 

It  would  seem  from  the  reported  case,  that  the  packages  of  money  in 
question  had  been  placed  in  the  charge  of  the  defendant  as  a  bailee  of 
some  kind.  It  does  appear  that  the  packages  were  lost  and  afterwards 
returned  to  the  plaintiff  by  some  person,  upon  its  offering  and  paying 
a  reward  therefor.  Some  of  the  money  was  missing  from  the  packages. 
The  judge  charged  that  the  plaintiff's  damages  would  be  the  value  of 
the  bank  bills  when  converted — to  be  diminished  by  the  value  of  the 
bills  restored — and  the  amount  paid  out  in  rewards,  if  the  jury  should 
find  that  such  amounts  were  reasonable,  with  interest.  The  verdict  was 
in  accordance  with  the  instructions,  subject  to  the  opinion  of  the  court 
as  to  the  correctness  of  the  charge.] 

PuTXAM,  J.  The  general  rule  in  trover,  that  the  measure  of 
damafres  is  the  value  of  the  articles  at  the  time  of  the  conversion, 
with  interest  until  the  time  of  the  verdict,  is  estahlished  in  this 
commonwealth.  Kennedy  v.  Whitwell.  4  Pick.  460.  We  are  aware 
that  it  has  heen  ruled  differently  hy  Ahbott,  C.  J.,  in  Greening  v. 
Wilkinson.  1  Car.  &  P.  625;  where  he  held,  tliat  the  jury  might  find 
the  value  at  any  suhseriuent  time.  But  we  adhei-e  to  the  value  at 
the  time,  as  a  rule  which  works  well :  and  its  certainty  is  quite  an 
equivalent  for  its  occasional  want  of  perfect  exactness. 

It  is  also  well  settled,  that  if  the  property  for  which  the  action 
is  brought  should  be  returned  to  and  received  by  the  plaintiff,  it 
shall  go  in  mitigation  of  damages.  But  if  it  became  subjected  to  a 
charge  after  the  conversion  and  before  it  was  returned  ;  if,  for 
example,  the  conversion  were  of  a  watch,  which  the  defendant 
threw  into  a  well,  and  the  plaintiff  hired  a  man  to  descend  into  the 


g(^C.    2.]  TANGIBLE  PERSONAL  PROPERTY.  GIT 

well  and  get  it.  the  expense  of  reelainiino-  it  should  be  deducted 
from  the  value,  when  returned.  It  is  the  charge  that  re^iuhites  the 
damages,  as  Thom.son.  J.,  said  in  :\lurray  v.  iJurling.  Id  Johns. 
176;  as  where  one  takes  another's  horse  and  leaves  him  at  an  inn, 
and  the  owner  reclaims  him.  subject  to  the  charge  for  his  keeping. 
The  damages  are  for  the  injuiy  suffered,  notwithstanding  the 
owner  has  regained  his  property.  .  .  .  Judgment  entered  for 
the  plaintiff  according  to  the  verdict. 

For  measure  of  damages  see  18  L.  R.  A.  (X.  S.)  2.50,  and  briefs  and 
note;  see  also  18  lb.  244,  and  note.  See  ■Trover  and  Conversion,"  Cen- 
tury Dig.  §§  263,  277;    Decennial  and  Am.  Dig.  Key  Xo.  Series  §§  46.  58. 


WOMBLE  V.  LEACH,  83  X.  C.  84.  86.     1880. 
Waiving  the  Tort  in  Trover.     Jurisdiction  in  Trover. 

f  Action  in  the  superior  court  for  damages  resulting  from  the  alleged 
conversion  of  plaintiff's  cotton  to  defendant's  use.  Verdict  and  judg- 
ment against  defendant,  and  he  appealed.     Affirmed. 

Only  a  small  part  of  the  opinion  is  here  inserted.  In  Xorth  Carolina 
a  justice  of  the  peace  has  exclusive  jurisdiction  of  civil  actions  arising 
out  of  contract  where  the  sum  demanded  does  not  exceed  two  hundred 
dollars,  and  jurisdiction  concurrent  with  the  superior  court  in  actions 
for  damages  not  exceeding  fifty  dollars.] 

S^riTH.  C.  J.  .  .  .  The  action  is  for  a  tortious  taking  and 
withholding  of  the  plaintiffs  property,  and  the  damages  ehiimed 
therefor  are  for  more  than  fifty  dollars,  of  which  the  superior 
court  has  exclusive  juri.sdiction.  Acts  1876-77.  ch.  251.  The  de- 
fendant's counsel  argued  that,  as  the  value  of  the  property  was 
sought,  the  obligation  of  the  defendant  to  account  ther(»for  arose 
out  of  an  implied  contract,  and  under  the  authority  of  "NVinslow  v. 
Weith.  66  N.  C.  432,  was  cogniza])le  only  before  a  justice  of  the 
peace.  This  is  a  misconception  of  the  principle  of  law  recognized 
and  acted  on  in  that  case.  The  rule  is  this:  ^Vhen  one  wrongfully 
takes  the  personal  property  of  another  and  sells  it.  the  owner  ma>- 
waive  the  tort,  affirm  the  contract  of  sale,  and  sue  for  the  proceeds 
as  money  received  to  his  use.  nnd  tliis  would  be  nn  action  ui^on  an 
im|)lied  contract. 

Where  property  is  tortiously  converted  by  a  sale  made  by  the  wrong- 
doer, the  owner  may  waive  the  tcitious  conversion  and  sue,  upon  an 
implied  contract,  for  money  had  and  received  by  the  defendant.  Brit- 
tain  V.  Payne.  118  X.  C.  980,  24  S.  E.  711.  inserted  at  ch.  4.  .sec.  1.  "It 
has  been  said  that  where  there  has  been  a  conversion  by  a  sale  of  the 
[)roperly.  the  plaintiff  may  maintain  trover,  or  he  may  dispense  nith 
the  vjrnno  and  suppose  the  sah'  made  hy  his  eonsent,  and  hring  an  ae- 
Hon  for  the  money  for  rvhieh  the  property  teas  sold,  as  money  reeeived 
to  his  use.  Cooley  on  Torts,  pp.  02.  93;  Murray  v.  Burling.  10  .Tohns. 
172.  Both  of  these  remedies  could  not  be  sought  in  the  same  action. 
Polner  v.  .Tarmain,  2  M.  &  W.  282."  Bixel  v.  Bixd,  107  Ind.  at  p.  536. 
8  X.  E.  614. 

If.  under  the  Code  practice,  the  complaint  allege  merely  a  conversion 


I>1>  rANCIKI.K     I'KKSONAI,     I'K'OI 'I  :iM'\  .  \  (' ll .    7. 

of  piopcrtf/  by  an  asent.  and  fails  to  allege  any  niisapiiropiiatlon  or  con- 
version ol  the  imnii'ds.  there  ran  be  no  recovery  except  toi'  tli(>  conver- 
sion of  the  pioiHrti/.  and  evidence  of  a  misapitropriation  or  (onversion 
of  the  pnHfnIs  will  not  be  adniitled.  llixel  v.  Hixcl.  107  Ind.  :ui\,  8  N. 
K.  t)14.  After  readitit;  ihis  case,  the  ([uestion  arises  as  to  whether  we 
aiay  not  modify  some  of  the  boastings  of  those  who  claim  that  the 
ciubtleties  and  refinements  of  the  ancient  race  of  si)ecial  pleaders  has 
oeen  abolished  by  the  Code  practiie.  See  "Action,"  Century  Dig.  S§  li'S- 
2(Yi;   Decennijil  aiul  Am.  IMi;.  Key  No.  Series  §  28. 


Sec.  3.     TitESPASs  Vi  et  Armis  and  Trespass  on  the  Case  for 

Ix.ll   RIKS   TO    l*KRSON.\l,    1 'koI'KKTV. 

DOnSOX  V.  MOCK,  20  N.  C.  282.     1838. 
Trespass  and  Case  Distinguished. 

[Trespass  vi  et  armis  for  killing  the  i)laintiff's  dog.  Verdict  and 
judgment  against  the  defendant,  and  he  appealed.     Reversed. 

There  was  circumstantial  evidence  to  the  effect  that  the  defendant  had 
poisoned  the  dog  either  by  directly  administering  the  i)oison;  or  by  plac- 
ing it  where  the  dog  would  be  likely  to  eat  it;  or  by  placing  it  wheie 
the  dog  happened  to  get  it.  The  judge  charged  that  if  the  defendant 
had  killed  the  dog  by  throwing  poison  to  him.  or  by  putting  it  doxcn 
where  he  knew  the  dog  would  pass  along  and  get  it,  trespass  vi  et  armis 
would  lie,  and  the  action  was  properly  brought;  but  if  the  defendant 
had  put  the  poison  in  the  crack  of  a  fence  and  the  dog  had  casually 
passed  by  and  got  it.  the  defendant  was  entitled  to  a  verdict,  as.  in  that 
event,  the  action  should  have  been  Trespass  on  the  Case  and  not  Tres- 
pass vi  et  armis.] 

Gaston.  J.  .  .  .  In  that  part  of  the  charge  which  relates  to 
the  form  of  the  action,  we  do  not  entirely  concur  with  his  Honor. 
"We  hold  witli  him  tliat  if  the  poison  had  been  directly  ;idininis- 
tered  (and  the  tlirowinia:  it  down  to  the  dog  mixed  np  with  food 
is  a  direct  administration  of  the  poison),  either  by  the  defendant 
or  by  any  other  person  inider  his  direction,  the  action  of  trespass 
was  the  projier  remedy.  Hut  we  do  not  assent  to  the  position  that 
"if  it  were  put  by  the  defendant  in  a  place  where  he  knew  the  dog 
would  pas.s  and  get  at  it.  and  the  dog  afterwards  pa.ssed  and  swal- 
lowed the  poison,  the  ad  ion  of  trespass  might  also  be  maintained." 
The  distinction  between  injuries  v.hich  are  the  proper  subject  of 
an  action  of  trespass  and  those  which  are  to  be  redressed  by  an 
action  on  the  case — between  injuries  immediate,  and  injuries  con- 
sequential— is  sometimes  very  subtle  and  attenuated.  But  the  law 
makes  the  distinction,  and  the  ministers  of  the  law  must  follow  it 
out.  Acts  which  are  of  themselves  invasi(ms  upon  the  person  or 
property  (in  possession)  of  another,  are  of  the  first  class,  or  imme- 
diate injuries.  Acts  whidi.  by  reason  only  of  subsequent  occur- 
rences, occasion  an  injurx'  to  the  person  or  ])roperty  of  another. 
which  injury  was  either  foreseen  or  ought  to  have  been  guarded 
against,  are  the  subject  of  an  action  by  the  party  grieved,  because 
of  this  consequent  injury,  and  come  under  the  second  cla.ss.    One 


Sec.    3.]  TANGIBLE   PERSONAL    PROPERTY.  610 

of  the  most  ai)t  a.s  well  as  ordinary  illustrations  of  the  legal  dis- 
tinetion  is  thus  stated :    If  A  throw  a  log  in  the  highway  and  it  hits 
11  K  may  maintain  ircspass:  ])u1  if  B  come  along  afterwards  and 
fall  over  it,  and  thereby  reeeivcs  an  injnry.  the  remedy  is  case. 
Nor  in  the  instance  last  put  will  it  make  any  difference  whether  at 
the  time  the  log  was  throwu.  it  was  or  was  not  known  that  B  was 
shortly  thereafter  to  pass  along  and  in  all  probability  would  stum- 
ble over  it.     There  are  indeed  some  instances  where,  although  the 
injury  be  innnediate.  it  may  be  alleged  as  a  consequence  of  negli- 
gence or  inattention,  and  the  action  on  the  case  be  maintained. 
But  we  know  of  none  where  the  injury  is  entirely  an  indirect  con- 
sequence of  a  previous  act.  in  which  it  may  be  complained  of  as  a 
trespas.s  with  force  and  arms.     For  this  error  we  feel  ourselves 
obliged  to  reverse  the  judgment  rendered  below  and  order  a  venire 
de  novo.    Judgment  reversed. 

See  "Action,"  Century  Dig.  §§  236-255;    Decennial  and  Am.  Dig.  Key 
No.  Series  §  30. 


WHITE  V.  GRIFFIN,  49  N.  C.  139.     1856. 
Trespass  and  Case  Further  Distinguished. 

[Action  of  trespass  on  the  case  for  seizing  and  detaining  a  vessel.  In 
deference  to  an  adverse  intimation  from  the  judge,  the  plaintiff  submit- 
ted to  a  nonsuit  and  appealed.     Reversed. 

The  vessel  belonged  to  Burgess,  but  the  plaintiff  had  it  in  his  posses- 
sion, at  the  time  of  the  defendant's  acts,  under  a  charter  to  make  a  voy- 
age to  the  West  Indies.  The  defendant  kept  the  vessel  a  week  and  then 
returned  it  to  the  plaintiff  who  proceeded  on  his  voyage.  The  vessel 
was  lost  and  ])laintiff  sues  for  its  value,  on  the  ground  that  there  was 
evidence  to  the  effect  that  the  weather  was  good  during  the  week  the 
vessel  was  detained  from  him,  and  but  for  defendant's  acts  he  would  not 
have  encountered  the  storm  which  destroyed  the  vessel.] 

Xash.  (\  J.    AVc  think  there  is  error  in  the  judge's  ojjinion.    lie 
doubtless  came  to  his  conclusion,  from  tlie  belief  that  the  plaintiff 
could  not  recover  the  value  of  his  vessel  lioiii  the  defendant,  which 
he  certainly  could  not  (though  the  detention  by  him  might  have 
been  the  remote  cause  of  the  loss  of  the  vessel),  and  by  not  advert- 
ing to  the  j)rinciple.  that,  for  every  tortious  act  conunitted  as  to 
the  y)roperty  of  anotlier  llie  prrp-f  i;i1oi-  is  answerable  Id  tlie  ownei' 
in  damages,  either  in  cjise  or  in  trespass.     If  the  trespass  is  com- 
mitted on  pr(i|)er1y  while  in  i)os.session  of  the  owner,  "trespass"  is 
the  i)i'opei-  i-eiuedy  ;  if  while  ill  the  jxissession  of  another  as  bailee, 
the  owner   having   Iml    ;i    reversion   of  Ihc    propei'ly.   the   iiclion    is 
"ca-se."     This  is  an  action  of  the  hillei-  character — the  vessel  being 
in  the  actual   possession  of  I'urgess  at    the  lime  the  act   was  com- 
mitted.    The  vessel  was  the  |>i-opei't\-  of  the  phiintilT.  and  b\'  him 
chaj'lci-cd  Id  liurgess  for  ;i  trip  Id  the  West  Indies.     She  was  htach'd 
with  staves,  the  properly  of  a  .Mr.  Willi;niis,  and  whih'  lying  at  the 
wharf  at    FJizahelh   City  and   rejidy   to  start   on   her  voyag(\  one 
]'>aid<s.  a  constable,  came  on  lioard  and  h'vied  several  executions  on 


(>L'0  TANCIULK    I'KKSONAI.    I'Ht  )IM;1{1  •^ .  \('ll.    7. 

tho  staves,  lii  I'lic  of  tlu'st»  cxt'i'Ulions  tlic  |>r('sont  (It^fciulaiit  was 
\\w  i>laintilV.  and  Uaiiks  at'ti'd  hy  his  direct  ion  in  inalcin<r  the  levy. 
The  I'xeeiitions  wi'if  all  auain.sl  liiirii'ess:  llic  sta\t's  hejoii^cd  to 
Williams.  The  l<'\y  was  illeijal;  in  (■ons(Miiicnc('  of  it.  the  vessel 
was  detained  in  port  six  days;  and  thouiih  tiie  plaint  ifV  is  not  en- 
titled to  asU  foi-  dainaures  for  tlie  loss  of  the  vessi'l,  yet  he  is  entitled, 
at  least,  to  nominal  dama^'es  from  the  defendant,  foi-  his  illegal 
detention.  In  havini?  his  exeeution  impro[)(M-ly  and  illegally  levied. 
Venire  th'  no\(). 

See  •'Bailment,"  Ceniury  Dig.  §  96;   Decennial  and  Am.  Dig.  Key  No. 
Series  §  21. 


SCHUER  V.  VEEDER,  7  Blackford,  342.     1845. 
Trespass  and  Case  Further  Distinguished. 

Devv'ey,  J.  Case  for  so  negligently  managing  the  defendant's 
boat,  that  it  violently  struck  and  sunk  the  plaintiff's  boat.  Gen- 
eral demurrei'  to  the  declaration  sustained;  and  final  judgment  for 
the  defendant.  The  (luestion  here  raised  is,  whether  a  direct  and 
forcible  injury  to  property,  not  intentional,  but  the  result  of  care- 
lessness, may  be  the  subject  of  an  action  on  the  ease,  or  whether 
trespass  is  the  only  remedy.  There  is  no  doubt  that,  at  connnon 
law,  trespass  will  lie  for  a  direct  and  violent  injury,  whether  in- 
flicted through  negligence  or  intentionally.  Leame  v.  Bray,  3 
East,  593.  And,  since  the  decision  of  the  case  of  Williams  v.  Hol- 
land, ease  has  also  been  a  legal  remedy  for  such  an  injury  if  occa- 
sioned bj'  carelessness,  but  not  if  wilfullv  done.  10  Ring.  112.  See 
also  Ogle  V.  Barnes,  8  T.  R.  188;  Blin  v.  Campbell.  14  Johns.  432. 
The  demurrer  should  have  been  overruled.    Judgment  reversed. 

See  "Action,"  Century  Dig.  §§  236-255;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  30;  "Action  on  the  Case,"  Century  Dig.  §  32;  Decennial  and 
Am.  Dig.  Key  No.  Series  §  1;  "Trespass,"  Century  Dig.  §  3;  Decennial 
and  Am.  Dig.  Key  No.  Series  §  2. 


NEAL  V.  WILCOX,  49  N.  C.  146.     1856. 

Case  on  the  Custom,  and  Special  Action  on  the  Case  Against  an  Inn- 
keeper. 

[Action  on  the  case  against  an  inn-keeper  for  the  loss  of  plaintiffs 
mule,  while  plaintiff  was  stopping  at  the  inn.  Verdict  and  judgment 
against  plaintiff.     Affirmed. 

The  plaintiff  declared  on  "the  custom"  against  the  defendant  as  an 
inn-keeper.  The  plaintiff  was  a  guest,  and  his  business  was  that  of  an 
itinerant  dealer  in  horses  and  mules.  He  put  a  drove  of  mules  in  a  lot 
adjoining  the  inn  premises,  and  furnished  the  food  for,  and  attended  to, 
his  stock  himself  though  he  was  assisted  in  this  work  by  the  inn-keeper's 
servants.  While  one  of  these  servants  was  taking  one  of  the  plaintiff's 
mules  to  water,  the  mule  got  away  and  was  lost.  The  judge  charged 
that  if  plaintiff  was  a  boarder  and  not  a  guest  and  was  himself  taking 


Sec.    3.]  TANGIBLE   PERSONAL    PROPERTY.  621 

care  of  his  mules,  he  could  not  recover;    aliter,  if  plaintiff  was  a  guest 
and  the  mule  was  in  the  care  of  the  defendant.] 

Pearson.  J.  This  i.s  an  action  on  tho  case,  on  the  "custom  of 
the  hmd."  against  the  defendant,  as  an  inn-keeper,  for  the  loss  of  a 
nuile.  In  this  action,  on  the  gronnd  of  public  policy,  common 
carriers  and  inn-keepers  are  treated  as  insurers,  and  are  liable,  ex- 
cept ''for  the  acts  of  God.  and  the  enemies  of  the  state,"  without 
proof  of  negligence.  In  which  respect  it  diifers  from  an  ordinary- 
action  on  the  case  against  a  bailee.  In  our  case,  there  being  no 
proof  of  negligence,  the  plaintiff  properly-  declared  "on  the  cus- 
tom."' If  he  could  have  made  this  ])roof.  it  would  have  been  most 
j)roper  to  declare  on  the  si)ecial  case;  for  a  recovery  in  that  action, 
may  be  made  against  an  inn-keeper  who  is  guilty  of  negligence,  in 
many  instances,  where  he  would  not  be  liable  in  "ease"  on  the 
custom:  for  instance — one  takes  boarding  at  an  inn,  on  a  special 
contract  and  his  goods  are  lost,  the  inn-keeper  is  not  liable  ' '  on  the 
custom ;  •  •  but  he  is  liable  in  a  special  action  on  the  case,  if  negli- 
gence be  proved.  So,  if  one  leave  a  trunk  or  carriage  to  be  kept  by 
an  inn-keeper,  or  if  one  deliver  a  flock  of  sheep,  or  a  drove  of 
nmles,  or  horses,  to  an  inn-keeper  to  be  pastured,  he  is  only  liable 
as  bailee,  on  proof  of  negligence. 

The  ground  of  public  policy,  on  which  an  action  on  the  case  "on 
the  custom"  is  given  against  inn-keepers,  is  that  persons  who  are 
travelling  through  the  country  are  under  a  necessity  of  putting  up 
at  inns  for  entertainment — transeuntes  causa  hospitandi  (from 
which  last  word  they  are  called  "guests,")  without  knowing  any- 
thing about  the  character  of  the  house;  for  which  reason  the  law 
gives  an  assurance  of  the  safety  of  their  property — that  is,  the 
goods  and  animals  (bona  et  catalla)  which  they  have  with  them 
for  the  purposes  of  their  journey.  The  reason  restricts  this  action 
to  guLsls  as  distinguished  from  hoarders,  who  sojourn  at  an  inn  on 
a  special  contract.  3  Bac.  Abr.  66(),  "Inns."  It  is  sometimes  dif- 
lieult  to  draw  the  line  between  guests  and  boarders.  They  fre- 
((uently  run  into  each  other,  like  light  and  shade.  So,  the  line  be- 
tween a  Cdiniiion  cai'rier  and  a  bailee  to  carry,  is  sometimes  scarcely 
jtcrceptible :  but  the  law  makes  the  distinction,  and  it  is  the  prov- 
ince of  the  judges  to  draw  the  line.  A  transient  customer  at  an  inn, 
although  he  be  not  a  traveler  or  a  stranger,  is  considered  as  a 
liiiest:  a  lodgci*.  who  sojourns  at  an  inn,  and  takes  a  room  for  a 
specified  tinic.  and  ])ays  for  his  htdging,  on  a  special  agreement — 
as,  bv  the  montli  or  week,  is  a  boarder.  Hennett  v.  Wilson,  5  T.  R. 
273. ' 

So.  the  I'ca.son  restricts  Ihc  action  lo  one  who  comes  for  enter- 
tainment— causa  hospilandi.  If  (tnc  peddling  merchandise  puts 
up  at  an  inn.  and.  besides  his  sleeping  apartment,  takes  a  separate 
room  in  which  In  show  and  sell  articles — clocks  and  watches,  for 
iiistaiu-e  lliese  articles  are  not  within  the  protection  of  the  rule. 
P.urgess  v.  Clements,  4  M.  k  S.  30(i.  So.  if  one  having  a  drove  of 
liorses  oi"  liogs  to  sell,  pnts  nf)  at  an  inn.  and.  Itesides  etitertain- 
Mieiit  for-  himseir.  pr'ociircs  Croin  the  landlord  a  lot  in  which  to 
l<eep    his   animals.    Tor  I  lie    pnrpnse   of   sliowinir   and    selliiiij   them. 


{\-2'2  TANiiiiM.K   I'lMv'soN  \i.   I'Kt  )im:k  ^^ .  \<'li.  7. 

tll(\v  ari'  iidl  .s|>i'ci;illy  pi'dtcctod ;  ;iii<l  it  iiiiikcs  no  dilTcivMico 
wlu'tluM*.  l)y  tlu'  airroi'iiKMil.  the  liiiidloi-tl  li;is  Ihcm  I'cd,  oi-  whclluM' 
llu'  di'ovor  buys  pnnt'iidrr  ol"  tlic  l.-iiitllofd  (»!•  ;i  third  lu-i'soii.  and 
tVt'ds  lluMii  liimscir;  ftir,  as  l.oi'd  I'lllciihoi'oui;!!  says,  in  the  above 
cast*,  "an  inn-kccpcr  is  not  l)()und  l)y  law  to  find  sliow-i'ooiiis  for  his 
mu'sts,  l)ut  only  convenient  lod;j.in>^-i'oonis  and  lodj^in^-.  *"  Tlie  rule 
is  restrirtod  to  siieli  «roods  and  animals  as  the  {juost  eai-ries  with 
luMi  for  tlu>  jnii'poses  of  his  joui  ne>  ;  "a  lloek  of  sheep  is  not  eom- 
pit'liended  auion-i-  the  bona  et  catalla  IranstMudis.  which  an  inn- 
ki'cper  is  bound  to  i-eceive  and  protect. ""  ilanby  v.  Smith,  25 
Wend.  ()4l2.  If  such  articles  are  I'eceived,  the  inn-keeper  is  onl\' 
liable  for  ne»rleet  as  a  bailee.  The  policy  Hxin«j:  this  special  liabil- 
ity of  inndvcepers  is  1o  enc(Miras2:e  trnvelins;  and  intercourse  amontj: 
the  citizens,  and  does  nol  I'cach  so  far  as  to  tids'e  in  consiih'i'at  ions 
of  trade  antl  eoiiinierce.  So.  the  reason  resti'icts  the  action  to  the 
thintrs  that  are  in  the  house  and  stables — infra  hospitium,  and 
does  not  extend  to  a  horse  that  is  pnt  to  grjiss  aceoi'dinsz  to  an  nn- 
derstandinj;  between  the  iinidceeper  and  the  ijuest.  ("alye's  case, 
8  Rep.  32.  This  ai)i)lies  to  horses  and  mules  put  into  a  lot  by  agree- 
ment of  the  pait  ies. 

From  these  i)rinciplcs.  it  is  clear  Ihat  the  plaintiffs  have  no  ri^ht 
to  eomplain  of  his  honor's  charge.  The  defendant  had  a  right  to 
expect  him  to  be  more  specific  in  respect  to  the  distinction  be- 
tween a  guest  and  a  boarder — what  things  aic  within  the  ])rotec- 
tion  of  the  rule,  and  what  are  left  to  the  liability  of  an  ordinary 
bailee,  and  what  place  is  within  the  inn — infra  hospitium.  I'pon 
all  these  points,  according  to  the  facts  found  by  the  jui-y,  the  de- 
fendant was  entitl(Ml  to  a  verdict.  Any  one  of  them  was  sufficient 
for  his  purpose.     There  is  no  error.    Judgment  affii'med. 

The  principal  case  is  oiJiiroved  in  Holstein  v.  Phillips,  146  N.  C.  366, 
59  S.  E.  1037,  and  the  liability  of  inn-keepers  to  their  guests,  lodgers  and 
boarders — both  at  common  law  and  under  modern  statutes,  by  which,  in 
many  states,  such  liability  has  been  gi-eatly  modified — is  clearly  ex- 
plained by  Hoke,  .T.,  who  reviews  authorities  from  several  states.  See 
20  L.  R.  A.  (N.  S.)  1027,  and  note.  See  "Innkeepers,"  Century  Dig. 
§  19;   Decennial  and  Am.  Dig.  Key  No.  Series  §  11. 


GIBBS  V.  CHASE,  10  Mass.  125.     1813. 
Trespass  de  Bonis  Asportatis.   Title  that  Will  Sustain  the  Action.    Force. 

[Trespass  de  bonis  asportatis  for  taking  and  carrying  away  lumber. 
Verdict  and  judgment  against  the  plaintiff,  who  filed  exceptions.  Upon 
these  exceptions  the  oi)inion  is  written.     Reversed. 

The  plaintiff  was  a  deputy  sheriff  in  possession  of  certain  lumber  by 
virtue  of  the  levy  of  an  execution.  The  defendant  was  a  coroner  and, 
as  such,  took  the  lumber  from  plaintiff's  possession  by  virtue  of  a  writ 
of  attachment  against  the  former  owner.  The  lumber  was  frozen  in  a 
dock  at  the  time  ))]aintiff  levied  on  it,  so  that  he  could  not  remove  it. 
He  left  it  there  in  the  custody  of  one  Drinkwater,  and  it  was  there 
when  the  defendant  seized  it.  The  judge  charged  that  under  this  state 
of  facts  the  charge  that  defendant  "forcibly  took  the  lumber  from  plain- 
tiff's hand?,"  was  not  supported.] 


^Vf.    .5.]  TANGIBLE   PERSONAL    PROPERTY.  62.'^ 

Sewall.  J.  The  exceptions  hrino:  before  us  these  fiuestions: 
1.  Whether  there  is  any  evidence  of  a  trespass  in  this  case — the 
jury  having  been  instructed  that  the  phiintiff  must  fail  in  his  ac- 
tion, for  want  of  evidence  to  prove  a  forcible  taking  by  Chase,  the 
defendant,  of  the  timber  in  question. 

We  think  this  direction  to  the  juiy  incorrect.  The  ])rief  state- 
ment admits  the  taking,  and  no  actual  force  is  necessary  to  be 
proved.  An  owner  may  admit  himself  dispossessed  and  deprived 
of  a  personal  chattel,  for  the  sake  of  his  remedy.  He  who  inter- 
feres with  my  goods,  and.  without  any  delivery  by  me.  and  with- 
out my  consent,  undertakes  to  disi)ose  of  them,  as  having  the 
property,  general  or  special,  does  it  at  his  peril  to  answer  me  the 
value  in  trespass  or  trover;  and  even  a  subsequent  tender  of  the 
goods  will  not  excuse  him.  if  T  choose  to  demand  the  value;  and  the 
return,  if  accepted,  is  only  evidence  in  mitigation  of  damages. 
Thus,  the  working  of  an  estray.  or  a  beast  distrained,  is  a  trespass 
ab  initio;  and  the  owner  may  declare  for  an  unlawful  taking,  after 
he  has  regained  his  propert.w 

2.  Anothei'  (juestion  then  arises. — wlu'ther  the  evidence  estab- 
lishes a  property  in  the  plaintiff  sufficient  to  maintain  this  action. 
His  title  as  deputy  sheriff,  by  force  of  the  .seizure  in  execution,  is 
special,  depending  on  his  authority  by  the  execution;  that  is,  it  is 
not  otherwise  insisted  on.  or  maintained,  against  the  owner,  or  an- 
other creditor;  but  his  possession  is  sut^icient  authority  against  a 
stranger.  The  jilaintiff  seized  the  timber  as  the  property  of  Rob- 
bins,  and  he  had  the  exclusive  i)osses.sion  of  it ;  as  nnich  so  as  the 
nature  of  the  article  and  its  actual  situation  at  the  time  ])ermitted, 
it  being  bulky,  and  frozen  in  the  ice.  He  i)laced  it  in  the  custody 
of  Drinkwater.  Notice  was  given  of  this  to  Chase,  when  he  re- 
claimed it.  and  proceeded  to  sell  it.  This  was  a  po.ssession  which 
the  owner,  or  any  person  having  a  general  ])roperty.  or  even  one 
who  had  acquired  a  special  property  l)\  a  seizure  oi-  possession 
more  rightful  than  that  of  the  plaintiif,  had  power  lo  icmove, 
without  a  breach  of  the  ])eace.  Such  a  possessor  might  surely  dis- 
regard this  po.ssession  of  (lib))s;  but  a  mere  stranger  could  not. 
.     New  trial. 

See  note  to  the  principal  case  in  lo  .Mass.,  for  valuable  information 
upon  the  subject  of  trespass  de  bonis  asportatis.  See  "Tresi)ass,"  Cen- 
tury Dig.  §§  4.  30.  31;  Decennial  and  Am.  Dig.  Key  No.  Series  §§  3,  19; 
"Attachment,"  Century  Dig.  §  60.">;  Decennial  and  Am.  Dig.  Key  No. 
Series  §  186. 


HUME  V.  TUFTS,  6  Blackf.  136.     1842. 

Trespass  ilr  lionis  Asportatis.     Title  and   Possession    that    Will    Sustain 
the  Action.     Action    hi/  Reversioner. 

[Trespass  de  bonis  a8|)ortatis  by  Tufts  against  Hume  for  goods  taken 
by  Hume  from  .Jackson,  the  lessee  of  Tufts,  under  an  execution  against 
.Tackson.  Verdict  and  judgment  against  Hume,  who  carrieil  the  case 
to  the  supreme  court  by  writ   of  error.     Reversed. 

The  goods  in  controversy  belonged  to  Tntis,  hut    he  li.id   leased  tbem 


(;-J4  TANGini  i;    I'KKSdN  \1,    I'K'i  H'lIlM' V.  \Ch.    7. 

to  JiuUson  lor  oiu>  year  or  until  Tufts  should  doniand  them.  Thoy 
wore  in  .latkson's  possession  nnder  this  lease  when  seized  by  Ihnne. 
Tnlts  had  not  demanded  the  goods  of  .laeUson  prior  to  such  seizure,  nor 
had  the  time  of  the  lease  then  expired.  The  judge  charged  that  under 
these  eireumstanees  this  action  would  lie.)  ^ 

l)i:\\i:v.  J.  .  .  .  'I'lic  |iro|>riet  V  dl'  lliis  iiist  riu'lion  is  Ww 
qiU'stion  for  our  coMsidcrjilioii.  'I'o  iii;iiiil;iiii  trespass,  it  is  essen- 
tial that  tlie  plaiutilV  slioulil  liave  been  in  the  actual  or  const rnctive 
])oss('ssion  of  (he  ])i-opertv  at  the  fiiiic  liie  injury  was  coiinnittod. 
Smith  V.  .Milles.  1  T.  R.  "iSO;  Ward  v.  .Macauley.  4  T.  K.  4Si) ;  or, 
at  least,  he  must  have  had  a.  gener.il  nv  special  i)roperty  in  the 
poods  in  controversy,  and  a  riirht  to  the  immediate  possession  of 
them,     rhinn  v.  Knssell.  '2  lUackford,  172,  and  note  3. 

^Ve  do  not  think  that  the  facts  of  this  case  bring  the  plaintiff 
within  this  nde.  When  the  defendant  levied  the  execution  against 
Jackson  upon  the  goods,  the  latter  had.  \inder  tlie  lease,  a  special 
]»roperty  in.  and  the  actual  and  rightful  possession  of  them.  The 
Iciise  hiid  not  expired  by  the  lai)se  of  time,  nor  had  it  been  termi- 
nated by  a  demand  of  the  leased  property.  It  is  trne  that  Tufts, 
the  general  owner,  coidd.  by  a  demand  of  the  goods,  have  extin- 
guished the  special  property  of  Jackson,  and  have  entitled  himself 
to  the  inunediate  possession  ;  but  not  having  taken  that  step,  he 
could  have  maintained  neither  trover  nor  replevin  against  Jack- 
sou.  His  right  was  merely  reversionary;  for  an  injury  to  such 
right,  trespass  was  not  the  appropriate  remedy.  "We  think,  there- 
fore, that  the  instruction  of  the  circuit  court,  that  the  plaintiff 
could  maintain  the  action,  was  wrong.  .  .  .  Judgment  re- 
versed. 

See  "Trespass,"  Century  Dig.  §§  44-47;    Decennial  and  Am.  Dig.  Key 
No.  Series  §  20. 


SETZAR  V.  BUTLER,  27  N.  C.  212.     1844. 

When  Trespass  de  Bonis  Asportatis  Lies  Against  a  Bailee:  and  When 

Trespass  on  the  Case  and  Trover  Lie  Against  a  Bailee. 

[Trespass  vi  et  arniis  de  bonis  asportatis,  for  taking  and  carrying  away 
a  bed  and  its  furniture,  the  property  of  the  plaintiff.  In  deference  to  an 
adverse  intimation  from  the  judge,  the  plaintiff  submitted  to  a  nonsuit 
and  appealed.    AfTirmed. 

The  bed  and  its  furniture  were  the  property  of  Mrs.  Bowell,  who  gave 
them  to  the  plaintiff,  but  retained  the  possession  of  them  until  her  death. 
Airs.  Bowell  resided  with  Samuel  Patterson  and  kept  the  bed.  etc.,  at  his 
house.  After  her  death,  the  defendant,  as  her  executor,  took  the  bed,  etc., 
from  Mr.  Patterson's  house  and  sold  them,  against  the  protest  of  the 
plaintiff.  The  plaintiff  was  a  married  woman,  and  her  husband  was 
joined  with  her  in  the  action.] 

Daniel.  J.  This  is  an  action  of  trespass  vi  et  armis  de  bonis 
asportatis.  in  taking  and  carrying  away  a  bed  and  its  furniture, 
the  property  of  the  plaintiffs.  Plea— not  guilty.  The  judge  in  his 
charge  to  the  jury  assuiiics  that  trover  would  lie  for  the  plaintiffs. 


Sec.    3.]  TANGIBLE   PERSONAL    PROPERTY.  625 

and  therefore  that  the  plaintiffs  must  have  had  not  only  the  title 
to  the  bed,  but  also  the  riglit  to  the  immediate  and  exclusive  use 
and  possession  oi  it.  It  seems  that  the  mother  of  ]\lrs.  Setzar  was 
the  bailee  of  the  bed.  and  the  defendant,  when  he  took  possession 
of  it  as  her  executor,  stood  in  the  same  relation.  The  bailor  de- 
manded of  him  the  bed.  and  he  refused  to  give  it  up.  This  re- 
fusal turned  him  into  a  wrong-doer,  and  was  in  itself  evidence  of 
a  conversion.  The  defendant,  however,  went  on  and  sold  the  bed 
to  some  third  person.  Can  an  action  of  trespass  de  bonis  asporta- 
tis  be  sustained  by  the  bailor  for  these  acts  done  by  the  bailee? 
If  a  bailee  misuses  the  thing  bailed,  an  action  on  the  case  lies. 
And  if  the  bailee,  on  demand,  refuses  to  deliver  up  the  thing 
bailed,  or  sells  it.  but  does  not  destroy  it,  then  trover  may  be 
brought.  l)iit  if  the  bailee  destroys  the  thing  bailed,  as  if  sheep  or 
cattle  be  bailed,  and  the  bailee  kills  them,  then  trover  or  trespass 
may  be  maintained  by  the  bailor  against  the  bailee,  as  the  bail- 
ment is  determined  by  the  act;  Co.  Lit.  57,  (a),  58.  200,  (a); 
H  Stephens.  N.  P.  2637.  It  does  not  appear  from  the  case,  that  the 
bed  is  destroyed,  or  out  of  the  reach  of  the  plaintiffs,  and  trover 
may  often  be  brought  when  trespass  cannot,  2  Saund.  R.  47,  p — as 
if  goods  are  lent  or  delivered  to  another  to  keep  and  he  refuses  to 
return  them  on  demand,  trespass  does  not  lie,  but  the  proper  rem- 
edy is  trover.    The  judgment  must  be  affirmed. 

See  "Bailment,"  Century  Dig.  §  117;  Decennial  and  Am.  Dig.  Key  No. 
Series  §  25. 


DILTS  V.  KINNEY,  15  N.  J.  L.  130.     1835. 

Trespass  Ti  et  Armis  and  Trespass  on  the  Case  for  Injuries  Done  hy 

Anxmnls. 

fMargaret  Kinney  sued  Dilts  and  others  in  Trespass  vi  et  armis  for 
"lugging  her  cattle  with  a  dog — Itilling  one  and  wounding  another." 
Judgment  against  Dilts  and  others,  who  carried  the  case  to  the  supreme 
court  ])y  writ  of  certiorari.  Affirmed.  The  second  exception  was,  that 
Trespass  vi  et  armis  would  not  lie  for  the  injury  complained  of.  The 
declaration  was  that  Dilts  and  others,  "loitli  their  dog,"  did  the  injury.] 

IIoRNm>owER,  C.  J.  .  .  .  The  second  objection  is  founded 
on  a  suppo.sed  miseonception  of  the  aetion,  which  it  is  insisted 
should  have  been  in  case,  and  not  in  trespass.  In  "Woodruff  v. 
Clark.  2  Penn.  R.  104r».  the  court  remarked.  1lia1  the  distinction 
between  case  and  trespass  was  in  many  instances  so  nice  that  it 
only  served  to  jii'r|)lex  suitors,  and  the  court  considered  itself 
justified  in  refusing  to  i-everse  on  llie  ground  of  a  mistake  in  that 
matter.  P.ut  it  is  not  necessary  to  rely  upon  that  ea.se.  even  if  we 
were  disjiosed  to  adopt  it.  beciiuse  in  tlie  case  before  us.  tlie  rule  is 
too  plain  to  admit  of  ji  doubt.  This  aetion  was  brought  against 
tlie  defendiiiits  (or  a  InrI  eotiimilled  hji  Hum:  the  declaration  al- 
lej?ea.  "that  tlir  defendants  uilh  tlieir  dog"  did  tlir  injury  com- 
plained of.  Trespass,  thenfoi-e.  was  lln-  iirojx'i-  ;ictioii.  If  the  in- 
Remedies — 40. 


t)26  TANlMHI.K    PKKSONM.    PUi  »l 'KIC  IN  .  \<'h.    7. 

jury  h;ul  lirrii  dnni'  Ity  the  doix  or  (UluT  iinimiil  of  the  (l('f('ll(l;mt^^. 
ill  their  Jibscnff.  ;m»l  witliout  tluMr  ailtMicy,  the  rtMiicdy  would  \\i\\v 
boi'ii  l>y  ;iii  jH'tiiui  (111  tlir  c.-isc.  .     .     fliidtiiiii'iil  ariinned. 

For  the  law  as  to  tlic  lialiility  of  the  owium-  tor  iujiirii's  caused  by 
vicious  aud  daugerous  animals  kept  by  him;  when  the  scienter  must  be 
shown:  what  is  suflicient  proof  of  the  scienter;  measure  of  damages,  etc., 
see  C(X-keram  v.  Nixon.  :?:?  N.  C.  269;  Meihus  v.  Dodge.  :?8  Wis.  :?00.  20 
Am  Hep.  G.  In  Smith  v.  Peiah,  2  Strange,  12(>4,  it  was  ruled  that  if  a 
dog  has  once  bitten  a  man,  and  the  owner  having  notice  tiiereof.  still 
keeps  the  dog  and  lets  him  go  about  or  lie  at  his  door,  an  action  will  lie 
against  such  owner  by  one  bitten  by  the  dog,  though  it  hapi)ened  by  the 
plaintiff's  treading  on  the  dog's  toes;  "for  it  van  oiring  to  his  \the  men- 
cr's]  )iot  hniifiint)  the  doa  on  the  Jirst  notice.  The  safety  of  the  king's 
subjects  ouglit  not  afterwards  to  be  endangered.  The  scienter  is  the  gist 
of  the  action."  This  case  is  expressly  approved  in  the  Wisconsin  case; 
and  the  North  Carolina  case,  while  not  referring  to  it,  is  to  the  same 
general  effect.  In  that  case  the  remedy  was  "case,"  because  the  injury 
was  done  by  an  animal  in  the  absence  of  the  owner.  See  11  L.  R.  A. 
(N.  S.)  748,  and  note.  See  "Action,"  Centuiy  Dig.  §  2.i2;  Decennial  and 
Am.  Dig.  Key  Xo.  Scries  §  30;  "Action  on  the  Case,"  Century  Dig.  §  33; 
Decennial  and  Am.  Dig.  Key  No.  Series  §  1. 


DOOLING  V.  BUDGET  PUB.  CO.,  144  Mass.  258,  10  N.  E.  809.     1887. 
Slander  and  Libel  of  the  Chattels  of  Another. 

[Tort  for  an  alleged  Iil)el.  The  publication  was  admitted.  No  proof 
was  offered  of  any  special  damage  suffered  by  the  plaintiff.  For  lack  of 
such  proof  the  judge  directed  a  verdict  against  the  plaintiff,  and  reported 
the  case  to  the  supreme  court  for  determination.  If  that  court  approved 
the  judge's  ruling,  judgment  was  to  be  entered  against  the  plaintiff, 
otherwise  the  case  to  stand  for  a  new  trial.  The  ruling  below  was  ap- 
proved, and  judgment  rendered  against  plaintiff. 

The  plaintiff  was  a  caterer  and  acted  as  such  in  furnishing  a  dinner 
for  the  Ancient  and  Honorable  Artillery  Company,  which  dinner  was 
thus  referred  to  in  a  newspaper  published  by  the  defendant:  "Probably 
never  in  the  history  of  the  Ancient  and  Honorable  Artillery  Company 
was  a  more  unsatisfactory  dinner  served  than  that  of  Monday  last.  One 
would  suppose,  from  the  elaborate  bill  of  fare,  that  a  sumi)tuous  dinner 
would  be  furnished  by  the  caterer,  Dooling,  but  instead  a  wretched  din- 
ner was  served,  and  in  such  a  way  that  even  hungry  barbarians  might 
justly  object.  The  cigars  were  simply  vile,  and  the  wines  not  much  bet- 
ter." (This  may  recall  Sidney  Smith's  bon  mot  in  giving  an  account  of 
a  dinner  which  he  attended:  "Everything  was  cold  except  the  ice  cream, 
and  everything  was  sour  except  the  vinegar.")] 

C.  Allen,  J.  The  qupstion  is  whothor  the  laiifjua^e  used  im- 
ports any  personal  retlection  upon  the  ])laintifif  in  the  conduct  of 
his  business,  or  whether  it  is  merely  in  disparagement  of  the  din- 
ner which  he  provided.  Words  relating  merely  to  the  quality  of 
articles  made,  produced,  furni.shed.  or  sold  by  a  person,  though 
false  and  malicious,  are  not  actional^le  without  special  damage. 
For  example,  the  condemnation  of  books,  paintings,  and  other 
works  of  art.  music,  architecture,  and.  generally,  of  the  product  of 
one's  labor,  skill,  or  genius,  may  be  unsparing,  but  it  is  not  action- 
able without  the  averment  and  y)r()of  of  :sp("cial  damage  unless  it 


Sec.    3.]  TANGIBLE  PERSONAL  PROPERTY.  627 

goes  further,  and  attacks  the  individual.  Gott  v.  Pulsifer,  122 
Mass.  238;  Swan  v.  Tappan.  5  Cush.  104;  Tobias  v.  Harland,  4 
^^end.  537 ;  Western  Counties  Manure  Co.  v.  Lawes  Chem.  Ma- 
nure Co..  L.  R.  9  Exeh.  218 ;  Yoimg  v.  Macrae,  3  Best  &  S.  264 ;  In- 
gram V.  Lawson.  6  Bing.  (X.  C.)  212.  Disparagement  of  property 
may  involve  an  imputation  on  personal  character  or  conduct,  and 
the  question  may  be  nice,  in  a  particular  case,  whether  or  not  the 
words  extend  so  far  as  to  be  libelous;  as  in  Bignell  v.  Buzzard,  3 
Hurl.  &  X.  217.  The  old  case  of  Fen  v.  Dixe,  W.  Jones,  444,  is 
much  in  point.  The  plaintiff  there  was  a  brewer,  and  the  de- 
fendant spoke  of  his  beer  in  terms  of  quite  as  strong  disparage- 
ment as  those  used  by  the  present  defendants  in  respect  to  the 
plaintiffs  dinner,  wine,  and  cigars,  but  the  action  failed  for  want 
of  proof  of  special  damage.  In  Evans  v.  Harlow,  5  Q.  B.  631, 
Lord  Denman.  C.  J.,  said:  "A  tradesman  otfering  goods  for  sale 
,:-xposes  himself  to  obsen-ations  of  this  kind ;  and  it  is  not  by  aver- 
ring them  to  be  false,  scandalous,  malicious,  and  defamatory  that 
the  plaintiff  can  found  a  charge  of  libel  upon  them." 

In  the  present  case,  there  was  no  libel  on  the  plaintiff  in  the  way 
of  his  business.  Though  the  language  used  was  somewhat  strong, 
it  amounts  only  to  a  condenniation  of  the  dinner,  and  its  accompa- 
niments. Xo  "lack  of  good  faith,  no  violation  of  agreement,  no 
promise  that  the  dinner  should  be  of  a  particular  quality,  no  habit 
of  providing  dinners  which  the  plaintiff  knew  to  be  bad,  is 
charged,  nor  even  an  excess  of  price  beyond  what  the  dinner  was 
worth ;  but  the  charge  was,  in  effect,  simply  that  the  plaintiff,  be- 
ing a  caterer,  on  a  single  occasion  provided  a  very  poor  dinner, 
vile  cigars,  and  bad  wine.  Such  a  charge  is  not  actionable  without 
proof  of  a  special  damage.    Judgment  on  the  verdict. 

The  remedy  at  common  law  for  such  an  injury  to  property,  was  by 
special  action  on  the  case,  see  Swan  v.  Tapjian,  5  Cush.  104,  at  p.  109, 
cited  in  the  princii)le  case.  See  "Libel  and  Slander,"  Century  Dig.  §  1; 
Decennial  and  Am.  Dig.  Key  No.  Series  §  1. 

There  being  but  one  form  of  action  inider  the  Code  practice, 
wlu'tlier  the  wrong  comi)lained  of  be  one  to  be  redressed,  under  the 
common  law  pi-actice,  by  Trespass,  Trover,  or  Detinue,  will  depend 
upon  the  record  and  pleadings  in  the  cause.  Even  now  the  plain- 
tiff"s  recovery  will  be  governed,  to  an  important  extent,  by  the 
l)riii(ii)hs  governing  these  common  law  remedies  and  actions. 
Vins(m  v.  Kiiitrht.  137  X.  C.  40,S,  40  S.  E.  891. 


i;;2S  HUiiiTs  cKowiNt;  oit  ov  contract.  \Ch.  S. 


C'llAl'TEH  VTIT. 
INJURIES  TO  RIGHTS  GROWING  OUT  OF  CONTRACT. 


Sec.  1.    Action  (tK  (\wf:nant. 

DAVIS  V.  JUDD,  6  Wis.  85.    1858. 
When  Covenant  Lies. 

[Action  of  Covenant  on  an  alleged  covenant  of  warranty.  Plea  of  non 
est  factum,  .hay  trial  waived,  and  trial  by  the  judge.  Judgment  against 
the  defendant,  and  he  appealed.     Reversed. 

The  alleged  covenant  was  in  the  usual  form  of  a  covenant  of  warranty, 
but  there  was  no  seal  to  the  instrument  in  which  the  covenant  was  con- 
tained. The  instrument  was  in  the  usual  form  of  a  deed  of  conveyance, 
and  contained  the  recital  that  the  grantors  had  thereto  "set  their  hands 
and  seals."  The  defendant  insisted  that  the  action  of  covenant  would 
not  lie  upon  an  instrument  not  under  seal.  The  judge  ruled  that  the 
action  would  lie  under  the  cirenmstances  of  this  co^sx'.l 

Cole.  J.    Tho  pleadinfrs  in  tlii.s  case  woro  all  made  up  and  set- 
tled before  the  code  look  effect,  and  Avhile  the  distinction  in  com- 
mon law  actions  was  kept  up  and  observed  by  the  courts.     And 
although  it  may  be  difficult  to  give  a  very  solid  or  satisfactory 
reason  for  the  rule,  yet  we  believe  the  authorities  do  declare  that 
an  action  of  covenant  upon  an  instrument  not  under  seal,  though 
it  may  contain  the  statement  "signed,  sealed,  and  delivered,"  can- 
not be  sustained.     The  following  cases  seem  to  decide  that  point: 
Leroy  v.  Beard.  8  IIow.  451  :  Andrews  et  al.  v.  Ilariot,  4  Cow.  508. 
It  was  insisted  upon  the  argument  of  the  cause,  by  the  counsel  for 
the  respondent,  that  the  appellant  was  estopped  from  denying 
that  the  instrument  was  sealed,  on  the  ground  of  having  signed, 
acknowledged,  and  delivered  the  same  a.s  a  deed  and  having  re- 
ceived the  respondent's  money  as  part  consideration  for  the  land 
conveyed.    AVe  do  not  know  of  any  case  that  has  carried  the  doc- 
trine "of  estoppel  to  this  extent.     The  doctrine  of  estoppel  is  of 
course  familiar  to  everv^  lawyer,  and  it  is  not  necessary  to  go  into 
it.    We  do  not  think  it"  can  be  so  applied  as  to  prevent  the  appel- 
lant from  insisting  that  the  action  should  have  been  a.ssumpsit  and 
not  covenant.    Again,  it  was  not  contended  that  the  court  ought  to 
presume  that  the  instrument  had  a  seal  when  executed,  or  in  other 
words,  presume  a  fact  to  exist  which  the  court  found  did  not  ex- 
ist.    Tlie  court  found  that  the  instrument  was  not  sealed,  and  this 
finding  does  away  with  all  presumption  to  the  contrary.     .     .     . 
Judgment  reversed. 

See  "Covenant,  Action  of,"  Century  Dig.  §  fi;  Decennial  and  Am.  Dig. 
Key  No.  Series  §  1. 


Sec.   1.]  RIGHTS  GROWING   OUT   OF   CONTRACT.  ()29 

FINLEY  V.  SIMPSON,  22  N.  J.  L.  311.  331.     1850. 
Covenant  Lies  on  a  Sealed  Instrument  Only.     The  Rule  and  the  Excep- 
tions Thereto. 

[Covenant  upon  an  alleged  covenant  on  behalf  of  the  defendant  as 
grantee  in  a  deed  polK  the  defendant  having  accepted  the  deed,  but 
never  having  signed  and  sealed  it.  Defendant  pleaded  non  est  factum. 
Verdict  directed  against  the  defendant,  subject  to  the  opinion  of  the  su- 
preme court  as  to  whether  there  was  evidence  that  defendant  had  made 
the  covenant  alleged.     Affirmed. 

The  evidence  was  that  the  plaintiff  conveyed  the  land  to  the  defendant 
by  a  deed  in  the  usual  form,  but  containing  a  recital:  That  there  was  a 
mortgage  on  the  land  for  a  certain  sum;  that  such  sum  was  computed  as 
part  of  the  purchase  money  for  the  land;  and  that  defendant  "assumed 
to  pay"  such  sum  in  discharge  of  the  mortgage.  This  deed  was  signed 
and  sealed  by  the  plaintiff,  grantor,  but  not  by  the  defendant,  grantee, 
although  the  defendant  accepted  the  deed  and  took  possession  of  the 
land.  The  defendant  having  failed  to  pay  the  sum  due  on  the  mortgage, 
the  plaintiff  was  forced  to  pay  it.  Having  paid  it,  he  sued  defendant  on 
the  clause  in  the  deed  above  mentioned. 

The  defendant  insisted  that  this  action  of  covenant  would  not  lie.  be- 
cause the  instrument  upon  which  the  action  was  brought  had  never  been 
actually  signed  and  sealed  by  the  defendant  or  by  his  authority.] 

Green,  C.  J.    The  general  principle,  tiiat  an  action  oi"  covenant 
can  only  be  sustained  where  the  instriunent  upon  which  the  action 
is  brought  has  been  actually  signed  and  sealed  by  the  party,  or  by 
his  authority,  is  abundantly  sustained  by  the  authorities  cited  by 
the  counsel  of  the  defendant.     There  are.  however,  exceptions,  of 
which  actions  upon  the  custom  of  London,   actions  against  the 
king's  lessee  by  patent,  and  against  remaindermen,  are  admitted 
inst'ances.    The  only  inquiry  is.  whether  an  indenture  [deed  poll] 
of  bargain  and  sale,  purporting  to  be  inter  partes,  by  which  an  es- 
tate is  conveyed  to  the  grantee,  if  the  grantee  accept  the  deed, 
and  the  estate  therein  conveyed,  though  the   indenture  be  not 
sealed  and  delivered  by  him.  is  not  his  deed,  as  well  as  the  deed  of 
the  granlor.     The  affirmative  of  this  proposition  is  sustained  by 
the  foUowing  authorities,  cited,  with  many  others,  in  the  brief  of 
the  plaintiff's  counsel:   Co.  Lit.  231.  a.  230,   C.  note   1;   Shep. 
Touch.  177;  4  Cruise  Dig.  303.  "Deed,"  Tit.  32,  c.  25,  §  4;  3  Com. 
Dig.  "Covenant,"  A  1.  "Fait."  A  2.  C  2;  Vin.  A.  C.  "Condi- 
tion," I,  a  2 ;  Burnett  v.  Lynch.  5  Barn.  &  Cress.  580 ;  Dyer,  13  C. 

PI.  66. 

A  modern  elementary  writer,  of  high  reputation  (Piatt  on  Cov. 
18).  denies  the  doctrine  deduced  from  these  ca.ses.  .  .  .  He 
admits,  however,  that  the  contrary  doctrine  has  been  received 
without  scruple  by  the  i)rofession.  has  bcm  adopted  by  writers 
distinguished  for  tlicir  h^gal  attainments,  and  that,  i)erliaps,  it 
has  hci'U  too  long  cslablislKMl  to  be  now  reversed.  There  is.  in  our 
judgment,  no  rea.son  why  the  doeli-ine  should  be  reversed. 

In  the  present  ea.se  the  verdict  ought  not  to  be  disturbed  if  it 
can  be  sustained  consistently  with  legal  i^rinciples.  Tt  is  mani- 
festly in  aeeordanee  with  the  truth  and  ju.sliee  of  the  ease.  The 
objection  goes  to  the  form  of  the  remedy,  rallier  than  to  the  sub- 


iVM)  KUJllTS    CKOWINU    OIT    OK    CONTRACT  1(7/.    tS\ 


m 


stiiiitial  liirlit  »)1"  tlu'  parly,  or  1o  tlic  titli-  o\'  Ihc  jilaiiititV  to  ro 
divss.  'Plu'  nature  of  the  ('(tvcuaut,  iiioi-covcr.  is  I'lilly  slati'd  \i|>oi 
the  face  of  tlic  tlfclarat ion.  Wlicthcr  tlio  facts  there  staled  did  or 
did  not  eonstitute  a  eoxcnant  on  the  pai't  of  tlie  (h'fenchiiit .  was  a 
(|uestiou  of  law.  wliich  niii^lit  well  liave  been  niised  by  (h'luurrer. 
To  irive  the  (K'fendant  the  l»enelit  of  the  exeei)tion  )/"//•  iiuiy  oper- 
ate uttei-ly  to  defeat  the  (daiuj  of  the  plaintiff.  It  is  consistent 
neitlier  with  law  nor  justice  tlial  liie  defendant  shoidd  iiold  the 
title  witliout  paying  llie  price.  Tliese  considerations  cannot  affect 
tlie  Iciral  ju-inciplc.  hut  if  tlie  verdict  be  in  accoi'danee  with  a  doc- 
trini'  lonir  estalilished,  and  often  ivco^nized,  they  atTord  sti-on^ 
reasons  wliy  that  doctrine  sliould  not  lijjthlly  be  disturl)ed.  The 
i-ule  to  show  cause  must  be  discharged. 

All  the  authorities  agree  that  the  grantee  in  a  deed,  who  accepts  the 
(ieed,  is  hound  by  its  conditions  and  the  covenants  on  his  part,  whether 
he  signed  and  sealed  it  or  not;  l)iit  whether  this  obligation  is  one  that 
would  have  been  enforced  by  an  action  of  ioveiiaiit  at  common  law,  or 
bv  assumpsit  upon  ihc  implied  undertaking,  the  authorities  do  not  agree. 
See  Mordecai's  L.  L.  841;  11  Cyc.  1045.  and  notes,  6  L.  R.  A.  (N.  S.)  436, 
and  notes.  See  "Covenant,  Action  of,"  Century  Dig.  §  12;  Decennial  and 
Am.  Dig.  Key  No.  Series  §  6. 


PERKINS  V.  LYMAN,  11  Mass.  76,  82.     1814. 
Covenant  and  Debt,  WJien  Concurrent  Remedies. 

IDebt  for  a  sum  certain  claimed  to  be  due  as  liquidated  damages  for 
breach  of  a  sealed  agreement,  which  agreement  contained  a  clause  bind- 
ing the  defendant  to  pay  to  the  i)laintiff  the  sum  sued  for  in  this  action  if 
the  defendant  violated  the  other  terms  thereof.  The  jury  found  that  the 
defendant  had  violated  this  agreement,  and  upon  this  verdict  the  plaintiff 
moved  for  judgment  for  $8,000,  which  was  the  sum  certain  which  the 
defendant,  by  the  clause  above  mentioned,  had  covenanted  to  pay  as 
damages  for  such  violation.  The  defendant  prayed  a  hearing  in  chan- 
cery (pursuant  to  a  statute  providing  for  such  practice),  upon  his  con- 
tention that  the  $8,000  was  not  liquidated  damages  but  a  penalty  or  for- 
feiture. Only  that  portion  of  the  opinion  which  states  when  a  plaintiff 
has  an  election  to  l)ring  covenant  or  debt,  is  here  inserted.] 

Per  Curiam.  .  .  .  Tf  we  look  to  the  words  themselves, 
there  is  a  covenant,  on  the  ])art  of  the  defendant,  that  he  will  not. 
in  his  own  name.  etc..  directly  or  indirectly,  be  interested  in  any 
voyage  to  the  northwest  coast  of  America,  etc.,  for  the  term  of 
seven  years.  Then  he  hinds  himself  in  the  penal  sum  of  8.000 
dollars  for  his  faithfully  and  strictly  adhering  to  this  contract. 
It  is  not  said,  if  lie  does  so.  contrary  to  his  agreement,  then  he 
will  pay  that  sum  as  a  satisfaction.  Nor  is  there  any  thing  ex- 
pressed, which  would  conclude  the  plaintiffs,  unless  it  be  their 
form  of  action,  when  the  aiiiount  of  damages  should  exceed  8,000 
dollars,  from  demanding  to  the  extent  of  their  loss.  Lord  Mans- 
field expresses  the  distinction  of  liquidated  damages,  and  a  pen- 
alty to  secure  the  performance  of  a  contract,  very  closely  and  ac- 
curately, in  the  case  of  Lowe  v.  Peers  (4  Burr.  2227).  referred  to 


Sec.    1.]  RIGHTS   GKOWiXC    VVT   OF    CONTRACT.  6;5 1  • 

in  the  argument  of  the  case  at  bar.  There  is  a  difference,  says  his 
lordship,  between  covenants  in  general  and  covenants  secured  by  a 
penalty  or  forfeiture.  In  the  latter  case,  the  obligee  has  his  elec- 
tion to  bring  an  action  for  the  i)enalty,  after  whicli  he  cannot  re- 
sort to  the  covenant ;  or  to  proceed  upon  the  covenant,  and  re- 
cover more  or  less  than  the  penalty. 

Upon  the  whole,  we  are  of  opinion  that  the  demand,  in  this  ease, 
is  not  for  damages  ascertained  or  liquidated  by  the  parties  to  the 
contract,  but  for  a  penalty  or  forfeiture  annexed  to  articles  of 
agreement,  a  breach  of  which  has  been  found;  and  therefore,  by 
the  statute,  the  defendant  is  entitled  to  a  hearing  in  chancery  be- 
fore judgment  .shall  be  rendered. 

See  Lowe  v.  Peers.  4  Burr.  2225,  inserted  at  §  2  of  this  chapter. 

Covenant  is  the  proper  remedy  on  a  sealed  obligation  to  pay  a  certain 
sum  in  bank  notes,  because  the  plaintiff  can  only  recover  damages  on 
such  an  agreement,  for  the  reason  that  bank  notes  are  not  money — they 
are  only  called  money  in  common  parlance — the  damages  on  the  breach 
of  such  a  covenant  being  the  value  of  the  bank  notes.  Scott  v.  Conover, 
6  X.  J.  L.  222.  Where  two  parties  execute  a  contract  and  one  seals  it 
but  the  other  simply  signs  without  sealing  it,  it  is  the  deed  or  covenant 
of  one  and  the  simple  contract  of  the  other.  Therefore,  the  one  who  seals 
it  must  be  proceeded  against  in  debt  or  covenant — depending  on  whether 
or  not  the  damages  are  liquidated — while  the  other  who  does  not  seal 
must  be  sued  in  assumpsit.  Brown  v.  Bostian,  51  N.  C.  1;  Holland  v. 
Clark,  67  N.  C.  104.  See  "Election  of  Remedies,"  Century  Dig.  §  2;  De- 
cennial and  Am.  Dig.  Key  No.  Series  §  2. 


GYLBERT  v.  FLETCHER,  Croke's  Charles  I,  179.     1630. 
Covenant  Against  an  Infant. 

Covenant  against  an  apprentice  for  de{)arting  from  his  service 
without  licen.se  within  the  time  of  his  apprenticeship.  The  de- 
fendant pleaded,  that  at  the  time  of  making  the  indenture  he  was 
within  age:  and  thereupon  it  w;is  demurred.  Tt  was  argued  at  the 
bar.  that  Ibis  indenture  should  bind  the  infant,  because  it  was  for 
bis  advantage  to  be  l)ound  apprentice  to  be  instructed  in  a  trade. 
He  is  also  compellai)le  by  the  5  Eliz.  c.  -1-.  t<i  !>(>  ])ound  oitt  an 
;i  [(prentice. 

Jiut  all  the  court  resolved,  that  although  an  infant  may  volun- 
tarily bind  himself  apprentice,  and  if  he  continue  ai)iu-entice  for 
seven  years  may  have  the  benefit  to  use  his  trade,  yet  neither  at 
the  ('(»mm«in  law.  nor  l)y  any  woi-ds  of  the  5  KHz.  c.  4.  shall  the 
covenant  oi-  obligation  of  »n  infant  for  his  apprenticeship  bind 
him.  lint  if  he  misbehave  himself,  the  mastei-  may  cori-eet  him  in 
his  ser\'iee.  or  eoiiiiil.-iin  to  a  justice  of  the  jieace  to  have  liim  luui- 
ished.  according  to  the  statut*-.  Tint  no  remedy  lieth  against  an 
infant  upon  such  covenant:  and  therefore  it  was  adjuilged  U>r  the 
d.-fendaiit.     Vide  21   Hen.  0,  Ml  :  21  Ed.  4.  fi;  f)  TT.'n.' H.  S. 

See  "Apprentices,"  Century  Dig.  §§  ,35,  "G;  Decennial  and  Am.  Dig. 
No.  Series  §  19. 


ii'S2  RIGHTS   GROWING    OIT    OF    CONTRACT.  1(7/.    N. 


Sec.  l*.     .\ction  op  Debt. 

GREGORY  V.  THOMSON.  ;U   X.  J.   L.   Hit;.     1865. 
Action  of  Debt   Ej'i)laincd.     Collateral  Aorerments.     Negotiable  Instru- 
ments.    Debt.  Covenant,  or  Assumpsit.  When  the  Appropriate  Remedy. 

[Actiou  of  Debt  asiiinst  a  surety  on  a  seale<l  contract.  Demurrer,  for 
that  Debt  was  not  tlie  proper  action.  The  opinion  is  on  the  demurrer. 
Demurrer  sustained] 

Heasi.ev.  C.  J.  The  proini.se  of  tli»>  dcriindaiit,  which  is  dc- 
chii'od  on  in  this  ease  is,  that  he  would  pay  the  debt  of  the  tenant 
if  the  tenant  slionid  make  default  in  piiymcnt;  and  the  only 
([ucstion  raised  hy  the  plc;idinji:s  is.  whether  an  action  of  debt  i.s 
the  i>roper  remedy  for  the  l)reaeli  of  such  contract. 

I  luive  been  unable  to  find  any  ease  in  wiiich  an  action  of  debt 
has  been  sustained  on  a  collateral  promise  to  pay  the  debt  of  an- 
other. At  a  very  early  period  in  the  Enprlish  law,  tbis  was  the 
form  of  action  provided  for  all  matters  in  controversy  arising  out 
of  mere  personal  contracts.  Thus.  Reeves,  in  his  History  of  the 
Common  Law.  vol.  1.  p.  159,  describing  the  methods  of  legal  pro- 
ceeding between  the  reign  of  William  the  Concjueror  and  that  of 
King  John,  says:  "When  they  (the  parties)  were  both  in  court, 
then  it  was  to  be  considered  how  the  demand  arose.  This  might 
be  of  various  kinds,  as  ex  causa  mutui,  upon  a  l)orrowing;  ex 
causa  venclitionis.  upon  a  sale ;  ex  commodato.  upon  a  lending ; 
ex  locato,  upon  an  hiring;  ex  deposito,  upon  a  deposit  or  by  some 
other  cause,  by  which  a  debt  arose;  for  at  this  time  all  matters  of 
pei-sonal  contract  were  considered  as  binding  only  in  the  light  of 
debts :  and  the  only  means  of  recovery,  in  a  court,  was  by  this  ac- 
tion of  debt."  In  all  the  above  instances  it  will  be  noticed  that 
the  consideration  pa.ssed  from  the  party  who  became  the  creditor 
to  him  who  became  the  debtor,  so  that  the  contract  of  the  party 
receiving  such  consideration  was  to  pay  his  own  debt  and  not  that 
of  another.  Such  transactions  had  no  connection,  incidentally, 
with  third  parties.  The  debtor  was  he  who  received  the  considera- 
tion ;  he  alone  owed  the  debt  and  this  action  lay  only  against  him. 

Such  being  the  origin  of  this  form  of  action,  it  is  not  difficult  to 
perceive  how  it  was  that  the  doctrine  came  to  prevail  that  it  was 
not  applicable,  as  a  remedy,  in  case  of  a  breach  of  promise  to  pay 
money  which  was  primarily  due  from  a  third  party.  Tn  the  some- 
what subtle  theory  of  the  times  it  was  deeiiKnl  that  such  a  promise 
did  not  create  a  debt.  The  party  originally  liable  remained  the 
debtor:  he  who  made  himself  surety  did  not  thereby  impose  upon 
himself  a  debt,  but  a  collateral  assumption,  which  could  not  be  en- 
forced by  an  action  of  debt.  This  distinction  was  adopted  at  a  re- 
mote era  and  appears  ever  since  to  have  been  uniformly  recognized 
and  maintained.  Thus,  in  one  of  the  oldest  eases  upon  the  sul)- 
ject.  18  Ed.  Ill,  13,  it  is  said:  "If  A  bought  of  me  certain  goods 
for  a  eertam  sum,  and  B  at  the  same  time  undertook  to  pay  for 


iieC.   2.]  RIGHTS   GROWING  OUT   OF   CONTRACT.  633 

them  at  tho  day  if  A  did  not;  if  A  should  not  pay  for  them,  debt 
could  not  be  brought  against  B.  because  it  would  sound  in  cove- 
nant.'' And  again  in  another  case,  9  Hen.  V.  14,  the  law  is  thus 
stated:  "If  C  recover  ten  pounds  against  A,  and  B  shall  say  to  C 
that  if  he  will  release  the  ten  pounds  to  A  he  will  be  his  debtor, 
and  accordingly  the  ten  pounds  are  released  to  A,  an  action  of 
debt  will  not  lie  against  B,  as  this  sounds  in  covenant."  Other 
cases  to  the  same  purpose  will  be  found  collated  in  3  Com.  Dig. 
tit.  Debt.  B.  1.  p.  373. 

The  existence  of  this  ancient  rule  of  law  has  never  been  denied, 
although  it  has  been  held  that  in  some  instances  it  has  been  mis- 
applied. Thus,  in  an  anonymous  case  reported  in  Ilardres.  485, 
and  which  is  frequently  referred  to.  it  was  held  that  an  action  of 
debt  brought  by  the  payee  of  a  bill  of  exchange  against  the  ac- 
ceptor, could  not  be  supported,  on  the  ground  that  the  engagement 
was  collateral,  "and  that."  in  the  words  of  the  authority,  "the 
custom  of  merchants  does  not  extend  so  far  as  to  create  a  debt; 
only  makes  the  acceptor  onerabilis  to  pay  the  money."  In  Bishop 
v.  Young.  2  Bos.  &  P.  78,  Lord  Eldon  reviews  this  case  and  seems 
to  consider  it  rests  on  solid  reasons;  and  it  is  also  treated  with  a 
like  respect  by  Justice  Lawrence  in  Priddy  v.  Ilenbvey.  1  B.  & 
C.  674.  I  am-aware  that  the  decision  in  Ilardres  has  been  over- 
ruled in  this  country,  but  such  i-eversal  has  not  been  rested  on 
grounds  which  at  all  affect  the  point  now  to  be  elucidated. 

In  Raborg  v.  Peyton.  2  Wheat.  385.  the  supreme  court  of  the 
United  States  refused  to  adopt  the  rule  of  law  in  question  in  its 
unlimited  application  to  commercial  paper,  holding  that  an  action 
of  debt  will  lie  by  the  payee  or  endorsee  of  a  bill  of  exchange 
against  an  acceptor,  where  it  is  expressed  to  be  for  value  received. 
But  as  the  court  declared  that  an  acceptance  was  not  a  collateral 
engagement  to  pay  the  debt  of  another,  but  that,  on  the  contrary, 
it  was  an  absolute  engagement  to  pay  the  money  to  the  holder  of 
the  bill  and  that  the  engagements  of  all  the  other  i^arties  were 
merely  colbiteral,  it  is  evident  that  this  case  is  no  autlioiity  for  the 
hypothesis  that  debt  v.'ill  lie  on  a  collateral  agreement. 
"  The  modern  English  authorities  seem  to  sustain,  with  one  voice, 
the  ancient  rule  in  question.    Chitty.  vol.  1.  p.  116.  treating  of  the 
action   of  assumpsit,  says:  "Where  a  simple  contraet   creates  a 
collateral  liability,  as  for  the  payment  of  a  debt  of  a  third  person, 
debt  not  being  sustainable,  assumpsit  is  the  only  form  of  action." 
To  the  same  effect  see  the  same  author,  pages  124.  128.     The  same 
nile  has  been  recognized  by  the  courts  oT  New  York.  ■  Pierce  v. 
Crafts,    12   Johns.    90;   Wilmarth   v.    Crawford.    10   Wend.    341. 
Xor  does  it  at  all  afl'ect  the  principle  that  the  engagement  sued 
on  is  contained  in  an  instrument  under  se;d.    The  question  in  this 
form  was  rec'iitlv  subjected  to  the  crilicisiii  of  tlie  Coui't  of  Ex- 
chequer,    in   Kaildall  v.  Kigby.  4  :\r.  &  W.  129.  it  .ippejiivd  upon 
the  pleadings  tliat   the  hinds  jiad  been  conveyed  to  the  (h'fendant 
and  othi'rs.  to  the  use  that  the  phiinl  ill' sliould  receive  and  take  the 
rents:  the  covenant   sued  on   was  to  the  elVcct   that  the  derendant 


1)34  KiciiTs  i:uo\viN(i  oi'T  oi'  ('("Ni'iv'Acr.  \('h.  S. 

Jlinl  till'  dllu'l-  i:i;iiit('cs  woultl  |>;i\  siiid  rents:  (Ui  llicsc  fjicls  tlio 
(HUirt  inaiiitiiiiu'd  tlial  sin-li  (•(ivciiaiit  was  collateral,  and  nn  that 
aeeount  wtMiId  not  support  an  action  oi'  debt.  Harrison  v.  I\Iat- 
tliews.  10  M.  cV:  W.  7(i7.  was  deeided  on  the  same  principle. 

It  lias  not  Wow  unnotii-ed  that  in  linllard  \.  Hell.  1  Mason.  2i)l2, 
Fcil.  ('as.  No.  lMlM.  .ludiif  ^torv  intimated  that,  in  his  opinion,  it 
would  not  he  o\-eist  raining-  the  old  doctrine  re<rulatin<r  this  form  ol 
action,  to  ajiply  it  to  all  collatei-al  undei-takiiiixs  to  ])ay  a  sum  cer- 
tain. 1  coid\'ss  to  an  inclination  in  the  same  direction,  and  on 
this  account  my  examination  ol'  the  oi'iiiinal  history  of  the  action 
has  pei-haps  been  moi'e  elahoi'ate  than  would  othei'wise,  from  Iho 
state  of  till'  authorities,  have  socmcd  to  me  requisite.  But  upon 
rotlection  I  can  sec  no  advantage  in  extcndiiii:'  the  foi-m  of  remedy. 
The  limits  of  the  action,  in  the  nature  of  thinjis.  nuist  be  arbi- 
trary: the  chief  concei-n  beinji'  to  have  those  limits  definite  and 
stationai-y.  To  extend  tlie  fornnda  is  merely  to  unsettle  its  hound- 
ai-ies — a  result  which  would,  at  h^ast,  be  attended  with  the  7nis- 
cliief  of  inconvenience.  If  the  sphere  of  the  action  of  debt  is  to  be 
enlarp:ed  at  this  time  of  day.  what  \cgii\  institute,  consisting:  of  a 
mere  mode  of  jiroccedinjr.  is  to  be  deemed  stable:'  If  this  form  of 
action  is  liable  to  change,  so  is  every  other,  and  the  consequence 
would  be  that  the  lines  of  demarkation  between  the  several  forms 
would  soon  become  so  obscure  as  not  to  be  easily  definable.  T 
think  the  use  of  the  action  should  be  restricted  within  the  con- 
fines of  the  ancient  i)ractice.  In  my  opinion  the  denuirrer  should 
be  sustained. 

See  "Debt,  Action  of,"  Century  Dig.  $;§  1-14;   Decennial  and  Am.  Dig. 
Key  No.  Series  §  1. 


DOZIER  V.  BRAY,  9  N.  C  57.     1822. 
What  Aviount  Can  Be  Recovered  in  Debt? 

[Action  of  Debt  for  a  penalty  under  a  statute  giving  a  qui  tarn  action 
for  double  the  amount  of  the  loan.  The  amount  lent  was  $80,  and  the 
jjenalty  sued  for  was  $160.  The  verdict  was  against  the  defendant  for 
$155  only.  Defendant  moved  in  arrest  of  judgment,  for  that  the  action 
was  debt  and  the  verdict  was  for  less  than  the  amount  sued  for.  Motion 
overruled.  Judgment  against  the  defendant,  from  which  he  appealed. 
Affirmed.] 

Taylor.  C.  J.  The  verdict  shows  that  the  unlawful  contract, 
set  forth  in  the  declaration,  had  been  made,  and  that  the  defend- 
ant had  received  the  henefit  of  it  usuriously.  It  was  an  action  of 
debt  qui  tam.  upon  the  statute  of  usury,  in  which  the  sum  borrowed 
was  eighty  dollars,  and  the  penalty  claimed  in  the  declaration  was 
one  hundred  and  sixty.  The  verdict  of  the  jurv'  was  for  one  hun- 
dred and  fifty-five,  and  for  this  cause  the  defendant  moves  in 
ai-rest  of  judgment.  The  exception  was  properly  overruled;  for 
the  distinction  is  well  settled  between  an  action  of  debt  founded 
upon  a  specialty  or  upon  a  contract  and  one  founded  upon  a  stat- 


Sec.    2.]  RIGHTS   GROWING    OIT  OF   CONTRACT.  635 

ute  giviug  an  luicertain  sum  by  way  of  jienalty.  In  the  first  ease 
the  verdict  cannot  be  for  a  less  sum  than  is  demanded,  unless  it 
be  found  that  part  of  the  debt  was  satisfied;  but  in  the  latter  case 
the  verdict  is  good,  although  a  less  sum  than  is  demanded  is  foiuid 
to  be  due.  The  statute  in  this  case  gives  a  penalty  of  double  Ihe 
sum  borrowed,  and  therefore  it  is  a  matter  of  calculation  for  Ihe 
jury,  after  the  amount  of  the  sum  borrowed  is  proved.  It  is  not 
to  be  distinguished  from  cases  arising  under  the  2nd  and  3rd  Ed. 
6,  for  not  setting  out  tithes,  where  the  i)enalty  given  is  treble  the 
value  of  the  tithes ;  yet  the  jury  may  tind  the  value  of  the  tithes 
subtracted  to  be  less  than  the  value  alleged  in  the  declaration. 
Cro.  Jac.  498.     The  judgment  must  consequently  be  affirmed. 

Henderson.  J.  It  is  not  correct  to  say  that  in  actions  of  debt 
the  precise  sum  demanded  must  be  recovered ;  all  that  is  required 
is  that  the  contract  stated  in  the  declaration  should  be  proven. 
The  common  opinion  that  the  sum  demanded  and  no  other  can  be 
recovered  arose  from  this:  this  action  is  most  commonly  bi-ought 
on  specialties  and  judgments  which  show  a  certain  and  i)recise 
sum  due.  and  there  could  not  Avell  be  a  different  sum  recovered 
without  having  proven  a  contract  different  from  the  one  laid:  the 
effect  was  taken  as  the  cause  of  failure ;  it  wa.s  the  variance  between 
the  evidence  and  the  contract  stated,  and  not  the  verdict  of  the 
jur>-  drawn  from  that  evidence.  This  is  abundantly  proven  in  ac- 
tions of  debt  upon  the  usurious  loan  of  goods,  and  debt  upon  simple 
contract ;  in  this  case  there  is  no  cause  for  arresting  the  judgment, 
nor  is  there  cause  for  a  new  trial,  for  it  does  not  appear  that  the 
evidence  proved  a  different  cause  of  action  from  the  one  stated  in 
the  declaration.  For  what  cause,  when  the  plaintiff  proved  a 
iLsuriuus  loan  of  eighty  doilar.s.  the  jury  did  not  give  him  one 
Innidred  and  sixty  dollars,  to-wit.  double  the  sum  loaned,  but  only 
one  hundred  and  fifty-five.  I  am  unable  to  say ;  but  because  the 
jury  have  given  him  less  then  he  is  entitled  to.  is  no  reason  tiiat 
the  court  or  the  law  should  take  that  from  him. 

"The  rule  is  not  that  in  Debt  the  plaintiff  must  recover  the  sum  de- 
manded or  not  at  all;  but  that  the  proofs  must  agree  with  his  allegations. 
The  plaintiff  may  recover  less."  Waugh  v.  Chaffin.  14  N.  C.  at  p.  103. 
In  Debt,  the  e.\act  sum  demanded  in  the  wiit  need  not  be  found  by  the 
jury,  when,  from  the  nature  of  the  demand,  the  amount  is  uncertain:  but 
when  the  contract  as  stated  in  the  declaration  fixes  the  amount  due,  the 
verdict  must  agree  with  the  writ  or  judgment  will  be  arrested.  Dowd  v. 
Seawell.  14  X.  C.  IS.'j,  headnotes;  see  this  case  inserted  post  in  this  sec- 
tion. See  "Debt,  Action  of,'  Century  Dig.  §§  42,  47:  Decennial  and  Am. 
Dig.  Key  No.  Series  §§  17,  18. 


CLARK  V.  GOODWIN,   1   Blackf.   7:'.,   74.     1820. 
How  to  Enter  Judgment  in  Debt  on  a  P<nal  Bond. 

[Action  of  Debt  by  Goodwin  against  Clark  et  al.,  upon  a  penal  bond 
for  Clark's  faithful  performancp  of  certain  duties  as  deputy  sheriff.  The 
defendants  put  in  a  plea  to  which  the  idainliff  demurred.  The  court  be- 
low overruled  Ihf  demurrer  and  rendered  a  final  judj^nient  for  the  pen- 
altv  fif  tlie  bond,  instead  of  re?i(leritiir  an  interlocutory  judgment  for  the 


iTSG  KHJiiTS  (;i{0\viNO  (ur  of  contkaci'.  [Ck.  S. 

penalty  of  the  boiul  ami  postponing  ilie  final  judgment  until  the  dam- 
ages shouUl  be  assessed,  at  a  suliseijuent  term,  by  a  jury.  Clark  et  al. 
i-iU  ried  the  ease  to  the  supreme  lourt   by   writ   of  error.     Reversed.] 

Hi.ACKFOKU.  J.  .  .  .  \W  the  eoiinuon  law.  tlie  ohli»;(>f  was 
bomul  to  pay  the  wliole  penalty  if  he  I'aih'd  to  eoniply  witli  the 
eoudition  at  tlie  time  spi'eitied.  As  a  reinody  Tor  this  evil  the  stat- 
ute of  S  and  !>  Will.  ;{.  was  enacted.  We  have  a  similar  statute, 
\\iiieh  points  out  the  pi'aetiee  {o  he  pursued  in  eases  like  tiie  one; 
uuder  eonsiderat itiii.  The  opinion  of  the  eourt,  ui)on  the  ilcmur- 
rer,  in  favor  of  the  plaintilV  bi'low,  is  not  called  in  (luestion;  hut 
iu  inunediately  n-ndering  an  absolute  ju(lii:nient  I'or  the  peiuilty 
of  the  bond  and  intert'st.  they  connnitted  an  error.  This  was  a 
penal  bond  conditituied  for  the  ])erfornianee  of  covenants.  In 
such  eases,  when  the  plaint ilf  below  succeeds  on  demurrer,  th« 
fonnal  entry  of  final  judgment  ought  to  be  stayed,  until  damages 
are  assessed  by  a  jury  upon  the  breaelies  assigned  according  to  the 
statute,  and  the  assessment  is  entered  of  record.  Judgment  is  then 
rendered  for  the  penalty  of  the  bond,  and  the  costs  of  the  suit; 
and  the  assessment  regulates  the  sum  to  be  levied  on  the  execu- 
tion. The  judgment  for  the  penalty  remains  as  a  security  for 
further  breaches.    Judgment  reversed. 

In  a  note  to  the  principal  case  it  is  said:  "To  be  relieved  from  the  pen- 
alty by  the  payment  of  what  was  justly  due.  the  party,  prior  to  the  8  and 
9  Will.  3,  had  to  resort  to  chancery.  The  statute  remedies  that  incon- 
venience, and  permits  no  other  recovery  at  law  than  the  damages  which 
a  jury  may  assess,  for  the  breaches  of  covenant  assigned  and  proved,  with 
costs.  Although  the  statute  is  that  the  plaintiff  may  assign,  etc.,  the 
decisions  have  been  uniform  that  he  has  no  choice,  but  must  do  so  in  all 
cases  within  the  act.  Drage  v.  Brand,  2  Wils.  377;  Hardy  v.  Bern,  5  T.  R. 
636;  Roles  v.  Roswell,  Ibid.  538;  Walcott  v.  Goulding,  8  T.  R.  126; 
Welch  V.  Ireland,  6  East,  613.  The  few  cases  to  which  the  statute  has 
been  held  not  to  apply,  are  bonds  for  the  payment  of  a  sum  of  money  in 
gross,  2  W.  Saund.  187,  n.  2;  replevin  l)onds,  where  goods  are  distrained, 
Middleton  v.  Bryan,  3  M.  &  S.  155;  bail  bonds.  Moody  v.  Pheasant,  2  Bos. 
&  P.  446.  .  .  .  The  reason  the  statute  does  not  apply  to  bail  and  re- 
plevin bonds  is,  that  the  court,  in  the  former  by  statute  of  4  Anne,  and 
in  the  latter  by  11  Geo.  2,  can  afford  to  the  party  the  necessary  relief. 
Middleton  v.  Brvan,  supra. 

See  Clark  v.  Barnard,  108  U.  S.  436,  2  Sup.  Ct.  878,  which  distinguishes 
between  the  penalty  in  a  Irond  to  secure  the  performance  of  conditions, 
and  a  statutory  penalty  secured  by  bond.  In  the  one  case,  damages  only 
are  recoverable;  in  the  other,  the  whole  penalty  of  the  bond  is  recover- 
able. The  interlocutory  judgment  for  the  penalty  of  the  bond— such 
judgment  to  be  discharged  upon  the  payment  of  such  damages  as  may 
thereafter  be  assessed— if  properly  docketed,  becomes  a  lien  for  the  full 
amount  of  the  penalty.  This  lien  is  in  no  wise  impaired  by  the  fact  that 
the  amount  of  the  judgment  may  be  reduced  by  the  further  action  of  the 
court;  until  such  further  action,  it  stands  for  the  full  amount.  Darden 
v.  Blount,  126  N.  C.  at  p.  249,  35  S.  E.  479,  citing  Rothgerter  v.  Wonderly, 
66  III.  390.  See  note  to  Carmichael  v.  Moore,  88  N.  C.  29,  inserted 
post  in  this  section.  See  "Bonds,"  Century  Dig.  §§  244,  247;  Decennial 
and  Am.  Dig.  Key  No.  Series  §§  136.  138. 


ISCC.    2.]  RIGHTS   GROWING   OUT   OF   CONTRACT.  637 

LOWE  V.  PEERS,  4  Burrows,  2225,  2228.     1768. 
When  Debt  and  Covenant  are  Concurrent  Remedies. 

[Covenant  by  Catherine  Lowe  on  a  contract  signed  and  sealed  by  the 
defendant,  in  which  contract  was  this  clause:  "I  do  hereby  promise  Mrs. 
Catherine  Lowe  that  I  will  not  marry  any  person  besides  herself.  If  I 
do.  I  agree  to  pay  to  her  1,000  pounds  within  three  months  next  after  I 
shall  marry  anybody  else."  This  bond  was  made  in  1757.  and  in  1767 
defendant  married  another  woman.  Verdict  for  l,OuO  pounds  against  the 
defendant.  Many  points  were  made  which  came  up  for  discussion  on  a 
motion  for  a  new  trial.  The  judgment  was  arrested  upon  a  point  not 
material  to  the  subject  under  consideration.  In  the  course  of  the  dis- 
cussion on  these  various  points.  Lord  ^Mansfield  said:! 

This  is  not  an  action  brought  against  liiiii  for  not  marrying 
her  [the  plaintiff],  or  for  his  marrying  any  one  else:  the  non- 
payment of  the  1.000  pounds  is  the  ground  of  this  action — "that 
he  did  not.  when  requested,  pay  the  1.000  pounds."  The  money 
was  payable  upon  a  contingency;  and  the  contingency  has  hap- 
pened.   Therefore  it  ought  to  be  paid. 

There  is  a  difference  between  covenants  in  general,  and  cove- 
nants secured  by  a  penalty  or  forfeiture.  In  the  latter  case,  the 
obligee  has  his  election.  He  may  either  bring  an  action  of  debt 
for  the  penalty,  and  recover  the  penalty  (after  Avhich  recovery  of 
the  penalty,  he  cannot  resort  to  the  covenant :  because  the  penalty 
is  to  be  a  satisfaction  for  the  whole)  ;  or.  if  he  does  not  choose 
to  go  for  the  penalty,  he  may  proceed  upon  the  covenant,  and  re- 
cover more  or  less  than  the  penalty,  toties  quoties.  And  upon 
this  distinction  they  proceed  in  courts  of  equity.  They  will  re- 
lieve against  a  penalty,  upon  a  compensation :  but  Avhere  the  cove- 
nant is  "to  pay  a  particular  liquidated  sum."  a  court  of  equity 
cannot  make  a  new  covenant  for  a  man :  nor  is  there  any  room  for 
compensation  or  relief.  As  in  leases  containing  a  covenant  against 
plowing  up  a  meadow;  if  the  covenant  be  "not  to  plow."  and 
there  be  a  penalty,  a  court  of  equity  will  relieve  against  the  pen- 
alty, or  will  even  go  further  than  that  (to  preserve  the  substance 
of  the  agreement)  :  but  if  it  is  worded,  "to  pay  five  pounds  an 
acre  for  every  acre  plowed  up."  there  is  no  alternative,  no  room 
for  any  relief  against  it — no  compensation — it  is  the  substance  of 
the  agreement.  Here,  the  specified  sum  of  1.000  pounds  is  found 
in  damages;  it  is  the  particular  liquidated  sum  fixed  and  agreed 
upon  bftweon  thc'  parties,  nnd  i.s  tlicrofore  the  proper  qunntuin  of 
Ibe  damages. 

See  Perkins  v.  Lyman,  11  Mass.  76,  inserted  at  ?  1,  ante,  of  this  chapter. 
See  "Election  of  Remedies,"  Century  Dig.  §  2;  Decennial  and  Am.  Dig. 
Key  No.  Series  §  2. 


FRASER  V.  LITTLE,  13  Mich.   105,   108-202.     186.5. 
Can  the  Recovery  Exceed  the  Penalty  nf  the  Bond? 

[Action  of  Debt  broiight  by  TJttle  et  al.  against  Eraser  et  al.,  upon  a 
re])levJn  bond  In  the  penal  sum  of  $800.  .Tndgnient  against  Eraser  et  al.. 
who  carried  the  rase  to  the  sujireme  court  by  writ  of  error.     Reversed. 

The  judgment  below  was  for  the  jienajty  of  the  bond  and   inli  icst   on 


H:iS  RrcJins  (jkowini;  oi  r  ok  contkact.  \('Ii.  S. 

such  penaltv.  luakiut;  a  total  of  $1,(»1().;!1.  The  Intorest  was  allowed  as 
damages.  At  the  concliisioii  of  the  opinion  of  Martin,  C  .].,  it  la  said: 
"1  IhiiiU  the  jndRnient  should  have  heen  for  the  sum  of  $S0()  only,  and 
that  the  jud.nnient  of  the  eireuit  court  should  he  reversed  and  a  new  trial 
ordered."  I 

C'amphki.i,.  .1.  'rill'  tiiil\-  (|iii'stioii  ill  tliis  cMsi'  is,  wlirllicr  judjj;- 
uuMit  eaii  l)('  iriveii  on  ii  replevin  bond  Tor  more  llinii  llic  penalty 
ami  eosts.  Tlie  ad  ion  was  an  arlidii  nl'  drhl  (ui  a  Ixmd  in  llic  i)i'ii- 
ally  of  $S()0.  and  .)ndi,Mn('nl  was  feiidcrcd  lor  an  additional  sum  ol 
.Y21(>.;>1,  I)v  \va>'  ot"  daiiiaLTes  f<»r  its  dclcnl  ion.  in  addilion  to  cosl.s 
of  suit. 

1  think  there  is  no  foundation  for  an\  siidi  jiid^iiKMit.  Where 
a  hond  or  specialty  is  jjiven  in  the  aiiionni  actually  due,  and  not 
in  a  penalty,  there  is  no  reason  and  no  rule  which  will  ])r('venl  a 
recovery  of  interest  on  the  actual  (lel)t.  for  which  the  bond  is  only 
evidence  under  seal.  Hut  where  an  undeitakins:  or  condition  is 
secured  by  a  penal  bond,  which  is  not  sui)i)osed  to  reju-esent  the 
actual  debt  by  its  penalty,  such  penally  never  became  the  actual 
debt,  except  by  wa\'  of  foi-feitnre.  and  upon  such  a  forfeiture  in- 
terest was  never  allowed  to  I'tui  1)\  th(^  common  law  or  by  statute. 
And  the  cases  cited  on  the  argument,  from  Massachusetts  and 
Kentucky,  which  assume  that  interest  runs  merely  fi-om  the  fact 
that  the  penalty  became  the  debt  upon  forfeiture,  are  entirely  un- 
sujiported  and  would  probably  never  have  been  made  had  not  the 
actual  debt  in  these  cases  equalled  or  exceeded  the  penal  sum.  As 
authorities,  they  are  based  upon  a  fal.se  assumption,  and  cannot  be 
maintained  on  any  such  princii)le.  In  iMiiiland,  the  rule  of  lia- 
bility upon  bonds  in  a  penalty  has  been  almost  entirely  uniform, 
and  the  only  ca.ses  extending  it  beyond  the  penalty  and  costs  have 
been  overruled  and  disregarded.  The  cases  are  collected  in  Ilurle- 
stone  on  Bonds.  107.  108.  and  the  rule  is  there  laid  down  in  con- 
formity with  the  prevailing  authorities.     .     .     . 

It  cannot  be  said  that  under  the  p]nglish  connnon  law  decisions 
there  is  any  room  for  controversy  on  the  subji'ct.  It  is  only  where 
a  suit  is  l)rought  on  some  judgment  already  rendered  on  a  bond,  as 
in  Blackmore  v.  Flemyng,  7  T.  E.  442,  and  McClure  v.  Dunkin.  1 
E.  436.  or  where  an  action  is  brought  upon  some  distinct  covenant 
in  a  bond,  or  other  obligation,  that  the  penalty  becomes  unimpor- 
tant; but  even  in  such  cases,  the  penalty  is  not  made  the  debt  on 
which  interest  runs.  The  right  to  a  decree  in  ecpiity,  beyond  the 
penalty  of  a  bond,  is  denied  as  clearly  and  consistently  as  at  law. 
AVhere  a  debt  is  secured  as  such  by  other  securities  besides  a  bond, 
the  fact  that  a  bond  ha.s  been  taken  will  not  usually  affect  the  rem- 
edy on  the  other  obligations.  But  there  is  no  authority  for  allow- 
ing any  recovery  or  accoiuit  beyond  the  |)enalty,  when  the  bond 
becomes  material.  The  oidy  cases  where  a  different  result  has 
beiMi  reached  are  where  the  bond  debtor  has  resorted  to  equity  to 
obtain  relief  from  legal  proceedings;  and  then  it  has  been  held 
that,  as  he  who  seeks  erpiity  must  do  eciuity.  he  might  be  com- 
pelled, after  submitting  his  case  to  the  jurisdiction   of  equity,  to 


Sec.   ;2.]  RIGHTS   GROWING   OUT  OF   CONTRACT.  639 

do  what  was  just  under  the  circumstances,  and  not  to  reap  advan- 
tage from  a  dehiy  whieli  he  has  compelled  his  adversary  to  un- 
dergo. These  rules,  and  this  class  of  exceptions,  will  be  found 
well  settled  by  the  decisions.  I\rackworth  v.  Thomas,  5  Ves.  329 ; 
Tue  V.  Winterton.  3  Brown,  Ch.  .1:89 ;  Knight  v.  oMcLean,  3  Brown, 
Ch.  496;  Hughes  v.  Wynne.  1  :\r.  &  K.  20;  Clarke  v.  Seton,  6  Ves. 
■ill;  Clarke  v.  Lord  Abingdon,  17  Ves.  106;  Pulteney  v.  Warren, 
6  Ves.  92 ;  Grant  v.  Grant,  3  Russ.  598 ;  s.  c,  3  Sim.  341 ;  Jeudwine 
V.  Agate,  3  Sim.  129 ;  AValters  v.  :\Ieredith,  3  Y.  &  Coll.  264 ;  see 
also  Cooper's  Cases  in  Chancery  (Practice),  200  et  seq. 

In  Slower  v.  Kip,  6  Paige  91.  the  case  was  the  same  as  in  Clarke 
v.  Lord  Abingdon,  and  the  decree  was  manifestly  correct,  because 
the  mortgage  was  conditioned  to  secure  the  debt,  and  not  the  pen- 
alty. If  designed  to  go  fui'ther,  the  case  is  not  sustained  by  the 
authorities:  Init  it  should  l)e  understood  with  reference  to  the 
facts  presented.  In  Farrar  v.  U.  S.,  5  Pet.  372,  which  Avas  an  ac- 
tion on  a  revenue  bond,  it  was  held  that  no  judgment  could  be 
given  bevond  the  ]ienaltv.  and  judgment  below  was  reversed  on 
that  ground.  In  U.  S.  v.' Arnold.  1  Gal.  348.  Fed.  Cas.  No.  14.469. 
although  interest  was  awarded  on  a  penalty,  yet  the  question  of 
such  allowance  was  not  discussed,  and  is  not  mentioned  on  the 
appeal,  which  was  upon  an  entirely  different  question.  Arnold  v. 
U.  S..  9  Cr.  104. 

In  New  York,  in  Clark  v.  Bush.  3  Cow.  151.  and  Fairlie  v.  Law- 
son,  5  Cow.  424,  it  was  held,  after  an  elaborate  comparison  of 
cases,  that  a  surety  on  a  bond  could  not  he  held  beyond  the  pen- 
alty, whether  the  principal  could  be  or  not.     "Where  the  bond  is 
joint,  no  distinction  could  be  taken  between  principal  and  surety, 
and  the  cases  generally  make  no  discrimination  between  them 
where  they  are  sued  in  debt  on  bond,  although  some  cases,  denying 
tho  universal  effect  of  the  ])enalty,  admit  it  as  to  sureties.     In 
P>rainai-d  v.  Jones,  18  X.  Y.  35,  it  was  held  that,  in  a  case  like  the 
present,  interest  might  be  recovered  on  the  penalty.    The  reasons 
for  the  decision  are  not  new,  nor  such  as  any  mind  of  ordinary 
capacity  conld  ovm-look.     It  is  in  direct  conflict  with  the  mass  of 
decisions,  and  in  contlict  with  flic  principle  which  underlies  them 
nil.  IIkiI  a  penalfij  is  not  to  he  enlarged  under  anij  circumstances, 
and  will  not  he  enforced  heijond  its  letter.    AVith  great  respect  for 
the  author  of  the  dccisicm.  I  prefer  to  rest  ujxmi  the  known  and 
settled  rules  of  the  law,  which,  in  all  such  cases  as  the  present. 
must  be  more  in  accordance  with  the  understanding  ol"  tln^  i):ir- 
ties  than  any  other.     When  the  statute  requires  a  bond  in  double 
the  value  of  jiroperty.  as  fixed  by  sworn  and  disinterest(^d  a|)|)rais- 
crs.  it  nuist  be  presumed  that  neither  tlie  law  noi-the  sureties  could 
anticipate  the  necessity  of  any  larger  margin,  lo  inecl  the  possible 
views  of  jinother  body  of  appraisers  in  the  jury  box.     I  tbink  tbe 
settled  rule  is  a  just  one  and  should  be  ndliei-c<]   to.     T  therefore 
concur  in  tin*  views  of  the  chief  justice. 

Thp  niUns  in  this  case  is  stistained  in  New  Home  Sewing:  Machine  Co. 
V.  SeaKO.  128  N.  C.  158.  38  S.  E.  80r,.    Tlie  contrary  view  is  ably  presented 


l>4()  wu.MiTs  ciiowiNi;  (ifr  ok  contract.  fr//.  ,9. 

in  tho  dissenting  opinion  oi  (."laiU.  V.  .1.,  p.  1(i2.  where  the  antiioritios  for 
liis  iiosition  are  cited.  Se<'  also  Slate  v.  Ford,  r>  HIackford,  I'.ltl',  where  it 
is  said  by  HiaelUord.  J.:  "Uy  tlie  coinnion  law,  tlie  penalty  of  the  bond 
wafi,  on  a  l)reacli  of  the  condition,  always  recovered  in  a  suit  at  law,  no 
matter  wliether  tlie  damages  sustained  were  nuire  or  less  than  the  pen- 
alty. According  to  the  siatiito  of  Will.  W,  when  the  damages  are  less 
than  the  penalty,  the  amount  of  the  damages  is  all  that  can  be  recovered 
even  at  law;  and  that  is  the  only  change  in  the  law  made  by  the  statute. 
If  the  damages  exceed  the  penalty,  the  common  law  governs,  and  the 
penalty  is  the  delit.  That  is  all  that  the  obligor,  in  any  event,  has 
bound  himself  to  pay,  and  all,  of  lonrse,  that  can  be  recovered,  excei)t 
the  costs  of  suit."  See  "Replevin,"  Century  Dig.  §  497;  Decennial  and 
Am.  Dig.  Key  No.  Series  §  124. 


DOWD  v.  SEAWELL,  14  N.  C.  185.     1831. 

Debt  for  a  Penalty  Given  by  i^tatute.     What  An.oiini  Can  Be  Recovered 

in  Debt. 

[Action  of  Debt  to  recover  the  penalty  given  by  statute  for  violation  of 
the  regulations  to  be  observed  in  celebrating  a  marriage.  Plea,  nil  debet. 
Verdict  against  defendant.  ,Tudgment  arrested  on  defendant's  motion. 
Plaintiff  appealed.     Affirmed. 

The  writ  of  Debt  demanded  "fifty  pounds  which  the  defendant  owes 
and  unjustly  detains  to  plaintiffs  damage  one  hundred  dollars."  The 
verdict  was  "that  the  defendant  does  owe  the  sum  of  fifty  pounds  reduced 
by  the  scale  to  twenty-four  pounds,  ten  shillings."] 

RuFFix.  J.  We  tliink  the  decision  of  the  superior  court  right, 
and  that  the  judgment  must  be  arrested.  It  is  an  action  of  debt 
for  the  penalty  for  marrying  a  couple  Avithout  a  license.  The  sum 
demanded  is  one  hundred  dollars;  and  the  verdict  is  for  twenty- 
four  pounds,  ten  shillings.  The  act  of  1778  (Rev.  c.  134),  gives  a 
penalty  of  fifty  pounds;  which,  when  scaled,  amounts  to  the  sum 
found  by  the  jury — twenty-four  pounds,  ten  shillings. 

It  was  formerly  thought  that  the  action  of  debt,  being  for  an 
entire  thing,  could  not  be  maintained  unless  the  exact  sum — 
neither  more  nor  les.s — was  recovered.  This  is  not  now  so  con- 
sidered, nor  has  been  for  a  long  time.  And  the  rule  is,  that  in  ac- 
tions, where  from  the  nature  of  the  demand  the  true  debt  is  un- 
certain, it  may  be  alleged  to  be  large  enough  to  cover  the  real  debt, 
and  there  shall  be  a  verdict  according  to  the  truth,  and  judgment 
thereon.  Hence,  in  debt  on  simple  contract,  the  declaration  is 
good  although  the  sums  demanded  in  several  counts  do  not  amount 
to  or  exceed  the  stun  demanded  in  the  writ,  or  the  recital  of  it  in 
the  beginning  of  the  declaration.  ]\IcQuillin  v.  Cox,  1  II.  Bl.  249; 
Lord  V.  Houston.  11  East.  62.  And  in  Aylett  v.  Lowe,  2  Bl.  R. 
1221.  it  was  held,  that  upon  a  verdict  for  one  hundred  pounds  in 
debt  for  two  himdred  pounds,  on  a  mutuatus,  there  should  be 
judgment  for  the  plaintiff.  And  so  too  in  debt  on  a  specialty,  if 
the  deed  does  not  of  itself  show  the  certainty  of  the  whole  demand, 
but  the  extent  is  matter  of  proof  aliunde,  the  verdict  may  be  ac- 
cording to  the  truth,  and  if  it  be  within  the  sum  demanded,  there 
shall  be  judgment  for  the  plaintiff.     ... 


.S(C.    ~^J  RIGHTS   GROWING   OUT   OF   CONTRACT.  641 

The  same  principles  apply  to  actions  of  debt  for  penalties  given 
by  statute.  As  in  every  case,  the  declaration  must  set  out  the 
n'latter.  whether  of  contract  or  law.  whereby  the  demand  arises ;  so 
in  these  actions  the  plaintiff  narst  show  a  statute  giving  the  pen- 
alty demanded  by  hiui.  and  charge  the  acts  which  show  the  de- 
fendant to  be  guilty  of  the  offense  v.ithin  the  statute.  These  alle- 
gations are  indispensable  to  enable  the  defendant  to  know  for  what 
he  is  sued,  and  to  protect  himself  by  plea  to  another  action  for  the 
same  matter.  Anciently  the  statute  was  set  out  at  full  length. 
This  was  relaxed,  and  stating  it  by  its  title  was  then  allowed. 
Aften\-ards  a  general  reference  to  it  by  alleging  the  particular 
penalties  given  thereby,  and  concluding  "against  the  form  of  the 
statute"  was  held  sufficient,  upon  the  grounds  that  the  court  was 
l)ound  to  take  notice  of  all  public  laws,  and  that  the  particular 
statute  was  sufficiently  identitied  by  the  statement  of  the  penalty 
and  of  the  acts  forbidden  by  it.  But  certainly  there  must  be  some 
description  of  it ;  and  if  there  be  no  reference  to  it  the  declaration 
is  bad.  Scroter  v.  Harrington,  8  X.  C.  192 ;  ]Myddleton  v.  Wynn, 
Willes.  599. 

If.  however,  the  statute  itself  gives  an  uncertain  penalty,  or  a 
penalty  to  be  measured  by  reference  to  some  uncertain  thing,  then 
the  sum  demanded  is  not  conclusive  on  the  plaintiff,  but  he  may 
recover  according  to  the  certainty  made  by  his  proof,  because  he 
can  do  no  more  towards  a  more  definite  description  of  the  statute 
or  of  the  debt.     In  an  action,  therefore,  for  subtracting  tithes 
against  the  statute  2  and  3  Ed.  6.  which  gives  the  treble  value,  the 
judguK-nt  shall  be  according  to  the  verdict,  though  different  from 
the  sum  demanded.     Pem])erton  v.  Skelton,  Cro.  Jac.  498.     The 
court  say  there  that  the  variance  is  no  objection,  because  the  stat- 
ute gives  no  certain  sum.  but  only  so  much  in  reference  to  the 
value;  and  the  value  cannot   be  positively  estimated  until   it  is 
done  by  the  jury  themselves.     And  the  judges  distinguish  that 
ease  from  an  action  grounded  on  a  specialty  in  which  the  certainty 
of  the  debt  appears,  and  from  an  action  grounded  on  a  statute 
which  gives  a  sum  certain ;  in  both  which  the  precise  sum  must  be 
demanded.     This  last  position  is.  to  be  sure,  but  a  dictum  in  that 
case,  but  it  is  the  jK)int  of  tlie  decision  in  Cunningham  v.  Bennett, 
1  Geo.  1,  C.  B.,  stated  ])y  -Mr.  Justice  Buller  in  his  Nisi  Prius.  a 
book  of  much  authority.     There  it  was  held  that  a  penal  action 
eoMld  not  be  fiir  less  tlian  the  penalty  given  by  the  statute;  and 
Ihnugh  the  pliiinliff'  had  a  verdict,  judgment  was  arrested.     I  con- 
clude, therefore,  that  wherever  a  statute  gives  a  certain  sum   in 
nuwrro,  that  exact  sum  m'list  be  demanded,  else  it  cainiot  be  taken 
to  lie  the  peiudty  given  h]i  the  stahilr.     Here  the  declaration  con- 
forms  neither  to  the  act  of  1741   nor  that  of  1778.     The  former 
gives  fifty  pounds  prochmiMtion   nmney  to  the  usi>  of  the  p.-ii-isli. 
or.  by  the  act  of  1777.  to  the  use  of  the  comity.     The  latter  gives 
fifty  pounds,  scaled  to  24.10  pounds,  one-hall'  to  the  inroi-nicr  and 
the  other  to  the  county.     ('onse(|iientl_\'  the   indLrMieiil   must  be  ar- 
rested for  this  reason. 
Rpmedtes— 41. 


CA'2  Kuiins  civdWiNc  oi'r  ok  ("onthaot,  \<'li.  S. 

The  otluM-  object itui.  lliat  (laniaprt^s  nrt>  (liMnnndcd.  is  not  a  jxood 
one.  Thoy  i-annot  ho  rei-overi'il.  l)ut  it  is  not  imtoi-  t()  tk'iiiand 
them.  The  case  of  Frederick  v.  Lookup.  4  linrrows,  2018,  shows 
this;  for  the  .indsxinent  was  reversed  only  as  to  the  damages  as- 
sessed, and  atVuMued  \'ov  tlic  debt,  wbicli  was  the  ]>enally.  Judp;- 
nient  alVirnied. 

See  Dozier  v.  Rray.  0  N.  C.  .")7,  ins(MU'<l  ante  in  tliis  section.  Thai 
Debt  is  the  proper  remedy  on  a  judgment,  domestic  or  foreign,  of  a  court 
of  record  or  not  of  record,  see  Cole  v.  DrisluMl,  1  Blackford,  Iti.  See 
••Debt.  Action  of,"  Century  Dig.  §§  42,  47;  Decennial  and  Am.  Dig.  Key 
No.  Series  §§  17.  18. 


FARNHAM  v.   HAY.  3   Blackf.   167.     1833. 

Debt  on  Bond,  etc.,  Payable  in  Installments.     Joinder  of  Debt  and  As- 
sumpsit in  the  Same  Action. 

(Action  of  Debt  upon  a  sealed  contract  to  pay  the  plaintiff  $220 — one- 
half  in  one  year  and  the  other  half  in  two  years.  The  action  is  for  the 
first  half,  $110,  it  being  the  only  amount  due  when  this  action  was  com- 
menced. The  defendant  demurred  on  the  ground  that  De])t  would  not 
lie  until  both  installments  were  due.  Demurrer  sustained,  and  judgment 
against  the  plaintiff,  who  carried  the  case  to  the  supreme  court  by  writ 
of  error.  Affirmed  on  this  point.  There  were  three  counts  in  the  dec- 
laration, two  in  Debt  and  one  in  Assumpsit.  The  third  count,  in  Assump- 
sit, being  good,  the  judgment  below  was  reversed  under  the  rule,  that  if 
one  of  several  counts  be  good,  a  demurrer  to  the  whole  declaration  must 
be  overruled.] 

l\IcKiNNEy,  J.  This  is  an  action  of  debt.  The  declaration  con- 
tains three  counts.  The  first  demands  .$110,  and  is  founded  upon 
a  writing  obligatory,  by  which  the  defendant  promised  to  pay  the 
plaintiff  the  sum  of  $220.  one-half  to  be  paid  in  one  year,  and  the 
other  half  in  two  years  from  the  date,  with  interest.  The  sum 
thus  demanded  is  the  amount  agreed  to  be  paid  in  one  year,  it  only 
having  become  due.  The  second  is  for  the  same  amount,  the  half 
of  $220  borrowed  of  the  plaintiff,  and  agreed  to  be  paid  in  one  and 
two  years.  The  sum  claimed  in  this  count  is  also  the  amount 
agreed  to  be  paid  in  one  year,  it  being  then  due.  The  third  count 
is  for  $110  advanced,  laid  out,  and  expended  for  the  defendant, 
at  his  special  request,  and  agreed  to  be  repaid  to  the  plaintiff, 
with  lawful  interest,  in  one  year.  The  defendant,  on  oyer,  de- 
murred to  the  declaration.  The  demurrer  was  sustained  and  judg- 
ment rendered  in  his  favor.  The  correctness  of  this  judgment  is 
questioned  by  the  plaintiff  in  error.  If  either  of  the  counts  be 
good,  the  demurrer  should  have  been  overruled. 

The  first  two  counts  ai-e  for  the  recovery  of  the  half  of  a  sum 
of  money  agreed  to  be  paid  by  installments,  in  one  and  two  years, 
the  whole  debt  not  having  become  due.  The  law  appears  to  he 
settled,  that  eleht  cannot  he  sustained  for  money  payable  hy  in- 
stallments, till  the  whole  deht  is  due,  unless  the  payment  he  se- 
cured hy  penalty.  1  Thit.  PI.  lOG;  "Rudder  v.  Price,  1  TT.  Bl.  547; 
2  Saund.  30.3.  n.  H.     Onlv  one  installment  of  the  stun  agreed  to  be 


Sec.  2.]  RIGHTS  growing  out  of  contract.  643 

paid  Avas  clue  at  the  time  this  suit  was  instituted,  cousequently 
the  action  of  debt  was  not  appropriate.  We  cannot  perceive  that 
the  operation  of  this  rule  can  prove  injurious;  for  if  the  contract 
be  under  seal,  upon  non-payment  of  the  installments  as  they  re- 
spectively become  due.  the  party  has  his  remedy  by  action  of  cov- 
enant; or.  if  bv  parol.  ])v  that  of  assumpsit.  Tucker  v.  Randall, 
2  Mass.  283;  Bac.  Abr.  debt,  b;  Com.  Dig.  action,  f ;  Co.  Lit.  292; 
1  Chit.  PI.  93.  113.  From  this  view  the  first  two  counts  must  be 
regarded  as  defective. 

The  third  count,  however,  is  not  liable  to  the  same  objection ; 
but  as  it  is  urged  that  it  is  insiit^cient.  we  will  examine  it  and 
notice  the  defects  that  are  suggested.  This  count  is  on  the  sim- 
ple contract,  and  may  be  joined  in  the  same  action  with  debt  on 
bond,  or  other  specialty,  or  with  debt  on  judgment.  1  Chit.  PI. 
j96;  Bac.  Alir.  action,  c;  Com.  Dig.  action,  g;  13  Johns.  462. 
Chitty  (in  1  vol.  on  PI.  397),  speaking  gf  different  counts  for  the 
same  cause  of  action,  says:  "Though  both  counts  are  in  the  same 
declaration,  yet  they  are  as  distinct  as  if  they  were  in  separate 
declarations,  and  consequently  they  must  independently  contain 
all  necessary  allegations,  or  the  latter  count  must  expressly  refer 
to  the  former."  The  rule  is  certainly  more  positive,  requiring  en- 
tire independence  and  sufficiency  in  counts,  when  in  the  same  dec- 
claration  are  joined  different  causes  of  action,  and  whether  a 
plaintiff  whose  declaration  contains  more  than  one  count,  claims  a 
recovery  upon  a  right  of  action  only,  or  upon  several,  cannot  ap- 
pear except  in  evidence.  Gould's  PI.  171.  "When  counts  are  thus 
joined,  they  nuist  be  considered  as  constituting  distinct  causes  of 
action,  and  a  defect  in  one  does  not  attach  to  the  other.  In  an 
action  thus  brought,  the  defective  count  should  be  demurred  to; 
but  if.  insti-ad  of  a  defective  count,  there  is  a  misjoinder,  tlie  dec- 
laration would  be  bad  on  general  demurrer.  The  third  count  may 
therefore  contain  a  good  cause  of  action,  and,  if  the  objection 
taken  be  not  available,  the  circuit  court  erred  in  rendering  judg- 
ment in  favor  of  the  defendants.  .  .  .  We  are  of  opinion  that 
the  third  count  is  good,  and  that  the  demurrer,  being  to  the  whole 
declaration,  should  have  been  overruled.    Judgment  reversed. 

As  to  aftions  on  installments,  see  .Tanett  v.  Self,  90  N.  C.  478,  and 
Smith  V.  Lumber  Co.,  142  N.  C.  26,  54  S.  E.  788  (inserted  supra  ch.  6. 
§  :;,  a),  whifh  holfl  that  a  judgment  on  one  installment  is  res  judicata  as 
to  all  other  installments  due  when  the  action  was  commenced,  if  such 
matured  installments  were  not  then  sued  on;  but  such  an  action  is  no 
bar  to  installments  not  then  due.  See  further,  as  to  actions  on  install- 
ments, Xesbit  V.  Riverside  Tnd.  Dist.,  144  U.  S.  610,  12  Sup.  Ct.  746; 
niac"l<well  V.  Dibbrell,  lO:^  N.  C.  270,  9  S.  E.  192;  McPhail  v.  .Johnson, 
10ft  N.  r.  .•■>71,  13  S.  E.  790;  Mordecai's  L.  L.  130-131;  IVlcIntosh  Cont.  .^)86; 
24  Am.  &  Eng.  Enc.  L.  7:t0;  13  Cyc.  411.  See  "Debt,  Action  of."  Century 
Dig.  §  2 J;  Decennial  anfl  Am.  Dig.  Key  Xo.  Series  §  7;  "Actions,"  Cen- 
tury Dig.  §  33G;   Decennial  and  Am.  Dig.  Key  No.  Series  §  41. 


(i44  i;ii;nTs  (JKowinc  oit  of  coxtract,  1^//.  8. 


iiAKTSFiKLn  V,  .lONES.  ut  X.  c.  :w'.K  :m.    1857. 

Debt   Prefi'iahh'    to    Covenont    or   Assiimitsit    ^Vhcl■c    Plaintiff   Has    His 

/;/(■(  /lOH  to  Adopt  Kithtr.     J inU.jmciit   bit  Default   in  Debt. 

1  Assiinipsit  bro\ij;ht  in  :i  jiislico's  court  on  an  acrount  for  medical 
services.  The  justice  gave  judgment  for  the  iilainliff,  and  the  defend- 
ant apppaUnl  to  the  county  coiirt,  where  he  made  default  and  judgment 
final  was  rendered  against  him  tor  the  amount  of  the  justice's  judgment, 
without  ascertaining  the  damages  by  inquiry  before  a  jury.  Defendant 
then  carried  the  case  to  the  su|ierior  court  by  ceitiorari.  In  the  superior 
court  the  defendant  asked  that  the  judgment  final  entered  in  the  county 
court  should  be  reversed  and  an  interlocutory  judgment  should  be  en- 
tered, to  inquire  as  to  the  plaintiffs  damages  to  be  recovered.  The  su- 
perior court  refused  to  disturb  the  judgment  of  the  county  court,  and  the 
defendant  appealed.     Reversed.] 

B.VTTLE.  J.     .     .     .     The  suit  commenced  before  a  single  jus- 
tice, by  a  w!iri-nnt  on  a  medical  account  for  t\v(>nty-five  dollars. 
Tlic  ju.stice   (rave  a   judfrmcnt   for  seven,  and   the  defendant  ap- 
pealeil  to  tlie  comity  court,  ^'iving  l)ond  witli  two  sureties,  for  the 
appeal.    The  principal  defendant  did  not  enter  any  pleas  in  that 
court,  and  the  phiiiitiff  took  judfrmcnt  by  default  final  for  seven 
dollars.     Tlie  defendant  contends  that  the  ])laintiff  had  no  right 
to  take  a   final   .iiulginent.   but   was  entitled  to  an   interlocutory 
judgment  only,  upon  which  he  could  not  have  final  judgment  un- 
til he  had  his  damages  ascertained  upon  a  writ  of  inquiry.     In 
this  we  think  he  is  right.    The  warrant  which  stands  for  a  declara- 
tion is  clearly  in  assumpsit.    I'pon  a  default  in  that  action,  which 
sounds  in  damages,  the  judgment  is  necessarily  interlocutory,  and 
no  final  judgment  can  be  had  until  the  damages  have  been  ascer- 
tained upon  a  writ  of  inquiry.     Stop.  PI.  105;  1  Ch.  PI.  122.     In 
treating  of  the  "election  of  actions."  :\Ir.  Chitty  says:  "The  action 
of  debt  is  frequently  preferable  to  assumpsit  or  covenant,  because 
the  judgment  in  debt  upon  a  nil  dicit,  etc.,  is,  in  general,  final,  and 
execution  may  be  taken  out  immediately,  without  the  expense  and 
delay  of  a  writ  of  inquiry,  which  is  usually  necessary  in  assumpsit 
or  covenant,  in  case  of  judgment  by  default."     See  page  242. 
The  act  of  1808  (1  Rev.  Stat.  eh.  31,  s.  96,  Rev.  Code,  ch.  31,  s.  91) 
obviated  this  difficulty  in  suits  upon  bills  of  exchange,  promisso»'\- 
notes,  and  signed  acc^ounts,  by  authorizing  the  clerk  to  ascertain 
the  interest  which  might  have  accrued  thereon,  without  a  writ  of 
inquiry,  and  directing  tlie  amount  thus  ascertained  to  be  included 
in  the  final  judgment  of  the  court.    The  105th  section  of  the  same 
chapter  of  the  Revised  Code  has  a  provision   (which  is  not  to  be 
found  in  the  Revi.sed  Statutes),  having  in  view  the  same  object  in 
the  case  of  appeals  from  the  judgment  of  a  justice  to  the  county, 
or  the  superior  court.    After  enacting  that,  in  the  case  of  an  issue, 
it  shall  be  tried  at  the  first  term,  it  proceeds  to  declare  that  "when 
the  defendant  shall  make  default,  the  plaintiff,  on  such  demands 
as  are  mentioned  in  section  91  of  this  chapter,  shall  have  judgment 
in  the  manner  therein  provided,  and.  in  other  cases,  may  have  his 
inquiry  of  damages  executed  forthwith  by  a  jury."    The  last  par- 


Sec.    2.]  RIGHTS   GROWING  OUT  OF   CONTRACT.  645 

agraph  clearly  recognizes  the  necessity  of  such  a  writ  in  those  ac- 
tions which  sound  in  damages,  such  as  covenant  and  as.suuipsit. 

Our  opinion  is  that  the  judgment  of  the  superior  court  is  erro- 
neous and  must  be  reversed,  and  this  must  be  certified  as  the  law 
directs,  to  the  end  that  the  judgment  of  the  county  court  may  be 
reversed,  and  that  an  interlocutory  judgment,  that  the  plaintitf 
recover,  be  entered,  upon  which  he  may  have  his  writ  of  inquiry 
executed  preparatory  to  his  final  judgment.    Judgment  reversed. 

See  "Assumpsit,  Action  of,"  Century  Dig.  §  171;  Decennial  and  Am. 
Dig.  Key  Xo.  Series  §  32;  'Justices  of  the  Peace,"  Century  Dig.  §  723; 
Decennial  and  Am.  Dig.  Key  No.  Series  ^  188. 


CARMICHAEL  v.  MOORE,  88  N.  C.  29.     1883. 
Debt  on  Official  Bond  in  Which  the  State  is  the  Obligee.    "State  ex  reJ." 

[Action  on  the  bond  of  a  superior  court  clerk  in  which,  by  law,  the 
state  was  the  obligee.  The  avtion  icas  not  brought  in  the  name  of  the 
state  upon  the  relation  of  Carmichael,  but  simply  in  the  name  of  Car 
michael.  Upon  this  ground  the  defendant  demurred.  Demurrer  over- 
ruled and  defendant   appealed.     Reversed.] 

RuFFiN.  J.  This  appeal  is  taken  from  a  judgment  of  the  su- 
perior court  overruling  a  demurrer  to  the  complaint,  and  but  a 
single  point  need  be  considered. 

The  plaintiffs  sue  upon  the  official  bond  given  by  the  defendant, 
^loore,  as  clerk  of  the  superior  court  of  Robeson  county,  with  the 
other  defendants  as  his  sureties — the  breach  assigned  being  his 
failure  to  pay  over  certain  money  which  came  to  his  hands  for  the 
plaintiffs.  The  bond  is  made  payable  to  the  state,  but  the  action 
is  brought,  and  the  complaint  filed,  in  the  names  of  the  parties  in- 
terested, and  this  is  one  of  the  grounds  of  demuiTcr. 

The  bond  sued  on  is  the  i)r()perty  of  the  state,  and  tlic  only  au- 
thority the  i)laintiffs  have  for  putting  it  in  suit  is  that  which  is 
specially  given  in  the  statute  and  which  in  terms  is  limited  to  a 
suit  brought  in  the  nnmr  of  tJir  siaic.  Rat.  Rev.  ch.  80,  s.  11. 
Such  is  the  plain  ])rovisi(in  of  the  law,  long  recognized,  and  sup- 
ported by  the  uniform  practice  of  the  courts.  The  statute,  though 
an  ancient  one,  has  been  re-enacted  since  the  adoption  of  the  Code, 
and  the  court  would  therefore  feel  themselves  bound  by  it,  as  the 
latest  declaration  of  the  law.  even  in  case  of  a  conllict  in  the  pro- 
visions of  the  two  instruments.  But  in  fact  there  is  no  such  con- 
flict in  this  particular.  The  r(M|nircinent  of  the  Code  that  "every 
action  must  be  br<iiit.dit  in  tin-  inimc  of  the  i-ciil  parly  in  interest." 
was  never  intended  to  be  aj)plied  to  actions  upon  oilicial  bonds, 
made  payable  to,  and  held  by  the  state,  and  intended  to  be  sued 
U[»on  by  every  person  injutrd  I)y  tin'  iiegl(>ct  of  the  officiu".  and 
as  many  as  mitrht  be  iiijui-id.  until  tlie  whole  penalty  should  be 
exhausted — and  all.  nttt  by  reason  of  any  property  in  the  bond 
itself,  but  by  virtue  of  the  authority  specially  gi-anted  by  th<'  stat- 
ute.     As  the  right   t<i  sue  upon  the  bond    is  ulieHy  deiived    from 


()4(l  KKJirrs  (;!{(>\viN(;  oi'T  of  contract.  [Ch.  S. 

\\\v  stiitutc,  it  must  lie  cxoivisi'il  in  \\\v  iiuinut  r  tlioro  provided  aiul 
in  no  otlu'i-  way.  As  rcpoitrd.  llic  case  of  Little  v.  Richardsoii, 
i)\  N.  V.  'SOb,  seems  to  I'ufiiisli  tlu'  plaintilTs  with  a  ])reeedent ;  but 
upon  lookiiifT  to  the  ori<;iiial  papers,  we  iiiul  that  tlie  action  was  in 
fact  brouijht  in  tlie  name  of  the  state.  So  far  as  our  investiga- 
tions fjo.  there  is  not  a  sinjric  aiitliority  whieli  sujjports  the  manner 
of  brinirini;  tliis  actiim. 

Tlie  judi^ment  of  the  coiirt  behtw  overrulin<:  tlie  (h^murrer  is 
therefore  reversetl,  and  judgment  will  be  entered  here  dismissing 
the  action.    Reversed. 

If  the  state  is  not  made  a  party — if  the  action  is  not  "State  ex  rel." — 
the  objertion  must  be  taken  in  apt  time  or  it  is  deemetl  to  be  waived. 
Brown  v.  McKee,  108  N.  C.  387.  13  S.  E.  8;  Mann  v.  Balier,  142  N.  C.  235, 
55  S.  E.  102.  Such  defect  ma.v  be  cured  by  amendment,  which  may  be 
allowed  even  in  the  supreme  court  after  the  case  has  reached  that  court 
upon  an  appeal.  Grant  v.  Rogers,  94  N.  C.  at  p.  760;  Wilson  v.  Pearson, 
102  N.  C.  290,  9  S.  E.  707;  Joyner  v.  Roberts,  112  N.  C.  at  p.  115,  16  S.  E. 
917.  The  penalty  of  the  bond  fixes  the  jurisdiction  regardless  uf  llie 
"sum  demanded"  as  damages  for  the  breach;  the  penalty  is  ihc  "sum 
demanded."  Fell  v.  Porter,  69  N.  C.  140;  Joyner  v.  Roberts,  112  N.  C. 
111.  16  S.  E.  917,  but  see  Washburn  v.  Payne,  2  Blackford,  216,  contra, 
inserted  at  ch.  12,  post.  In  such  actions  the  judgment  is  for  the  penalty 
of  the  bond,  the  judgment  to  be  discharged  by  the  payment  of  the  dam- 
ages ascertained.  Clark  v.  Goodwin,  1  Blackford,  at  p.  75,  inserted,  ante, 
in  this  section.     Darden  v.  Blount,  126  N.  C.  247,  35  S.  E.  479. 

For  forms  of  Declarations  in  Debt  on  bonds  in  which  the  state  is  ob- 
ligee— actions  of  "State  ex  rel." — and  for  authorities  that,  in  North  Car- 
olina prior  to  the  adoption  of  the  Code  practice,  the  api)io|'riare  remedy 
loi-  a  breach  of  such  bonds  was  Debt,  see  Eaton's  Forms,  pp.  120-127. 
See  "Oflficers,"  Century  Dig.  §  243;  Decennial  and  Am.  Dig.  Key  No. 
Series  §  140. 


WORTH  V.  COX,  89  N.  C.  44,  47-50.     1883. 
Summary  Remedy  on  Official  Bonds. 

[Summary  proceeding,  pursuant  to  a  statute,  against  a  sheriff  and  the 
sureties  on  his  official  bond.  The  judgment  was  entered  by  the  clerk  of 
the  superior  court  without  any  notice  to  the  defendants.  An  appeal  being 
refused  by  the  clerk,  the  defendants  carried  the  case  to  the  superior 
court  by  a  petition  for  certiorari.  The  plaintiff  demurred  to  the  petition. 
Demurrer  sustained,  and  judgment  against  defendants  dismissing  their 
petition,  from  which  they  appealed.    Affirmed.] 

Smith,  C.  J.  .  .  .  We  proceed  to  examine  the  validity  of 
the  defenses  set  up  in  behalf  of  the  sureties  who  appeal. 

1.  The  regularity  and  efficacy  of  the  summary  judgment  ren- 
dered Avithout  previous  actual  notice.  In  looking  into  the  legisla- 
tion which  introduced  this  summary  process  against  public  agents, 
we  find  that  in  1793  an  act  was  passed  authorizing  the  attorney- 
general,  on  motion,  to  take  judgment  against  receivers  having 
public  moneys  in  tlnir  hands  and  failing  to  pay  over,  and  that 
their  own  delinquencies  should  be  sufficient  notice  of  the  motion 
therefor.  The  compatibility  of  the  enactment  with  the  constitu- 
tion was  br(;ught  in  fpicstion,  in  an  anonymous  case  reported  in 


Sec.    :i.]  RIGHTS    GROWING    Ol'T   OF   CONTRACT.  647 

1  Haywood.  2!)  (Battle,  Ed.  38),  the  very  next  year,  aud  elabor- 
ately argued  before  Judges  AVillianis,  Ashe,  and  Macay,  by  the 
attorney-general.  Haywood.  The  former,  who  first  heard  the 
motion,  adhered  to  the  opinion  he  then  expressed,  that  the  act  was 
repugnant  to  the  constitution ;  Avhile  the  other  judges  granted  the 
motion,  Judge  Ashe  remarking  "that  while  he  had  considerable 
doubts.  Judge  ^laeay  was  so  clear  in  his  opinion  that  the  judgment 
might  be  taken,  and  had  given  such  strong  reasons,  that  his  own 
objections  had  been  vanquished." 

The  same  summary  remedy,  given  against  delinquent  sheriffs 
to  the  counties  by  the  act  of  1808.  came  before  the  court  in  the 
case  of  Gates  v.  Darden,  5  N.  C.  500,  and  Hall,  J.,  delivering  the 
opinion,  sustains  the  policy  of  such  legislation,  and  says  that  "it 
does  not  alter  the  rights  of  the  sheriff,"  but  only  "the  mode  of 
proceeding  against  him.  and  that  the  legislature  had  the  right  to 
do  this."  Such  acts,  in  his  own  words,  "are  beneficial,  and  should 
be  liberally  construed."  In  this  case  the  judgment  was  rendered 
after  the  sheriff'  had  gone  out  of  office. 

A  similar  law  to  that  under  which  the  present  proceeding  was 
authorized,  so  far  as  we  know,  has  been  in  uninterrupted  force  and 
acted  on  since  the  well-considered  conclusion,  in  the  anonymous 
ease  first  cited,  was  announced ;  nor  does  the  consistency  of  this 
summary  and  efficient  remedy  against  delinquent  collectors  of 
public  money,  with  the  provisions  of  the  organic  law,  seem  to 
have  been  dra\m  in  question  since,  unless  in  Prairie  v.  Jenkins, 
75  N.  C.  545,  wherein  Rodman,  J.,  thus  disposes  of  the  two  objec- 
tions made  for  the  appellant:  "1.  The  first  ground  on  which  the 
plaintiffs  put  their  claim  to  relief  is.  that  the  judgment  was  taken 
before  the  clerk  of  the  superior  court  and  not  before  the  judge  in 
term  time.  This  objection  to  the  judgment  is  answered  by  the 
act  of  1872-73  (Bat.  Rev.  ch.  102,  s.  38),  which  expressly  directs 
the  proceeding  comi)]ained  of.  2.  That  the  judgment  was  taken 
without  notice  to  them.    This  also  is  directed  by  the  act  cited." 

This  summary  mode  of  enforcing  the  collection  of  taxes  may  be 
necessary  in  carrying  on  the  operations  of  government,  which 
would  be  often  seriously  interfered  witli  if  the  state  were  forced 
to  pursue  the  ordinary  action  upon  the  bond  and  subject  its  re- 
covery- to  the  delays  incident  thereto,  and  with  an  unlimited  right 
of  appeal  on  the  part  of  the  delinquent  and  his  sureties.  The  of- 
fice is  accepted  and  the  bond  given  under  the  known  conditions  of 
Ihe  law  that  permits  this  direet  and  expeditious  remedy  in  ease 
of  default,  and  these  may  be  said  to  enter  as  elements  into  the 
contract  itself.  liut  it  is  enough  to  say  that  if  any  law  can  be 
deemed  settled  and  not  ktnger  to  admit  of  controversy,  the  prac- 
tice under  this,  or  a  similar  enactment  for  near  a  century  past, 
has  e.stablished  its  validity. 

It  is  suggested  in  argument  for  the  appellants  that  the  ])resent 
cDristitiitioM.  essentially  different  from  its  predecessor,  delegates  to 
the  general  assembly  all  tlie  jxiwer  it  i)oss<'sses.  and  is  not  a  mere 
limitation  upon  general  legislative  power,  and  hence  there  is  no 


1)48  K'icirrs  cijowinc  ocr  of  roxiuAi  r.  [Cli.  S. 

warrant  I'oi'  tlic  enact iiuMit.  We  do  not  s('(>  any  inatcrial  dilVtM't'iu'o 
bt'Iwoen  tiuMu  in  tliis  rt'sprcl.  in  their  declaration  of  personal 
riirhts  and  innniniilies.  whicli  the  act  may  l)e  su|)i>osed  to  invade; 
and  as  it  is  a  |>art  of  tlie  inacliincry  I'or  tlie  colloction  ol'  pnhlic 
taxes  and  tlieii-  paynienl  nito  the  treas\ny.  tlie  act,  as  incident 
tlieri'to.  is  necessarily  involvi'd  in  (he  jxiwcr  to  levy  and  collect 
taxes  for  tlu' support  of  the  ijovornnnnl.     .  Aflii-med. 

To  like  effect,  see  Murray's  Lessee  v.  Hoboken  L.  &  I.  Co..  18  Howard 
(U.  S.)  l'Tl'.  See  •Const it iKional  Law,"  Century  Dig.  §  948;  Decennial 
and  Am.  Dig.  Key  No.  Series  g  30G. 


Sec.  3.    Action  op  Assumpsit. 
((/)  There  Miisl  lie  a  ('o)ilracl,  hJHIxr  Express  or  Im 

BARTHOLOMEW  v.  JACKSON,  20  Johnson  (N.  Y.)  28.     1822. 

Oratuitous  Service.    Services  Without  Request,  or  Promise  of  Remunera- 
tion. 

1  Jackson  sued  Bartholomew  in  assumpsit,  before  a  justice,  for  work 
and  labor  done.  Plea,  non  assumpsit.  Bartholomew  had  a  stack  of 
wheat  in  Jackson's  field,  and  Jackson  sent  him  word  to  remove  it  by  a 
certain  time  so  that  he  could  burn  the  stubble.  As  it  was  not  removed, 
Jackson  set  fire  to  the  stubble  and  then  removed  the  wheat  to  keep  it 
from  burning.  He  sued  in  this  action  for  the  value  of  the  services  of 
himself  and  his  servants  in  saving  the  wheat.  Bartholomew  had  not  re- 
quested him  to  move  the  wheat,  nor  promised  to  pay  him  for  the  work. 
Verdict  and  judgment  for  fifty  cents  against  Bartholomew,  who  carried 
the  case  to  the  supreme  court  by  writ  of  certiorari.    Reversed.] 

Platt.  J.  I  should  be  very  glad  to  affirm  this  judgment ;  for 
thougli  the  plaintiff  was  not  legally  entitled  to  sue  for  damages, 
yet  to  bring  a  certiorari  on  such  a  judgment  was  most  unworthy. 
The  plaintiff  performed  the  service  without  the  privity  or  re- 
quest of  the  defendant,  and  there  was.  in  fact,  no  promise  express 
or  implied.  If  a  man  humanely  bestows  his  labor,  and  even  risks 
his  life,  in  voluntarily  aiding  to  preserve  his  neighbor's  house 
from  destruction  by  fire,  the  law  considers  the  service  rendered  as 
gratuitous,  and  it,  therefore,  forms  no  ground  of  action.  The 
judgment  must  be  reversed. 

For  a  review  of  the  law  as  to  when  a  contract  will  or  will  not  be  im- 
plied by  law,  see  Force  v.  Haines.  17  N.  J.  L.  385;  Woods  v.  Ayers,  39 
Mich,  at  p.  3.51:  Haywood  v.  Long,  27  N.  C.  438;  Jones  v.  Allen,  Ibid.  473; 
University  v.  McNair,  37  N.  C.  60.5;  Prince  v.  McRae,  84  N.  C.  674;  Ev- 
eritt  V.  Walker,  109  N.  C.  129,  13  S.  E.  860;  Richardson  v.  Strong,  35 
N.  C.  at  p.  108;  Mordecai's  L.  L.  107-114;  Mcintosh  Cont.  8-19.  See 
"W^ork  and  Labor,"  Century  Dig.  §  2,  Decennial  and  Am.  Dig.  Key  No. 
Series  §  2. 


THOMAS  V.  SHOOTING  CLUB,  121  N.  C.  238,  28  S.  E.  293.     1897. 
Where  There  Was  No  Intention  to  Charge. 

[Action  for  services  rendered  and  accepted.  Verdict  and  judgment 
against  defendant,  who  appealed.  Affirmed.  The  facts  appear  in  the  be- 
ginning of  the  opinion. 1 


Sec.  3  a.\  rights  growing  out  of  contract.  649 

Faircloth.  C.  J.  This  ai-liou  i.s  brought  to  recover  for  serv- 
ices rendered  in  procuring  hunting  ground  leases  at  the  instance 
of  defendant,  which  were  accepted  and  received  by  the  defendant. 
The  phiintitf  testified  that  when  he  got  up  the  leases  he  did  not 
expect  to  charge  for  the  work,  if  they  should  pay  balance  on  his 
house,  which  has  been  paid,  and  should  pay  him  to  take  charge  of 
their  business  at  lucrative  wages.  The  defendant's  president  tes- 
tified that:  "The  consideration  for  getting  up  the  leases  was  that 
we  were  to  buy  his  property,  and  make  him  steward  of  the  club  at 
a  salaiy.  This  was  not  a  contract.  It  was  our  intention.  .  .  . 
Did  not  employ  him  as  steward  because  we  had  a  falling  out  about 
the  house.  ...  I  told  him  to  get  up  the  leases  before  we 
bought  the  house."  80  that  there  was  no  contract  as  to  the  leases, 
because  the  construction  of  a  contract  does  not  depend  upon  what 
either  party  expected,  but  upon  what  both  agreed.  Brunhild  v. 
Freeman,  77  X.  C.  128.  If  A.  agrees  to  render  services  to  B..  and 
it  is  agreed  by  both  that  the  services  are  gratuitous,  and  not  to  be 
charged  for.  then  A.  cannot  recover.  If  A.  renders  services  to 
B.,  and  the  woi'k  is  accepted,  the  law  implies  a  promise  by  B.  to 
pay  the  value  of  the  work.  This  is  too  familiar  to  need  citation 
of  authority.  There  was  evidence  as  to  the  value  of  the  services 
and  the  liouse.  and  the  jury  rendered  a  verdict  in  favor  of  the 
plaintiff  for  $160.  In  apt  time,  the  defendant  asked  the  court  to 
instruct  the  jury  that  if  the  plaintiff,  when  he  got  up  the  leases, 
expected  to  make  no  charge,  but  expected  renmneration  after- 
ward.s  by  employment  from  the  defendant,  lie  could  not  recover 
for  getting  up  the  leases.  This  prayer  was  refused,  bul  in  lieu 
thereof  his  honor  charged  that:  "If  Thomas  did  not  intend  at  the 
time  to  charge  for  getting  up  the  leases,  and  this  was  known  to  the 
defendant,  then  he  could  not  charge  and  recover  for  the  same; 
but.  if  it  was  not  known  to  the  defendant  that  Thomas  did  not  in- 
tend to  charge,  then  Thomas  could  aftriw.iids  sue  for  and  re- 
cover for  liis  services  in  getting  up  the  leases.  (Exception.)" 
We  see  nothing  j)i-(\ir.dicial  to  the  defendant  in  the  charge  as 
given,  which  included,  in  substance,  the  defendant's  prayer,  or  so 
imich  thereof  as  he  was  entitled  to.  AVhen  the  law  implies  a 
promise  to  pay  for  v/ork  done  and  accepted,  and  thei'e  is  Jio  agreed 
price,  the  laborer  may  recover  the  reasonable  value  of  his  sei'vices, 
unless  there  be  some  agreement  or  understanding  that  nothing  is 
to  be  ])ai<l.  .\  |(liysiei;iii  m.ikes  no  charge  for  professional  serv- 
ices on  liis  books,  and  payment  is  r(»sisted  on  the  gi'ound  that  the 
sei'vices  were  intended  to  be  gratuitous,  and  the  jur>-  find  that  the 
services  were  rendered  without  any  agi'eement  to  pM_\  a  detinite 
Sinn,  Held,  that  llie  hiw  ini|)lies  a  jiromise  to  pay  what  liny  were 
reasonal)l_\  worth.  I'l'ince  v.  McHae,  84  N".  C  (174.  Here,  as  the 
implied  promise  is  nut  met  by  any  agreement  that  there  should  be 
nothing  paid,  the  piaintilT  is  eiititlec]  to  recover.     .Vt'lirmed. 

That  one  rannot  do  an  ad  of  diaiity  and  attciwards  chaiRe  for  it,  see 
University  v.  McNair.  :'.7  \.  C.  fiO.'r,  r<]veritt  v.  Wall<rr,  KMt  N.  C.  l."^!),  13 
S.  E.  860.     For  the  rifiht  of  recovery  for  services  wlion   there  is  no  in- 


(ioO  ICIMITS    CKNtWlXd    lUT    OP    ('( iNTK"  \CT.  \('ll.    S. 

tention  to  i  liarge,  see  NVillianis  v.  Harms.  11  X.  C.  S48:  Iliulson  v.  Lutz, 
r.o  N.  C.  JIT:  Hauser  v.  Sain.  7J  N.  C.  r.r.2;  Miller  v.  Lash.  S.'.  X.  C.  51; 
Dodson  V.  MtAdanis,  lUI  X.  C.  M!t,  2  S.  E.  4r>:?;  Young  v.  Herman,  97  N.  C. 
JSO.  1  S.  E,  7!t2;  Callalian  v.  Wood.  118  X.  C.  752,  24  S.  E.  542;  Avitt  v. 
Smith.  120  X.  C.  3!t2.  27  S.  E.  ;•!;  Hieks  v.  Barnes,  i:?2  X.  C.  146,  43  S.  E. 
t:(>4:  Stallings  v.  Ellis,  136  X.  C.  6it,  48  S.  E.  548;  Dunn  v.  Currie,  141 
N.  C.  123.  53  S.  E.  533;  Winkler  v.  Killian,  141  X.  C.  575,  54  S.  E.  540; 
Henderson  v.  MeLain,  146  X.  C.  329.  59  S.  E.  873;  Mordecai's  L.  L.  107- 
114;  15  Am.  &  Eng.  Enc.  L.  1083;  21  lb.  1061;  2  Page  Cont.  §§  778-784; 
9  Cyc.  273-275;  Mcintosh  Cont.  12-16.  It  will  be  seen  from  the  above 
cases  that  there  has  been  a  good  deal  of  conflict  and  confusion  on  this 
l)oint.  See  "Work  and  Labor."  Century  Dig.  §§  8-10;  Decennial  and  Am. 
Di.c.   Kev   Xo.   Series  §  5. 


DAY  V.  CATOX,  119  Mass.  513.     1876. 

iv;jcn  a  Contract  to  Pay  for  Sendees  May  Be  Inferred  from  the  Conduct 

of  the  One  Benefited  Thereby. 

[Action  ex  contractu  to  recover  the  value  of  one  half  of  a  party  wall 
erected  by  the  jilaintiff  with  the  knowledge,  and  without  the  objection,  of 
the  defendant,  the  defendant  knowing  that  the  plaintiff  expected  to  be 
paid  for  his  services.  Verdict  against  defendant,  who  alleged  exceptions. 
Exceptions  overruled. 

The  defendant  requested  the  judge  to  charge  that  there  could  be  no 
recovery  in  the  absence  of  an  express  contract  on  his  part;  and  that  if 
the  defendant  knew  the  work  was  going  on,  he  would  not  be  rendered 
liable  by  such  knowledge,  and  by  his  silence  and  sul)sequent  use  of  the 
wall.  The  judge  refused  to  so  instruct  the  jury,  but  did  charge  that 
while  the  building  of  the  wall  by  the  plaintiff  with  defendant's  knowl- 
edge and  defendant's  using  it,  would  not,  per  se.  render  the  defendant 
liable  to  pay  for  it,  still  a  i)romise  to  pay  might  be  inferred  from  the  de- 
fendant's conduct;  and  that  if  defendant  knew  or  had  reason  to  know 
that  the  i)laintilT  was  doing  the  work  and  expected  to  be  paid  for  it,  and 
yet  the  defendant  allowed  him  to  proceed  without  objection,  then  the 
jury  might  infer  that  the  defendant  promised  to  pay  the  plaintiff  for  his 
work.] 

Devems.  J.  Tlie  filling  that  a  promise  to  pay  foi*  the  wall  would 
not  be  imjilied  from  the  fact  that  the  plaintiff,  with  the  defend- 
ant's knowledge,  built  the  wall,  and  that  tin-  defendant  used  it, 
was  substantially  in  aceordanee  with  the  request  of  the  defendant, 
and  is  eonecded  to  liave  been  eorreet.  Chit.  Ccmt.  (llth  Am.  ed.) 
86;  Wells  V.  Bannister,  4  ]\Iass.  514;  Knowlton  v.  Plantation 
Xo.  4,  14  :\raine.  20;  Davis  v.  School  District  in  Bradford.  24 
]\Iaine,  349.  The  defendant  contends,  liowever.  that  the  presiding 
judge  ineorreetly  ruled  that  such  ])i'omise  iiiight  be  inferred  from 
the  fact  that  the  plaintiff  undeilook  and  completed  the  building 
of  the  wall  with  the  expectation  that  the  defendant  would  pay 
him  for  it.  the  defendant  having  reason  to  know  that  the  plaintiff 
was  acting  with  that  expectation,  and  allowed  him  thus  to  act  with- 
out objection. 

The  fact  that  the  plaintiff  expected  to  be  paid  for  the  work 
would  certainly  not  be  sufficient  of  itself  to  establish  the  existence 
of  a  contract,  when  the  question  between  the  parties  was  whether 
one  was  made.  Taft  v.  Dickinson,  6  Allen.  55.3.  It  must  be  shown 
that,  in  some  manner,  the  party  sought  to  be  charged  assented  to 


Sec.    3   0.]  .  RIGHTS  GROWING   OUT   OF   CONTRACT.  651 

it.  If  a  party,  however,  voluntarily  accepts  ami  avails  himself  of 
valuable  services  rendered  for  his  beuetit.  when  he  has  the  option 
whetlier  to  accept  or  reject  them,  even  if  there  is  no  distinct  proof 
that  they  were  rendered  by  his  authority  or  request,  a  promise  to 
pay  for  them  may  be  inferred.  His  knowledge  that  they  were 
valuable,  and  his  exercise  of  his  option  to  avail  himself  of  them, 
justify  this  inference.  Abbot  v.  Hermon.  7  Greenl.  118 ;  Hayden 
V.  Madison.  7  Greenl.  76.  And  when  one  stands  by  in  silence  and 
sees  valuable  sei-^-ices  rendered  upon  his  real  estate  by  the  erec- 
tion of  a  structure  (of  which  he  nnist  necessarily  avail  himself 
afterwards  in  his  proper  use  thereof),  such  silence,  accompanied 
with  the  knowledge  on  his  part  that  the  party  rendering  the  ser\^- 
ices  expects  payment  therefor,  may  fairly  be  treated  as  evidence  of 
an  acceptance  of  it,  and  as  tending  to  show  an  agreement  to  pay 
for  it. 

The  maxim,  qui  facet  consentire  videtur.  is  to  be  construed  in- 
deed as  applying  only  to  those  cases  where  the  circumstances  are 
such  that  a  party  is  fairly  called  upon  either  to  deny  or  admit  his 
liability.     But  if  silence  may  be  interpreted  as  assent  where  a 
proposition  is  made  to  one  which  he  is  bound  to  deny  or  admit, 
so  also  it  may  be  if  he  is  silent  in  the  face  of  facts  M-hich  fairly 
■call  upon  him  to  speak.    Lamb  v.  Bunee.  4  M.  &  S.  275;  Conner 
v.   Ilackley,  2  ]\Iet.   613.     Preston  v.   American  Linen   Co.,   119 
Mass.    400.    If  a  person  saw  day  after  day  a  laborer  at  work  in 
his  field  doing  services  which  nuist  of  necessity  enure  to  his  ben- 
efit, knowing  that  the  laborer  expected  pay  for  his  work,  when  it 
was  perfectly  easy  to  notify  him  if  his  services  Avere  not  Avanted, 
even  if  a  request  were  not  expressly  proved,  such  a  request,  either 
•  previous  to  or  contemporaneous  with  the  performance  of  the  serv- 
ices, might  fairly  be  inferred.    But  if  the  fact  was  merely  brought 
to  his  attention  upon  a  single  occasion   and  casually,  if  he  had 
little  opportunity  to  notify  the  other  that  he  did  not  desire  the 
work  and  should  not  pay  for  it,  or  could  only  do  so  at  the  expen.se 
of  much  time  and  ti-ouble.  the  same  inference  might  not  be  made. 
The    circumstances    of    each    case    would    necessarily    determine 
whether  silence  with  a  knowledge  that  another  was  doing  valu- 
al)l('  work  for  his  benefit,  and  with  the  expectation  of  payment, 
indicated  that  consent  which  would  give  ri.se  to  the  inference  of  a 
contract.     Tlie  quest i(m  would  be  one  for  the  jury,  and  to  them 
it  was  properly  subiiiilted  in  the  case  before  us  by  the  presiding 
judge.     Exci'])tions  overruled. 

See  also  Rallpy  v.  Riitjes.  8fi  N.  C.  517;  Blount  v.  Guthrie.  99  N.  C.  93, 
T,  S.  E.  890.  See  "Party  Walls,"  Century  Dig.  §  <■";  Decennial  and  Am. 
Dig.  Key  No.  Series  §  10. 


I'ATTOX  V.  BRTTTAIX.  ?,2  X.  C.  8.     1848. 
I'siufi  Goods  yof  Ordered. 

[Assumpsit  for  hides  delivered  to  the  defendant  uiien  llie  order  of  his 
agent,  hut  contrary  to  the  agent's  Instrurtions  from  the  defendant.  De- 
fendant had   knowledge  of   his   ageuf.s   disohediencf  of  orders  hefore  he 


(;.")•_'  KKIIITS    OROWINt,    (II    1     (•!•'    (( >N  I'K  \C  I'.  [^'/'-    '^'• 

had  received  iho  hiius  and  sfitlcd  with  his  agent.  Defendant  Ivept  the 
hides  but  rot'usiii  to  |iay  for  (hem.  b»>causo  he  had  given  liis  agent  the 
money  with  whieh  to  pay  lash  for  them,  whieli  money  tlie  agent  mis- 
applied and  bought  the  hides  on  defendant's  credit.  Verdict  and  judg- 
ment against  the  defendanl,  and  he  aiiiiealed.     AfTlrmed.l 

l>Ai"ri.i:.  .1  Tlic  (|ii('slioii  iirrsi'iitt'd  Tor  (Hir  (letcniiiiiatioii  in 
this  case  i.s  one  of  sonic  practical  imixirtaiicc.  I)u1  not  of  nuich 
dilliciilty.  There  is  no  iloiiht  thai  tlic  ilciVntUint  was  not  bound 
by  the  contract  l'«tr  the  purchase  of  the  liides  made  by  his  agent, 
because  the  au:'nl  liad  exceedetl  his  authority  in  purchasing  ui)on 
credit  instead  of  paying  cash,  as  he  was  ex{)ressly  dircctetl.  This 
is  fully  established  by  the  authorities  referred  to  and  relied  ui)on 
by  the  defendant's  counsel.  1  Chit.  PI.  -W;  Com.  on  Cont.  223. 
The  principal,  then,  had  a  perfect  right  to  repudiate  the  contract 
and  refuse  to  receive  the  articles,  but  not  having  done  so,  it  is 
e(iually  clear  that,  by  receiving  the  liides  and  api)roi)riating  them 
to  his  own  use.  after  notice  from  the  plaintilT  that  they  had  been 
purchased  for  him  and  upon  his  credit,  he  ratified  the  contract 
made  on  his  behalf,  and  became  bound  to  pay  for  them.  And  this 
result  would  have  l)een  the  same  whether  liates  acted  contrary  to 
his  authority,  exceeded  it.  or  had  none  at  all.  It  is  the  simple  case 
of  the  gO(xis  of  one  man  coming  to  the  use  of  another,  w^hich  he 
knows  are  not  intended  as  a  gift,  but  are  sent  to  him  upon  the  ex- 
pectation that  he  will  receive  them  and  pay  for  them,  lie  may 
refuse  them  if  they  have  been  sent  without  his  request;  but  if  he 
receive  them,  he  must  pay  for  them.  But  it  is  contended  that  the 
defendant  received  the  goods  before  -notice  that  they  were  sent 
upon  his  credit,  at  Ilamberg.  by  the  delivers^  to  the  commission 
merchants,  or  at  least  to  the  wagoner,  who  carried  them  to  his 
place  of  residence  in  Henderson  county.  That  cannot  be  so,  for 
there  is  no  evidence  that  the  eonnuission  merchants  or  the  w^agoner 
were  his  special  agents  to  receive  the  goods  for  liim.  There  was, 
therefore,  no  delivery  of  them  to  the  defendant  until  they  were 
carried  to  him  in  Henderson.  Until  that  time  they  were  merely 
in  transitu,  in  the  hands  of  common  carriers,  and  he  had  the  op- 
tion to  receive  them  or  reject  them.  Having  done  the  former,  it 
is  but  common  jiLstice  that  he  should  pay  for  tlu;m.  The  dis- 
honesty of  his  agent  in  embezzling  his  money  must  fall  upon  him- 
self and  not  upon  an  innocent  person,  who  never  trusted  the 
agent. 

In  coming  to  the  conclusion  that  tlie  defendant  is  responsible 
for  the  price  of  the  hides,  we  have  not  been  at  all  influenced  by  the 
consideration  that  he  had  notice  that  he  was  looked  to  for  payment 
before  he  had  the  settlement  with  his  agent.  That  circumstance 
did  not  in  any  manner  affect  the  plaintiff's  right  to  recover,  pro- 
vided the  notice  that  credit  w^as  given  to  him  reached  his  hands 
before  the  goods  were  received  by  him,  because  the  plaintiff  had 
done  nothing  to  change  the  relation  between  him  and  his  agent 
before  that  time.    The  judgment  must  be  afTirmed. 

See  "Principal  and  Agent,"  Century  Dig.  §  049;  Decennial  and  Am.  Dig. 
Key  Xo.  Series  §  171. 


Sec.  3  a.]  rights  growing  out  of  contract.  653 


RICHARDSON  v.  STRONG,  35  N.  C.  106.     1851. 

Services  Rendered   tu  One   Who   is   Insensible,   or  Wholly  Incapable   of 
Taking  Care  of  Himself  at  the  Time. 

[Assumpsit  for  services  in  caring  for  the  defendant,  at  the  request  of 
his  relatives,  while  defendant  was  insane — so  much  so  as  to  attempt  to 
injure  himself  and  destroy  his  property.  Verdict  and  judgment  against 
defendant,  and  he  appealed.    Affirmed. 

Defendant  pleaded  that  he  was  insane  when  the  services  were  rendered, 
and  also  that  they  were  unnecessary.  The  judge  charged  that,  if  de- 
fendant was  in  the  condition  above  stated,  the  services  were  necessary, 
and  if  necessary,  the  defendant  was  liable.] 

RuFFiN.  C.  J.  The  contracts  of  a  lunatic  are  not  all  absolutely 
void :  but  it  i.s  held  that  contracts  fairly  made  ^vith  them  for  nec- 
essaries or  things  snita])le  to  their  condition  or  habits  of  life,  are 
to  be  sustained.  The  leading  case  on  the  subject  in  England  is 
that  of  Baxter  v.  Earl  of  Portsmouth.  5  B.  &  C.  107 ;  and  in  Tally 
V.  Tally.  22  N.  C.  385.  the  same  opinion  was  expressed  by  this 
court.  There  is,  therefore,  no  absurdity  in  the  case  of  lunatics 
more  than  in  that  of  infants  in  implying  a  request  to  one  render- 
ing necessary  services  or  supplying  necessary  articles,  and  imply- 
ing also  a  promise  to  pay  for  them.  Indeed,  with  whatever  pro- 
priety the  ancient  maxim  that  no  one  otight  to  be  allowed  to  stul- 
tify hiuLself  is  denied  in  modern  law.  its  application  in  a  case  of 
this  kind  seems  to  be  entirely  just.  The  urgency  of  the  case  de- 
mands instant  help,  and  leaves  no  opportunity  for  a  previous  appli- 
cation to  a  court  having  the  ordering  of  the  estates  to  tix  an  allow- 
ance; and  in  such  an  instance  as  this,  in  which,  as  far  as  is  seen. 
there  was  a  recovery  before  a  commission  issued,  there  could  be  no 
subser|uent  allowance,  however  assiduous  and  effective  the  atten- 
tions to  the  party  might  have  been.  Therefore,  there  is  no  middle 
ground  between  leaving  an  unhappy  person  thus  afflicted  desti- 
tute of  those  services  and  things  indispensable  to  his  proper  re- 
straint and  recovery,  or  however  rich,  dependent  for  them  on 
gratuitous  benevolence,  on  the  one  hand ;  or  on  the  other  of  im- 
plying a  promise  to  pay  for  them  what  they  may  reasonably  be 
worth.  It  is  as  IF  a  i)hysician  administered  to  a  man  deprived  of 
his  senses  by  a  dangerous  blow,  when  the  loss  of  life  might  result 
from  delay.  lie  wouhl  certainly  he  bound  to  make  rea.sonable 
remuneration,  tliongh  ineapable  at  the  time  of  making  an  actual 
request.  The  i-ciisoii  extends  to  medical  services  to  a  iiia(liii;iii, 
and  to  those  of  a  inn-se  for  him.  or  of  a  guard  to  protect  him 
from  a  propensity  to  destroy  himself,  or  his  property.  In  the 
case  before  the  court  the  phiintitl"  acted  at  the  instance  of  the  de- 
fendant's niedicfd  adviser  jiml  his  neai-est  friend  mid  i-ehitive,  not 
insisting,  however  disagreeable  the  duty,  on  any  stipuhition  for 
high  wages,  but  content  with  a  quantum  meruit.  Ills  conduct 
was.  thereff)re.  as  fair  as  it  could  be. 

r[)on  the  other  |i(.int  tbere  is  no  doulit.  \Vb;il  the  [.l.'iinlilT 
did  certainly  falls  witliin  the  class  i.l"  necessaries  as  dejined  in  the 
law.     Judgment  al'firiiied. 


li.')4  Kuiins  (;k(»\vi\(:  oit  »>i'  contract.  \('li.  8. 

See  Kansas  v.  Uiifl".  'M)  I'ac.  27;).  IJ  L.  R.  A.  (N.  S.)  1000,  and  note; 
and  in  this  ronnertion  seo  4  11).  at  p.  f.;?.  See  "Insane  Persons."  Century 
Pis.  §§   128,  120:    flecennial  and   Am.  Di^.  Key  No.  Series  §  7.'). 


CRANMKR   V.  GRAHAM.   1   Rlackf.   406.     182r.. 
Ej-picss  Contract  and  Quantum   Meruit  or  Quantum  Talibat. 

ICrannuM-  l>ro\ight  assumpsit  asainst  Graham  and  declared  in  two 
counts:  1.  On  an  express  contract  for  twelve  months'  services  at  $9.25 
per  month:  2.  General  indehitatus  assumpsit  for  \vorl<  and  labor.  The 
evidence  disclosed  an  express  contract  by  which  the  defendant  hired  the 
plaintiff  for  ten  months  for  $92. 5ft— an  entire  contract.  The  first  count 
set  up  an  entire  ex|)ress  contract  for  twelve  months  at  SO.:'.')  per  month, 
while  the  proof  was  that  of  an  entire  contract  for  ten  months  at  Sit^2.'j0. 
Judgment  against  the  i)laintiff,  Cranmer,  who  carried  the  case  to  the 
supreme  court  by  writ  of  error.     Affirmed. 

The  case  was  heard  below  on  a  demurrer  to  plaintiff's  evidence,  the 
substance  of  which  is  given  above.] 

HoLMAN.  J.  ...  So  far  as  the  tostimony  proves  anything, 
it  proves  a  hirins:  inr  ten  iiiontlis  for  $92.50.  a  contract  very  dif- 
ferent from  a  hiring  at  $!).25  per  month.  In  McMiUaii  v.  Vander- 
lip.  12  Johns.  165,  a  liiring  to  spin  for  twelve  months,  at  three 
cents  per  rnn,  was  considered  as  an  entire  contract  for  twelve 
months,  and  the  phiintifF  was  not  permitted  to  recover  l)y  the  run, 
after  spinning  a  part  of  the  time.  The  principle  on  which  that 
case  was  decided  is  applica])lt\  in  its  utmost  strength,  to  the  case 
before  us.  Here  is  a  hiring  to  ordinary  la])or  on  a  farm  for  ten 
months,  conmiencing  in  the  winter  season,  for  the  sum  of  $92.50; 
and  if  the  plaintitf  is  i)ermitted  to  recover,  as  for  a  hiring  at  $9.25 
per  month,  he  would  liavc  the  same  right  to  recover  for  a  part  of 
the  time  as  for  the  whole.  Hut  it  is  well  known  that  the  labor  of 
a  man  on  a  farm  is  far  more  valuable  in  the  spring  and  suiiuner 
than  in  the  winter  month.s.  And  it  would  be  contrary  to  every 
principle  of  justice,  to  permit  a  man  under  such  a  contract  to 
lal^or  through  the  winter  months,  and  recover  of  his  employer  for 
that  time  as  for  monthly  wages,  when  in  all  probability  the  em- 
l)l.»yer  would  not  have  hired  him  during  those  months,  but  in  con- 
sideration of  his  services  the  balance  of  the  term.  The  contract 
l)roved  is  certainly  very  different  from  the  contract  set  forth  in  the 
first  count  of  the  declaration;  and  the  necessity  of  a  correspond- 
ence, in  every  material  part,  between  the  allegations  and  the 
proof,  cannot  now  be  disputed.  See  Sebastian  v.  Thompkins, 
1  Marsh.  63;  Thorpe  v.  White,  13  Johns.  53;  and  the  various  au- 
thorities cited  in  1  Esp.  X.  P.  263. 

It  is  equally  clear,  and  equally  well  settled,  that,  where  there  is 
a  special  agreement,  it  nmst  l)e  declared  on  ;  and  cannot  be  given 
in  evidence  under  general  counts.  This  rule  prevails  when  the 
special  contract  remains  in  full  force;  but,  where  the  contract  has 
been  rescinded  by  ai.M'eem<'nt  of  the  parties,  or  has  been  performed 
in  a  manner  somewhat  different  from  the  terms  of  the  contract. 


Sec.  3  a.]  rights  growing  out  of  contract.  655 

or  the  performance  has  been  prevented  by  the  opposite  party,  a 
recovery  may  be  had  on  a  general  count.  This  doctrine  mns 
through  a  variety  of  cases.  See  Linningdale  v.  Livingston.  10 
Johns.  36;  Ravmond  v.  Beamard.  12  Johns.  274;  Jennings  v. 
Camp,  13  Jolms.  94;  1  Esp.  N.  P.  2-49;  2  Phil.  Ev.  83,  and  the 
various  authorities  cited  in  the  text  and  note.  Here  the  special 
agreement  was  still  open  and  in  full  force;  and  a  recovery,  if  to 
be  had  at  all.  must  be  had  under  that  agreement,  and  not  on  a 
general  indebitatus  assumpsit.    Judgment  affirmed. 


"We  take  it  to  be  incontrovertibly  settled,  that  indebitatus  assumpsit 
will  lie  to  recover  the  stipulated  price  due  on  a  special  contract,  not  un- 
der seal,  where  the  contract  has  been  completely  executed  [performed  by 
the  plaintiff];  and  that  it  is  not  necessary,  in  such  case,  to  declare  upon 
the  special  agreement."  Bank  of  Columbia  v.  Patterson,  7  Cranch.  303; 
see  other  cases  cited  in  a  note  to  the  principal  case,  and  in  1  Rose's  Notes, 
522.  In  North  Carolina  a  recovery  may  be  had  on  a  quantum  meruit 
although  the  complaint  sets  up  a  special  contract  only,  if  the  plaintiff 
prove  the  performance  of  services,  their  acceptance  and  value,  and  fail 
to  prove  a  special  contract;  and  this  he  can  do  without  amending  his 
complaint.  Stokes  v.  Taylor,  104  N.  C.  394,  headnote  3,  10  S.  E.  566.  See 
further  on  this  subject  of  recovery  on  a  quantum  meruit  or  valebat,  when 
there  is  an  express  contract,  Chamblee  v.  Baker.  95  N.  C.  at  p.  100,  in- 
serted at  ch.  6,  §  3,  a,  ante:  Hoagland  v.  Moore,  2  Blackford,  at  p.  170; 
Byerly  v.  Kepley,  46  N.  C.  35;  Madden  v.  Porterfield,  53  N.  C.  166;  and 
cases  and  authorities  cited  in  Stokes  v.  Taylor,  supra;  Mcintosh  Cont. 
540-544.  The  principal  case  is  said  to  be  overruled  by  several  subse- 
quent cases  in  the  Indiana  reports.  See  notes  to  the  principal  case  and 
note  at  p.  70  of  3  Indiana.  See  the  next  succeeding  case  in  this  section. 
See  "Work  and  Labor,"  Century  Dig.  S§  23-33;  Decennial  and  Am.  Dig. 
Key  No.  Series  §§  8-14;  "Assumpsit.  Action  of,"  Century  Dig.  §  15; 
Decennial  and  Am.  Dig.  Key  No.  Series  §  5. 


KERSTETTER  v.  RAYMOND,   10   Ind.  199,   202-205.     1858. 
Express  Contract  and  Quantum,  Meruit  or  Quantum  Valebat. 

[Raymond  sued  Kerstetter  for  the  value  of  goods  sold  and  delivered  as 
jif-r  an  account  filed  with  his  complaint.  Verdict  and  judgment  against 
Kerstetter,  and  he  appealed.     Reversed. 

After  the  evidence  was  closed  and  the  case  argued  to  the  jury,  Ray- 
mond was  permitted  to  amend  his  complaint  by  adding  a  paragraph 
Sf'tting  up  a  written  contract  and  giving  its  terms.  The  defendant  ob- 
jected. No  proof  of  the  express  contract  was  offered,  but  such  a  con- 
tract was  alleged  in  the  amendment  to  the  comi)laint.  Plaintiff  made  no 
attempt  to  show  what  were  the  terms  of  the  express  written  contract, 
or  that  he  had  comi)lied  with  its  terms,  etc.  The  further  facts  concern- 
ing the  proof  ai)pear  in  the  opinion.  The  discussions  as  to  the  propriety 
of  jiJlowing  the  amendment,  and  of  the  Indiana  statute  governing  the 
filing  of  original  contracts,  etc.,  upon  which  an  action  is  based,  are 
omitted. 1 

TT.\NNA.  J.  .  .  .  The  iH'W  i)leadiiig  ha\iiig  been  improperly 
bird,  the  iii-xt  i|ii<'stion  is  as  to  its  effect.  Tlie  parties  appear  to 
liave  acted,  in  tills  case,  upon  llie  presuinpt ion  that  it  is  obliga- 
tory upon  onr-  who  resorts  to  a  suit,  to  seek  his  remedy  upon  the 
written   coiitraet   or  au'reciiient .   where  one  exists,   in    refei-eiiee  to 


(JiK)  KKJllTS    ClJtiWlXC    Ofl"    OK    CONTHACr.  \Ch.    S. 

tho  subjci't-niiitti'i-  (Miil)i-;ici'il  in  thr  coiit  rovcrsy.  This  is  cvicU'iit 
from  tht'  f;u-t  tli;it.  jil'tcr  llu>  cvitlcncc  disflosfd  llic  cxisti'in'i'  ol'  a 
writti'll  roiitr;lrt.  IIh'  phiiiililV  soimlit  iilid  oltt.iinrd  leave  to  file 
tlu'  aililititinnl  |):ir;ii;ra|»li  to  his  conipi.iiiil.  and  fi'oiii  the  furthor 
fai-t  tliat  the  (hd'tMitlant  asked  certain  instnietions  to  the  jury, 
direeted  to  that  jxtint.  Should  tlie  written  eontraet  have  been 
nuule  the  foundation  of  the  suit  .'  A  copy  of  it  is  not  <xiven.  The 
paratrrapli  lu-ofesses  to  set  fortli  its  tei'uis  and  stipulations.  No 
proof  was  iriven  as  to  its  tei-nis.  etc.  There  eouUl  be  no  doubt, 
from  the  evidenee.  about  Ihe  idaintitf's  havinj?  i)arted  with  his 
l>roperty  on  some  kind  of  eontraet.  either  express  or  implied,  with 
defendant.  The  evidence  is  conflict  ins;  as  to  whether  tlu'  defend- 
ant was  aetin^  f(U-  himself  or  for  others,  in  makin«j;  the  i)ureha.sc. 
It  was  a  question  for  the  jury. 

Several  instanees  ai-e  iiiven  in  which  fjeneral  assumpsit  might 
be  brought,  under  the  okl  form  of  i)lea(ling.  where  there  has  been 
a  special  eontrai't — the  following  among  others:  1.  "Where  the 
whole  of  such  contract  has  been  executed  on  the  part  of  the  plain- 
tiff, and  the  time  of  payment  on  the  other  side  is  past,  a  suit  may 
be  brought  on  the  special  eontraet.  or  a  general  assumi)sit  may  be 
maintained:  and  in  the  last  ease,  the  measure  of  damages  will  be 
the  rate  of  recompense  fixed  by  the  special  contract."  2  Smith's 
Leading  Cases.  41 :  Bank  of  Columbia  v.  Patterson,  7  Cranch, 
299.  2  Curtis.  540;  1  Hac.  Abr.  380;  Chesapeake  and  Ohio  Canal 
Co.  V.  Knapp.  9  Pet.  541.  11  Curtis.  476. 

2.  "If  there  has  been  a  special  contract  which  has  been  altered 
or  deviated  from  in  ])articulars,  by  common  consent,  general  as- 
sumpsit A\-ill  lie."  etc.  2  Smith's  Leading  Cases.  42;  Dubois  v. 
The  Delaware  and  Hudson  Canal  Co..  4  Wend.  285;  Jones  v. 
Woodbury,  11  B.  :\Ion.  169. 

3.  "If  there  has  been  a  special  contract,  and  the  plaintiff  has 
performed  a  part  of  it  according  to  its  terms,  and  been  prevented 
by  the  act  or  consent  of  the  defendant,  or  by  the  act  of  the  law, 
from  performing  the  residue,  he  may  in  general  assumpsit  recover 
compensation  for  the  w^ork  actually  performed,  and  the  defendant 
cannot  set  up  the  special  contract  to  defeat  him."  2  Smith's 
Leading  Cases.  43,  and  cases  cited;  Scobey  v.  Ross.  5  Ind.  446. 

4.  Under  the  decisions  in  this  state,  the  following  principle  is 
also  established,  to-wit:  "That  when  one  party  to  a  special  entire 
contract  has  not  complied  Avith  its  terms,  but  professing  to  act 
under  it.  has  done  for.  or  delivered  to.  the  other  party  something 
of  value  to  him  which  he  has  accepted."  etc..  and  the  time  for 
performance  of  the  contract  is  past,  an  implied  promise  arises  to 
the  extent  of  the  value,  etc.  Lomax  v.  liailey.  7  Blackf.  603; 
3  Ind.  73.       .     .     . 

If  the  defendant,  in  the  case  at  bar.  had  desired  to  avail  himself 
of  any  supposed  benefit  to  him,  arising  out  of  the  written  contract, 
either  to  defeat  the  action,  or  to  fix  the  measure  of  damages,  he 
could  have  done  so  by  pleading  it  in  answer  and  producing  it  in 
evidence  upon  the   trial.      The   mere   filing  the  additional   para- 


Sec.  3  a.]  rights  growing  out  of  contract.  657 

graph.  Avithout  receivincr  evidence  to  sustain  it.  could  not  have 
produced  any  injury  to  the  defendant. 

The  last  error  assigned— that  the  verdict  is  not  sustained  by 
the  evidence— Ave  think  is  well  taken.  In  the  absence  of  evidence 
that  the  parties  had  entered  into  a  special  written  contract  con- 
cerning the  matters  in  controversy,  the  plaintiff  had,  by  the  testi- 
mony introduced,  so  far  made  out  a  case  as  to  leave  it  a  question 
for  the  jury  whether  he  had  a  right  to  recover:  but  after  there 
was  evidence  given  that  such  AATitten  contract  existed,  the  plain- 
tiff did  not  attempt  to  show  Avhat  its  stipulations  were,  or  that  he 
had  complied  ujion  his  part,  or  been  prevented  from  comply- 
ing; nor  did  he  show  that,  for  any  reason,  he  was  in  a  condition  to 
disregard  the  written  contract,  and  recover  for  the  property  de- 
livered ;  nor  was  it  given  in  evidence  or  its  contents  proved  by  the 
defendant.  It  is  insisted  that,  evidence  upon  this  point  should 
come  from  the  defendant  under  these  circumstances.  We  think 
not.  Suppose  it  was  true  that  the  plaiutitf  liad  complied  with  all 
the  stipulations  upon  his  part ;  still  he  would  have  to  produce  the 
contract  to  show  that  the  day  of  payment  had  arrived,  and  that 
the  defendant  was  in  default :  so  if  the  special  contract  had  been 
departed  from  by  imitual  consent,  or  if  the  plaintiff  had  been 
prevented  from  performing,  etc.,  or  if  the  time  for  the  perform- 
ance of  the  contract  was  past  and  it  was  no  longer  open.  There 
was  no  evidence  upon  any  of  these  points.  Epperly  v.  Bailey,. 
3  Ind.  73;  Whcatly  v.  Miscal,  5  Ind.  142;  Lomax  v.  Bailey. 
7  Blackf .  590.  A  late  writer  on  evidence  holds  the  following  lan- 
guage: "Where  in  a  suit  for  the  price  of  Avork  and  labor  per- 
formed, it  a]ipears  that  Avork  Avas  commenced  under  an  agreement 
in  Avriting,  the  agreement  must  be  produced ;  and  even  if  the 
claim  be  for  extra  Avork.  the  plaintiff  must  still  produce  the  writ- 
ten agreement ;  for  it  may  fumi.sh  evidence,  not  only  that  the 
Avork  was  ovf^r  and  beyond  the  original  contract,  but  also  of  the 
rate  at  Avhich  it  Avas  to  be  paid  for."  1  Greenl.  s.  87.  The  judg- 
ment is  rcA'ersed  Avith  costs. 

See  "Assumpsit,  Action  of,"  Century  Ditr.  §  1.53;  Decennial  and  Am. 
Dig.  Key  No.  Series  §  2."j;  "Contracts,"  Century  Dig.  §§  1726,  1754,  1772; 
Decennial  and  Am.  Dig.  Key  No.  Series  §§  34  6,  348. 


WEBB  V.  CHAMBERS,  2.5  N.  C.  374.     1843. 
Assumpsit  on  Account  Stated. 

(Assumpsit   to  recover  the  amount  of  a   store  account.     Verdict   and 
judgment  against  the  defendant,  and  he  apjiealed.     Affirmed. 

There  was  evidence  thai  f)laintiff  and  defendant  had  a  conversation 
ahout  the  amount  due  to  plaintiff  by  the  defendant  on  a  store  account; 
that  the  defendant  had  the  account  in  his  hands  during  such  conversa- 
tion, hut  whcihfr  or  not  he  read  it  over,  did  not  appear;  that  the  de- 
fendant promised,  dtiring  this  conversation,  to  close  the  account  hy  his 
bond.  The  judge  rhargcd  that  upon  this  evidence,  if  believed  by  them, 
the  jury  (ould  find  for  the  plaintiff.] 

Remedies — 42. 


CaS  KUiiiTs  c.UDWiNii  Dir  oi'  cdntract.  [Cli.  S. 

Rrp'FIN.  ('.  .1.  Tlicrr  c.-iii  he  ik)  tlmil)!  of  the  correct  iit>ss  of  the 
tipinioii  «rivcn  1(»  tlic  jurv.  It  is  llic  oiditi.ii-y  evidence  ol'  the  jus- 
tice of  a  nierchjuil 's  account,  when  lie  rendei's  it  to  his  ciistoiner 
ami  the  latter  Uoeps  it  witlioiit  ohjeclion  to  .in>'  of  its  itiMiis. 
Without  a  ileuial  of  it  in  toto  oi-  of  some  |»;irt  of  it.  the  jury  may 
infer  an  juhnission  of  its  t'oi-i'cetness  and  a  ])i'(»mise  to  pay  the 
halance.  I'pon  that  par-t  of  the  case  alon(\  thei-efore,  the  court 
uiitiht  have  left  it  to  the  jury  on  lioih  points,  that  is,  as  ju'oof  nf 
the  delivery  of  the  articles  and  of  a  mci-e  i)romise  to  pay.  But  in 
addition  to  those  inferences.  her(>  the  defendant,  with  the  ac- 
count in  his  hand,  and  aftei-  i)erusinfr  it  or  ojiport unity  of  perus- 
iuix  it.  expressly  pr(tmised  to  settle  the  ac<'ount  and  pay  it.  A 
promise  could  not  he  more  direct  oi*  ]ireeise,  for  there  was  noth- 
inir  left  to  uncertainty,  as  the  account  lixed  the  debt,  wliich  the 
defendant  a>:reed  to  i^ay.     Jndirment  ;il'lirmed. 

See  ch.  4,  §  2,  (c).  See  to  the  same  effect  as  the  principal  case.  Daniel 
V.  Whitfield,"  44  N.  C.  at  p.  297;  Hawkins  v.  Long,  74  N.  C.  781;  23  L.  R. 
A.  (X.  S.)  478.  In  an  action  on  an  account  stated  it  is  not  necessary  to 
state  the  items  constituting  the  debt.  Dunn  v.  .Tohnson,  115  N.  C.  at 
p.  259,  20  S.  E.  390,  citing  Selwyn's  Nisi  Prius,  68.  See  "Account  Stated," 
Century  Dig.  §§  30-40;    Decennial  and  Am.  Dig.  Key  No.  Series  §  6. 


JONES  V.  HOAR,  5  Pickering,  285.     1827. 
Waiving  the  Tort  and  Suitig  in  Assvmpsit. 

[Assumpsit  for  goods  sold  and  delivered  and  for  money  had  and  re- 
ceived. The  basis  of  the  action  was,  that  the  defendant  had  entered 
upon  the  plaintiff's  land  and  had  cut  and  carried  off  a  quantity  of  timber. 
The  defendant  insisted,  that  upon  these  facts  the  plaintiff  could  not 
maintain  this  action — that  he  could  not  waive  the  tort  and  sue  in  assump- 
sit, unless  the  defendant  had  sold  the  timber,  and  this  was  not  shown. 
Judgment  against  the  plaintiff,  and  he  appealed.    Affirmed.! 

Parker.  C.  J.  The  plaintiff  declares  in  assumpsit,  and  one 
count  is  for  proods  sold  and  delivered.  By  the  agreement  it  ap- 
pears, that  the  only  ground  for  supporting  this  count  is,  that  the 
defendant  cut  and  took  away  certain  trees  from  land  claimed  by 
the  plaintiff,  and.  for  the  purpose  of  the  argument,  actually 
owned  by  him.  The  proper  action  would  undoubtedly  be  tres- 
pass for  the  injury  to  the  land,  or  trover  for  the  trees.  But  the 
plaintiff  contends  that  he  has  a  right  to  waive  the  tort,  and  charge 
the  defendant  with  the  trees  as  sold  to  him.  TTpon  examination 
of  the  authorities  cited,  which  are  well  summed  up  and  com- 
mented upon  by  Strong.  J.,  in  the  opinion  of  the  court  of  coin- 
mon  pleas,  we  are  sati.sfied  that  the  plaintiff  cannot  maintain  this 
position.  There  is  no  contract  express  or  impli(>d  between  the 
parties,  and  therefore  an  action  ex  contractu  will  not  lie.  The 
whole  extent  of  the  doctrine,  as  gathered  from  the  books,  seems 
to  be.  that  one  whose  goods  have  been  taken  from  him  or  detained 
unlawfullv.  wherebv  he  has  a  right  to  an   action  of  trespass  or 


Sec.  3  a.]  rights  growing  out  of  contract.  659 

trover,  may.  if  the  wrong-doer  sell  the  goods  and  receive  the 
money,  waive  the  tort,  affinn  the  sale,  and  have  an  action  for 
money  had  and  received  for  the  proceeds.  No  case  can  be  show^n 
where  assumpsit  as  for  goods  sold  lay  in  such  case,  except  it  be 
against  the  executor  of  the  wrong-doer,  the  tort  being  extin- 
guished by  the  death,  and  no  other  remedy  but  assumpsit  against 
the  executor  remaining.  Such  was  the  case  of  Hambly  v.  Trott. 
Cowp.  371.  referred  to  in  Judge  Strong's  opinion. 

The  opinion  of  Judge  Strong  referred  to  in  the  principal  case  is  printed 
in  the  second  edition  of  Pickering's  Reports,  1864,  and  is  a  very  instruc- 
tive exposition  of  the  point  involved.  In  it  many  English  cases  are  cited 
and  distinguished.  In  Bullinger  v.  JNIarshall.  70  N.  C.  520,  inserted  at  ch. 
4,  sec.  1.  it  is  said:  "There  are  cases  where  a  party  is  allowed  to  waive 
the  tort  and  sue  in  contract,  as  if  one  takes  my  horse  and  sells  it  and 
receives  the  money,  I  may  waive  the  tort  and  sue  for  money  had  and 
received  to  my  use,  .  .  .  but  if  the  money  be  not  received,  my  rem- 
edy is  for  the  tort."  This  case  is  approved  in  Timber  &  Land  Co.  v. 
Brooks.  109  N.  C.  698,  14  S.  E.  315,  which,  in  turn,  is  approved  in  Man- 
ning V.  Fountain.  147  N.  C.  18,  60  S.  E.  645,  inserted  in  subsection  b, 
post.  See  the  next  succeeding  case  for  a  more  liberal  doctrine  than  that 
announced  in  the  principal  case.  For  a  full  discussion  of  both  lines  of 
authoritv.  see  4  Cve.  332-334;  Page  on  Cont.  sees.  840-843;  Clark  on  Cont. 
pp.  537.  549.  In  Glasscock  v.  Hazell,  109  N.  C.  145.  13  S.  E.  789.  it  is  held 
that  to  sustain  assumpsit  in  such  cases  there  must  be  proof  not  only  that 
the  defendant  had  sold  the  goods  l)ut  of  the  amount  he  received  therefor. 
See  "Action."  Century  Dig.  §§  196-215;  Decennial  and  Am.  Dig.  Key  No. 
Series  §  28;  "Assumpsit,  Action  of,"  Century  Dig.  §§  42-54. 


COOPER  V.  HELSABECK.  5  Blackford,  14.     1838. 
Same  Point  as  in  Preceding  Case. 

[Action  of  assumpsit  for  goods  sold  and  delivered.  The  proof  was, 
that  the  defendant  took  the  plaintiff's  wagon  and  converted  it  to  his  own 
use;  but  there  was  no  proof  that  the  defendant  had  sold  the  wagon. 
Judgment  against  the  plaintiff,  and  he  appealed.     Reversed.] 

SrLLiv.xx,  J.  .  .  .  Tlie  only  (luestion  in  tliis  case  is, 
whether  tiie  action  of  assumpsit  for  goods  sold  and  delivered  can 
bo  maintained. 

^Vil('n'  there  is  no  contract  of  sale,  assumpsit  is  not  generally 
the  appropriate  form  of  remedy,  yet  it  sometimes  lies  for  the 
value  of  goods  obtained  toi-tiously.  There  are  many  cases  re- 
ported, in  which  i1  has  hr.-n  hchl  that  a  plaintiff  may  waive  a 
tort,  and  su<'  for  goods  sold,  etc  Tn  the  case  ol'  Hill  v.  Perrott, 
.3  Tannt.  '214.  where  the  defendant  had  by  fraud  procured  the 
plaintiff  to  sell  to  :iii  insolvent  jtersoii  a  (|uantity  of  goods,  and 
which  Ihc  defendant  had  gotten  into  his  own  pos.session.  the  court 
held  that  the  law  would  imply  a  contract  to  pay  for  the  goods 
from  the  eireiimstanee  of  their  having  been  the  i)laintiff's  i)rop- 
erty.  and  having  come  to  the  defendant's  possession  unaccoinited 
for;  and  he  eould  n(»t  he  permitted  to  aeeount  for  the  possession 
bv  setting  np  the  sale  to  tlu'  insolvent    person   which   he  him.self 


(ItiO  IJICIITS    HK-OWINi;    OFT    OK    ('(iNIlJArT.  \  (  '  ll .    S. 

luul  pnu'iirod  liy   I'i-miuI.  bccMiise  no  iiiiin   iiiay  t;ik(^  ndvjintaffo  of 
liis  own  fr;ni(l ;  Iln  rcfoii'  iiidiliitatus  assuiniisit  lay  for  Uio  j];oods. 

In  Loo  V.  Slioro  ot  al..  1  U.  «.V:  C.  04.  wliich  was  an  action  for 
poods  sold  and  dolivcrcd.  the  plaint ilT  i)1-ov(h1  tlio  possession  of 
the  poods  by  hinisclf  and  Dumi-  removal  by  Iho  dcfiMidjuits.  but 
it  appeared  that  the  poods  consisted  of  spai-  lyinp  on  the  lands 
of  one  ll\n"d.  and  that  the  ]ilaintifT  elainied  nnder  TTnrd  by  a 
written  apreeiuent  not  produced.  It  was  held  that  the  plaintiff 
coidd  not  recover,  beeanse  he  claimed  to  hold  the  land  on  which 
the  poods  lay  by  viHno  of  a  written  conti  ad  which  was  not  piven 
in  evidence.  Arbott.  C.  J.  said:  "Where  the  owner  of  property 
■which  has  been  taken  away  by  another  waives  the  tort,  and  elects 
to  brinp  an  action  of  assumpsit  for  the  value,  it  is  incumbent  upon 
him  to  show  a  clear  and  indispntable  i-ipht  to  the  ]>roperty." 
The  only  difficnlty  in  the  way  of  the  plaintiff's  recovery  was,  that 
lie  did  not  ]irodnce  on  the  trial  the  propei'  evidence  of  his  ripht 
to  the  property,  and  which  would  have  explained  those  acts  of 
ownersliip  he  had  exercised  over  it. 

In  another  case,  the  plaintiff  contracted  to  underpin  the  defend- 
ant s  house  with  hewn  stone,  and  the  stone  were  furnished  for 
that  purpose  by  the  plaintiff.  The  stone  were  not  used  for  the 
purpose  intended,  bnt  were  left  by  the  plaintiff  near  the  defend- 
ant's house  until  autumn,  wdien  the  defendant  built  a  dairy  and 
put  into  it  the  same  stone.  There  was  no  contract  for  the  saJe  of 
the  stone;  on  the  contrary,  it  was  proven  that  the  plaintiff  said 
they  were  taken  without  leave.  The  court  held  that  the  tort  mipht 
be  waived,  and  assumpsit  supported  for  the  price  of  the  stone,  al- 
thouph  there  was  no  contract.    Hill  v.  Davis.  3  N.  H.  384. 

In  Liphtly  v.  Clouston.  1  Taunt.  112,  where  an  apprentice  was 
seduced  from  the  service  of  his  master,  it  Avas  held  that  the  tort 
mipht  be  waived  and  assumpsit  maintained  for  the  wapes  of  the 
apprentice:  and  the  court  said  that  the  defendant  would  not  be 
permitted  to  say  that  he  obtained  the  services  of  the  apprentice 
not  by  contract  but  by  fraud. 

]\Io"rton  on  Vendors,  at  pape  245,  says:  "As  the  defendant  can- 
not take  advantape  of  his  own  \\Tonp,  the  plaintiff  may  in  general 
waive  the  tort,  when  the  poods  have  come  wronpfully  into  the  de- 
fendant's  possession,  and  sue  for  goods  sold."  Starkie,  in  his 
Treatise  on  Evidence,  part  4,  title  "poods  sold  and  delivered," 
says  "the  plaintiff  may  in  this  as  in  other  cases  waive  a  tort,  and 
in  some  instances  treat  the  defendant,  who  has  fraudulently  pos- 
sessed himself  of  the  poods,  as  the  purchaser." 

From  the  authorities  above  noticed,  we  think  the  plaintiff  may- 
recover  in  the  present  form  of  action.  The  facts  in  this  case  are 
spread  upon  the  record  by  a  demurrer  to  the  evidence.  They 
fully  sustain  the  plaintiff's  case,  and  the  judpment  of  the  circuit 
court  oupht  to  have  been  for  the  plaintiff  and  not  for  the  defend- 
ant.   Judpment  reversed  with  costs. 

See  "Artion."  Century  Dig.  §§  196-215;  Decennial  and  Am.  Dig.  Key 
No.  Serifs  §  28;   "Assumpsit,  Action  of,"  Century  Dig.  §§  42-54. 


Sec.    o'    I).]  RIGHTS  GROWIXG  OUT  OF   CONTRACT.  661 


(h)  Money  Had  and  Received. 

MOSES  V.  MACFERLAN,  2  Burrows,  1005.  1008,  1012.     1760. 
Basis  and  Gist  of  Assumpsit  for  Money  Had  and  Received. 

[Moses  indorsed  some  notes  to  Macferlan  under  an  agreement  that, 
while  it  should  not  so  appear  in  the  indorsements,  Moses  should  in  real- 
ity, as  between  him  and  :Macferlan,  occupy  the  position  of  indorser  with- 
out recourse.  By  resorting  to  means  not  necessary  to  mention,  Macfer- 
lan collected  the  amount  of  the  notes  from  Moses  on  the  strength  of  his 
indorsement.  Thereupon  Moses  brought  this  action  to  recover  back  the 
amount  thus  improperly  extorted  from  him.  The  action  was  based  on 
the  implied  promise  of  Macferlan  to  return  the  money  improperly  col- 
lected from  Moses,  and  not  upon  the  express  promise  that  ]Moses  should 
incur  no  liability  to  Macferlan  by  indorsing  the  notes.  Verdict  against 
the  defendant  subject  to  the  opinion  of  the  court  as  to  whether  the  plain- 
tiff could  recover  in  this  action  of  assumpsit  for  money  had  and  received 
to  his  use.  Defendant  move.d  to  nonsuit  the  plaintiff.  Motion  overruled 
and  judgment  against  the  defendant.  Only  extracts  from  the  opinion — 
which  was  written  on  the  motion  to  nonsuit^are  here  inserted.] 

Lord  :\rANSFiELD,  C.  J.  There  was  no  doubt  at  the  trial,  but 
that  upon  the  merits  the  plaintiff  was  entitled  to  the  money;  and 
the  jury  accordingly  found  a  verdict  for  the  six  pounds,  subject 
to  the  opinion  of  the  court  upon  this  question,  "Whether  the 
money  might  be  recovered  by  this  form  of  action,  or  must  be  by 
an  action  upon  the  special  agreement  only."     .     .     . 

This  kind  of  equitable  action,  to  recover  back  money,  which 
ought  not  in  justice  to  be  kept,  is  very  beneficial,  and  therefore 
nnich  encouraged.  It  lies  only  for  money  which  ex  aequo  et  bono, 
the  defendant  ought  to  refund :  it  does  not  lie  for  money  paid  hy 
the  plaintiff,  which  is  claimed  of  him  as  payable  in  point  of  honor 
and  honesty,  although  it  could  not  have  been  recovered  from  him 
by  an}''  coui-se  of  law;  as  in  payment  of  a  debt  barred  by  the 
statute  of  limitations,  or  contracted  during  his  infancy,  or  to  the 
extent  of  principal  and  legal  interest,  upon  an  usurious  contract, 
or  for  money  fairly  lost  at  play:  because  in  all  those  cases,  the  de- 
fendant may  retain  it  with  a  safe  conscience,  though  by  positive 
law  he  was  barred  from  recovering.  But  it  lies  for  money  paid 
by  mistake,  or  upon  a  consideration  which  happens  to  fail;  or  for 
money  got  through  imposition  (express  or  implied)  ;  or  ext<ti-- 
tion  ;  or  oppression  ;  or  an  undue  advantage  taken  of  the  plaintiff's 
situatirm,  contrary  to  laws  made  for  the  protection  of  persons  un- 
der those  circumstances.  Tn  one  word,  the  gist  of  this  kind  of 
action  is.  that  the  defendant,  upon  the  circumstances  of  the  case, 
is  obligef]  by  the  ties  of  natiii-al  justice  ami  equity  to  refund  the 
money. 

Therefore  we  are  all  of  us  of  opinion,  tlial  \\\r  pLiiiitilV  might 
lii-irig  this  action  Id  i-ecover  the  six  iiounds  wliicli  tlir  de- 
fendant got  and  k"pt  from  liiin  iniquitously. 

See  "Money  Rereived."  Century  Dig.  §  1;  Decennial  and  Am.  Dig.  Key 
No.  Series  jj  1. 


(i(ij  KllilllS    ciKOWINii    mr    OF    roNTKACT.  [('/(.    6\ 


SKRCIEANT  AM)   IIAltKIS   v.  STRVKHU,    Iti   \.  .1.    L.   4lll.     1838. 

Assumitsit  foi-  A/(>»i«'i/  Ha<l  aiitl  h'cct'iiud.     When  the  Arlion  Will  Lie  and 

Wluii  It   Will  \t>t  Lit-.     I'lirilji,  E.vi>rcss  or  Iiniilird. 

[StryUer  sued  Sergeant  and  Harris,  before  a  justice  of  the  peace,  for 
money  had  and  received  by  thcn\  to  his  iise.  The  justice  rendered  judg- 
ment at;ainst  tlie  defendants,  and  they  api)ealed  to  tlie  court  of  common 
pleas,  which  a^ain  rendered  judgment  aKuinst  tliem.  Tliey  tlien  carried 
the  case  to  the  supreme  court  by  certiorari.     Reversed. 

A  sheriff  offered  a  reward  for  the  arrest  of  an  escaped  prisoner. 
Strylver  arrested  the  man.  but  Sergeant  and  Harris,  falsely  rei)resenting 
to  the  sheriff  that  tliey  had  appreliended  the  prisoner,  induced  him  to  pay 
the  reward  to  them.  The  payment  was  not  made  to  tbeni  for  Stryker, 
nor  on  his  account,  but  it  was  paid  to  Sergeant  and  Harris  because  they 
claimed  it  as  their  own,  and  because  the  sheriff  supposed,  from  their 
statements,  that  they  were  entitled  to  it.  Stryker  brought  this  action  to 
recover  the  money  from  Sergeant  and  Harris,  and  the  question  is:  Could 
Stryker  recover,  under  the  circumstances  stated,  for  money  had  and  re- 
ceived to  his  use?] 

IIoRNHLOWER,  C.  J.  .  .  .  AVlictlior  the  phiintiff,  under  the 
facts  in  this  oa.se.  is  entitk'd  to  recover  in  tliis  action,  is  the  ques- 
tion. 

Tliat  Stryker.  upon  tlio  evidence  in  this  case,  was  alone  en- 
titled to  the  reward,  there  cannot,  I  think,  be  a  reasonable  doubt; 
and  if  he  had  sued  Sheriff  Jones,  nothing  in  my  opinion  could 
have  prevented  his  recoven^  He  has  thought  proper,  however, 
to  pursue  the  money  in  the  hands  of  the  defendants,  as  money  re- 
ceived by  them  to  his  use ;  and  whether  he  can  recover,  remains  to 
be  seen ;  I  fear  he  cannot. 

The  action  of  assumpsit  for  money  had  and  received  is  un- 
doubtedly a  favored  and  highly  beneficial  one.  It  is  justly  com- 
pared to  a  bill  in  equity ;  because  it  lets  in  both  parties,  plaintiff 
and  defendant,  to  all  the  grounds  of  complaint  on  the  one  side, 
and  of  excuse  and  allowance  on  the  other,  which  are  consistent 
with  the  principles  of  equity  and  good  conscience — nevertheless, 
we  must  not  extend  it  to  cases,  where  a  court  of  equity  itself,  if 
the  plaintiff  was  at  libei-ty  to  go  there,  would  not  entertain  a  bill 
and  give  the  relief  souglit  for.  Straton  v.  Rastall.  2  T.  R.  370. 
per  BuLLER,  J.  Broad  and  extensive  as  this  action  is.  it  has  its 
limits,  beyond  which  it  ought  not  to  go;  and  the  great  difficulty  is 
to  prescribe  those  limits,  and  make  them  out  by  such  specific  and 
perceptible  lines,  as  leaves  the  mind  in  no  doubt  or  perplexity. 
To  say  that  it  lies  to  "recover  back  money  which  ought  not  to  be 
l<ept'' — "for  money  which,  ex  aequo  et  bono,  the  defendant  ought 
to  refund" — or  "for  money  which  the  defendant,  upon  the  cir- 
cum.stances  of  the  ca.se,  is  "obliged  l)y  the  ties  of  natural  justice 
and  equity  to  refund,"  or  "for  money  got  through  imposition," 
or  "extortion."  or  "oppression."  or  "by  mistake."  or  "by  an 
undue  advantage  taken  of  the  plaintiff's  situation."  is.  after  all, 
dealing  in  generalities  which  afford  us  no  specific  rule  by  which 
to  test  any  particular  ca.se.  Notwith.standing  the  universality  of 
the  expressions  used   in   lln-  ])ooks  on  this  subject,  there   is  and 


Sec.    S    b.]  RIGHTS   GROWIXC    OUT  OP   CONTRACT.  663 

must  be  in  truth  aud  justice  a  limit  to  this  action.  Tt  cannot  be 
that  every  person  having  a  legal  demand  and  a  right  of  action 
against  a  third  person,  is  at  liberty  to  abandon  his  suit  against 
such  person,  and  by  a  suit  against  me  for  money  had  and  received, 
compel  me  to  litigate  with  him  and  establish  my  right  to  money 
which  I  may  have  received  from  his  debtor.     .     . 

The  defendants,  instead  of  receiving  the  money  as  the  money 
of  the  plaintitf.  or  for  his  use.  claimed  and  received  it  as  their 
own,  and  wholly  deny  the  plaintiflF's  right  to  it.  It  will  not  do  to 
rely  ui)on  the  sweeping  expressions  used  in  many  of  the  cases 
upon  this  subject.  In  Johnson  v.  Johnson.  3  Bos.  &"Pul.  169.  Lord 
Alvanley  says:  "In  the  case  of  ]Moses  v.  ]\IcFerlan.  some  princi- 
ples were  laid  down,  which  are  certainly  too  large — such  as  that, 
wherever  one  man  has  money  which  another  ought  to  have,  an 
action  for  money  had  and  received  may  be  maintained;  or  that 
wherever  a  man  has  an  equitable  claim,  he  has  also  a  legal  ac- 
tion." In  short,  there  must  be  some  privitii  existing  between  the 
parties,  in  relation  to  the  money  sought  to  be  recovered  in  this 
action.  This  privity  may  be  either  express  or  implied.  It  is  ex- 
press, where  the  defendant  has  received  the  money  as  agent  or 
bailitf  for  the  plaintiff,  or  where  he  consents  or  agrees  to  appro- 
pi-iate  money  in  his  hands  belonging  to  another,  to  the  payment 
of  the  plaintiff,  at  the  owner's  request.  But  it  can  be  implied 
only  where  the  defendant  has  received  money  of  the  plaintiff,  or 
money  belonging  to  the  plaintiff,  by  mistake,  or  fraud,  or  duress, 
or  has  come  into  possession  of  it  mala  fide,  or  on  a  consideration 
which  has  failed,  or  has  tortiously  converted  the  plaintiff's  prop- 
erty into  money.  In  other  words,  the  money  sought  to  be  re- 
covered in  this  action  upon  an  implied  promise,  must  either  be 
identically  the  money  of  the  plaintiff,  of  which  the  def(>ndant  has 
improperly  possessed  himself;  or  the  proceeds  of  some  property, 
or  issiiing  out  of  some  fund  or  emoluments  belonging  to  the  plain- 
tiff; and  I  think  every  well  considered  case  will  be  found  to  ar- 
range itself  under  one  or  the  other  of  these  heads.  In  Lamine  v. 
T)(>n-ell,  2  Ld.  Raym.  1216,  the  action  was  by  a  rightful  adminis- 
trator, to  recover  the  proceeds  of  certain  debentui'cs  which  be- 
longerl  to  the  estate  of  the  intestate,  and  which  the  defendant,  or 
wrongful  administrator,  had  sold.  The  ease  of  Howard  v.  Wood, 
2  Lev.  245,  Sir  T.  Jones.  126.  and  many  others  of  the  same  kind, 
were  brought  liy  a  rightful  officer  to  recover  the  fees  of  office  that 
iiad  been  received  by  one  who  had  held  the  office  wrongfidly  ;  and 
these  cases,  it  will  be  perceived,  are  like  those  mentioned  by  Lord 
-Mansfield,  in  Moses  v.  McFerlan.  where  the  defendant  has  re- 
ceived ni(»ncy  \'v(>u\  third  pei'sons  in  opitosifion  to  the  plaintiff's 
ritrht.  and  uliicli  by  law  tlie  del^'iidant  bad  aulliorily  1o  receive, 
lint  then  it  must  lie  remembered.  Iliat  the  fight  fnl  officer  liad  a 
ritrht  In  I  hose  specific  fees,  and  lie  eouM  nut  recover  llieiii  of  the 
f>ersons  who  had  [)aid  Ihem  \i)  I  he  oflicer  de  facto;  for  the  officer 
de  facto,  while  h(  continued  to  be  such,  had  a  I'ight  to  demand, 
and  lawful  aufhoritv  to  receive.  Uie  eiriolumenis  of  ofTico. 


litii  RIGHTS   GItOWINO    Ol'T    OF    CONTRACT.  jT//.    6\ 

The  enso  of  INfason  v.  "Wjiile,  17  Mass.  utiO,  was  cited  by  the  de- 
I'ondimt's  oounsel.     Hut  far  as  that  case  jjoes,  it  dot>s  not  help  thf 
defendant.     There  the  identical  money  of  the  plaintill'  was  found 
in  the  possession  of  the  defendant,  who  had  got  it  unlawfully  out 
of  the  liand.s  of  tlie  plaint ilT's  agent.     The  case  of  llasscr  v.  Wal- 
lis.  1   Salk.  28.  was  also  cited  by  the  defendant's  counsel;  but  it 
does  not  sustain   hini.      Ila.sscr.   tlu'   plaint  ilT.   hi'iiig  a   feme  sole. 
married  "Wallis,  the  defendant;  he  made  a  lease  of  her  land,  and 
received  the  rent.    She  tlien  discovered  that  Wallis  had  a  former 
wife,  and  thereupon  sued  him  in  assumpsit  for  tlie  money  he  had 
received.     It  was  insisted  that  Wallis  having  no  right  to  receive, 
the  tenant  was  not    discharged ;    that    therefore    an    action    lay 
against  the  tenant,  who  might  have  his  remedy  over  against  Wal- 
lis.    But  the  court  held,  that  Wallis  was  visibly  a  husband,  and 
the  tenant  discharged;  at  least  the  recovery  against  Wallis  by  the 
plaintiff  would  be  a  satisfaction  to  her,  and  discharge  the  tenant. 
It  is  plain  that  this  case  has  no  analogy  to  the  one  before  us.    Ser- 
geant and  Harris  were  not  visibly  entitled  to  the  reward — pay- 
ment to  them  was  in  no  sense  payment  to  Stryker;  but  the  sheriff 
remained  as  nmch  bound  to  him,  as  if  he  had  thrown  so  much 
money  into  the  fire.     lie  did  not  pay  thein  Stryker 's  money,  but 
his  own ;  and  Stryker  was  neither  bound  to  go  after  them  for  it, 
nor  had  he  any  more  right  to  do  so,  than  he  would  have  had,  if 
they  had  found  Jones's  pocket  book  in  the  street,  with  fifty  dol- 
lars in  it.     If  a  man  goes  to  my  debtor  and  pei-sonates  me;  and 
my  debtor  paj's  him,  supposing  he  is  paying  me,  it  is  clearly 
money  paid  to  my  use ;  and  in  such  case  I  may  at  my  election  sue 
my  debtor,  or  proceed  against  the  impostor;  for  the  money  was 
paid  him  for  me,  and  he  received  it  as  mine.     But,  my  debtor 
cannot  give  me  a  right  of  action  against  a  third  person,  by  paying 
him  money  Avhich  he  claims  a  right  to  in  opposition  to  me;  and 
thus  put  it  in  my  power  to  compel  such  third  person  to  establish 
his  rights  as  against  the  debtor,  in  a  suit  between  me  and  sucli 
third  person. 

There  is  still  another  view  which  may  l)e  taken  of  this  case, 
which  I  think  is  conclusive.  It  is  admitted  that  Jones,  the  sheriff, 
may  sustain  assumpsit  against  the  defendants  for  so  much  money 
had  and  received  to  his  use ;  and  this,  in  virtue  of  his  general  or 
absolute  right  of  property  in  the  money  in  question.  If  Stryker 
can  maintain  this  action,  it  must  be  in  virtue  of  his  general  right 
of  property  therein.  Now,  a  right  of  action  for  the  same  prop- 
erty, as  well  on  contract  as  tort,  may  exist  in  distinct  persons^  at 
th(^'  same  time;  but  must  it  not  be,  where  the  contract  is  only  im- 
plied, by  virtue  of  some  special  right  of  property  in  the  one,  and 
general  ri^ht  in  the  other?  An  agent  having  some  beneficial  in- 
terest in  the  perfomiance  of  a  contract  (as  for  commissions,  etc.) 
may  sue  upon  it ;  as  a  factor,  broker,  warehouseman,  cai-rier  and 
others,  and  so  may  the  principal,  1  Chit.  PI.  5;  but  they  do  not 
sue  in  the  same  right.  It  requires  no  argument  to  prove  that  an 
absolute  and  exclusive  right  to  the  same  property  caniiot  exist 


Sec.  3  h.\  RIGHTS  GRO^\l^^G  out  of  contract.  665 

in  distiuet  persons  at  one  and  the  same  time,  by  virtue  of  an  im- 
plied contract :  if  this  be  so,  how  can  a  right  of  action  grounded 
upon  such  an  absolute  and  exclusive  right  exist  in  distinct  persons 
at  the  same  time  ?  It  cannot  be.  If  Jones,  the  sheriff,  can  sue  for 
this  money,  Strj'ker  cannot. 

Upon  the  whole,  I  am  of  opinion  that  the  judgments  below  must 
be  reversed.  Stryker  cannot  maintain  this  suit  against  the  de- 
fendants below;  they  have  got  what  does  not  belong  to  them;  but 
that  is  no  wrong  to  him.  His  right  to  the  reward  at  the  hands  of 
the  sheriff  is  as  perfect  as  it  ever  was;  and  if  he  has  released  it, 
it  is  his  own  fault  or  misfortune.  I  see  nothing  to  prevent  the 
sheriff  from  recovering  the  money  he  has  paid  the  defendants,  if 
in  fact  they  did  not  retake  the  prisoner.  .  .  .  Judgment  re- 
versed. 

This  form  of  action  lies  to  recover  money  paid  on  a  total  failure  of 
consideration,  Barickman  v.  Kuykendall,  6  Blackford,  21;  Manning  v. 
Fountain,  147  N.  C.  18,  60  S.  E.  645,  inserted,  post,  in  tliis  subsection. 
Money  must  have  been  received  by  the  defendant,  or  such  a  state  of  facts 
must  be  sho\\n  as  will  raise  a  presumption  that  money  was  received. 
Helvey  v.  Bd.  Comrs.,  6  Blackf.  at  p.  318;  Hicks  v.  Critcher,  61  N.  C.  353; 
or  some  equivalent  which  was  treated  as  money,  Rowland  v.  Barnes,  81 
N.  C.  at  p.  240.  This  action  lies  for  money  placed  in  the  hands  of  A  to 
be  paid  to  B.  Peacock  v.  Williams,  98  N.  C.  at  p.  328,  4  S.  E.  550,  which 
case  shows  the  limits  of  this  doctrine;  also  for  money  paid  by  the  plain- 
tiff to  the  defendant  through  mistake,  Houser  v.  McGinnas,  108  N.  C.  631, 
13  S.  E.  139.  As  to  privity,  see  the  next  succeeding  case  and  Hardy  v. 
Williams.  31  N.  C.  177;  Bryant  v.  Peebles,  92  X.  C.  176;  Peacock  v.  Will- 
iams, supra;  Coffey  v.  Shuler,  112  X.  C  at  p.  625,  16  S.  E.  912;  Woodcock 
v.  Bostic,  118  X.  C.  822,  24  S.  E.  362;  Keller  v.  Ashford.  133  U.  S.  610,  621, 
10  Sup.  Ct.  494.  For  sundry  rulings  as  to  when  the  action  for  money 
had  and  received  will  and  will  not  lie,  see  2  L.  R.  A.  (X.  S.)  563,  and  note 
(money  deposited  in  lieu  of  bail  by  one  illegally  detained):  4  lb.  1198, 
and  note  (money  paid  to  a  labor  union  to  avoid  a  boycott) ;  4  lb.  363,  and 
note  (by  an  agent  for  money  of  his  principal  paid  out  by  the  agent 
through  mistake;  for  overpayments);  11  lb.  234,  and  note  (money  paid 
In  settlement  of  life  policy  under  the  erroneous  impression  that  the  as- 
sured is  dead);  10  lb.  49.  and  elaborate  note  (right  of  drawee  of  forged 
check  or  draft  to  recover  money  paid  thereon);  11  lb.  1104,  and  note 
(taxes  illegally  exacted);  22  lb.  862,  872,  and  notes  (license  fees  unlaw- 
fully exacted  under  color  of  authority);  13  lb.  267,  and  note  (money  de- 
posited with  an  agent,  stakeholder,  etc.,  for  an  illegal  purpose) ;  23  lb. 
553,  and  note  (for  money  paid  to  an  agent  upon  a  contract  which  the 
principal  lepudiates) ;  23  lb.  1092,  and  note  (by  a  bank  for  money  paid 
on  customer's  check  through  mistake — cannot  recover).  See  note  at  the 
end  of  ch.  14,  post.  See  "Money  Received,"  Century  Dig.  §§  14-20;  De- 
cennial and  Am.  Dig.  Key  No.  Series  §  5. 


NORWOOD  V.  O'XRAL.  112  N.  C.  127.  16  S.  E.  759.     1893. 
Privity.     Agreement  Express  or  I») plied. 

[Action  for  money  had  and  received  to  i)lalntiff's  use.  Verdict  and 
judgnitnf  against  defendant,  and  he  apiiealod.     Reversed. 

Plaintiffs  were  ontiflod.  as  iifxt  of  kin,  to  a  share  in  their  grand- 
mother's [)er8onaI  estate.  Their  father  roccived  such  share— not  for  the 
children,  but  for  himself,  he  and  the  administrator  of  the  grandmother 


tilili  URillTS   (jlUiWINi;    oi   r    OK    C'()NI'!{.\("r.  \('li.   S. 

being  umier  the  erroneous  impression  tliat  it  belonged  to  liim  as  his  own. 
The  judge  reftised  to  cliargo  tluU  iilaiiitilTs  ( ould  m)t  rec-over  tiic  money 
so  received  by  tlieir  lathiT.  | 

liiKWKi.i,.  ,1.  li  .•ippcjirs  from  !lic  ('.•!«('  on  .-iiipcjil  Hint  llio  ad- 
iiiiuistriitof  of  oiu'  l%li/;il>clh  Perry  i);rKl  to  the  (Icfcndaiil  a  I'cr- 
tain  sum  of  money  on  I  )fccml)«'r  L'7.  ISdl.  thinking;  that  ho  was 
entitled  to  receive  it  as  a  distril)iitee  of  that  estate.  His  wife,  a 
ilaujihter  (tf  Kli/.abeth  Perry,  had  died  Ix-fore  tlie  dealh  of  Imt 
motlier.  and  tlie  j)l;iin{  itVs  are  his  children.  When  the  dei'endant 
receivoil  this  money  he  jiave  the  adininisl  rator  a  receipt  for  the 
same  "in  full  of  his  interest  in  said  estate,"  in  wliicli  he  stijiulated 
that,  "shonlil  any  lawftd  claim  come  ajij.iinst  said  estate,"  he 
would  "reftmd  his  |)roport ionate  pai't  of  said  lawful  claim." 
The  pn)mise  of  the  defendant  was  to  the  administrator  of  Eliza- 
beth Perry,  and  no  one  but  him  or  his  successor  can  enforce  that 
promise.  Tlu'  money  was  not  received  by  defendant  under  any 
agreement,  express  oi'  implit'd,  that  he  would  hold  it  for  the  plain- 
tiffs. On  the  contrary,  it  was  received  expressly  for  his  own  use; 
and,  whatever  may  be  the  rights  of  the  plaint ilfs  against  the  ad- 
ministrator, who  has  failed  to  pay  to  them  the  money  they  may 
be  entitled  to  from  their  grandmother's  estate,  it  seems  very  clear 
that  they  have  no  cause  of  action  against  the  defendant,  and  his 
honor  should  have  charged  the  jury,  as  requested,  that  upon  the 
evidence  and  the  admissions  the  i^laintiffs  could  not  recover. 
Error. 

See  "Money  Received,"  Century  Dig.  §§  14-20;  Decennial  and  Am.  Dig. 
Key  No.  Series  §  5;  "Executors  and  Administrators,"  Century  Dig.  §  1326; 
Decennial  and  Am.  Dig.  Key  No.  Series  §  318. 


MANNING  V.  FOUNTAIN,  147  N.  C.  18,  19,  60  S.  E.  645.     1908. 

Waiving  Tort  and  Suing  in  Assumpsit,  and  Waiving  Contract  and  Suing 
in  Tort.  Total  Failure  of  Consideration.  Receipt  of  the  Money  by 
Defendant. 

[Action  in  a  justice's  court  to  recover  $175,  as  money  had  and  received 
to  plaintiff's  use,  upon  an  entire  failure  of  consideration.  The  case  was 
taken  to  the  superior  court  by  appeal  and  in  that  court  judgment  was 
rendered  against  the  plaintiff,  and  he  appealed.     Reversed. 

The  controversy  arose  out  of  a  transaction  in  which  Webb  gave  his 
negotiable  note  to  Fountain  for  a  horse  furnished  to  Manning  on  ap- 
proval. The  horse  was  returned  to  Fountain,  because  unsatisfactory; 
but  Fountain  had  negotiated  the  note  and,  consequently,  Webb  was  forced 
to  pay  it.  Having  paid  this  note,  Webb  brought  this  action  to  recover 
from  Fountain  the  money  so  paid.  Manning  was  joined  as  coplaintiff. 
The  judge  ruled  that  the  action  was  necessarily  in  tort  and,  hence,  the 
justice  had  no  jurisdiction.] 

Brown.  J.  .  .  .  "We  tliink  that  his  honor  erred  in  assum- 
ing that  the  action  was  in  tort,  and  that  the  justice  had  no  jnris- 
diction.  "When  the  defendant  solicited  and  accepted  the  negoti- 
able note,  he  took  it  as  so  much  ca.sh,  and  upon  an  implied  con- 


Sec.    3    c]  RIGHTS   GROWING   OUT   OF    CONTRACT.  667 

tract  that  he  would  return  it  in  ease  the  trade  with  the  tenant 
was  not  effected.  The  plaintiff  does  not  allege  a  fraudulent  intent 
or  a  knowingly  false  representation  upon  the  part  of  the  defend- 
ant. He  sues  for  money  had  and  received  upon  the  allegation  that 
there  has  been  an  entire  failure  of  consideration.  The  plaintilt', 
even  if  a  tort  had  been  committed  growing  out  of  a  fraudulent 
and  false  representation,  had  a  right  to  waive  it,  and  sue  for 
money  had  and  received.  Such  an  action  is  ex  contractu  and  not 
ex  delicto.  Winslow  v.  Weith.  66  X.  C.  432;  BuUinger  v.  Mar- 
shall, 70  X.  C.  526.  Upon  this  theory  it  has  been  held  that  where 
defendant  wrongfully  took  into  his  possession  timber  logs  of 
plaintiff',  sold  them,  and  received  the  money,  the  plaintiff  might 
waive  the  tort,  and  sue  for  the  money.  Land  Co.  v.  Brooks,  101) 
X.  C.  700.  14  S.  E.  315.  E  converso  it  has  been  held  when  the 
breach  of  contract  involves  a  tort  that  the  complaining  party  may 
waive  the  contract  and  recover  damages  for  the  tortious  injury. 
Bowers  v.  Railroad.  3 07  X.  C.  722.  12  S.  E.  452. 

The  judgment  of  the  superior  court  is  reversed,  and  the  cause 
remanded  for  trial.    Error. 

See  Mcintosh  Cont.  18.  See  "Action,"  Century  Dig.  §§  196-215;  Decen- 
nial and  Am.  Dig.  Key  No.  Series  §  28;  "Justices  of  the  Peace,"  Century 
Dig.  §  115;  Decennial  and  Am.  Dig.  Key  No.  Series  §  37. 


(c)  Money  Paid  to  Another's  Use. 

CONKLIN  V.  SMITH,  3  Indiana,  284.     1852. 
Assumpsit  for  Money  Paid  to  Defendant's   Use  Distinguished  from  As- 
sumpsit for  Money  Had  and  Received  to  Plaintiffs  Use.     Gist  and 
Essentials  of  Assumpsit  for  Money  Paid.  etc. 

[Smith  brought  assumpsit  for  money  paid  to  the  use  of  Conklin.  .Judg- 
ment against  Conklin,  who  carried  the  case  to  the  supreme  court  by  writ 
of  error.  The  declaration  was  for  money  paid,  laid  out.  and  expended  by 
Smith  to  the  use  of  Conklin.  The  facts  are  stated  in  the  beginning  of 
the  opinion.  I 

Blackford.  J.  .  .  .  There  was  evidence  tending  to  prove 
that  ccrlain  rent  due  to  Smith,  the  plaintiff,  from  a  tenant  who 
had  occupied  certain  real  estate  of  Smith's,  had  been  improperly 
received  from  the  tenant  by  Conklin.  the  defendant.  But  if  it  be 
admitted  that  Smith  has  a  legal  claim  against  Conklin  for  the 
money  received  by  CoiiUliii.  i1  e;iiinot  be  recovered  in  this  action 
for  money  paid.  The  proper  Inrin  of  act  ion  in  such  ease  would 
})e  for  money  had  and  received. 

The  plaintiff  contends  that  there  is  evidence  lending  to  show- 
that  Iw  |»aid  the  money  tf)  Hir-  defendant  under  a  mistake  of  facts. 
I'.ut  if  there  is  such  evi(l<n<r.  it  (»nly  tends  to  show  the  |)lainti(T's 
right  lo  recover  under  a  count  r<»r  money  had  and  ree<>ived  — not 
for  money  paid.  To  s\i.stain  a  count  for  money  paid,  laid  out.  and 
ex[)ended.  tlicre  must  have  been  a  payment  of  money  by  the  plain- 


668  RkiUTS    ci  KG  WING    OIT    OK    CONTRACT.  [C'/t.    0?. 

titr  to  a  tliinl  pitrty,  at  tlu>  i-ctnicst  oi'  the  (h'Ti'iKlaui.  express  or 
implied,  on  a  promise,  express  or  implied,  to  repay  the  amount. 
•J  Saund.  IM.  ami  K\ .  402.     Jnd<:menl  reversed. 

While  a  request  is  essential,  still  a  siibseqiuMit  ratincation  or  recogni- 
tion ol  the  payment  is  sutlicieut,  as  the  request  may  be  express  or  im- 
plied. Taylor  V.  Cotton.  28  N.  C  69.  Giving  his  own  non-negotiable  note 
for  the  debt  to  whiih  he  is  surety,  will  not  sustain  the  action  oi:  the 
suretv  against  his  priiuii)al.  because  giving  such  note  is  not  a  payment  of 
the  money.  Pitzer  v.  llermon,  8  Blackford.  112.  See  "Money  Paid," 
Century  Dig.  §§  1,  21;  Decennial  and  Am.  Dig.  Key  No.  Series  §§  1,  6; 
"Pavment,"  Century  Dig.  §  291;  Decennial  and  Am.  Dig.  Key  No.  Series 
§  S9. 


MEADOWS  V.  SMITH,  34  N.  C.  18.     1851. 
Officious  Payment. 

I  Assumpsit  for  money  paid  to  the  use  of  the  defendant.  Verdict  and 
judgment  against  defendant,  and  he  appealed.     Reversed. 

Meadows,  acting  as  Smith's  agent,  employed  R.  and  H.  to  build  a  flat 
boat  for  Smith  at  a  specified  price— the  boat  to  be  finished  by  a  fixed 
date.  Smith  refused  to  accept  and  pay  for  the  boat,  because  not  finished 
in  time.  Meadows  brought  an  action  against  Smith  in  the  names  of 
R.  and  H.  for  the  price  of  the  boat,  but  that  action  ended  in  a  nonsuit. 
Meadows  then  paid  R.  and  H.  without  being  forced  so  to  do  and  without 
being  requested  or  authorized  by  Smith  to  make  such  payment.  The 
judge  charged  that  upon  these  facts  the  plaintiff,  Meadows,  could  re- 
cover of  the  defendant  the  amount  paid  to  R.  and  H.] 

Pearson,  J.  We  can  see  nothing  to  distin<?nish  this  ease  from 
the  ordinary  one  of  an  agent,  who  engages  work  to  be  done  for  and 
in  the  name  of  his  principal,  whose  name  and  residence  he  dis- 
closes. The  agent  is  under  no  legal  obligation  to  pay  for  the 
work,  and  if  he  does  pay  for  it.  he  will  not  be  able  to  make  good 
the  necessary  allegation,  that  he  "paid  the  money  for  the  use  of 
his  principal  and  at  his  instance  and  request." 

In  this  case,  the  defendant  had,  on  demand  made  by  the  build- 
ers of  the  flat,  expressly  refused  to  pay.  "Whether  his  refusal  was 
upon  sufficient  cause  is  not  material;  he  had  expressly  refused  to 
pay,  and  a  suit  was  pending  against  him  at  the  time  the  plaintiff 
alleges  he  paid  the  money  for  him;  but  the  idea,  that  he  paid  it 
at  his  instance  and  request,  is  out  of  the  question,  in  the  absence 
of  any  prior  legal  obligation  to  do  so;  and  the  defendant  had 
cause  to  complain,  that  thereby  the  matter  which  he  saw  proper 
to  contest  with  the  builders  of  the  flat  was.  without  his  consent, 
put  an  end  to  by  the  offieious  interferenee  of  the  plaintitT,  who 
now  seeks  to  make  him  pay  for  the  flat,  without  any  inquiry  as  to 
the  merits  of  the  defense,  upon  which  he  was  relying  in  the  action 
brought  by  the  builders.     .     .     .     Venire  de  novo. 

The  principal  case  is  approved  in  Osborne  v.  McCoy,  107  N.  C.  726,  12 
S.  E.  383.  See  Cowles  v.  Cowles,  121  N.  C.  at  p.  276,  28  S.  E.  476,  for 
officious  payments.  See  "Principal  and  Agent,"  Century  Dig.  §  77; 
Decennial  and  Am.  Dig.  Key  No.  Series  §  77. 


Sec.    3   d.]  RIGHTS  GROWING   OUT   OF   CONTRACT.  669 


NICHOLS  V.  BUCKNAM,  117  Mass.  488.     1875. 
Payments  Not  Officious. 

[Action  by  Nichols  to  recover  from  Bucknam  money  paid  to  the  use  of 
Bucknam  without  any  express  request  from  him  to  do  so.  Judgment 
against  defendant,  who  alleged  exceptions.     Affirmed. 

Nichols  employed  Scott  to  build  some  houses.  Scott  sublet  the  con- 
tract for  ihe  plastering  and  brick  work  to  the  defendant.  The  defend- 
ant employed  laborers  on  the  buildings  and  did  not  pay  them,  where- 
upon they  filed  liens  against  the  plaintiff's  property,  pursuant  to  a  law 
giving  them  such  a  right.  They  also  brought  an  action  against  Nichols, 
the  plaint ii¥,  to  subject  his  property  to  the  satisfaction  of  such  liens. 
Nichols  resisted  the  claims,  but  judgment  was  rendered  against  him  and, 
in  order  to  prevent  a  sale  of  Ids  properti/  to  satisfy  such  judgment  and 
liens,  he  paid  them  off.  He  brought  this  action  against  Bucknam  to  re- 
cover the  amount  so  paid.  There  was  no  direction  or  express  request  by 
the  defendant  that  Nichols  should  make  the  payments  above  mentioned; 
nor  did  the  defendant  ever  promise  to  reimburse  Nichols.  The  judge 
ruled  that,  upon  the  foregoing  facts,  the  law  implied  a  promise  by  the 
defendant  to  repay  Nichols.] 

Ames.  J.  It  appears  upon  this  report  that  the  plaintiff,  in 
order  to  save  his  property  from  being  sold  on  legal  process,  has 
been  compelled  to  pay  a  debt  which  was  really  due  from  the 
defendant.  Under  snch  circumstances,  the  law  implies  a  re- 
quest on  the  defendant's  part,  and  a  promise  to  repay;  and  the 
plaintiff  has  the  same  right  of  action  as  if  he  had  paid  the  money 
at  the  defendant's  express  request.  Exall  v.  Partridge.  8  T.  R. 
308:  1  Smith's  Lead.  Cas.  (5th  Am.  ed.^  70.  a.  73;  Hale  v.  Huse. 
10  Gray.  99.     .     .     .     Exceptions  overruled. 

See  also  Railroad  v.  Railroad.  147  N.  C.  at  pp.  385,  386,  61  S.  E.  185, 
and  Cowles  v.  Cowles,  121  N.  C.  at  p.  276,  28  S.  E.  476.  citing  15  Am.  & 
Eng.  Enc.  Law.  826,  827  (now  pp.  1099.  1100  in  2d  ed.).  See  "Money 
Paid,"  Century  Dig.  §  2;  Decennial  and  Am.  Dig.  Key  No.  Series  §  1. 


(d)   Assumpsit  for  Goods  Bargained  and  Sold,  and  for  Goods 

Sold  and  Delivered. 

STEARNS  V.  WASHBURN,  7  Gray   (Mass.),  187.     1856. 

Assumpsit  for  Goods  Barriaincd  and  Sold  Distinguished  from  Assumpsit 

for  Goods  Sold  and  Delivered.     The  Common  Counts. 

[Action  on  contract  for  the  price  of  the  unsevered  grass  on  a  lot,  which 
grass  the  j)lainliff  claimed  to  have  been  purchased  from  him  by  the  de- 
fendant. Verdict  and  judgment  against  the  defendant,  and  he  appealed. 
Reversed. 

The  declaration  was  upon  an  account  annexed  thereto,  which  was  as 
follows-  "Mr.  David  Washburn  to  .To.shua  Stearns,  Dr.  For  grass  on 
lot  No.  s,  Winter  Hill,  $7.00."  There  was  proof  of  an  oral  sale  and  pur- 
chase of  the  unsevf-red  grass  on  the  lot,  which  the  defendant  was  to  cut 
and  remove;  but  defendant  did  not  cut  the  grass  nor  use  it  in  any  way, 
although  there  was  nothing  to  prevent  his  doing  so.  Defendant  derived 
no  benfflt  from  the  grass.  The  defendant  insisted  that  the  plaintiff 
could  not  recover  in  this  form  of  action.  The  judge  ruled  otherwise, 
and  the  defendant  excepted. 1 


(i((l  KUillTS    (iKOWINC    (»l    1'    OK    CON'TK  \('l\  \('lt.    S. 

Mkti'ai.I'.  -I,  As  we  iiiitlcistaiiil  the  jti-nct  ice  jicl  of  lSr)2.  c.  312. 
s.  '2.  wliu'li  has  cliimirt'tl  the  form  of  (Icclai-iiiij;  in  personal  actions, 
it  allows  a  connl  on  an  acconnt  anm-xi'd  to  Ix'  used  only  when  oni^ 
at  loast  of  tlio  items  of  the  aeetMnit  ■"wonid  l)e  eori'eelly  described 
1)\  some  one  of  the  conniion  coinits,  aecordinir  to  the  nalnral  im- 
j)ort  of  its  terms. "  The  "common  cotmts"  we  nnderstand  to  he 
those  which  were  fornu'rly  ttM-med  connts  in  indehitatns  assnmj)- 
sit ;  as  for  money  had  and  received,  for  money  lent,  for  moni'y 
l>aid.  for  jioods  sold  and  delivered,  for  froods  l)arjj;ained  and  sold, 
etc.  In  th(>  schedule  of  forms  prescribed  by  that  statute,  th(! 
count  on  an  account   annexed   is  retpiii'cd  to  be  thus:  "And  the 

plaint itV  says  the  defnidant   owes  him  tlollars,  according?  to 

the  account  hereto  annt'xed."  In  the  ]>resent  case,  this  form  is 
adopted,  and  tht>  acconnt  annexed  is  "for  grass  on  lot  No.  8,  Win- 
ter Hill,  $1.00:' 

The  evidence,  at  the  trial,  was  of  a  contract  of  sale,  from  the 
jilaintitf  to  the  defendant,  of  the  grass  growing  on  the  said  lot, 
whit'h  grass  was  to  be  and  might  have  been  cut  and  carried  away 
by  the  defendant,  but  which  he  omitted  lo  cut  and  carry  away. 
Now  if  any  of  the  conunon  counts  would  have  correctly  described 
tlic  ])laintiff's  claim,  it  nnist  have  heen  either  that  for  goods  sold 
and  delivered,  or  that  for  goods  bargained  and  sold.  If  he  could 
not  have  maintained  either  of  these  counts,  on  the  evidence,  then 
he  cannot  maintain  this  count  on  the  account  annexed.  We  are 
of  opinion  that  the  evidence  would  not  have  supported  either  of 
those  counts.  The  contract  of  the  ]mrties  was  an  executory  con- 
tract of  sale,  to  be  completed  by  the  defendant's  severing  the 
grass  from  the  land.  I'ntil  severed,  the  grass  was  not  personalty, 
not  goods  or  chattels,  but  was  part  of  the  realty,  and  remained 
the  propci-ty  of  the  plaint iif.  C.'latlin  v.  Cari)enter,  4  Met.  582, 
583;  Lewis  v.  Culbertson.  11  S.  &  R.  48;  Waddington  v.  Bristow, 
2  Bos.  &  Pul.  455,  by  Heath,  J. ;  Crosby  v.  Wadsworth,  6  East, 
610.  by  Lord  Eli.enborototi  ;  Evans  v.  Roberts.  5  B.  &  C.  832,  by 
B.WLEY,  J.;  Whitmarsh  v.  Walker,  1  Met.  315,  by  W'ILDE,  J.; 
^Miller  v.  Baker,  1  :\Ict.  33,  by  Dewey,  J.  But  if  the  grass  could 
be  regarded  as  goods,  yet  there  w^as  no  such  delivery  of  it  to  the 
defendant  as  is  necessary  to  entitle  the  ])laintiif  to  maintain  a 
count  for  goods  sold  and  delivered.  To  maintain  that  count,  it  is 
essential  that  the  goods  should  have  been  delivered  to  the  defend- 
ant or  his  agent,  etc.,  or  that  something  equivalent  to  a  delivery 
should  have  occurred;  and  if  not  delivered,  but  still  on  the  prem- 
ises of  the  vendor,  though  i)acked  in  boxes  furnished  by  the  pur- 
cha.ser,  the  plaintitf  will  be  nonsuited,  if  he  has  declared  only  for 
goods  sold  and  delivered;  for  he  should  have  declared  for  goods 
bargained  and  sold,  or  in  a  special  count.  And  if  there  has  been 
no  delivery  of  the  goo<Is.  even  the  count  for  goods  bargained  and 
sold  (not  showing  a  delivery)  cannot  be  maintained,  unless  it 
appear  that  there  has  been  a  complete  sale,  and  the  property  in 
the  goods  has  become  vested  in  the  defendant,  by  virtue  of  the 
sale,  and  an  actual  acceptance  of  the  commodity  by  the  defend- 


Sec.    3    d.]  RIGHTS   GROWING   OUT   OF   CONTRACT.  671 

ant.  These  positions  are  laid  down  in  1  Chit.  PI.  (12th  Am.  ed.) 
345.  347.  as  the  result  of  the  latest  decisions  of  the  English  courts, 
combined  with  the  earlier  decisions  cited  in  the  previous  editions 
of  that  work. 

The  conclusion  of  the  matter  seems  clearly  to  be  this,  namely, 
that  the  plaintiff,  on  the  evidence  stated  in  these  exceptions,  could 
not  maintain  an  action  on  any  of  the  eonnnon  counts,  and  there- 
fore cannot  maintain  this  action  on  a  count  upon  the  annexed 
account;  but  that  he  should  have  declared  specially  on  the  con- 
tract of  sale,  and  the  breach  of  it  by  the  defendant. 

The  action,  in  its  present  form,  might  have  been  maintained,  if 
the  defendant  had  taken  the  grass  from  the  land,  according  to  his 
agreement,  and  had  not  paid  for  it ;  for  then,  as  he  would  have 
been  liable  on  the  conunon  count  for  goods  sold  and  delivered,  he 
would  have  been  liable  also  on  the  count  adopted  in  this  suit. 
See  Bragg  v.  Cole.  6  Moore,  114;  2  Saund.  PI.  and  Ev.  (2d  ed.) 
91.  The  verdict  must  be  set  aside,  and  a  new  trial  granted.  On 
the  new  trial,  the  plaintiff  will  undoubtedly  obtain  leave  to  amend 
his  declaration. 

See  'Sales,"  Century  Dig.  §  936;  Decennial  and  Am.  Dig.  Key  No. 
Series  §  340;  "Account,  Action  on,"  Century  Dig.  §  2;  Decennial  and  Am. 
Dig.  Key  Xo.  Series  §  2. 


McRAE  V.  MORRISON,  35  N.  C.  46,  49.     1851. 
Assumpsit  for  Goods  Sold  and  Delivered  for  Cash  or  on  Credit;  When 
Purchaser  Fails  to   Give  a  Xote.   etc..  for  the   Price,   or   Othenvise 
Fails  to  Comply  with  the  Terms  of  sale.    Written  and  Oral  Contracts 
of  Sale. 

[Assumpsit  for  bacon  sold  and  delivered.  The  contract  of  sale  had 
been  reduced  to  writing  and  the  writing  was  lost.  The  proof  was.  of  the 
sale  and  the  delivery  and  that  the  price  was  to  be  paid  twelve  months 
thereafter,  which  i)eriod  had  expired  when  this  action  w-as  brought.  The 
written  contract  was  not  negotiable,  nor  was  it  under  seal.  The  plain- 
tiff declared  in  assumpsit  for  goods  sold  and  delivered,  and  not  upon  the 
lost  written  contract.  Verdict  and  judgment  against  the  defendant,  and 
he  appealed.  Affirmed.  Only  so  much  of  the  opinion  as  bears  upon  the 
action  of  assumpsit  is  inserted  here.l 

Pearscjn,  J.  .  .  .  It  is  further  objected  that  the  plaintiff 
ought  to  hav.'  declared  specially  upon  the  written  contract,  and 
could  not  maintain  a.ssuinpsit  for  goods  sold  and  delivered.  There 
is  no  distinctidii  between  a  pai'ol  and  n  written  contract,  u^de^ss  the 
latter  is  under  seal,  when  covenant  is  the  ])r(>per  action.  If  a 
promissoi-y  not*'  be  given  for  the  price,  the  original  cause  of  ac- 
tion is  n».t  iiieriTcd  :  assumpsit  for  goods  sold  and  delivered  will 
lie.  and  the  note  may  be  used  as  evidence.  Stedman  v.  Ooode, 
1    Ks|..  .\.   I',  e,  .■). 

It  is  said  by  the  counsel  lor  the  defendant  that  assumpsit  for 
goods  sold  iind  delivered  lies  otdy  when  the  price  is  due  at  the 
time  of  the  d<-livery.  and   if  by  llie  iiirieeuienl    tlie  i>riee  is  to  b:- 


(h'J  rights  growing  out  of  contract,  \Ch.  S. 

paid  at  a  future  day.  the  plaiiitilV  must  tlcdaic  (ui  llic  special  foii- 
trai't.  This  distinction  is  uiisiipportod  by  aullioi-ity.  The  only 
ditToronee  botuiH'n  a  sale  for  casli  and  a  sale  on  time  is  tliat  in 
till'  fornuT  I'aso  assumpsit  may  he  brouirlit  i'oiMlnvith  :  in  the  hiltcf 
it  onnnot  bo  broutrht  initil  al'lor  tlio  tiiuo  of  orodit  lias  expired. 
llasUins  v.  Dnpervy.  I<  Hast.  4!)S.  Tn  Helps  v.  Winterbottom, 
1-i.  &  Ad.  4ol.  it  is  lield.  if  a  sale  is  made  on  lime  and  a  note  and 
security  arc  not  jriven  as  airreed  on.  assumpsit  will  lie  at  the  <'iid 
of  the  time,  or  the  party  may  sue  before  the  expiration  of  the 
time,  when  he  must  declare  specially  for  the  omission  to  give  the 
note  and  security.  In  the  present  case  the  action  is  broufiht  after 
the  day  of  payment,  and  there  is  no  reason  for  rerpiirinpr  the 
plaintitT  to  declare  sjieeially  upon  the  written  conti-act.  Judpj- 
nient  afTirnied. 

See  "Sales,"  Century  Dig.  §§  927-942;   Decennial  and  Am.  Dig.  Key  No. 
Series  §  340. 


HANNA  V.  MILLS  and  HOOKER,  21  Wend.  (N.  Y.)  90.     1839. 

Assumpsit  for  Goods  Sold  and  Delivered  on  Credit,  Where  the  Purchaser 
Fails  to  Give  the  "Note,  etc.,  Pursuant  to  the  Terms. 

[Action  of  assumpsit  for  goods  sold  and  delivered.  Mills  and  Hooker 
were  the  plaintiffs  and  Hanna  the  defendant.  The  judgment  was  against 
Hanna  who  carried  the  case  to  the  supreme  court  by  writ  of  error.  The 
judgment  was  reversed  on  a  point  immaterial  to  the  matter  here  con- 
sidered. 

Mills  and  Hooker  sold  a  lot  of  goods  to  Hanna  upon  a  credit  of  six 
months,  with  the  understanding  and  stipulation,  as  part  of  the  terms  of 
sale,  that  Hanna  was  to  give  a  satisfactory  note  for  the  price.  Hanna 
failed  to  give  the  note.  The  sale  was  made  in  March,  1836,  and  this  ac- 
tion was  brought  in  April,  1836.  The  note  stipulated  for  was  to  mature 
six  months  from  the  sale.  One  of  the  points  made  was.  that  the  sellers 
could  not  sue  until  the  six  months  had  elapsed.  The  sellers  declared 
on  the  special  contract  which  stipulated  that  the  note  should  be  given, 
and  claimed  damages  for  the  purchaser's  failure  to  comply  with  such 
contract.  Only  so  much  of  the  opinion  as  discusses  this  question,  is  here 
inserted.] 

Bronson.  J.  .  .  .  "When  goods  are  sold  to  be  paid  for  by  a 
note  or  bill  payable  at  a  future  day.  and  the  note  or  bill  is  not 
given,  the  vendor  cannot  maintain  assumpsit  on  the  general  connt 
for  goods  .sold  and  delivered,  nntil  the  credit  has  expired;  but  he 
can  sue  immediatelv  for  a  breach  of  the  special  agreement.  4  East. 
]47;  3  Bos.  &  Pul'.  582;  9  East.  498;  3  Camp.  329.  In  such  an 
action  he  will  be  entitled  to  recover  as  damages  the  Avhole  value 
of  the  goods,  unless,  perhaps,  there  .should  be  a  rebate  of  interest 
during  the  stipulated  credit.  The  cases  referred  to  by  the  coun- 
sel for  the  plaintiff  in  error  give  no  countenance  to  the  argument 
in  favor  of  a  different  rule  of  damages.  The  right  of  action  is  as 
perfect  on  a  neglect  or  refusal  to  give  the  note  or  bill,  as  it  can 
be  after  the  credit  has  expired.  The  only  difference  between  suing 
at  one  time  or  the  other,  relates  to  the  form  of  the  remedy;  in  the 


Sec.    3    d.]  KIGHTS   GROWING   OUT   OF    CONTRACT.  673 

one  ease  the  plaintiff  must  declare  specially,  in  the  other  he  may 
declare  generally.  The  remedy  itself  is  tlie  same  in  both  cases. 
The  damages  are  the  price  of  the  goods.  The  party  cannot  have 
two  actions  for  one  breach  of  a  single  contract;  and  the  contract 
is  no  more  broken  after  the  credit  expires  than  it  was  the  moment 
the  note  or  bill  was  wrongfully  withheld.  .  .  .  Judgment  re- 
versed. 

That  an  action  will  lie  for  damages  for  breach  of  contract,  before  the 
expiration  of  the  stipulated  time  of  credit,  if  the  purchaser  fail  to  give 
a  note  or  mortgage,  or  to  do  other  acts  stipulated  for  as  terms  of  sale, 
see  Tiffany  on  Sales  (2d  ed.  Hornbook  Series  i,  34.t;  Bishop  on  Cont. 
(1st  ed.)  §§  690-692;  Wolf  v.  Marsh,  54  Cal.  228.  which  quotes  Bishop  on 
Cont.  supra,  with  approval.  See  3  L.  R.  A.  (X.  S.)  908,  12  lb.  180,  and 
notes,  for  this  rule,  and  for  what  actions  will  not  lie.  See  also  on  the 
general  subject  of  the  effect  of  one  party's  refusal  to  abide  by  a  contract 
of  sale  and  purchase,  Benjamin  on  Sales  (Bennett's  Ed.).  596,  n.  4; 
3  L.  R.  A.  (N.  S.)  1042,  and  note. 

Here  attention  may  be  called  to  the  following  points  connected  with 
actions  on  accounts  for  goods  sold  and  delivered:  Ordinarily  a  judgment 
by  defaull  final  cannot  be  entered  in  an  action  for  goods  sold  and  deliv- 
ered— it  should  be  by  default  and  inquiry.  Witt  v.  Long,  93  N.  C.  at 
p.  391;  Jeffries  v.  Aaron,  120  N.  C.  167.  26  S.  B.  696,  which  inquiry  should 
be  made  by  a  jury  at  the  term  next  after  the  appearance  term.  It  cannot 
be  had  sooner  if  resisted.  Witt  v.  Long,  93  N.  C.  at  p.  391;  Brown  v. 
Rhinehart,  112  N.  C.  772,  16  S.  E.  840.  But  if  the  complaint  alleges  an 
express  promise  to  pay  absolutely  a  certain  sum  of  money,  particularly 
specified  in  the  complaint,  judgment  by  default  final  may  be  entered  al- 
though the  action  be  to  recover  for  goods  sold  and  delivered  on  an  open 
account,  provided  the  comi)laint  be  verified.  Hartman  v.  Farrior,  95 
X.  C.  177:  Skinner  v.  Terry,  107  X.  C.  at  p.  108.  12  S.  E.  118;  Williams  v. 
Lumber  Ck).,  118  X.  C.  at  p.  936,  24  S.  E.  800.  See  "Sales,"  Century  Dig. 
§  1091;  Decennial  and  Am.  Dig.  Key  Xo.  Series  §  374. 


BOYLE  V.  ROBBINS,  71   X.  C.   130.     1874. 
■  Splitting  Accounts  in  Assumpsit  for  Goods  Sold.  etc. 

[Action  before  a  justice  of  the  peace  to  recover  a  balance  claimed  un- 
der a  contract  for  building,  etc.,  for  which  a  mechanic's  lien  had  been 
filed.  .Tudgment  for  plaintiff  in  the  justice's  court.  The  defendant  ap- 
pealed to  the  superior  court.  There  the  judge  reversed  the  judgment  of 
the  justice  and  gave  judgment  for  the  defendant,  from  which  the  i)lain- 
tiff  appealed.     Reversed. 

The  original  debt  due  to  plaintiff  was  $346.43.  He  filed  his  lien  for 
that  amount  and  then  assigned  all  of  the  claim  excei)t  $137  to  a  third 
l)prson.  The  defendant  settled  the  amount  so  assigned  by  giving  a  note 
and  mortgage  before  this  action  was  brought.  This  action  is  brought 
for  the  $137.  The  defendant  insisted  that  the  justice  not  having  jiu'is- 
dictlon  of  amounts  over  $200,  the  plaintiff  could  not  confer  jurisdiction 
by  dividing  his  claim  as  above  indicated.     The  judge  so  ruled.] 

K<H)M.\.\.  J.  As  In  llic  jurisdiclioii  dC  tlic  justice  as  affected  by 
the  oi'igiiKil  ;iiiioiii)1  (if  llie  (|e])1.  Tile  general  rule  is  ])lain  and 
faiiiilinr.  .\  credilnr  whose  (lemiuid  jigaiiisl  bis  debtitr  consists 
of  Jill  aeefMint  of  srvei;i|  items,  eilber  lor  goods  sold  (ir  for  labor 
done,  at  different  times,  each  of  wliieh  is  less  j|i;in  $2(>(l.  altbongh 
RemodiPH — 43. 


674  KKiiiTs  (;Kt)\viN(i  i)ir  in-  i-oniuact.  \('Ii.  S. 

tliP  n>;ji:rt>ir;iti'  ainoiiiit  o['  liic  Mfcmml  fxrccds  .+lM)().  iii;iy  sue  hc- 
lori"  .1  jiislirf  for  ;in\  mimbiT  dI"  such  iti-iiis  not  exceeding  ifiliOO. 
K.'U'li  itom  is.  in  I'ju'l,  ;i  s('|»;ii-;itt'  debt,  and  \\\vrv  is  nolliint;-  to  for- 
bid a  separate  action  on  cat-b.  It  is  true  that  if  a  plainlill"  wan- 
tonly oi-  maliciously  should  l)rin^  a  '^vva\  number  of  actions  on 
separate  itt'Uis  which  miirht  have  been  consolidated,  the  court  will 
compel  him  to  consolidate  them  at  his  cost.  II'.  however,  the  debt, 
w  bethel-  it  be  proved  by  a  written  or  an  oral  conti'act.  is  au  en- 
tire one.  consist inir  ol'  but  (Hie  item,  and  exceeds  $200,  it  cannot 
be  divided  so  as  to  «;ive  a  .iustice  Jiu  isdiction.  For  example,  a 
seller  of  a  horse  for  $;>()()  cannot  ilivide  his  account  aiul  have  two 
actions  before  a  .iustice.  Neither  can  a  car|)enter  who  has  built  a 
house  upon  conti'act  tor  an  entii'c  sum  over  $200.  iioi-  a  material 
man  who  has  furnished  materials  ujjon  an  entii'e  contract. 

In  this  case,  althousrh  it  was  stated  expressly  in  order  that  the 
tpiestion  of  .jurisdict it>n  mijiht  be  raised  for  decision,  the  chai-actcM- 
of  the  plaintilf's  demand  is  not  stated.  We  can  oidy  presume  it. 
by  eonsideriuiT  <»n  which  pai'ty  the  duty  fell  of  setting  forth  its 
cliaractei'.  The  demand  was  on  the  face  of  the  warrant  witliin 
the  jurisdiction.  It  lay  on  the  defendant  to  allege  matter  to  de- 
feat it  as  he  might  luive  done  prima  facie  by  showing  that  the  debt 
was  an  entire  and  indivisible  one.  Not  having  done  so,  tlie  pre- 
sumption is  that  it  was  composed  of  several  s(^parable  items.  This 
l)resumption  from  the  course  of  pleading  is  sustained  as  a  fact  by 
the  ratification  by  the  defendant  of  the  assignment  of  a  part  of 
the  original  account  to  Amyett. 

Even  if  the  original  debt  had  been  entire,  a  consent  by  the  de- 
fendant to  the  assignment  of  a  part  of  it,  if  given  at  or  before 
the  assignment,  would  have  been  evidence  of  y)romises  to  pay  the 
debts  thus  severed,  and  a  subsequent  ratification  is  certainly  evi- 
dence of  an  assent  to  the  severance  for  the  purpose  of  jurisdiction. 
Our  conclusion  is  that  the  jurisdiction  of  the  justice  is  not  de- 
feated by  this  objection.     .     .  Judgment  reversed. 

See  "Action."  Century  Dig.  §§  552,  604;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  53;  "Justices  of  the  Peace,"  Century  Dig.  §§  168,  169;  De- 
cennial and  Am.  Dig.  Key  No.  Series  §  44. 


MAGRUDER  v.  RANDOLPH,  77  N.  C.  79.     1877. 
Splitting  Accounts  in  Assumpsit  for  Goods  Sold  and  Delivered. 

f  Action  before  a  justice  of  the  peace  for  goods  sold  and  delivered.  The 
plaintiff  sold  goods  to  defendants  at  one  sale  to  the  amount  of  $526.25, 
made  up  of  twenty  items.  The  plaintiff  brought  several  actions,  each  for 
a  part  of  this  claim.  The  defendants  insisted  that,  as  the  whole  trans- 
action took  place  at  once,  the  plaintiffs  could  not  split  up  the  claim  into 
several  causes  of  action;  and,  as  the  justice  had  no  jurisdiction  of  the 
whole  amount,  jurisdiction  could  not  be  conferred  ui)on  him  by  this  di- 
vision of  a  cause  of  action  indivisible  in  law.  On  an  appeal  to  the  su- 
perior court,  the  judge,  being  of  opinion  with  the  defendants,  dismissed 
the  action,  and  the  plaintiffs  appealed.  Affirmed.  The  facts  appear  in 
the  beginning  of  the  opinion.! 


Sec.    3    d.]  RIGHTS   GROWIXG    OUT   OF   CONTRACT.  675 

Faircloth,  J.  One  of  the  defendants  went  into  the  plaintiffs' 
store  and  purchased  "oods.  going  through  the  building  from  floor 
to  floor,  selecting  and  agreeing  on  the  price  of  each  item  as  he 
went,  for  example,  "twentr-six  pair  of  men's  brogans,  $1.75  per 
l)air.  $45.50."  and  so  on  through  the  whole  purchase.  He  went 
through  the  building  continuously,  not  leaving  it  initil  his  pur- 
chases were  completed,  and  not  until  the  bill  was  made  and  fur- 
nished to  him.  consisting  of  twenty  items  similar  to  the  one  above 
given,  aggregating  $52H.25.  The  bill  was  marked  "Terms,  -t 
months,  interest  charged  after  maturity." 

After  maturity  and  non-payment,  the  plaintiffs  divided  said 
account  into  three  parts,  taking  the  first  ten  items  aggregating 
$196.80.  as  one  part,  on  which  the  present  action  was  commenced 
before  a  justice  of  the  peace,  and  the  defendants  deny  the  juris- 
diction of  the  justice.  AVhen  an  account  consists  of  divers  and 
.separate  dealings,  and  at  different  times,  or  is  a  running  account 
from  year  to  year,  either  for  goods  sold,  work  done  or  materials 
furnished,  it  is  well  settled  that  the  creditors  may  "split  it  up," 
and  proceed  on  each  separate  item  before  a  justice.  This  was  the 
class  of  cases  considered  in  AValdo  v.  Jolly,  49  N.  C.  173;  Cald- 
well V.  Beatty,  69  N.  C.  365,  and  other  similar  cases.  But  we 
think  the  case  before  us  is  not  embraced  by  the  principle  of  those 
cases. 

Here  the  dealing  was  continuous  and  nothing  appears  on  the 
face  of  it.  or  in  the  account  rendered,  indicating  that  either  party 
intended  that  each  item  .should  constitute  a  separate  transaction 
and  cause  of  action  which  could  have  been  easily  done,  and  we  are 
to  presume  would  have  been  done,  if  so  intended.  Suppose  the 
parties  at  the  time  of  the  purcha.se  had  divided  the  account  as  the 
plaintiffs  have  now  done,  and  promissory  nott^s  had  been  given  for 
each  pai-t.  maturing  at  two.  four,  and  six  months  respectively; 
no  one  would  doubt  that  they  intended  three  separate  causes  of 
action,  and  that  it  would  be  so  decided.  And  suppose  on  the  con- 
trary that  one  promissory  note  had  been  given  for  the  aggregate 
Sinn.  $526.25.  on  four  months  time  with  interest  after  maturity; 
would  this  differ  from  the  account  rendered  with  an  express  oral 
promise  to  pay  it.  except  in  the  kind  of  evidence  of  the  debt  and 
of  the  promise  to  i)ay  .'  Again.  su])i)ose  the  time  occupied  in  mak- 
ing the  purcha.se  was  on(>  hour  and  the  defendants  relied  \ipon 
the  statute  of  limitations,  and  u|)on  ;i  miinite  examination  the  fact 
should  be  disclosed  that  tlinc  yejiis  immediately  pi-eceding  the 
preci.se  moment  when  the  summons  issuiMl  would  include  the  latter 
part  of  the  account  and  exclude  the  fii-st  pai't;  or  suppo.se  the 
plaintitVs  had  bronght  suit  for  the  aggregate  amount  in  the  su- 
perior court  and  had  insisted  that  the  first  item  became  due  on" 
hour  before  the  hist  and  clainied  interest  on  it  accordingly,  and  so 
on  with  the  (»ther  items.  It  is  veiy  clear  that  the  court  would 
not  entertain  such  propositions,  and  yet  we  do  not  see  how  it 
could  avoid  doing  so.  if  eacli  ileni  is  a  distinct  cause  of  action  con- 
tracted  at   differr-iit    linns,  on   the   well   nnderstood   pi-inciple  thai 


()7()  HiGiiTs  <;iJo\viN(;  oir  oi'  (■(in'puact.  \('Ii.  S. 

iHU'    poi'tlDii   of   Mil    (ipt'ii    iicfouiit    iu:i\    1)1'    harifil    Ity    the   stiitutc. 
while  till'  other  is  not.  Jiulj;iiieiit  ;it'tiniie(l. 

See  "Aetion."  Century  Dig.  §§  552.  604;.  Decennial  and  Am.  Dip;.  Key- 
No.  Series  §  r>:i:  Mustiees  of  the  Peace."  Century  Dig.  §§  ir.S.  It'.O;  De- 
eeunial  anil  Am.  Dig.  Key  Xo.  Series  §  44. 


MARKS  V.  BALLANCE.  113  N.  C.  28,  18  S.  E.  75.     1893. 
Shutting  Up  Accounts     in  Assumpsit  for  Goods  Sold,  etc. 

I  Action  up«in  <t>  account  lor  K'lotis  sold  and  delivered,  l)roup;ht  before 
a  justiie  of  the  i)eace  and  carried  by  apix^al  to  tlie  superior  court.  Judg- 
ment  aj^ainst   defendant,  and  he  appealed.     Reversed. 

Plaintiff  sold  and  delivered  to  the  defendant  two  bills  of  goods:  one 
in  May,  1891,  amounting  to  $95.98;  and  one  in  October,  1891,  amounting 
to  $l'lt>.(>7.  whicli  was  reduced  by  a  payment  to  $142.67.  After  both  bills 
were  due,  plaintiff  rendered  a  consolidated  statement  of  account  to  de- 
fendant, showing  $238. Gr>  as  the  balance  due  to  plaintiff.  Defendant  made 
no  objection  to  this  statement  of  account.  Some  time  after  rendering 
this  account  plaintiff  brought  two  actions  against  the  defendant — one  for 
the  bill  sold  in  May,  and  the  other  for  bill  sold  in  October.  The  de- 
fendant insisted  that  the  accounts  having  been  consolidated  by  the  ac- 
count stated  could  not  be  separated  again.] 

BuRWELi..  J.  Wo  think  that  the  matter  involved  in  this  appeal 
is  determined  by  the  case  of  Hawkins  v.  lionji:.  74  N.  C.  781. 

The  plaintiffs  havinij  seen  fit  to  eonsolidate  the  items  of  their 
aeeoiint  against  the  defendant  and  to  deduct  therefrom  the  items 
of  credit,  and  having  rendered  to  the  defendant  a  statement  in 
which  they  strnek  a  balance,  and  claimed  that  round  sum  as  a 
debt,  are  bound  thereby  unless  the  defendant  has  objected  to  such 
statement;  and  this  he  has  not  done.  On  the  contrary,  he  has  as- 
sented to  the  rendered  account,  impliedly  by  his  failure  to  object 
thereto,  and  exjiressly  by  his  pleas  in  the  two  actions  brought 
against  him.  thus  making  himself  bound  with  the  jilaintiffs  by  this 
account  stated.  Upon  the  facts  agreed,  the  two  actions  should 
have  been  dismissed,  and  it  is  so  ordered.     Error.    Reversed. 

See  further  on  the  subject  of  splitting  up  accounts,  Jarrett  v.  Self, 
90  N.  C.  478;  Simpson  v.  Elwood,  114.  N.  C.  528.  19  S.  E.  598;  Copland  v. 
Tel.  Co.,  136  N.  C.  at  p.  12,  48  S.  E.  501;  Mcintosh  Cont.  586.  If  the  con- 
solidated account  be  objected  to  when  rendered,  the  plaintiff  is  remitted 
to  his  former  right  to  treat  the  accounts  as  separate  and  distinct — and 
hence,  to  split  the  account  into  its  original  component  ])arts.  Copland 
V.  Tel.  Co..  supra.  See  also  on  splitting  accounts,  13  L.  R.  A.  (N.  S. ) 
529.  and  note.  See  "Account  Stated,"  Century  Dig.  §  41;  Decennial  and 
Am.  Dig.  Key  No.  Series  §  7. 


Sec.  4.    Remedies  on  Negotiable  Instrfments. 

STORY   V.   ATKINS,  2   Strange,   719.   721,   725.     1727. 
Assumpsit  at  Common  Law  and  Under  statute  nf  '/  Anne,  c.  9. 

[Action  on  the  case  upon  several  promises.  The  i)laintiff  declared: 
(1)  On  a  promissory  note;  (2)  Upon  an  indebitatus  assumpsit  for 
money  lent;  (3)  For  money  paid  and  laid  out  to  defendant's  use.  There 
were  pleas,  replication,  and  demurrer  to  the  replication.] 


SfC.    4.]  RIGHTS   GROWING   OUT   OF    CONTRACT.  677 

Blencowe  for  the  plaintiff:  "At  common  law  the  party  that 
was  possessed  of  a  promissory  note  had  no  other  remedy  to  re- 
cover upon  it.  but  by  declaring  upon  an  indebitatus  assumpsit,  in 
which  action  he  might  give  the  note  in  evidence,  but  was  obliged 
to  prove  the  consideration.  The  stat.  4  Ann.  c.  9,  gives  the  party 
the  liberty  of  declaring  upon  the  note  itself ;  and  since  the  making 
of  that  statute,  the  note  has  been  held  to  be  sufficient  evidence  to 
maintain  such  action,  without  giving  any  further  proof  of  the 
consideration :  in  this  respect  therefore  these  notes  are  altered  by 
the  statute,  but  in  no  other;  for  their  lien  is  made  no  stronger 
than  it  was  before;  they  are  still  only  simple  contracts,  and  the 
nature  of  their  security  is  not  changed,  as  was  adjudged  in  the 
ease  of  Cumber  v.  Wane,  Pasch.  7  Geo.  in  B.  R.,  where  in  an  action 
upon  the  case  for  monej'  lent,  the  defendant  pleaded  a  promissory 
note  given  in  satisfaction,  and  it  was  held  to  be  no  bar.  And  if 
this  is  all  the  alteration  which  the  statute  hath  made  in  respect  to 
those  notes,  how  can  it  be  supposed,  that  it  hath  taken  from  the 
party  what  was  his  former  and  ancient  remedy  of  declaring  upon 
an  indebitatus  assumpsit .'  The  statute  only  gives  him  an  addi- 
tional and  more  easy  method  of  recovering  upon  his  note,  but 
does  not  take  from  him  his  election  of  pursuing  his  former  method, 
if  he  thinks  it  more  proper  for  his  case.  And  what  proves  this 
still  more  strongly,  is  the  case  of  Bromwich  v.  Lloyd,  in  Lutw. 
1585.  where  it  is  expressly  held,  that  upon  an  indebitatus  assump- 
sit a  bill  of  exchange  may  be  given  in  evidence ;  and  by  the  same 
reason  a  promissory  note  may  be  given  in  evidence  on  the  like  dec- 
laration :  for  the  statute  3  and  4  Ann.  puts  promissory  notes  upon 
the  same  footing  as  bills  of  exchange  were  before  the  making  of 
that  law.  Therefore  since  the  plaintiff  might  have  given  this  note 
in  evidence  upon  his  declaration  in  the  court  below,  it  would  b ' 
a  strange  conclusion  to  say  that  the  two  actions  are  different  in 
their  nature,  or  to  intend  the  cause  of  them  to  be  different,  when 
the  same  evidence  will  support  both  the  actions." 

R.WMOND,  C.  J.  The  actions  in  the  two  counts  are  of  such  a 
nature,  that  they  may  be  averred  to  be  the  same ;  for  the  statut ' 
3  and  4  Ann.  only  gives  an  additional  remedy  upon  promissory 
notes,  but  does  not  take  away  the  old  one :  and  I  think  this  note 
might  have  been  given  in  evidence  upon  the  indebitatus  assumpsit, 
for  tile  note  imports  the  drawer's  having  so  nuich  money  of  thi' 
other's  in  his  hands;  and  though  it  may  not  perhaps  be  allowed 
in  evidence  in  such  case  as  a  promis.sory  note,  without  proof  of 
the  considfration  ;  yet  it  may  undoul)te(lly  be  given  in  evidenc  ' 
f)n  an  indebitatus  a.ssumpsit.  as  a  i^apcr  or  wi-itiiig  to  pi-oxc  llie 
defendant's  receipt  of  so  much  money  from  the  plaintiff.  ITard's 
case,  Salk.  23. 

See  "nillB  and  Notes."  Century  Dig.  §§  1332-1 336 >^;  Decennial  anil 
Am.  Dig.  Key  No.  Series  §  448. 


liTS  HICillTS    illvltWINi;    (U    T    OK    CONTRACT.  \('ll.    S. 


GARDNKR  v.  CLARK.  .".   .\.  C.  L'8S.  286.     1809. 
Action    of  Dvlh'   on    Xcgotiablf   liistiiniK'nts. 

lAotioii  01"  IVltt  uiHin  a  nofiotlablo  i)romissoi-y  note.  "Tlu'  ras(>  was  le- 
ferrod  to  tlio  sii|M(Miu'  comt  upon  the  question:  Whcthor  an  action  of 
debt  ran  bo  maintained  on  this  note?"  .ludgnienl  was  entered  lor  the 
plaiutifT.  I 

'r.vYLOH,  fl.  Ill  lliirdiTss,  485,  it  was  held  tliat  an  actiou  of  debt, 
will  not  lie  against  the  aeeeptor  of  a  bill  of  exchange;  but  the  rea- 
sons given  for  that  detenniiiation  tend  strongly  to  denionstrate 
tliat  an  action  of  debt  will  lie  by  the  payee  against  the  maker  of  a 
promissory  note.  It  was  said  in  that  case,  that  the  acceptance  does 
not  create  a  duty  any  more  tlian  a  i)roniise  made  by  a  stranger  to 
pay  the  debt  of  a  third  ]K'rson.  if  the  creditor  will  forbear  his 
debt:  and  he  that  drew  the  bill  continues  the  debtor,  notwith- 
standing the  acceptance  makes  the  acceptor  liable  to  pay  it.  But 
tiie  making  of  a  promissory  note  does  manifestly  create  a  duty,  if 
a  consideration  be  expressed,  and  raises  an  original  obligation  in 
Tlie  maker,  for  which  an  action  of  debt  is  a  proper  remedy,  ac- 
cording to  the  general  description  of  that  action  to  be  found  in  all 
the  elementary  writers.  Blackstone,  3  vol.  155,  says,  an  action  of 
debt  Avill  lie  whenever  a  sum  of  money  is  due  by  certain  and  ex- 
l)ress  agreement,  where  the  quantity  is  fixed  and  certain,  and  doe^ 
not  depend  on  any  subsequent  valuation  to  settle.  Comyns  says. 
debt  lies  upon  eveiy  express  contract  to  pay  a  sum  of  money — Dig. 
tit.  Debt.  And  in  Woodeson,  3  vol.  95,  it  is  laid  down,  that  the  ac- 
tion of  debt  may  be  brought  whenever  a  determinate  sum  is  claimed 
as  due.whether  the  contract  on  which  it  arises  is  special  or  simple. 

The  action  of  debt  on  simple  contract  has  grown  much  into  dis- 
use, in  consequence  of  the  defendant's  being  permitted  to.wag<! 
his  law.  and  of  the  necessity  imposed  upon  the  plaintiff  of  provin«j: 
his  whole  debt,  or  being  precluded  from  recovering  any  part. 
This  latter  rule  has  been  much  relaxed  in  modem  times,  as  aj)- 
pears  in  2  Bl.  R.  1221;  Doug.  6;  2  T.  E.  129;  1  H.  Bl.  149;  and  it 
is  not  now  understood  to  be  necessary  that  the  plaintiff  should 
recover  the  exact  sum  demanded.  From  this  disuse  of  the  action, 
a  belief  seems  to  have  prevailed,  that  it  could  not  be  sustained ; 
and  assumpsit  has  been  the  usual  remedy  on  promissory  notes. 
But  no  decision  is  recollected  to  have  been  made  in  this  state 
against  the  action  of  debt  in  such  cases,  and  there  is  a  great  mod 
ern  authority  in  fayor  of  it  in  precisely  such  a  case  as  that  before 
the  court.     2  IT.  Bl.  78.    Judgment  for  the  plaintiff. 

Indebitatus  assumpsit  will  lie  upon  a  negotiable  instrument,  and  a 
recovery  may  be  had  upon  either  of  these  several  counts:  Upon  the  in- 
strument itself;  for  money  paid,  laid  out,  and  expended  by  the  plaintiff 
to  the  defendant's  use;  for  money  lent  and  advanced;  or  for  money  had 
and  received  by  defendant  to  plaintiff's  use.  The  action  will  lie  by  and 
against  not  only  the  original  parties  to  the  instrument — such  as  payee 
and  maker — but  also  by  and  against  those  secondarily  connected  there- 
with—such as  indorser  and  indorsee,  etc.     In  all  counts  and  between  all 


iSec.    4.]  RIGHTS   GROWING    OUT   OF   CONTR.VCT.  679 

parties  to  the  instrument,  the  instrument  is  evidence  to  sustain  the  ac- 
tion of  assumpsit — but  it  is  only  presumptive  evidence  which  the  de- 
fendant may  rebut  by  contrary  proof.  Banking  Co.  v.  Myer,  12  X.  J.  L. 
141,  reviewing  and  reconciling  a  great  number  of  English  cases  decided 
before  1831. 

It  is  not  necessary  to  allege  and  prove  a  consideration  in  an  action  on 
a  negotiable  instrument,  because  the  law  presumes  such  consideration; 
but  if  the  defendant  introduces  evidence  tending  to  rebut  this  presump- 
tion, then  the  burden  is  on  the  plaintiff  to  show  a  valid  consideration. 
Campbell  v.  McCormac,  90  N.  C.  at  p.  492;  see  also  §  o.  post,  of  this  chap- 
ter. See  ■Bills  and  Notes,"  Century  Dig.  §§  1330,  1331;  Decennial  and 
Am.  Dig.  Key  Xo.  Series  §  448. 


MORROW  v.   ALLMAN,  65  X.  C.   508.     1871. 

Practice  in  Actiotis  on  Xegotiable  Instruments.     Production   of  the  In- 
strument at  the  Trial. 

[Action  on  a  negotiable  instrument.  The  defendant  answered  admit- 
ting the  execution  of  the  instrument  and  setting  up  sundry  credits. 
Upon  the  trial  the  plaintiff  insisted  that,  upon  the  admissions  in  the 
answer,  it  was  not  necessary  that  he  should  produce  the  instrument,  and 
hence,  declined  so  to  do.  Defendant  demanded  that  it  be  produced,  and 
plaintiff  still  refused.  The  defendant  requested  the  court  to  charge  that 
the  plaintiff  could  not  recover  because  of  his  failure  to  produce  the  in- 
strument and  offer  it  in  evidence.  The  judge  refused  to  charge  this,  but 
on  the  contrary  instructed  the  jury  that  the  execution  of  the  instru- 
ment being  admitted  by  the  answer,  the  plaintiff  was  entitled  to  re- 
cover without  producing  it.  Verdict  and  judgment  against  the  defend- 
ant, and  he  appealed.     Reversed.] 

Readk.  J.  Till'  only  <iiie.stit)ii  necessary  to  consider  in  this  case 
is.  whether,  in  an  action  on  a  negotiable  instnnnent.  the  execu- 
tion of  which  is  not  denied  by  the  answer,  it  is  necessary  to  pro- 
fluce  the  instrument  on  trial  or  account  for  its  loss? 

We  think  it  is  necessary  to  produce  and  file  the  iustnnuent,  in 
this  ease,  a  bond.  It  is  the  practice  to  do  it.  and  there  is  much 
propriety  in  it.  Being  negotiable,  how  can  it  otherwise  be  known 
whether  it  has  not  been  transferred?  Or  if  kept  back  it  may  be 
siihscquently  transferred,  and  although  such  subsequent  transfer 
would  not  subject  the  maker  to  its  payment,  yet  he  ought  not  to  be 
kept  in  jeopardy  of  another  suit.  And  furthermore,  there  may  be. 
as  was  allegf'd  in  this  ca.se.  ])aym<'nts  endorsed  upon  the  bond,  of 
which  the  defendant  ought  to  have  the  benefit.  It  was  competent 
on  the  trial  to  require  the  plaintiff  or  his  covuisel  to  produce  the 
paper,  the  same  being  admitted  to  be  in  their  possession  and  in 
court;  and  in  a  proper  ease  they  might  have  been  i)ut  under  a 
rule.  The  u.sual  way.  however,  is  to  notify  thi-  plaintilV  to  ])ro- 
duce  the  pai)ei  ;  nnd  u{)on  his  failure  to  do  so.  having  the  power, 
t<.  nonsuit  liim.     Kev.  Code.  eli.  .'H .  §  82.    Error. 

The  principal  case  is  approved  in  Shields  v.  Whitaker,  82  N.  C.  at 
p.  .'18.  and  in  Raisin  v.  Thomas,  88  N.  C  148;  but  a  failure  to  file  the  in- 
strument at  the  time  the  judgment  is  entered  docs  not  invalidate  the 
jiKlgment.  as  the  filing  niav  be  done  subsequently,  nimc  pro  tunc.  Bank 
v.  Cotton  Mills,  lir,  N.  C.  at  p.  522,  20  S.  E.  765.     The  section  of  the  Re- 


r>SO  RinilTS   QROWINO    OUT    OP    CONTRACT.  \Cll.    ^^. 

vised  Code  referred  to  in  the  opinion  is  now  sec.  10)51)  of  tlie  Revisal  and 
refers  to  the  prodnrtiou  of  dorunients  goni-rally.  See  'Hills  and  Noti'S," 
Century  Dip.  §§  ir)S4,  15Sr>;  DectMuiial  and  Am.  DiK.  Key  No.  Series 
§  488. 


MoCORMlCK  V.  JERNMGAN.  110  N.  C.  406.  14  S.  E.  071.     1892. 
Artioii    0)1    Lost   Xcr/otiahlr   Iiislnimcui. 

(This  was  a  inHHoedinj;  before  the  clerk  of  the  superior  court  to  have 
a  lost  will  admitted  to  i)rol)ate.     In  the  course  of  the  opinion  it  is  said:] 

Clark.  J.  .  .  .  The  sottint;  up  a  lost  doorl  i.s  in  the  court  ol" 
equity  not  Invaiise  from  the  natui'e  of  the  evidence  it  nuist  be 
proven  in  that  court,  hut  because  a  decree  was  requisite  for  a  re- 
conveyance, or  to  enjoin  a  recovers'  by  the  grantor,  and  the  like. 
TTenee  a  bill  for  the  re-execution  of  a  deed  lost  or  destroyed  in  the 
hands  of  a  srrautee  cannot  be  sustained  unless  there  are  some  ad- 
ditional grounds  for  i-elief.  lloddy  v.  Hoard,  2  Cart.  (Ind.)  474. 
This  is  pointed  out  by  Adams  on  Equity,  167.  He  also  points  out 
that  the  jurisdiction  to  set  up  a  lost  bond  is  in  equity  only  because 
the  obligor  had  a  right  to  demand  profei-t  of  the  bond.  and.  when 
this  could  not  be  had,  the  remedy  at  law  was  gone,  and  plaintiff 
was  compelled  to  go  into  equity  to  recover  on  the  bond.  He  say.? 
that,  after  profert  was  dispensed  with,  equity  courts  held  on  to 
their  acquired  jurisdiction,  though  the  reason  for  it  had  ceased. 
The  jurisdiction  as  to  negotiable  instruments  arose  from  the  right 
to  require  indemnity  from  liability  of  the  paper  sued  on,  and  al- 
leged to  be  lost  turning  up  in  the  hands  of  another  party,  but  as  tn 
bills  or  notes  not  negotiable,  this  reasoning  did  not  apply,  and 
hence  an  action  to  recover  upon  them  could  be  maintained  at  law 
though  lost,  and  proof  of  their  loss  could  be  made  in  such  action. 
Id.  168. 

In  Moffit  V.  Maness,  102  N."  C.  457,  9  S.  E.  399,  a  judgment  was  rendered 
for  the  plaintiff  on  a  bond.  The  case  being  carried  to  the  supreme  court 
by  the  appeal  of  the  defendant,  the  court  say,  at  p.  464:  "It  is  doubtful, 
from  the  record,  whether  any  exception  was  made  to  the  rendition  of  the 
judgment  without  accounting  for  the  absence  of  the  bond.  It  is,  how- 
ever, insisted  upon  here,  and  to  avoid  any  possible  injustice  it  is  ordered 
that  the  judgment  be  set  aside,  so  that,  if  it  appears  that  the  bond  has 
not  been  destroyed,  and  was  negotiable,  and  cannot  be  produced,  a 
proper  indemnity  may  he  required  by  the  court.  Dan.  Neg.  Instr.  vol.  2, 
§  1481."  See  also  Dan.  Neg.  Inst.  §§  1475-1485.  A  justice  of  the  peace 
has  jurisdiction  of  an  action  on  a  lost  instrument  for  the  payment  of 
money,  where  the  sum  demanded  is  within  his  jurisdiction.  As  the  re- 
quiring of  an  indemnity  is  merely  incidental  to  the  main  relief  sought, 
the  justice  may  afford  such  relief.  Fisher  v.  Webb,  84  N.  C.  44;  see  Lutz 
V.  Thompson,  87  N.  C.  at  p.  :«7.  inserted  at  ch.  12,  post.  See  "Lost  In- 
struments," Century  Dig.  §§  27-29;  Decennial  and  Am.  Dig.  Key  No. 
Series  §  14;   "Wills,"  Century  Dig,  §  589. 


Sec.    4.]  RIGHTS   GROWING    OUT   OF   CONTR.VCT.  681 

ROBINSON  V.  BARBOUR,  5  Blackford,   468.     1840. 
When  the  Allegation  of  a  Consideration  is,  or  is  Not,  Necessary. 

Sullivan,  J.     Assumpsit  by  Barbour  against  Robinson.     The 
declaration  contains  three  counts.     The  lirst  count  states  that  the 
defendant  on,  etc.,  by  his  certain  instrument  in  writing  assigned  to 
the  plaintiff  the  sum  of  $136,  being  part  of  a  certain  claim  then  in 
suit  in  the  Jennings  county  circuit  court  against  A.  W.  Dunn, 
and  by  said  writing  directed  his  attorneys  to  pay  said  amount  to 
the  plaintiff  when  it  should  be  collected;  and  that  the  defendant 
did  further,  by  said  instrument  of  writing,  guaranty  tliat  the  said 
sum  of  monej'  should  be  collected  within  one  year  from  the  date 
thereof.     The  second  count  avers  that  the  defendant,  by  his  cer- 
tain   instrument    of    writing,    promisetl    and    guarantied   that    he 
would  pay,  or  cause  his  attorneys  or  the  clerk  of  the  Jennings 
county  circuit  court  to  pay,  to  the  plaintiff  the  sum  of  $136  within 
one  year  from  the  date  thereof.     The  third  coimt  states  that  the 
defendant  on.  etc.,  by  his  certain  instrument  in  writing,  guaran- 
tied and  undertook  that  S.  and  B.,  his  attorneys,  or  the  clerk  of 
the  Jennings  circuit  court,  should,  within  one  year  from  the  date 
of  said  writing,  pay  to  the  plaintiff'  the  sum  of  $136  out  of  the 
claim  of  said  defendant  against  one  A.  W.  Dunn  then  in  suit  in 
the  Jennings  circuit  court,  or,  in  default  thereof,  that  he  would 
pay  the  same  himself.    The  defendant  demurred  to  the  first  count, 
and  pleaded  the  general  issue  to  the  second  and  third  counts.    The 
demurrer  was  overruled,  and.  by  consent  of  parties,  tlu;  court  as- 
sessed the  damages  on  the  first  count,  and  tried  the  issues  on  the 
second  and  third.    Judgment  for  the  plaintiff. 

The  first  count  is  defective  in  not  showing  a  consideration  for 
the  defendant's  promise.  A  valid  consideration  for  the  promise 
upon  which  a  party  is  charged,  is  essential  to  a  contract  not  under 
seal,  and  nuist  exist  although  the  contract  be  reduced  to  writing, 
otherwise  the  promise  is  void.  Chit.  Cont.  6.  In  declaring  upon 
such  a  contract,  it  is  necessary  to  disclose  a  sufficient  considera- 
tion, or  the  promise  will  appear  to  be  nudum  pactum,  and  the  dec- 
laration will  consequently  be  insufficient.  1  Chit.  PI.  321.  There 
are  exceptions  to  this  rule  of  pleading  in  the  case  of  bills  of  ex- 
change and  promissory  notes,  and  some  other  legal  liabilities,  but 
the  exception  does  not  ai)ply  to  such  a  ])romise  as  is  laid  in  the 
count  under  examination.  Ibid.  As  the  count  shows  no  con- 
sideration for  the  promise  either  of  benefit  to  the  defendant,  or 
trouble  or  prejudice  to  the  plaintiff',  the  demurrer  1»»  it  shoulil 
have  been  sustained.  3  Johns.  10-1;  4  Johns.  236,  280;  1  Saund. 
2ll,n.  2;  4  Blackf.  173. 

The  second  and  third  counts  are  defective  for  the  same  reason, 
and  the  only  f|uestion  to  be  decided  with  regard  to  those  counts  is. 
whetber  th((  defect  is  fatal  after  verdict.  We  are  of  opinion  that 
the  defect  is  not  cured  by  the  verdict.  A  promise  uilhout  a  con- 
sideration is  void,  and  no  action  will  lii'  up<">  i(  l"  Rann  v. 
ITutfhes.  7  T.  R.  346.  n.   fa),  the  dcclaiMfiou  nll.'ged  lli.it  Ihe  de- 


(iS2  KUiiiTS  iJUOWiNc  oi  r  ok  contkact.  \('Ii.  > 

t'omlant  \v;is  li;il)K'  as  oxrculur  to  pay  tlu'  plaint  ilV  the  sum  (tl  DS;* 
poiuuls.  and  Ixiiiir  so  liable  lie  personally  proiiiisi-d  to  pay  the 
same.  Alter  Ncriliel.  the  jiuli^nient  was  arresti'il,  heeause  no  ud- 
ilitituial  OI"  s\il1ieienl  eoiisiderat ion  was  shown  for  the  eidarf:;t'd 
resiHUisihility  of  the  defendant.  In  Courtney  v.  Slrouf;,  1  Salk. 
;Ui4.  tlu-  judirnient  was  arrested  lucause  there  was  no  consideration 
for  the  promise  laid  in  the  declaration.  So  in  the  ease  of  lieau- 
champ  et  al.  v.  lM)sworlh.  .'{  Hihh.  llf).  the  judtrment  of  the  circuit 
court  upon  a  wi-jl  of  impiii'X'  was  rev(>rsed  i'or  the  same  defect. 
Chitty.  in  his  Treatise  on  IMeadiu^'.  p.  ;i2!),  says,  when  no  consid- 
eration is  stated  in  the  declaration,  or  wlu-n  thai  which  is  stated 
is  dearly  insutlicient  oi-  illciral.  the  defeiuhnit  may  either  denuif, 
or  move  in  arrest  of  judiiineiit.  or  sui>por1  a  writ  of  error.  Judg- 
ment reversed. 

See  Campbell  v.  McCormac,  90  N.  C.  at  p.  41)2,  cited  in  note  to  Gard- 
ner V.  Clark.  .">  N.  C.  283,  inserted  supra.  In  I'^arlow  v.  Kemp,  7  Black- 
ford, r)44,  it  is  ruled  that,  to  maintain  assumpsit,  it  must  be  shown  that 
the  consideration  moved  from  the  plaintiff.  See  "Contracts,"  Century 
Dig.  §  IGGl;  Decennial  and  Am.  Dig.  Key  No.  Series  §  334;  "Bills  and 
Notes,"  Century  Dig.  §  1477;  Decennial  and  Am.  Dig.  Key  No.  Series 
§  465. 


Sec.  5.     Performance  of  Conditions.  When   it  ^Iust  Be  Al- 
leged. 

BRYAN  V.   FISHER,  3   Blackford,  ?.16,  319.   320.     1833. 
Dependent  and  Independent  Covenants. 

[Covenant  on  a  lease  in  which  Bryan  demised  certain  premises  to 
Fisher  and  covenanted  in  the  lease  to  make  certain  improvements  and 
supply  some  articles  of  furniture.  Fisher,  by  the  terms  of  the  lease, 
agreed  "to  pay  to  said  Bryan  $65  for  each  year  he  occupies  said  prem- 
ises, to  be  paid  at  the  expiration  of  each  year,  and  to  take  good  care  of 
the  property."  Among  other  things,  the  defendant  pleaded  that  the 
plaintiff  had  not  performed  those  things  which,  by  the  terms  of  the 
lease,  he  had  covenanted  to  do.  After  discussing  the  form  of  this  plea, 
the  opinion  proceeds:] 

McKiNNEV.  J.  .  .  .  The  plea  assumes  that  the  agreement 
contains  covenants  to  be  performed  by  the  plaintitf.  the  perform- 
ance of  which  is  essential  to  a  recovery  against  the  defendant,  an.i 
that,  therefore,  the  non-performance  of  such  covenants,  regarded 
as  conditions  precedent,  would  be  a  bar  to  the  action.  It  is  cor- 
rect, as  a  general  rule,  that  if  there  be  in  an  agreement  a  condition 
precedent,  its  performance  is  necessary  to  entitle  a  party  to  re- 
cover. It  is.  therefore,  material  to  inquire,  whether  the  articles 
of  agreement  upon  which  this  action  is  brought,  contain  a  condi- 
tion precedent  or  not. 

In  determining  whether  covenants  are  independent  or  depend- 
ent, certain  rules  have  been  laid  down,  enabling  courts  to  reach 
the  intention  and  meaning  of  the  parties,  when  the  in.stniment  in 
its  terms  is  vague  and  obscure:  (1)  If  a  day  be  appointed  for  the 


StC.    J.J  RIGHTS   GROWJNG   OUT   OF    CONTRACT.  683 

payment  of  money  or  a  part  of  it.  or  for  doing  any  other  act,  and 
the  day  is  to  happen,  or  may  happen,  before  the  thing  which  is 
the  consideration  of  the  money  or  other  act,  is  to  be  performed,  an 
action  may  be  brought  for  the  money,  or  for  not  doing  such  other 
act  before  performance :  for  it  appears  that  the  party  relied  upon 
his  remedy,  and  did  not  intend  to  make  the  performance  a  condi- 
tion precedent ;  and  so  it  is  where  no  time  is  lixed  for  the  per- 
formance of  that  which  is  the  consideration  of  the  money  or  other 
act;  (2)  "When  a  covenant  goes  only  to  part  of  the  consideration 
on  both  sides,  and  a  breach  of  such  covenant  may  be  paid  for  in 
damages,  it  is  an  independent  covenant,  and  an  action  may  be 
maintained  for  a  breach  of  the  covenant  on  the  part  of  the  defend- 
ant, without  averring  performance  in  the  declaration.     The  cases 
of  l^oone  V.  Eyre.  1  H.  Bl.  273.  note,  and  Campbell  v.  Jones,  6 
T.  R.  570.  are  cited  as  illustrations  of  the  latter  rule.    From  these 
eases,  with  which  Harden  v.  Hayden,  2  Marsh.  359,  and  Payne  v. 
Bettisworth,  Ibid.  427,  are  accordant,  it  is  settled  "that  where  a 
party  has  received  a  part  of  the  consideration  for  which  he  en- 
tered into  the  agreement,  it  would  be  unjust  that  because  he  has 
not  had  the  whole,  he  should  therefore  be  permitted  to  enjoy  that 
part,  without  either  paying  or  doing  anything  for  it;  and  more- 
over. a.s  remarked  in  Campbell  v.  Jones,  the  damages  sustained  by 
the  parties  would  be  unetiual,  if  such  covenant  Avere  held  to  be  ;i 
contlition  precedent."    The  law  thus  settled  does  not  in  its  opera- 
tion leave  the  party,  who  is  compelled  to  perform  his  agreement, 
without  a  remedy,  for  he  can  recover  damages  for  a  loss  in  not 
liaving  received  the  whole  consideration. 

Applying  either  of  the  rules  to  the  agreement  in  this  case,  it  is 
demonstrable  that  the  covenants  must  be  regarded  as  independ- 
ent, and  the  plea  consequently  bad.  Here,  the  giving  of  the  pos- 
session of  the  house  and  lots  was  the  principal  covenant  on  the 
part  of  the  plaintiff;  it  .stands  distinct;  the  inducement  to  the  cov- 
enant of  the  defendant,  and  the  furnishing  the  kitchen,  crane,  etc.. 
is  a  part  only  of  the  consideration  of  the  defendant's  contract, 
contributing  certainly  to  the  enjoyment  of  the  premises,  but  with- 
ont  which  the  premises  are  of  value.  The  defendant  was  to  have 
po.sse.ssion  on  the  1st  day  of  June,  and  the  plaintiff  was  to  furnish  a 
kitchen,  etc..  but  at  wjiat  time  is  not  mentioned;  the  law  would 
rf'f|uire  within  a  reasonable  time.  If  that  time  be  protracted  un- 
reasonably and  injuriously  to  the  interests  of  the  defendant,  he 
has  his  remedy  by  action.  It  would  form  only  a  part  of  the  con- 
sideration of  the  defendant's  contract,  and  not  operate,  as  con- 
tended, as  a  bar  to  the  plaintiff's  action.  Suppose  the  crane  not 
1(.  have  'nefn  furnished,  or  cither  of  the  tables  mentioned,  should 
the  defendant  bav(>  the  enjoyment  of  the  premises  two  years  and 
not  be  liable  for  rent?  Such  a  conclusion  is  palj)ably  repugnant 
to  the  feelings,  and  surely  in  conflict  with  the  intention  and  mean- 
ing of  the  parties.  If  these  seeondarv  objects,  projnotiye  of  the 
enjoyment  of  the  defendant,  were  iiot  provided,  when,  in  the  in- 
terval between  the  execution  oC  the  ai-tides  of  agreement  arid  th<> 


(;S4  RKJIITS    CHOW  IXC    (MT    OK    ("(1NT1J\(    T.  \('h.    S. 

1st  of  June  (Misuiiii;.  tiiuc  sullicii'iit  may  liavf  Ixtm  atTordcd.  why 
take  possession  unless  he  h>oketl  to  his  i-einecly  hy  action,  or  why 
oontinue  in  possession  two  \fais  as  admit ttul? 

Hy  either  of  the  ruh's  foi-  cxiiountlinij:  contraets.  tlie  (h'fendant. 
is  eonehuled.  liy  the  lirst.  from  his  covenant  to  pay  H^lio  i-cnt.  an- 
nually, tluriiii:  the  term  of  live  yeai*s,  he  cont  inuin^j:  in  the  pos- 
session of  til.'  in-emises:  and  hy  the  second,  heeause  the  plaintiff's 
unilertakin.LT  to  furnish  the  kitchen,  etc..  const  it  >ited  oidy  a  pai-t 
of  the  consideration  of  the  defendant's  contract.  ^The  plea  hein.i? 
insullieient.  we  are  of  opinion  that  the  demurnM-  should  liavo  l)een 
sustained,  and  I  lie  i)eiuiintr  issues  tried.     Judgment   i-evei-sod. 

See  the  note  to  the  principal  case.  3  Blackl.  at  i)|).  wn.  ■.522.  See  "Land- 
lord and  Tenant,"  Centiu-y  Dig.  §§  770-783;  Decennial  and  Am.  Dig. 
Kev  No.  Series  §§  187-192. 


VANKIRK  V.   TALROT,   4   Blackford,   367.     1837. 
Dependent   and  Independent   Covenants. 

Hlackfoko.  J.  This  was  an  action  of  covenant  a<jainst  Talhot 
for  not  deliverint^.  agreeably  to  his  contract,  a  certain  number  of 
hogs  to  Vankirk.  The  declaration  states  that  the  defendant  had 
bound  himself,  by  an  agreement  under  seal,  to  deliver  to  the 
plaintiff  600  head  of  hogs  of  a  certain  description  ;  and  that  the 
hogs  were  to  be  delivered  at  the  defendant's  own  house  in  Put- 
nam county,  and  at  the  liouse  of  some  pei-son  in  the  neighborhood 
of  George  Piercy's  in  the  same  county,  between  the  first  and  fifth 
days  of  November.  1835;  and  that  the  plaintitf  did.  at  the  same 
time,  bind  himself  to  pay  to  the  defendant  $2.50  a  hundred  for 
the  hogs,  to  be  paid  for  on  delivery  at  the  pen.  It  is  then  averred 
that,  at  the  time  of  the  agreement,  the  plaintiff  paid  to  the  defend- 
ant $100  in  part  performance  of  the  agreement ;  and  that  he  has 
at  all  times  been  ready  and  willing  to  perform  his  agreement  ac- 
cording to  the  true  intent  and  meaning  thereof.  The  breach  as- 
signed is,  that  the  defendant  has  failed  and  refused  to  keep  and 
perform  his  covenant  in  this,  viz..  that  he  did  not.  at  his  own 
house  in  Putnam  county,  nor  did  he  at  the  house  of  any  person 
in  the  neighborhood  of  George  Piercy's  in  said  county,  between 
the  first  and  fifth  days  of  November,  1835.  deliver  to  the  plaintiff 
the  hogs  mentioned  in  the  agreement,  nor  has  he  at  any  time  de- 
livered them  to  the  plaintiff  as  he  was  bound  to  do;  but  the  de- 
fendant, although  often  requested,  has  hitherto  wholly  refused  to 
perform  his  covenant. 

The  defendant  demurred  specially  to  the  declaration,  and  as- 
signed as  a  cause  of  demurrer,  that  the  plaintiff  does  not  allege 
a  readiness  to  pay  the  price  of  the  hogs  at  the  time  and  place  of 
deliverJ^  The  circuit  court  gave  judgment  on  the  demurrer  for 
the  defendant. 

Tn  this  case,  there  were  covenants  to  be  performed  by  each 
party  at  the  same  time  and  at  the  same  place;  and  to  enable  one 


Sec.    6.]  RIGHTS   GROWING    OUT   OF    CONTRACT.  685 

of  them  to  sue  the  other  for  a  breach  of  the  contract,  the  party 
wlio  sues  must  show  that  he  has  performed  or  offered  to  perform 
his  part,  or  that  there  is  some  legal  excuse  for  his  not  doing  so. 
The  contract  alleged  in  this  declaration  is  very  imperfectly  ex- 
pressed. The  following  may  be  considered  its  legal  construction. 
It  was  agreed  that  Talbot,  on  the  last  convenient  hour  of  the  4th 
of  November,  1835,  or,  if  he  should  so  appoint,  on  the  last  con- 
venient hour  of  the  2nd  or  3rd  of  that  month,  would  deliver  to 
Vankirk  600  hogs.  The  hogs  were  to  be  delivered  at  the  defend- 
ant's own  house,  and  at  the  house  of  some  other  person  in  Piercy's 
neighborhood — such  part  of  them  at  one  place,  and  such  part  at 
the  other,  as  Talbot  might  choose.  The  house  in  Piercy's  neigh- 
borhood was  to  be  designated  by  Talbot  .  and  notice  thereof  was  to 
be  given  by  him  to  Vankirk.  The  price  of  the  hogs,  except  the 
$100  advanced,  was  to  be  paid  to  Talbot  upon  the  delivery  of  the 
hogs  at  the  pen. 

It  was  for  Vankirk.  in  declaring  upon  this  contract,  to  show 
that  he  had  performed  or  oflPered  to  perform  his  part  of  it ;  or. 
if  he  had  been  prevented  from  doing  so  by  the  default  of  Talbot. 
that  default  should  have  been  set  out  in  the  declaration.  It  would 
have  been  a  sufficient  excuse  for  the  want  of  an  averment,  in  this 
case,  of  the  plaintiff' 's  performance  of  his  part  of  the  contract, 
if  the  declaration  had  stated  that  the  defendant  did  not  inform 
the  plaintiff  at  what  house  in  Piercy's  neighborhood  a  part  of  the 
hogs  would  be  delivered ;  or  how  many  of  them  would  be  deliv- 
ered there,  and  how  many  at  the  defendant's  own  house;  that  the 
plaintiff",  therefore,  was  not  ready,  as  he  otherwise  would  hnv 
been,  at  the  proper  time  and  places  to  receive  and  pay  for  the 
hogs;  and  that  the  defendant  had  not  delivered  the  hogs  as  he 
was  bound  to  do. 

The  declaration,  however,  contains  no  averment  of  facts,  show- 
ing that  the  plaintiff  had  performed  or  offered  to  perform  his 
part  of  the  contract,  nor  does  he  show  any  legal  cause  for  the 
omission  of  such  avennent.  It  is  consof|uontly  bad  on  a  general 
di-murrer.     Judgment  affirmed. 

See  Mcintosh  Cont.  548-552;  Revisal,  §  498.  See  21  L.  R.  A.  (N.  S.) 
691.  See  "Contracts,"  Century  Dig.  §  1664;  Decennial  and  Am.  Dig. 
Key  No.  Series  §  335. 


Sec.    6.      Sr'MM.\Rv    Proceedings    to    Collect    the    Purchase 
Money  Due  on  Property  Purchased  at  Judicial  Sale. 

TOWNSHEXD  v.  SIMON,  38  N.  J.  L.  239.     1876. 
Si]i<ti<itr  Actitiii  fil  Laic.     Nummary  Proceedings  in  the  Cause.     Order  of 

Resale.     Comnirrent  Remedies. 

I  Aflion  at  law  by  a  slieriff  to  lecovei'  tli<>  piicc  oi  a  i)aroel  of  land  sold 
by  him  iindfr  a  derroe  of  foi-ctlosuic  iM'iKlcrcd  by  the  coiirl  of  cbancrry, 
and  for  damages  resulting  from  tho  dcffiidanf  s  having  refii.scd  lo  tom- 
ply  with  his  purt-hasp.  .Indgnu^nt  of  nonsuit.  Plaintiff  moved  to  set 
asidf  thf  nnnsiiif.     Rfversed.l 


iiS6  HHiiri's  (,iM\\iN<;  oir  {)v  contkaci".  {('Ii.  S. 

Deite.  .1.  'I'lif  iidiisiiil  in  (Ik-  (.-(uirt  below  was  onkM'od  on  the 
•ji'Dunil  thai  the  i-t-mcily  was  not  in  an  action  at  law,  bnt  by  a  pro- 
fiMHlinjr  in  rliancory  in  the  t'orot*h)sniv  snit  to  compel  tlie  delend- 
ant,  as  a  jnirehaser  nndiM-  a  sale  In-  virtne  of  ]-»i-oe(^s.s  out  of  the 
court  of  elianeei-y.  to  lake  a  eoiiveyanee  and  comply  with  the  con- 
ditions of  sale. 

It  may  be  assumed,  as  an  established  doctrine  of  the  court  of 
ehaneery.  that  a  i)urehaser  undei-  a  tiecree  by  the  act  of  purelia.sc. 
submits  himself  to  the  juiasdicl ion  of  the  court  as  to  all  matters 
connected  with  the  sale  wliicli  relate  to  him  in  the  character  of 
purchaser.  Casaniajor  v.  Strode.  1  Sim.  &  Stu.  ;^^1  ;  Ive(|ua  v. 
Hea.  2  I'aiixc  XV.) ;  Shann  v.  Jones.  4  ('.  E.  nrecn.  'i.')!.  The  sale 
may  be  set  asith'  by  an  oi-der  in  the  original  cause,  without  a  new 
i)ill  being  tiled.  Brown  v.  Frost.  10  Paige.  243;  Wetzler  v.  Schau- 
mann,  9  C.  E.  (Irccn.  (iO.  And  the  purchaser  may  ai)pcal  from 
such  order,  thouiih  lie  be  not  a  i^irty  to  the  cause.  Bailey  v. 
.Maule.  7  CI.  c^-  Fin.  121;  note  cited  in  National  l^ank  of  ]\Ietrop- 
olis  V.  Sprague,  (>  C.  E.  Green.  462.  It  has  also  been  held,  that 
the  puivhascr  may  be  comi)elli(l  lo  complete  the  purchase,  by  a 
summary  oider  in  the  original  cause.  Lansdown  v.  Ehh^'ton,  14 
Vcs.  512;  AVood  v.  IMason.  'A  Sumner.  318;  Cazet  v.  Ilubbell,  36 
N.  Y.  677;  Siver  v.  Campbell.  10  C.  E.  Green,  465. 

The  modern  practice  of  the  English  courts  is,  by  an  order  to 
direct  the  pi-(Mnises  to  be  re-sold,  and  the  ]iurchaser  to  pay  the 
costs  and  expcn.ses  of  the  sale,  and  also  the  deliciency  (if  any)  in 
the  price  at  the  second  sale.  2  Dan.  Ch.  Prac.  1282.  This  prac- 
tice seems  to  have  originated  with  Lord  J]ldon  in  1811.  in  Gray  v. 
Gray,  reported  in  1  Beavaii.  If)!);  and  the  note  to  Harding  v. 
Harding.  4  ^1.  &  Craig,  514. 

But  if  it  be  conceded  that  the  court  of  chancery  may  compel  a 
purchaser,  by  summaiy  process,  to  complete  his  purchase,  that  is 
no  reason  for  holding  its  jurisdiction  exclusive.  It  is  only  where 
the  right,  as  well  as  the  remedy,  is  the  creature  of  equity,  with- 
out any  legal  obligation  for  its  foundation,  that  the  jurisdiction  of 
the  courts  of  equitv  is  exclusive.  On  the  ordinary  agreement  to 
purchase,  chancery  may  decree  specific  performance,  and  upon  a 
sale  under  foreclosure  the  ])urchaser  may  be  put  in  i)ossessiou  by 
writ  of  assistance,  and  yet  it  has  never  been  contended  that  the 
power  of  the  court  to  grant  relief  according  to  its  own  peculiar 
l)roceeding  excluded  the  jurisdiction  of  the  courts  of  law.  The 
parties  may  sue  at  law  for  damages  arising  from  the  non-per- 
formance of  the  agreement  to  sell,  and  the  purchaser  at  a  fore- 
closure sale  may  recover  i)as.session  by  an  action  of  ejectment,  not- 
withstanding another  remedy  is  attainable  in  a  court  of  e(|uity. 

A  stipulation  foi'  a  re-sale  in  case  of  default  of  the  purchasei- 
to  comply,  and  for  his  liability  for  the  expenses  and  loss  on  the 
second  sale,  has  long  been  in  use  as  one  of  the  usual  conditions  of 
sale.  Sir  P^lward  Sugden  recommends  that  it  never  be  oinitted. 
1  Sugden  on  V.  &  P.  57  (30).  It  has  always  been  regarded  as  a 
sub.stantial  security  for  the  fulfillment  of  the  agreement  to  pur- 


Siec.    6.]  RIGHTS   GROWING   OUT   OF   CONTRACT.  687 

chase,  on  whieh  an  action  at  law  is  maintainable.  In  such  action 
the  measure  of  damages  is  the  difference  between  the  defendant's 
bid  at  the  first  sale,  and  the  sum  realized  at  the  second  sale,  to- 
gether with  the  costs  and  expenses  incident  to  the  re-sale.  Ocken- 
den  V.  Henly.  E.  B.  &  E.  485;  Cobb  v.  Wood.  S  Cush.  228;  Web- 
ster V.  Hoban.  7  Cranch,  399.  The  difference  in  price  on  the  re- 
sale is.  in  law.  so  far  regarded  as  a  liquidated  debt  as  to  be  prov- 
able as  such  in  bankruptcy.     Ex  parte  Hunter.  C^  Ves.  94. 

The  only  cases  I  have  been  able  to  find  in  which  the  right  of  an 
officer,  selling  under  judicial  proceedings,  to  sue  the  purchaser 
at  law  on  a  cWdition  of  this  kind,  has  been  questioned,  are  Wood 
V.  Mann.  1  Sumner.  319.  and  IMiller  v.  Collyer.  36  Barb.  250.  In 
Wood  V.  ]\laini.  Justice  Story  expresses  the  opinion  that  a  court  of 
law  would  not  entertain  jurisdiction  of  such  a  suit,  where  the  sale 
was  made  under  a  decree  of  a  court  of  equity.  The  subject  under 
consideration  was  the  power  of  a  court  of  equity  to  enforce,  by 
summary  i)rocess.  a  security  voluntarily  given  in  a  court  by  a 
person  who,  on  his  own  application,  was  substituted  in  the  place 
of  the  purchaser,  on  which  an  order  was  made  that  the  person  so 
substituted  pay  the  ])urchase  money  within  a  specified  time.  The 
opinion  on  this  head  was  merely  obiter,  and  was  founded  on  the 
supposed  inal)ility  of  a  court  of  law  to  ascertain  and  measure  the 
extent  of  the  damages.  The  apprehension  that  an  adequate  rem- 
edy could  not  l)e  afforded  in  a  court  of  law,  on  the  agrei'aient  to 
purchase,  is  entirely  without  foundation.  A  court  of  law  will 
give  as  damages  in  such  a  suit  precisely  the  same  measure  of  re- 
dress as  by  the  modern  practice  is  attainable  in  equity.  In  Miller 
V.  Collyer,  the  court  held  that  a  memorandum  at  the  foot  of  the 
conditions  of  a  sale,  made  by  a  sheriff,  under  foreclosure  pro- 
(•eedings.  stating  that  the  party  had  bought  at  a  certain  i)rice,  and 
lliat  he  agreed  to  comply  with  the  conditions,  and  signed  by  him, 
was  a  mere  submission  to  the  authority  of  the  court  in  which  the 
<lecrec  was  had,  and  not  a  contract,  either  with  the  sheriff"  or  the 
plaintiff  in  the  suit,  and  that,  therefore,  no  action  could  be  main- 
taine<l  u|)<in  it.  The  argument  by  which  this  conclusion  was 
reached,  was  that  the  memorandiun  lacked  the  essential  elements 
of  a  contract,  not  only  in  jiarties.  but  also  in  mutuality  and  con- 
sideration. Inasm\ich  as  the  legal  results  of  a  purchase  at  a  sher- 
iff's sale  are  an  obligation  on  the  part  of  the  oflicer  to  convey,  and 
on  the  part  of  the  purchaser  to  accept  a  conveyance  and  pay  the 
purcliasc  money,  it  is  diflicult  to  perceive  wherein  the  und»;i-taking 
is  (l(,'licicn1  in  cither  mutualil\  or  consideinl  ion.  The  duty  of  the 
olticer  to  make  conveyance  of  the  lands  on  his  jicceplnnce  of  the 
bid  of  the  successful  bidder,  and  his  i)ower  lo  ti-ansler  to  llu^  pur- 
«'ha.ser  the  title  he  is  selling,  are  as  much  a  consideration  as  his 
abilif_\-  to  pass  the  ])ro|>erty  in  chattels  on  the  sale  of  pei-sonal 
jiropeity.  The  only  difference  is.  that  1  lie  jnnpertx  in  chattels 
|)a,sses  by  the  sale,  whereas  oi)  a  s;de  of  lands  ;i  i\rri\  is  necessary 
to  convey  the  legal  title.  The  i-ights  (»!"  the  Itnyei-.  in  botii  in- 
stani-.s.    ;iiv    iixt'd    when    the    bid    is   jicceptcd.      Wluitcver   else    is 


(JSS  Riniri's  OKowiNt;  ki  i    ok  contkact.  [Ch.  S. 

lieoessiiry  to  roiuplitf  llir  t  i-;ms;n-t  imi  is  inci'dy  ;i  (•(iiiiiilijiiicc 
witli  the  fiuiiis  o\'  |i;issiiiir  tin'  title  \o  Kinds.  l'];icli  pilliv,  it  is 
adiiiitti'd.  iiiiiv  foiiijx'l  itt'rl\»i"iii;mc('  hv  tlu'  other  l)y  the  inlcr- 
vontion  of  tin-  coui't  out  oi'  which  llic  process  issued.  A  more 
deeided  ilhist iviliou  of  coiisid(M-iit ion  :md  imilunlity  in  a  contraet 
ean  seareely  he  found.  'I'he  same  eh-ments  ol"  mut\iality  and  con- 
sideration are  ]ii-est>nt  in  a  sale  hy  an  ollieer  havin<,'  ])Ower  to  sell, 
and  ahility  lo  make  'onveyani'e.  as  attend  a  sale  hy  an  owner  at 
jnihlit'  auelion. 

The  practice  ol'  the  court  of  chanecM'y.  hy  summary  process,  to 
eonipt'l  till'  purchaser  to  eomi)lete  the  purchase,  is  founded  on  tlie 
assumption  of  a  contraet  on  his  part  to  that  efVeet.  This  is  ap- 
parent from  the  ohsei'vations  of  liord  Cotteidiam,  in  Harding  v. 
llardinp:.  4  M.  .^-  Craig.  51 4.  The  notion  that  the  eontraet  is 
with  the  court,  is  t(^o  fanciful  to  merit  nuich  c(msidei-ation.  Tt  is 
regarded  as  such  a  contract  as  may  he  made  the  ground  for  a  hill 
for  siH'ciHc  ])ei-foi-mance  in  the  name  of  the  officer.  Ely  v.  Per- 
rine.  1  Green's  Ch.  39(5;  Browne  v.  Kitter.  11  C.  K.  Green,  456.  In 
]\Iieliener  v.  Lloyd.  1  C.  E.  Green.  41,  Chancellor  Green  treats  a 
claim  against  a  purchaser  at  a  sale  hy  commissionei's  in  partition, 
selling  under  an  order  of  the  court  for  a  deficiency  at  a  second 
sale,  as  a  (daim  for  damages  sustained  by  the  breach  of  the  con- 
tract contained  in  the  conditions  of  sale.  He  also  held  that  the 
contract  was  with  the  commissioners;  that  they  alone  had  the 
right  to  enforce  it.  and  that  the  remedy  was  ])roperly  in  a  court 
of  law  by  action  on  tlie  contract.  In  Shinn  v.  Roberts,  Spencer, 
435,  the  action  was  at  law,  by  commissionei's  in  partition  against 
a  purchaser  not  complyinc  with  the  conditions  of  sale,  to  recover 
the  dilference  in  the  price  at  the  first  sale  and  the  second.  The 
case  was  contested  by  able  and  experienced  counsel.  No  point 
was  made  on  the  argument  as  to  the  ability  of  the  commissioners 
to  sue.  and  C.\rfenter.  J.,  in  the  opinion  of  the  court,  declares 
that  he  had  no  ditiieulty  on  the  subject  of  the  right  of  the  com- 
missioners to  maintain  the  action.  In  Cobb  v.  Wood.  8  Cush.  228, 
it  Avas  expressly  decided  by  the  supreme  court  of  Massachusetts, 
that  an  administrator  selling  lands  under  a  license  of  a  probate 
court,  might  recover  at  law  again.st  a  purchaser  who  bid  in  the 
property  and  signed  the  memorandum  of  sale,  and  then  refused 
to  comply:  and  that  the  sum  recoverable  was  the  difference  in 
the  price  at  the  first  and  second  sales.  In  Sanborn  v.  Chaniberlin. 
101  ]\rass.  409.  an  officer,  selling  undei-  an  execution  at  law,  was 
allowed  to  recover  of  a  purchaser  on  his  contract  to  purchase,  the 
y)urchase  money,  tlie  conveyance  having  been  tendered  but  not 
accepted.  There  is  no  difference  between  a  sale  by  a  sheriff  under 
an  execution  out  of  ehanceiy  on  a  foreclosure,  and  that  of  an 
officer  or  individual  selling  under  any  power  or  authority  not 
coupled  with  an  interest,  such  as  a  sheriff  selling  under  an  execu- 
tion at  law.  auditors  in  attachment,  commissioners  in  partition, 
guardians,  executors  or  administi-ators  selling  under  an  order  of 
the  court,  and  executors  making  sale  under  a  power  in  a  will.     To 


Sec.    6.]  RIGHTS   GROWING    OUT   OF    CONTRACT.  689 

deny  the  right  to  siK'  at  law  on  the  eoiitraet  of  purchase  in  these 
(Muinierated  cases  would,  in  many  instances,  be  practically  a  de- 
nial of  any  remedy  against  a  defaulting  purchaser  who  sees  fit 
to  recede  from  his  bargain.  In  some,  if  not  in  all  of  these  cases, 
there  is  no  power  in  any  court  to  enforce  the  purchaser's  agree- 
ment by  sunnnary  process.  If,  in  these  cases,  actions  at  law  may 
he  brought  on  the  conditions  of  sale,  no  reason  can  be  suggested 
why  a  similar  remedy  may  not  be  had  on  the  conditions  of  a  sale 
under  the  process  of  the  court  of  chancery. 

That  relief  may  be  had  by  another  method,  and  in  another 
court,  does  not  exclude  the  jurisdiction  of  courts  of  law.  The 
remedy  in  that  foi-m.  by  action,  is  frequently  less  expensive,  and 
more  convenient  than  in  the  court  of  chancery,  and  the  measure 
of  compensation  as  indenmity  is  the  same  in  both  courts.  In  such 
an  action,  the  defendant  is  subjected  to  no  inconveniences  as  to 
defenses  which  would  not  equally  lie  in  the  way  of  a  purchase  at 
a  sale  under  common  law  process.  The  purchasei-  cannot  com- 
plain that  there  is  a  more  sunnnary  method  of  dealing  with  him 
in  the  premises,  and  of  compelling  him  to  abide  by  his  contract. 
Browne  v.  Ritter.  supra. 

The  suggestion  that  the  sale  to  the  defendant  might  have  been 
disapproved  of  by  the  chancellor,  and  that  the  sherifif.  on  his  own 
motion,  may  be  prosecuting  this  suit,  is  entitled  to  no  weight.  If 
the  sale  was  impi-oi)erly  conducted,  to  the  prejudice  of  the  de- 
fendant as  ])urchaser.  he  might,  by  summary  application  to  the 
chancelloi-.  have  been  discharged  from  his  bid.  And  if  the  sher- 
iff is  prosecuting  this  suit  for  improper  purposes,  by  consent  of  all 
those  of  whose  interest  he  is  the  representative,  it  will  be  stayed 
by  the  court.  Nor  will  any  embarrassment  arise  as  to  the  dis- 
position of  tlu'  money  that  may  be  recovered  in  this  action.  The 
sheriff  is  the  representative  and  trustee  of  the  persons  interested 
in  the  process  under  which  he  makes  the  sale,  the  complainant, 
the  other  encumbrancers,  and  the  owner  whose  pro])erty  he  is 
empowered  to  sell.  So  strictly  is  he  regarded  as  a  ti'ustee.  that 
he  has  no  power  to  relieve  a  purchaser  from  a  sale  which  is  ad- 
vantageous to  the  parties  to  the  suit,  or  yield  any  substantial  right 
affecting  either  the  complainants  or  the  defendant.  It  was  so  held 
by  Chancellor  Zabi-iskie  in  Shann  v.  Jones,  4  C.  E.  Green.  251. 
The  money  recovered  in  this  suit  will  be  money  mad(>  under  the 
pi'ocess  in  his  hands.  It  will  icpre.sent,  when  taken  with  the  sum 
obtained  at  llic  second  sale,  what  the  officei-  has  i-calized  out  of 
the  propci'lv.  .111(1  what  he  would  have  received  immediately,  if  the 
defendant  li.nl  k"|)t  his  cngageinrni .  11  was  said  In'  Carpenter, 
J.,  in  Shinn  v.  Koherts.  in  speaking  of  a  similai-  suil  by  connnis- 
sioners  in  partition:  "The  mon(>v  recovered,  after  de(lucting  ex- 
penses and  a  i-easonahle  rcniunci'ation.  will  be  the  iiioiiey  of  the 
paHies  in  interest,  and  its  payment  ovei-  wduld  lie  m  i'oi-eed  liy  llie 
f)ro[)er  tribunal."  In  Cobb  v.  Wood.  IIh'  aition  was  held  to  be 
maintainable  by  an  administrator  selling  under  an  (trder  for  the 
j)ayinent  of  debts,  though  the  amount  ohtained  al  the  second  sale 
Remedies — 44.  — 


t>;)0  KKiiris  cKowiNt;  oi T  oi'  coNrKAcr.  \('li.  S. 

WMs  sutlirit'iit  l(t  i>;iv  all  the  dclits  ami  tln'  t-osls  of  adniinisl  ration  ; 
llu'  ivi'ovtMv  l)t'in'j;  for  the  itciit'lit  oi'  tiic  \vi(li>\\  and  licirs  ol"  111.' 
drci'Msi'd.  Till'  at'tit^ii  was  well  hrouijht,  ami  the  noiusuil  slunild 
ho  s»'t  aside,  and  a  new  trial  or«l»'i-('d  ;  costs  to  abide  tlio  event. 

Ill  tlio  iniiU'ipal  case  it  will  be  oliscrved  tlial  the  slu'ril'l'  ilid  not  soil 
under  an  cxci'iitiini.  hut  was  actius:  in  the  capacity  of  a  row  miss  loner  of 
the  court  of  chancer.v.  In  Nertli  raioliiia  it  is  held  that  when  a  sheriff 
sells  under  exevittiDit  and  th(>  i)ui-c.haser  fails  to  pay  for  the  i)roi)erty. 
the  sheriff  can  maintain  a  separate  action  for  the  price  and  cannot  pro- 
ceed hy  motion  in  (lie  cause;  because  the  court  has  no  privity  or  coiinec 
tion  with  the  purchaser,  as  is  the  case  when  the  court  sells  through  a 
commissioner.  If  the  sheriff  re-sell  the  i)roperty.  as  he  may  do.  he 
therebv  releases  the  purchaser  at  the  first  sale.  McKee  v.  Llneherger, 
60  N.  C.  at  pp.  239-241. 

When  the  purchaser  at  a  judicial  sale — a  sale  by  a  commissioner  ap- 
pointed by  a  court  in  a  civil  action  or  special  proceeding — falls  to  com- 
ply with  his  bid,  or  to  jiay  a  note,  etc.,  given  for  the  whole  or  a  part  of 
the  purchase  money,  the  remedy  against  him  is  confined,  to  a  motion  In 
the  cguse  so  long  as  the  cause  is  pending:  but  after  the  cause  is  closed 
by  final  judgment,  a  separate  and  independent  action  may  be  maintained, 
it  seems.  So  where  the  bid  was  raised  and  at  a  re-sale  the  i)roi)erLy 
brought  less  than  at  the  first  sale,  a  sejiarate  action  against  the  person 
who  raised  the  bid,  to  recover  the  difference,  was  dismissed  because  the 
only  appropriate  remedy  was  by  motion  in  the  cause.  Marsh  v.  Nimocks, 
122  N.  C.  478,  29  S.  E.  840;  see  also  Lord  v.  Beard,  79  N.  C.  n;  Causey  v. 
Snow,  120  N.  C.  279,  2fi  S.  E.  775,  in  which  last  case  a  separate  action 
was  sustained  on  the  .ground  that  final  judgment  had  been  entered  and 
the  cause  ended.  That  a  re-sale  may  he  ordered  by  motion  in  the  cause 
and  the  delinquent  purchaser  held  for  any  loss  consequent  thereon,  and 
that  such  re-sale  will  be  ordered  at  the  instance  of  a  surety  nn  the  notes 
given  by  the  original  purchaser  for  the  price,  is  held  in  Petillo,  ex  parte, 
SO  X.  C.  50;  In  re  Yates,  59  N.  C.  212.  The  practice  in  proceedings  by 
motion  in  the  cause  is  indicated  in  these  cases.  That  the  remedy  by 
motion  in  the  cause  is  likewise  the  proper  one  in  sales  under  special 
proceedings  hefore  the  clerk,  see  Mauney  v.  Peniberton,  75  N.  C.  219. 
For  the  law  in  extenso  on  the  subject  embraced  in  this  section,  see  17 
Am.  &  Eng.  Enc.  Law  1025;  24  Cyc.  52.  As  to  the  writ  of  assistance, 
see  ch.  3,  §  21,  ante.  That  a  separate  action  will  not,  ordinarily,  be  al- 
lowed in  any  case  when  adequate  relief  may  be  had  by  a  motion  in  the 
cause,  see  Herman  v.  Watts.  107  N.  C.  646,  12  S.  E.  437,  inserted  at  ch.  9, 
§  3,  post;  Faison  v.  Mcllwaine,  72  N.  C.  312.  See  ".Tudicial  Sales,"  Cen- 
tury Dig.  §§  50-56:   Decennial  and  Am.  Dig.  Key  No.  Series  §§  26-29. 


Sec.  7.    Actions  of  Deceit  and  of  Deceit  and  False  WARRANrs^ 

LASSITER  v.  WARD,  33  N.  C.  443.     1850. 

Remedies  Ex  Contractu  and  Ex  Delicto  on  False  War7-anty.  Case  and 
Assnmpsit  on  False  Warranty.  Counts  in  Deceit  and  Warranty 
Joined. 

f Action  on  the  Case  in  tort.  Two  counts:  (1)  In  deceit  for  selling 
plaintiff  an  unsound  horse  and  knowingly  and  falsely  representing  him 
to  be  sound:  f2)  For  a  false  warranty  of  the  soundness  of  the  horse. 
Plea,  not  guilty.  The  proof  was,  that  the  horse  was  warranted  to  be 
sound,  but  was  unsound.  Upon  this  the  defendant  insisted  that  plain- 
tiff could  not  recover  because  there  was  no  proof  that  the  defendant 
knew  that  the  horse  was  unsound.  The  judge  ruled  that  plaintiff  could 
recover  on    the    second    count    without    proving    the    scienter.     Verdict 


Sec.    7.]  RIGHTS   GROWING   OUT   OF    CONTRACT.  ()!H 

against  defendant,  who  moved  in  arrest  of  judgment.     Judgment  against 
defendant,  and   he  appealed.     Affirmed.] 

RuFP^iN.  C.  J.  Though  one  would  expect  assumpsit  to  be 
brought  on  a  warrant}'  of  goods,  as  well  as  any  other  parol  con- 
tract, yet  it  is,  comparatively,  a  recent  thing  that  it  was  brought 
in  such  cases.  Its  propriety'  seems  to  have  been  questioned  as  late 
as  the  ease  of  Stewart  v.  "Wilkins,  Doug.  IS;  and  it  cannot  be  said 
to  have  been  judicially  settled  earliei-.  though  the  action  had 
sometimes  been  brought.  It  was  questioned  on  the  ground,  that 
the  action  on  the  case  in  tort  was  the  established  remedy,  and 
therefore  the  proper  one.  It  was.  however,  held  that  either  of  the 
actions  would  lie  upon  an  express  warranty.  Afterwards  it  was 
attempted  to  give  another  turn  to  the  matter  in  the  opposite  direc- 
tion, namely,  by  contending  that  assumpsit  was  the  peculiar 
remedy  on  a  false  warranty,  and  that  the  declaration  could  not 
be  in  tort  unless  it  alleged  a  scienter;  which  was  as  nuu-h  as  to 
say,  that  the  action  on  the  case  would  not  lie  on  the  warranty,  but 
only  on  the  cheat.  Williamson  v.  Allison,  2  East,  446.  But  there 
were  so  many  precedents  of  actions  in  tort  for  a  false  warranty, 
as  to  show  clearly  that  it  had  been  formerly  the  common  remedy, 
if  not  the  only  one  in  use.  and  to  induce  the  judges  to  sustain  it. 
It  was.  accordingly,  there  held  that  the  declaration  might  be  in 
toit  without  alleging  a  scienter,  and,  if  it  be  alleged  in  addition 
to  the  warranty,  that  it  need  not  be  proved.  The  doctrine  of  the 
case  is.  that  wlien  there  is  a  warranty,  that  is  the  gist  of  the  ac- 
tion, and  that  it  is  only  when  there  is  no  warranty  that  a  scienter 
need  be  alleged  or  proved.  It  is  nearly  half  a  century  since  the 
decision,  and  during  that  period  the  point  has  been  considered  at 
rest,  and  many  actions  have  been  brought  in  tort,  as  well  as  ex 
contractu,  on  "false  warranties.  1  Chit.  PI.  429,  956;  2  Chit. 
PI.  279.  There  is  no  doubt  as  to  the  propriety  of  joining  the  two 
counts :  for  it  is  an  action  on  the  case,  and  the  counts,  being  both 
in  tort,  are  compatible.  If  it  were  otherwise,  it  would  not  be  ma- 
terial in  this  case,  as  the  evidence  applied  to  the  second  count, 
and  the  instructions  to  the  jury  referred  to  it  alone,  and  there- 
fore the  verdict  might  be  amended  by  entering  it  on  that  count 
only.     West  v.  Ratlidge.  15  X.  C.  31.  ' 

See  "Artion."  Century  Dig.  §  357;  Decennial  and  Am.  Dig.  Key  No. 
Series  §  41;  "Sales."  Century  Dig.  §  1207;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  42.5. 


CARTER  V.  GLASS.  44  Midi.  ]n4.  6  N.  W.  200.     1S80. 

Trrapaxs  on   the  f'asr  for  Deceit,  or  Assumpsit  on  the  Warranty,  at   tin' 

Option    of   the   Plaintiff.      .Mlcfiinq   and   proving    thr   ,^cienl-ei. 

(Trespass  on  the  case  for  damages.  Defendant  l)rings  error.  Af- 
firmed. 

One  fourif  in  the  declaration  alleged,  in  substance,  that  the  plaintiff 
and  thf  d('f<-ndant  r-xchang'-d  horses  at  defendant's  special  rcfincst.  "the 
defendiint  then  and  there  warranting  the  horse  to  l)e  s<iund  and  all  right 


(;<)•_'  RlilllTS    (ilCOWINd    oir    dl'    CONl'K  \("r.  \('ll.    >. 

ill  evory  way,  tlu'u  ami  iIhmo  lalsoly  and  fiaiidincMiUy  sold  and  ex- 
iliangiHi  tiio  saiiio  witli  tiio  iilainiitT.  .  .  .  said  piaintitf  coiitidiiif;  in 
tlie     said     warranty  didiviTod     liis     liorso     to     (lie     (lt'r<'iidant. 

Whereas  in  truth  and  in  fart  at  the  time  of  the  maliing  ol  I  he  said  laise 
warranty     .     .     .     the   liorse  ot"   the   defendant    was   nnl    sound     .     .     . 
but.  on  the  contrary,  tiieii  was  and  still   is  unsound  and  liatii  l)eeonie  of 
no  value;  and  tlu'  plaintiff  als<t  i»y   means  of  the  prtMuises  hath 

lost   and   been   defrauded   of  tlie   use  of  said   horse;      .     .     .     and   so  the 
said  defendant    in  said  sale  and   exchange   falsely  and   fraudulently   de 
ceived   and   defrauded   the   i>laint iff."   etc.     The   judge   held   this   to   he   a 
good  lount  in  tort  and  perniittid  plaintilY  to  recover  on  it  as  such.     His 
ruling  is  approved.  | 

CooLEV.  rl.  Hut  (MIC  (|iK'stioii  is  presented  by  tliis  record, 
iiaiiiely.  wlictlier  the  count  in  the  plaintiff's  decljirnt ion.  on  which 
lie  was  permitted  to  recover  in  the  court  l)ch>w.  wa.s  a  count  in 
tort  ov  upon  a  warranty. 

Tlie  court  l»»  low  treated  this  as  a  count  in  tort,  and  allowed  the 
plaint itV  to  iccover  as  upon  a  rescission  of  the  conti'act.  The  de- 
fendant insists  that  it  is  a  count  in  a.ssnnipsit,  and  in  aftirniauce  of 
the  contract.  It  was  decided  in  Beebe  v.  Knapp.  28  Mich.  53,  that 
an  action  on  the  ease  may  be  maintained  for  false  representations 
in  the  sale  of  propeity  whereby  the  vendee  was  di'ceived  and  de- 
frauded, even  thouiih  the  vendor  was  not  aware  of  the  falsity  of 
the  representations  when  he  made  them,  lint  there  is  no  doubt 
the  representations  in  sneh  a  ease  may  Ix^  treated  as  warranties, 
and  assumpsit  broup-ht  at  the  oj^tion  of  the  vendee.  Hawkins  v. 
Pemberton.  51  X.  Y.  li)S;  AVhecler  v.  Read.  36  111.  81;  McGregor 
V.  Penn.  9  Yerg.  74;  Ilenshaw  v.  Robins.  9  Met.  83;  Burge  v.  Stro- 
berg.  42  Ga.  88 ;  Stone  v.  Covell.  29  IMieh.  359.  As  the  declaration 
in  either  case  must  set  out  the  facts,  there  must  necessarily  be 
considerable  similaiity.  and  this  is  not  the  first  instance  by  many 
in  which  a  count  meant  to  be  in  case  for  the  deceit  has  been  mis- 
taken for  one  in  assiunpsit.  But  the  leading  case  of  Williamson 
V.  Allison.  2  East.  446.  fully  sustains  the  ruling  of  the  court  be- 
low. It  was  there  said  by  Lord  Ellenborough  that  "the  warranty 
is  the  thing  which  deceives  the  buyer,  who  relies  upon  it  and  is 
thereby  put  off  his  guard.  Then,  if  the  warranty  be  the  material 
averment,  it  is  sufficient  to  prove  that  broken  to  establish  the  de- 
ceit, and  the  form  of  the  action  cannot  vary  the  proof  in  that  re- 
spect. Tlie  same  case  decides  that  it  is  not  necessary  either  to 
aver  or  prove  the  scienter,  and  to  render  the  case  more  completely 
like  the  present,  in  principle,  the  declaraticm  there,  as  here,  failed 
to  aver  an  off(>r  to  return  the  property,  in  the  sale  of  which  the 
tort  was  committed.  The  doctrine  of  that  case  is  familiar  law  in 
this  countrv.  Baman  v.  Buck.  3  Vt.  33;  West  v.  Emery.  17  Vt. 
583;  Johnson  v.  :\rcDaniel.  15  Ark.  109;  Ilillman  v.  Wilcox,  30 
:\Ie.  170;  Xewell  v.  Horn.  45  X.  IT.  421  ;  Ives  v.  Carter,  24  Conn. 
392.  An  examination  of  Ross  v.  :\lather.  51  N.  Y.  108,  which 
<piestions  the  soundness  of  Williamson  v.  Allison,  will  show  that 
the  criticism  was  based  on  a  misapprehension  of  the  point  decided. 
All  the  errors  relied  upon  in  this  ca.se  depend  upon  the  one  no- 
ticed.    The  judgment  was  right,  and  must  be  affirmed,  with  costs. 


Sec.    7.]  RIGHTS   GROWING    OCT   OF   CONTRACT.  693 

See  "Action,"  Century  Dig.  §   167;    Decennial  and  Am.   Dig.  Key  Xo. 
Series  §  27. 


HOBBS  V.  BLAND,  124  N.  C.  284,  287,  32  S.  E.  683.     1899. 

Joinder  of  Deceit  and  False  Warranty  Under  the  Code  Practice.  The 
Scienter,  When  Material.  When  Deceit  and  False  Warranty  May  Be 
Set  Up  as  a  Counterclaim. 

[Action  by  the  mortgagee  of  chattels  to  recover  the  mortgaged  prop- 
erty from  the  mortgagor.  The  defendant  pleaded,  by  way  of  counter- 
claim or  recoupment,  that  the  mortgage  was  given  to  secure  the  price 
of  a  horse  which  he  bought  from  the  plaintiff  and  which  the  plaintiff 
warranted  to  be  sound,  but  which  was  unsound,  and  for  that  reason 
had  been  returned  by  the  defendant  to  the  plaintiff.  Judgment  against 
the  plaintiff,  and  he  appealed.  Reversed  on  a  point  immaterial  to  the 
question  now  under  consideration.  Only  a  part  of  the  opinion  is  here 
inserted.] 

FiRCiiES,  J.  .  .  .  The  defendant,  by  his  answer,  alleges  a 
hreach  of  warrant^',  and  deceit.  The  allegation  of  deceit  is  not 
very  distinctly  stated,  but  we  will  treat  it  as  sufficiently  stated  to 
be  used  as  a  ground  of  defense,  if  established.  These  defenses — 
false  warranty  and  dt'ceit — are  both  ex  delicto,  but  they  might  be 
joined  in  one  action ;  and.  as  they  might  be  joined  in  one  action 
(Bullingei-  V.  ^larshall.  70  X.  C.  520),  they  may  be  joined  in  the 
defendant's  answer,  which  is  but  a  cross  action.  To  entitle  the 
defendant  to  damages  upon  the  allegation  of  false  warranty,  it  is 
not  necessary  that  he  should  show  the  scienter.  It  is  sufficient  if 
he  shows  a  warranty,  and  breach  of  the  warranty.  If  there  was 
no  warranty,  and  defendant  relies  on  the  allegation  of  deceit,  he 
must  then  show  the  .scienter.  As  these  defenses  are  ex  delicto. 
and  not  on  contract,  they  could  not  be  set  up  by  way  of  counter- 
claim, or  recoupment,  if  they  had  not  originated  out  of  the  same 
transaction,  or  cause  of  action  upon  which  defendant  is  sued;  but. 
growing  out  of  the  transaction  upon  which  the  action  is  based, 
thev  mav  be  so  pleaded  and  set  up.  Benton  v.  Collins.  118  N.  C. 
196,  24  S.  E.  122.     .     .     . 

See  "Sales,"  Century  Dig.  §§  1214,  1215;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  428. 


INGE  V.  BOND  et  al.,  10  N.  C.  101.     1824. 
Pure  Deceit  Distinguished  from  False  Warranty. 

[Action  on  the  Case  for  damages  resulting  from  the  sale  of  an  un- 
sound slave  to  the  plaintiff  by  the  defendant.  The  substance  of  the 
declaration  appears  In  the  beginning  of  the  opinion.  The  judge  charged 
that  the  plaintiff  must  satisfy  the  jury  (hat  the  dcfeiidants  knew  of  the 
unsoundness  of  the  slave  and  failed  to  disclose  it  at  the  time  of  the  sale. 
Verdict  against  one  of  the  defendants,  Houd,  .-ind  a  judgment  against 
him,  from   wliirh  he  appealed.     Aflirnied.l 

Twi.oK.  ('    J      The  first  eoinit    in   IIk-  ilei-laral  ion   charg(^s  Ihaf 
the  defctifhiiits.   knnwinL''  the  slave   tn   lie   iiiisniind.   In    a    false  at- 


tl!>4  KKIiri'S    CK'OWINd    (M    f    111'    CON-rKACT.  \Ch.    S. 

tiniuiticn  ot"  his  sduiiilinss  iirocurcd  ;i  sale  of  tlic  slave  to  tlic 
plaintiff.  Tln'  sitoiuI  (•linr«rrs  that  the  (l('l\'iul;uits  advisiMl  the 
plaintifV  to  Imy  the  slave,  and.  falsely  afliniiiiit!:  liiin  to  be  sound, 
proi-nreil  tlie  plaint  ilV  to  i>n>  him.  \\lier(>as  1he\-  knew  the  slave 
to  be  inisonnd.  In  liolli  founts  tlu'  false  atliiMiiation  is  stated  to 
be  tile  means  by  which  the  plaint  ill'  was  indueed  tti  make  the 
barvfain.  ajul  the  niakintr  that  artirniat ion  icHli  n  hnoirhdiie  to  the 
coiitrarif.  whereby  llie  jilaintilV  was  injnred.  eonstitntes  the  cause 
of  action.  The  action  is  clearly  conceived  in  case,  on  tort,  and 
the  declaration  as  stronjrly  marked  with  those  features,  as  in  the 
case  of  Pasley  v.  Freeman,  .'i  T.  R.  51.  the  foundation  of  wliich  is 
fraud  and  deceit  in  the  defendant  and  damafje  to  the  |)laintitf. 
Tlu'  atlirmation.  as  stated  in  the  declaration,  is  not  laid  in  the  way 
of  a  contract,  the  breach  of  which  has  broup^ht  damage  on  the 
plaintitf.  but  as  a  deceit  pi-acticed  upon  him,  whereby  he  was  in- 
duced to  make  the  contract.  Tn  sonic  cases  it  is  true  that  an 
atlirmation  as  to  the  title  of  a  chattel,  when  the  seller  is  in  passes- 
sion.  will  be  considered  as  a  warranty,  for  as  to  the  title  the  law 
itself  itnplies  a  varranlji;  and  even  without  such  information,  if 
a  man  sell  goods  as  his  own  and  the  title  prove  deficient,  the  buyer 
may  recover  satisfaction.  2  Blk.  451.  Bvt  as  to  the  soundness  of 
(food-s,  an  affirmation  does  not  amount  to  a  warranty,  unless  it 
ap]H'ar  on  the  evidence  to  have  been  so  intended.  In  declaring  on 
a  warranty,  the  charge  is  laid  in  assumpsit,  either  warrantizando 
vendidit,  or  he  imdertook  and  faithfully  promised;  but  in  this 
case  there  is  nothing  like  a  promise  and  undertaking.  And  what 
shows  beyond  all  controversy  that  the  action  wa.s  not  intended  to 
be  on  a  warranty  is  that  a  bill  of  sale  was  given  without  a  war- 
ranty, and  that  Bond  expressly  refused  to  enter  into  one.  That 
no  contract  existed  is  further  evident  from  this,  that  whatever 
was  said  concerning  the  soundness  of  the  slave  w^as  before  the  sale, 
and  the  true  contract  of  the  parties  was  reduced  to  writing  by  the 
bill  of  sale,  to  which  no  other  terms  or  stipulations  can  be  added. 
"I  hold."  says  one  of  the  judges,  "that  if  a  man  brings  me  a 
horse,  and  makes  any  representation  whatever  of  his  quality  and 
soundness,  and  afterwards  we  agree  in  writing  for  the  purchase 
of  the  horse,  that  shortens  and  corrects  the  representations;  and 
whatever  terms  are  not  contained  in  the  contract  do  not  bind  the 
seller,  and  must  be  struck  out  of  the  case."  4  Taunton,  786.  But 
if  there  is  any  fraud  in  the  case,  that  cannot  be  done  away  by  the 
contract,  and  the  buyer  may,  notwithstanding,  bring  his  action 
on  the  ca.se,  which  is  the  only  one  that  could  be  brought  in  this 
case.  It.  therefore,  seems  to  me  that  those  authorities  do  not 
apply  which  go  to  show  that  a  breach  of  contract  cannot  be  con- 
verted into  a  tort,  for  in  all  of  them  there  was  a  clear  contract, 
and  in  the  leading  ones  the  defendants  had  a  joint  ownership  in 
the  property.  I  do  not  think  it  Avas  in  the  least  degree  necessary 
that  it  should  be  left  to  the  jury  to  say  whether  the  affirmation 
stated  in  the  declaration  was  made  by  the  defendant  or  not.  since 
it  was  merely   inducement   and   introductory  to  the   gravamen. 


StC.    r.]  RIGHTS  GROWING   OUT   OF    CONTRACT.  69o 

which  is  the  fraudulent  i-oneealment  of  a  defect  in  the  slave;  and. 
generally,  wiicrc  a  person  is  sued  in  tort  for  knowingly  selling  an 
unsound  article,  the  charge  is  laid  either  with  a  false  affirmation 
of  the  soundness,  or  that  the  defendant  sold  it  for  and  as  a  sound 
article,  or  with  a  false  warranty,  all  which  terms  import  the  same 
thing,  and  aiv  never  held  as  making  a  contract  the  gist  of  the 
action.  As  the  jury  have  verified  the  charges  in  the  declaration, 
I  am  of  opinion  that  the  plaintilf  is  entitled  to  recover,  and  that 
there  ought  not  to  be  a  new  trial. 

See  Fraud."  Century  Dig.  §§  27,  44;  Decennial  and  Am.  Dig.  Key  No. 
Series  §§  31,  49;  "Sales,"  Century  Dig.  §  1207;  Decennial  and  Am.  Dig. 
Key  No.  Series  §  425. 


CHATHAM   FIRXACE  CO.  v.  MOFFATT,  147  Mass.  403,  18  N.  E.   1()8. 

1888. 

Deceit  for  a  False   Statement   Which   Defendant  Did  Not  Know   to  Be 

False,  yor  Did  He  Knoic  it  to  Be  True. 

[Tort  for  alleged  false  and  fraudulent  representations  whereby  plain- 
tiff was  induced  to  lease  and  buy  certain  property.  Judgment  against 
the  defendant,  who  alleged  exceptions.  Exceptions  overruled,  and  judg- 
ment affirmed. 

The  defendant  held  a  lease  of  a  mine  in  which  there  was  iron  ore. 
The  mine  was  filled  with  water  and  debris.  The  defendant  made  certain 
representations  as  to  a  great  quantity  of  ore  being  in  the  mine  ready  to 
be  taken  out  as  soon  as  the  water  and  debris  were  removed.  Such  ore 
was  in  existence,  but  it  was  not  within  the  limits  covered  by  the  de- 
fendant's lease.  The  defendant  took  upon  himself  to  assert,  as  of  his 
own  knowledge,  that  this  large  mass  of  ore  was  in  his  mine.  These 
representations  would  have  been  true,  if  the  lines  in  a  certain  survey 
and  plat  of  the  mine  had  been  correct;  but  they  were  not  correct.  The 
defendant  knew  that  what  purported  to  be  a  survey — upon  the  basis  of 
which  he  made  his  representations — was  not  in  all  respects  an  actual 
survey,  and  that  the  lines  had  not  been  verified,  but  were  merely  as- 
sumed. He  did  not  disclose  this  to  the  plaintiff,  but  made  the  asser- 
tion alM)ut  the  ore,  as  of  his  own  knowledge,  and  exhibited  the  survey  in 
support  of  his  assertion,  knowing  that  the  lines  had  not  been  verified. 
An  actual  survey  would  have  disclosed  the  fact  that  the  mass  of  ore  lay 
outside  of  his  boundaries.] 

C.  Allen.  J.  It  is  well  settled  in  this  connnonwcalth  that  the 
rharge  of  fraudulent  intent,  in  an  action  for  deceit,  may  be  main- 
tained bv  proof  of  a  statement  made  as  of  the  party's  own  knowl- 
edge, which  is  false;  provided  the  thing  stated  is  not  merely  a 
iriatter  of  opinion,  estimate,  or  judgment,  but  is  susceptible  of 
actual  knowledge:  and  in  sucli  case  it  i.s  not  necessary  to  make 
anv  further  proof  of  an  actual  intent  to  deceive.  The  fraud  con- 
sists in  stating  that  the  i)arty  knows  the  thing  to  exist  when  he 
does  not  know  it  to  exist;  and.  if  he  does  no  know  it  to  exist,  he 
nuisl  ordinarily  be  deemed  1..  know  that  h(>  does  not.  Forgetful- 
ne.ss  of  its  exisleiK-e  after  a  former  knowledge,  or  a  mere  lielief 
of  its  existence,  will  not  warrant  or  excuse  a  statement  of  actual 
knowledge.  This  rul<-  has  been  steadily  adhered  to  in  this  com- 
monweafth.  and  rests  alike  on  sound  policy  and  on  snujid   legal 


(»!M)  !{|(!in"S    (iKOWINO    0\T    OK    CONTRACT.  \  (' Jl.    ,S\ 

pi-iiu'ipli's.  Co\v  V.  Cassidy.  l;?S  Mass.  4:^7;  Savairo  v.  Stevons. 
\-2i\  Mass.  'JOT;  Tucker  v."  ^Vhit<^  V2'^  Mass.  ;U4  •  LitcliHoUl  v. 
Iliifi-hinsoii.  117  Mass.  ID,");  Milliki'ii  v.  Thonuliki',  MKi  Mass.  aS2 ; 
FisluT  V.  Mi'lli'u.  1(1.  ;')(>;>;  stout'  v.  Denny.  4  Mete.  M^l ;  Tafir  v. 
Bent.  -J  Mete.  :^71  ;  Hazard  v.  lr\vi!i.  ISPick.  i);").  And  lliout?!) 
this  doi'triiu'  lias  not  alwaxs  Ijccii  I'ully  luaintaincd  clscwlu'ro,  it  is 
siipporti'd  hy  tlic  lollowintr  ant  liorit  ics.  ainonjj:  otlicrs:  Cooper  v. 
Si'hK'sin^'cr.  Ill  I'.  S.  14S.  4  Sup.  C\.  Hep.  ;{(i();  Bower  v.  Fenn. 
1)0  I'a.  St.  :ir>!);  Hrownlie  v.  Campbell.  L.  K.  5  App.  95:i  by  Lord 
Hlackiukn,  .Miniufi  Co.  v.  Smith.  L.  R.  4  II.  L.  79,  80,  by  Lord 
C.viRNS;  Sliui  V.  (^rouelier.  1  Oe  Ciex.  F.  &  J.  518,  by  Lord'CAMP- 
BEi.i,.  See  also  IVek  v.  Derry.  f)!)  L.  T.  (N.  S.)  78.  which  has  been 
published  since  this  decision   was  announced. 

See  further  as  to  statements  made  without  a  knowledge  that  the.v  are 
true.  (>  L.  R.  A.  14!»:  I'O  C.vc.  24:  IJisho]),  Xon-Cont.  L.  S§  :n 2-84:?;"  also 
Hamriek  v.  Hogg.  12  N.  C.  :>50.  which  sa.vs  that  it  is  not  sufficient  that 
the  representation  be  false  in  point  of  fact,  but  that  "the  defendant 
must  be  guilt.v  of  a  moral  falsehood — he  must  know  or  believe  It  to  be 
false,  or.  what  is  the  same  thing,  have  no  reason  to  believe  it  to  be  true." 
This  case  has  been  several  times  approved,  see  Munroe's  Notes  and  Wo- 
mack's  Digest.  "The  action  for  deceit  rests  in  the  intention  with  which 
a  representation  is  made,  or  a  fact  not  mentioned.  It  is  not  sufTicient 
that  the  representation  made  should  be  calculated  to  mislead — for  that 
ma.v  be  done  by  the  most  honest  communication — but  the  representation 
must  be  made  irith  the  intent  to  deceive.  Moral  tur|)itude  is  necessar.v 
to  charge  a  defendant  in  an  action  for  a  deceit."  Stafford  v.  Newsom, 
31  N.  C.  at  p.  510. 

In  Aldrich  v.  Scribner,  154  Mich.  23,  headnote  1,  117  N.  W.  581,  it  Is 
said:  "In  this  state,  in  order  to  constitute  fraud,  it  is  not  necessary 
that  the  person  making  the  statement  should  either  know  that  it  is  un- 
true or  be  recklessly  and  consciously  ignorant  whether  it  be  true  or 
untrue,  but  it  is  sufTicient  if  the  representation  be  false  in  fact,  and  the 
person  making  it  be  a  party  to  the  contract  and  profits  by  the  other's 
loss." 

In  the  life  of  Lord  Kenyon,  Lord  Campbell  says  this:  "In  Hay  craft  v. 
Creasy,  Lord  Kenyon  was  very  properly  overruled  by  his  brother  judges, 
and  the  mortification  which  he  suffered  was  supposed  to  have  occa- 
sioned his  death.  The  action  was  brought  by  a  shopkeeper  against  a 
credulous  old  gentleman  for  having  given  a  deceitful  representation  of 
the  character  and  circumstances  of  a  young  lady  of  the  name  of  Robin- 
son, whereby  the  plaintiff  had  been  induced  to  sell  to  her  a  large  quan- 
tity of  goods  on  credit,  the  price  of  which  he  had  lost.  The  defendant 
having,  like  many  others,  been  deceived  by  her  arts,  and  really  believ- 
ing that  what  he  said  was  true,  told  the  plaintiff  that  she  was  a  lady  of 
great  fortune  and  heiress  of  the  estate  of  Fascally,  in  the  county  of 
Perth,  and  that  she  was  not  only  respectable  herself,  but  nearly  con- 
nected with  some  of  the  highest  families  in  Scotland.  In  truth  she  was  a 
mere  adventuress,  and  swindled  all  that  would  trust  her.  Law,  for  the 
defendant,  contended  that  the  action  could  not  be  maintained,  as  there 
was  no  mala  fides  to  support  it,  and  to  make  him  liable  without  actual 
deceit  would  be  to  treat  him  as  surety  for  Miss  Robinson  without  any 
written  guarantee.  Lord  Kenyon:  'The  attorney-general  relies  on  the 
statute  of  frauds.  To  this  I  shortly  reply  by  saying  that  the  statute  of 
frauds  has  nothing  to  do  with  this  case.  The  defendant  is  sued,  not 
as  surety  for  Miss  Robinson,  but  for  stating  respecting  her  that  which 
was  not  true,  and  which  he  had  the  means  of  knowing,  and  must  be 
supposed  to  have  known,  was  not  true,  whereby  a  damage  has  been  suf- 
fered by  the  plaintiff.     If  the  present  action  cannot  be  suported,  I  have 


Srr.    7.]  RIGHTS   GROWING   OUT   OF    CONTRACT. 


6f)' 


now  for  twelve  years  been  deceiving  the  people  of  this  country.     Am  T 
now    when  perhaps  from  years  the  progress  of  jiiy  intellect  may  be  ret- 
rograde, to  unsav  what  I  have  said  so  often?     Where  can  I  go  to  hide 
my  head  if  this  point  shall  now  be  decided  otherwise?     \Miat  can  I  say 
to  the  people  of  this  country?    The  ground  I  go  upon  is  this:   Did  the  de- 
fendant assert  to  be  true  that  which  he  did  not  know  to  be  true?     This 
1  consider  sufficient  evidence  to  support  the  charge  of  fraud.     It  may  not 
amount  to  moral  turpitude,  but  it  is,  in  my  opinion,  sufficient  to  consti- 
tute legal  fraud,  and  legal  fraud  is,  in  my  opinion,  enough  to  support  an 
action  of  deceit.'     Grose,  Lawrence,  and  Le  Blanc,  .Is.,  however,  on  the 
assumption  that  the  defendant  was  a  dupe,  clearly  held  that  he  could  not 
be  made  liable  in  this  form  of  action,  which  supposed  that  the  defendant 
had  stated  what  he  knew  to  be  false,  or  that,  from  some  bad  motive,  he 
had  stated  as  true  facts  which  were  untrue,  and  the  truth  of  which  had 
not  been  investigated.     As  his  brethren  proceeded  seriatim  in  this  strain, 
the  chief  justice's  face  showed  the  most  terrible  contortions:    and  when 
thev  had  finished  he  exclaimed:    Good  God.  what  injustice  have  I  hith- 
erto been  doing!     W'hat  injustice  have  I  been  doing!'     A  gentleman  who 
witnessed  the  scene,  says:     It  was  visible  to  every  person  in  court  that 
this  ejaculation  was  not  uttered  in  the  penitent  voice  of  regret  for  any 
injustice  which  he  might   unconsciously   have  done  from   a   mistake  of 
the  law.  but  in  the  querulous  tone  of  disappointed  pride,   from  finding 
that   the   other   judges  had    presumed   to  think   for   themselves,   and    to 
question  the  supremacy  of  his  opinion.'  "     4  Campbell's  Lives  C.  J.,  127- 
129.    Compare  this  statement  with  the  principal  case  and  the  authorities 
cited  in  this  note. 

See  further  as  to  what  constitutes  an  actionable  misrepresentation, 
or  deceit,  in  the  eyes  of  the  law,  Huffcut  and  Woodruff's  Cases  on  Con- 
tracts, 298-302:  Mcintosh,  Cont.  303  304,  and  note,  where  reference  will 
be  found  to  the  i)rincipal  authorities  on  the  subject.  See  7  L.  R.  A. 
(N.  S.)  646,  18  lb.  379,  and  notes  (statements  made  without  knowing 
whether  they  are  true  or  not);  6  lb.  872,  and  note  (when  deceit  lies 
against  officers  of  a  corporation  for  false  statements  in  reports  required 
by  statute— e.  g.  bank  statements).  See  "Fraud,"  Century  Dig.  §  5; 
Decennial  and  Am.  Dig.  Key  No.  Series  §  13. 


BROWN  V.  GRAY.  .51,  N.  C.   103.     1858. 
Latent   and   Patent   Defects.     Caveat   Emptor.     Suppressio   reri.     F!ug- 

gestio  falsi.     Scienter. 

I  Action  on  the  case  for  deceit  in  the  sale  of  a  slave.  The  sale  was  at 
auction.  The  slave  was  unsound  at  the  time  of  the  sale  and  the  defend 
ant  knew  it.  The  defendant  insisted  that  the  plaintiff  could  not  recover 
on  these  facts,  but  must  show  that  defendant  made  false  representations 
or  resorted  to  .some  device  by  which  to  conceal  the  slave's  unsoundness. 
The  judge  ruled  otherwise  and  charged  that  the  plaintiff  could  recover 
ui)on  the  facts  above  stated.  Verdict  and  judgmcui  against  the  .ietend- 
ant,  and  he  a|)pealed.     Affirmed.] 

Pe.\rson.  C.  J.  Ill  tli<'  sale  of  ;i  cluitlcl.  Ilic  rule  (»f  tuir  law  i.s 
caveat  (Mii|)t(>r.  and  if  Ili<'  tliiii<r  bo  unsound,  to  ontitlo  the  pur- 
chaser to  juaintain  an  action,  lie  imi.st  prove  eitlicr  a  warranty  of 
sf)undn('s.s  or  a  dcecit. 

Tti  n-irard  to  a  deceit,  tin-  distinction  is:  Where  I  lie  iin.soundness 
is  i>(il<  III,  that  is.  sneli  as  may  be  diseovered  by  the  exercise  of  or 
dinary  dili«.'enec.    nun    sihnrr   on    the   part    of  the   vendor  is  not 
sufficient    to   r-stablish    the   deceit,    althoiitrh    he   knows   of   tlie   un- 


(>98  K'UillTS  t;K(>\\|\(i   Ol'l'   OF   CO\\'\i\{"\\  [('/(.    N. 

Miuiuliifss,  hitdiist  tli(  tliiiifi  siitdks  far  ilsilf.  aiid  il  is  llic  lolly 
of  tilt'  piiiclKisi  r  not  lo  aftriid  to  it.  So  tlint.  in  siu-li  ii  case  he 
will  not  l>c  licMid  to  say  he  was  dcciMvril,  unless  the  vendor  made 
il  falsi'  statciiient .  or  rcsoitt'd  to  some  artilice  in  oi'dcr  to  pi'event 
an  examination,  ov  to  hide  the  niisonndness,  so  as  to  make  the  ex- 
amination of  no  avail.  Where  the  unsoundness  is  lalciil,  that  is. 
sueh  as  t-onld  not  he  discoxcred  by  the  I'xereise  of  ordinary  dili- 
irence.  tiu  )(  .s-iU  ini .  on  the  pait  of  the  vendoi".  is  suflieient  to  es- 
tahlish  the  iK-eeit.  proviileil  hr  knows  of  the  unsoundness;  for,  as 
the  thinir  is  not  what  it  ai)pears  to  hi',  and  dili^enee  does  not  en- 
able thr  purchaser  to  diseover  its  unsoiuKlness.  he  is  deeeived  uti- 
less  the  fact  is  diselosi'd  ;  so  that,  in  sueh  a  ease,  without  what  thi- 
law  eonsiilers  laehes  on  the  i)art  of  the  ])urehaser.  the  dceeit  is 
aeeomplished  by  the  suj>j>r(ssi<)  vcri. 

The  tii*st  i)roposition.  that,  in  regard  to  a  patcnl  unsoundness, 
to  make  out  a  deeeit  tlu're  must  be  ])i'oof  of  the  sciritter.  and  a 
.sKcfgcslio  falsi,  is  eoneeded  on  all  hands.  The  .second,  that  in 
respect  to  a  la f nil  unsoundness,  proof  of  the  scienter  and  a 
suppressio  veri  will  be  sufficient,  we  eonsidei"  ecpially  well  set- 
tled, bv  the  reason  of  tlie  thintr.  and  bv  the  cases  in  our  court; 
Cobb  V.  Fogleman.  23  N.  C.  440;  Case  v."Edney,  20  N.  C.  93.  The 
former  was  for  deceit  in  the  sale  of  a  female  slave,  who  had  a 
latent  disease — cancer  in  the  womb,  but  at  the  time  of  the  sale 
was  a  stout,  vigorous  looking  woman.  The  defendant  was  silent 
in  respect  to  liei'  disease.  The  judge,  in  the  court  below,  in- 
structed the  jury,  that  to  entitle  the  plaintiff  to  recover,  he  must 
prove,  1st,  that  the  unsoimdness  existed  at  the  time  of  the  sale; 
2nd,  that  the  defendant  knew  of.  or  had  reason  to  believe  its  ex- 
i.stence;  3rd.  but  if  these  facts  were  proved,  if  the  plaintiff  also 
knew  of  the  unsoundness,  or  had  reason  to  believe  it,  he  could 
not  recover;  and  he  then  instructed  the  jury  that  there  was  no 
evidence  on  the  last  ])oint.  In  this  court  the  positions  of  law  were 
approved,  and.  indeed,  were  not  called  in  question,  being  taken 
by  tlie  profession  as  settled;  and  the  decision  was  put,  not  on 
whether  there  was  evidence  on  the  last  point,  but  on  whether  there 
was  evidence  of  the  scienter  on  the  part  of  the  defendant.  Tlie 
latter  w  as  for  a  deceit  in  the  sale  of  a  mare  at  auction  by  a  trus- 
tee. The  mare  had  a  latent  unsoundness,  although  on  the  day  of 
sale  she  appeared  to  be  Avell.  The  defendant,  Marvill  Edney,  the 
maker  of  the  trust,  was  "present  at  the  sale,  but  took  no  part  in  it, 
and  said  nothing,  one  way  or  the  other,  as  to  the  property." 
There  was  proof  that  he  knew  of  the  unsoundness.  The  evidence 
was  contradictory  as  to  the  scienter  on  the  part  of  the  other  de- 
fendant, the  trustee.  The  judge,  in  the  court  below,  held  "that 
as  the  legal  title  had  passed  out  of  the  defendant.  ]\larvill.  he  was 
not  accountable  as  an  owner  would  be.  who  procured  an  auction- 
eer to  crj-  his  property,  and  stood  by  in  silence."  As  to  the  other 
defendant,  the  court  "charged,  that  "although  he  acted  as  trustee 
in  making  the  sale.  yet.  like  all  other  persons  who  sold,  he  was 
bound  to  act  honestly,  and  to  disclose  defects  if  he  believed  them 


Sec.    7'.]  RIGHTS   GROWING   OIT   OF    CONTRACT.  ()!)!! 

to  exist.  It  Avas  then  left  to  the  .iury.  wliether  the  mare  was  un- 
soiincl.  and  whether  the  defendant  knew  it — if  so.  as  he  failed  to 
state  the  eircnmstances.  he  was  liable  in  damasres."  In  this  court, 
the  positions  of  law,  in  reference  to  the  deceit,  were  approved,  but 
it  was  held  that  the  defendant.  ]\Iannll  Edney.  although  the  legal 
title  passed  out  of  him.  was  liable  for  the  deceit.  In  the  conclu- 
sion of  the  opinion,  the  court  say:  "'It  will  not  be  understood  that 
we  think  the  mere  silence  of  a  debtor,  whose  property  is  sold  un- 
der execution,  would  amount  to  a  fraud ;  for  that  is  a  proceeding 
in  invitum ;  the  sale  is  exclusively  the  act  of  the  law." 

Nothing  could  show  more  conclusively  that  this  doctrine  was 
considered  as  settled,  both  bj'  our  courts  and  the  profession,  than 
the  manner  in  which  it  is  treated  in  these  two  cases ;  and  after  the 
elaborate  argument  of  JNlr.  Boy  den.  we  are  satisfied  that  it  is  sus- 
tained by  the  weight  of  authority.  The  class  of  ca.ses.  Mellish  v. 
Matteux.  Peake  X.  P.  115;  Baglehole  v.  Watters.  3  Camp.  154; 
Pinckering  v.  Dawson,  4  Taunt.  779,  etc..  where  the  property  was 
sold  "with  all  faults."  is  not  in  point.  Xor  the  class  of  cases, 
Laidlaw  v.  Organ.  2  Wheat.  178;  liench  v.  Sheldon.  14  Barb.  66. 
etc.,  where  extrinsic  circumstances,  affecting  the  price  of  the 
article,  exist,  but  in  regard  to  which  the  means  of  intelligence  axe 
equally  accessible  to  both  parties,  such  as  the  conclusion  of  peace 
in  1815.  between  England  and  the  United  States,  and  the  passages 
to  be  met  with  in  some  of  the  best  writers,  which  .seem  to  confiiet. 
are  all  to  be  attributed  to  the  fact  that  the  distinction  between  a 
l)atent  and  a  latent  unsoundness  in  a  thing,  was  not  kept  iu  view. 
These  ciuestions  of  law  present  no  difficulty,  and  from  the  manner 
in  which  the  statement  of  the  case  is  made  up.  upon  the  defend- 
ant's exception,  the  judgment  must  be  affirmed. 

The  defeufhint's  counsel  contended,  "that  admitting  that  the 
slave  was  unsound,  and  that  the  defendant  knew  it.  the  plaintiff 
(•ould  not  recover,  for  that,  in  order  to  charge  the  defendants,  he 
must  prove,  either  that  they  made  fraudulent  misrepresentations, 
or  resorted  to  some  device  by  which  to  conceal  the  unsoundness." 
and  prayed  the  court  so  to  in.struct  the  jury.  This  projiosition  is 
not  true  in  its  genei'ality.  If  the  unsoundness  was  i)atent,  it  is 
true.  If  the  un.soundness  was  latent,  it  is  not  true.  The  ease  does 
not  show  whether  it  was  patent  or  latent,  and  it  follows,  that  it 
wa.s  not  error  to  refuse  to  give  the  instruction  ])rayed  for.  In  othiM* 
words,  it  does  not  appear  from  the  defendants'  exceptions, 
whether  the  court  below  erred  or  not;  therefore,  there  is  no 
ground  upon  which  this  court  can  reverse  the  judgment.  Judg- 
ment affii'iiied. 

I-'or  action.s  of  Deceit  arising  out  of  sales  of  real  estate,  see  Fox  v. 
Haughton,  SO  N.  C.  at  p.  173;  Walsh  v.  Hall.  66  N.  C.  233;  Gatlin  v. 
Harrell.  108  N.  C.  48',,  13  S.  E.  190;  May  v.  Loomis.  140  N.  C.  3.^)0,  52 
S.  E.  728,  inserted  post  in  this  section;  ?^fheri(lKe  v.  Vernoy.  70  N.  C. 
713,  Inserted  at  ch.  3.  §  17.  In  several  of  these  cases  the  doctrine  of  moral 
turpi!  iide  is  roitr-rated.  It  is  immaterial  whcitier  the  fraud  consist  in  a 
suppresHio  veri  or  a  suReestio  falsi.  Lunn  v.  Sh(  rnier,  03  N.  C.  at  p.  160, 
inserted  post  in  this  section.  See  "Fraud,"  Century  Dlf?.  §  15;  Decennial 
and  Am.   Dip.  Key  Xo.  Series  §§  IT,   170. 


'{)[)  mcnTs  (;k(»\vin»;  oit  ok  coNrwACT.  \('li.  S. 


WKAVKK   V     WALLACl'].  ;>   N.  .1.    L.   L'.'.l.     1827. 
Damanf  Musi   br  AUvijiil  iiiiil  I'lovrd. 

IWallaro  suod  Wotuer  bot'orr  a  jiistite  of  the  poace  in  an  action  of 
Trespass  on  the  Case,  alleging:  'I'liat  he  imniiased  some  wood  from 
Weaver;  that  tlie  wood  was  standing  on  hind  which  Weaver  pretended 
to  own,  wliile  Weaver  kiictr  tluit  lie  liad  no  siuli  riglit;  tlial  Weaver 
■falsely  and  I'raiidulently  sold  tlie  wood  to  tlie  |)laintil"f  for  $t;.2,'')  then 
and  there  paid,  and  falsely  and  frau<iiilently  deceived  iilaintiff  to  his 
damage  $(iO.""  The  justice  gave  judgment  against  Weaver,  and  this  judg- 
ment was  aflirmed  in  the  court  of  common  pleas.  Weaver  then  carried 
the  case  to  the  supreme  court   liv  certiorari.     Reversed.] 

EwiNG.  ('.  J.  The  slalf  (if  (li'ituiiul  sets  t'drlli  no  l('i.;;il  caiiso  ol' 
action.  The  phiiiititV  docs  iidt  show  that  any  in.jtiiy  was  done  to 
him.  It  may  he.  foi-  atii^lil  ihat  appeai-s  in  the  state  of  demand, 
that  he  lias  turned  tlu'  wood  into  eoa!,  sold  it,  and  put  the  money 
in  his  pocket.  He  cannot  recover  merely  for  a  false  affirmation. 
On  a  warranty  of  title,  if  there  was  one,  the  purchaser  could  not 
immediately  turn  round  and  sue  the  vendor,  vor  uiifil  sonic  in  jura 
was  sxshiitK  (I.     Jud>iiiient  reversed. 

See  ■"Fraud,"  Century  Dig.  §  24;  Decennial  and  Am.  Dig.  Key  Xo. 
Series  §  25;  ■Sales,"  Century  Dig.  §  799;  Decennial  and  Am.  Dig.  Key  No. 
Series  §  283. 


LUNN  V.  SHERMER,  93  N.  C.  164.     1885. 

Measure  of  Damages  in  Deceit.  What  Constitutes  Actionable  Deceit. 
Latent  and  Patent  Defects.  Suppressio  Veri  and  Siiggestio  Falsi. 
Issues.     What  Constitutes  Actionable  Damage. 

[Action  for  deceit  in  the  sale  of  a  mule.  Verdict  and  judgment  against 
the  defendant,  and  he  appealed.    Affirmed. 

The  complaint  alleged:  That  the  plaintiff  was  induced  to  purchase  a 
mule  from  the  defendant  by  the  defendant's  false  and  fraudulent  rep- 
resentation that  the  "mule  was  sound  as  far  as  he  kneio :"  that  such  rep- 
resentation was  false,  in  that  the  mule  at  that  time  had  the  farcy  or 
some  other  incurable  disease;  and  that  the  defendant  well  knew  that  fact 
at  the  time  of  the  sale. 

The  defendant  answered  admitting  the  sale  and  representation  of 
soundness  of  the  mule,  but  denying  the  other  allegations.  The  following 
issues  were  submitted  to  the  jury:  "1.  Was  the  mule  sold  by  defendant 
to  plaintiff  unsound  at  the  time  of  the  sale?  2.  Did  the  defendant  repre- 
sent the  mule  to  be  sound  as  far  as  he  knew?  3.  Did  he  at  the  time 
know  or  have  good  reason  to  believe  that  the  said  mule  was  not  sound? 
4.  How  much  damage  is  plaintiff  entitled  to  receive  for  the  unsoundness 
of  said  mule?" 

The  plaintiff  testified  to  the  purchase  of  the  mule  and  that  he  paid  de- 
fendant $175  for  it;  that  he  had  exchanged  the  mule  with  his  father;  that 
he  did  not  warrant  the  mule's  soundness,  but  told  his  father  what  de- 
fendant had  represented  to  be  the  facts  as  to  its  soundness;  that  the 
disease  appeared  two  or  three  weeks  after  he  had  turned  the  mule  over 
to  his  father;  that  his  father  had  not  threatened  to  sue  him,  but  claimed 
damages  from  him  on  account  of  the  mule's  unsoundness. 

The  defendant  requested  the  judge  to  charge  that  the  plaintiff  could 
not  recover  damages,  because  his  testimoney  showed  that  he  had  sus- 
tained, none.  The  judge  refused  this  charge,  but  charged  that  the  meas- 
ure of  damages   was   the  difference  between   the   value  of  the   mule   if 


Sec.    7.]  RIGHTS   GROWING   OIT   OF   CONTRACT.  701 

sound  at  the  time  of  plaintiff's  purchase,  and  its  value  if  unsound  at  that 
time.  The  jury  responded  in  the  affirmative  to  the  first  three  issues,  and 
to  the  fourth  by  assessing  the  plaintiff's  damages  at  $175. 1 

ASHE.  J.  .  .  .  The  defendant  excepted  to  the  third  issue, 
and  offered  as  a  substitute  the  following,  to-wit:  "If  not  sound  at 
fhe  time  of  the  sale,  did  the  defendant  know  of  the  unsoundness, 
and  falsely  and  fraudulently  represent  him  to  be  sound,  with  the 
intent  to  induce  the  plaintiff  to  buy?"  We  think  there  was  no 
error  in  declining  to  submit  the  issue.  The  issues  submitted  to 
the  jury  were  such  as  were  legitimately  raised  by  the  pleadings, 
and  such  as  entitled- tlu'  })l;nntiff'  upon  a  finding  in  the  affirmative 
to  recover  such  damages  as  he  may  show  he  has  sustained. 

Fraud  or  deceit  in  the  sale  of  a  personal  article  may  be  perpe- 
trated either  by  false  representations  or  by  a  conceaTment  of  un- 
soundness in  the  article.  AVheu  the  action  is  brought  for  a  deceit 
by  false  representation,  three  circumstances  must  combine: 
1st.  that  the  representation  was  false:  2d.  that  the  party  making 
it  knew  it  was  false;  3rd.  that  it  was  the  false  representation 
which  induced  the  contracting  party  to  purchase.  Broome  Com. 
'MS.  But  when  there  are  no  representations  made  by  the  vendor. 
a  deceit  may  eriually  be  practiced  by  his  silence,  but  in  such  cases 
an  important  distinction  nmst  be  observed.  For  whetlier  a  cause 
(tf  acti(m  for  d(\"*eit  will  arise  from  mere  silence  and  a  knowledge 
of  the  defects  in  the  article  sold,  will  depend  upon  the  fact 
whether  the  defect  is  patent  or  latent.  In  Brown  v.  Gray.  51  N.  C. 
108.  the  distinction  is  thus  stated:  "AVhen  the  unsoundness  is 
patent,  that  is.  such  as  may  be  discovei'ed  by  the  exercise  of  ordi- 
nary 'liligence.  mere  silence  on  the  part  of  the  vendor  is  not  suf- 
ficient to  establi.sh  the  deceit,  although  he  knows  of  the  imsound- 
ness.  because  the  thing  speaks  for  itself,  and  it  is  the  folly  of  the 
j)urchaser  not  to  attend  to  it."  But  "when  the  unsoundness  is 
latent,  that  is.  such  as  cannot  be  discovered  by  the  exercise  of 
ordinai-y  dilifrence.  mere  silence  on  the  jiart  of  the  vendor  is  suf- 
ficient to  establish  the  deceit."  provided  he  knows  of  the  unsound- 
ness. 

In  this  case  it  is  not  stated  whether  the  disease  of  the  horse  is 
latent  oi-  i)atent.  l»ut  as  it  is  alleged  that  the  horse  had  "farcy," 
(ir  some  othei"  disea.se.  we  take  it  that  it  was  a  latent  disordei'.  as 
Ilier<'  was  no  proof  offered  on  the  i)ai'{  of  the  defendant  that  the 
unsoinidness  was  a  patent  defect  and  )\(\  eri-or  assigned  in  that 
particular,  lii'own  v.  Gi-ay.  snj.i-a.  I  i)on  this  authority,  the  find- 
ing of  the  .jury  on  the  first  and  thii'd  issues  would  have  been  suf- 
ficient to  show  th:'  deceit  and  entitle  the  plaintilV  to  a  judgment 
thereon;  for  the  liiifiinL'  on  them  esta!)lished  1li<'  facts  that  the 
nnde  was  unsound  at  the  time  of  the  sale  ;ind  that  the  defendant 
knew  it.  This  was  all  tli;it  the  plainlilT  was  re<|uired  to  establish 
by  his  proof.  AVhelher  there  was  a  fraudulent  intent  on  the  part 
of  llie  defendant  in  sup[)ressing  tin  fael  foutid  to  he  within  his 
knowledge  was  a  (|uestion  for  the  .jury,  to  he  inl'ei-rcd  froMi  the 
facts  and  ein  iiinslances  of  the  tratisact ion. 


'(•>_'  KI<;ilTS   CKOWIXC   OCT   Ol'   CONTUACT.  \  (' ll .    8. 

But  the  juiy  aU'i  foiiiid  in  (lu>  secoiul  issue.  lli;il  the  dei'eudaut 
n'proseutt'tl  the  mul-'  to  he  souiul  as  far  as  he  kneiv.  The  case  of 
Feivbiv  V.  (ionhui.  3j  N.  C.  HoO.  was  a  case  very  similar  in  its 
faets,  aiul  we  tliiiik  deeisive  of  this  ease.  There  was  evidence  in 
that  ease  teiidintr  to  show  the  imsoiuulness  of  the  neu:ro.  who  was 
the  suhjeet  of  tlie  action,  at  ihc  lime  ol'  the  sale,  and  ol'  llie  de- 
fendant's i<no\vle(i<re  of  the  I'aet.  and  it  showed  also  the  assertion 
of  liefendanl  that  the  He<ri"o  was  sovnid  so  far  as  he  knciv.  The 
eoiU't  held  that  if  the  statement  made  by  tlie  defendant  as  to  the 
.soundness  \v;is  I'.ilse  within  his  knowledge,  he  was  responsible  for 
if  as  a  fal.se  and  fraudulent  repivsentalion.  .  So  it  Is  immaterial 
ill  our  ease  whether  the  fraud  was  lu-aetiecd  by  a  sujipressio  veri 
or  suiisjfcstio  I'alsi.  he  is  e(|u.ill.\-  resixmsihle. 

The  only  oilier  <'xeei)tioii  lak(  ii  by  the  did'endant  was  to  the  re- 
fusal of  his  honor  to  in.struet  the  jury  that  the  plaint itT,  upon  his 
own  evidence,  had  sustained  no  loss  and  was  entitled  to  ho  dam- 
aires.  The  defendant  is  ])reeluded  by  his  answer  from  contending 
that  the  plainliH'  is  not  ilic  p.irty  in  interest.  Therefore  he  is  en- 
titled to  recover  such  damages  as  may  be  the  lejjal  consequence  of 
the  fraud  lu-aetieed  upon  him.  which,  as  his  honor  held,  was  the 
difference  between  the  value  of  the  mule  at  the  time  of  the  pur- 
chase, if  sound,  and  its  value,  if  diseased,  at  that  time,  and  it  can 
make  no  difference  what  disposition  the  purchaser  made  of  the 
mule  afterwards — whetliei*  lie  ])ractiepd  a  fraud  upon  some  one 
else  and  got  more  than  the  actual  value  of  the  mule,  or  gave  him 
away.  Thei-(»  are  some  eases  where  the  evidence  of  the  price  ob- 
tained by  the  vendor  has  been  admitted,  not  to  establish  the  value 
of  the  property,  but  as  a  fact  proper  to  be  laid  before  the  jury  to 
aid  them  in  assessing  the  damages.  It  is  a  fact  the  party  may 
prove,  but  it  may  or  may  not  assist  them  in  the  assessment  of  the 
damages.  Houston  v.  Starnes.  34  N.  C.  313.  There  is  no  error. 
Judgment  aftinned. 

See  3  L.  R.  A.  (X.  S.)  465,  and  uote  for  effect  of  resale  by  the  war- 
rantee. See  'Fraud,"  Century  Dig.  §§  15,  60-62;  Decennial  and  Am.  Dig. 
Key  No.  Series  §§  1.5-17,  59. 


MAY  V.  LOOMIS,  140  X.  C.  350,  52  S.  E.  728.     1905. 

Elements  of  thr  Action  of  Deceit.  Caveat  Emptor.  Vendor's  Choice  of 
Remedies.  Rescission,  when  Allowed.  Puffing  One's  Wares.  Coun- 
terclaim.    Measure  of  Damages. 

[Action  by  May  against  Looniis  and  Dobson  on  two  notes,  for  $750 
each,  given  in  December,  1892.  Defendants  pleaded  fraud  practiced 
upon  them  in  procuring  the  execution  of  the  notes,  and  also  set  up  such 
fraud  and  deceit,  and  the  damages  suffered  by  them  in  consequence 
thereof,  as  a  counterclaim.  There  was  evidence  introduced  by  tlie  de- 
fendants tending,  as  they  insisted,  to  support  this  counterclaim.  At  the 
close  of  the  evidence  the  judge  refused  to  submit  issues  covering  the 
counterclaim,  and  dismissed  the  counterclaim  as  on  a  judgment  of  non- 
suit.    Judgment  against  defendants,  and  they  ai)i)paled.     Reversed. 

The  answer  admitted  the  execution  of  the  notes  sued  on,  and  set  up  as 


Sec.    r.J  RIGHTS   GROWING    OUT   OF   CONTRACT.  703 

a  defense  aud  counterclaim,  that  the  notes  were  given  for  the  price  of  a 
saw  mill  plant  and  timber  lands;  that  false  and  fraudulent  rei)resenta- 
tions  were  made  by  plaintiff  and  his  partner  as  to  the  quantity  of  tim- 
ber en  the  lands;  that  plaintiff  stated  that  the  quantity  of  timber  which 
he  represented  to  be  on  the  land  was  arrived  at  by  careful  estimates; 
that  defendants  relied  upon  these  statements  and  they  were  a  material  in- 
ducement to  the  purchase;  that  the  statements  were  false,  plaintiffs  knew 
they  were  false,  and  made  them  fraudulently  with  intent  to  deceive  de- 
fendants; that  defendants  were  deceived  thereby,  and,  in  consequence 
thereof,  made  the  purchase  and  executed  several  notes  for  the  price; 
that  all  the  notes  had  been  paid  except  those  sued  on  in  this  action;  that 
the  timber  fell  short  of  the  quantity  represented  and  the  shortage 
amounted  to  $2,036.77. 

The  plaintiff'  replied  denying  all  fraud  and  deceit.  There  was  testi- 
raoney  tending  to  establish  the  allegations  of  the  answer.] 

Hoke.  J.  Accepting  the  testimony  favoring  defendants'  claim 
as  true,  and  we  are  required  so  to  accept  it  where  a  nonsuit  is 
directed  against  the  party  who  offers  it.  the  facts  disclose  a  clear 
case  of  deliberate  fraud  in  which  there  appears  every  element  of 
an  actionable  wrong — false  representations  as  to  material  facts 
knowingly  and  wilfully  made  as  an  inducement  to  the  contract, 
and  by  which  the  same  was  effected,  reasonably  relied  upon  by  the 
other  ])arty  and  causing  jjecuniary  damage.  It  is  well  established 
that  the  principle  applies  to  contracts  and  sales  of  both  real  and 
])ersonal  jiroperty.  The  authorities  are  decisive  and  are  against 
the  ruling  of  the  judge  below  as  to  defendants'  counterclaim. 
Walsh  V.  Hall.  ei()  N.  C.  233;  Houghtalling  v.  Knight.  85  N.  C. 
17;  T.unn  v.  Shermer.  93  N.  C.  164;  Ramsey  v.  Wallace.  100  N.  C. 
75.  6  ?;.  Iv  638;  Brotherton  v.  Reynolds.  164  Pa.  St.  134,  30  Atl. 
234. 

It  is  lu-gefl  that  Ihe  buyers  in  this  case  were  negligent  and  on 
that  aecouul  their  claim  for  relief  is  barred;  but  not  so.  The 
parties  were  not  at  arm's  length  in  reference  to  these  representa- 
tions and  did  not  have  equal  opportunities  of  informing  them- 
.selves.  The  only  one  of  the  defendants  who  had  any  experience 
in  such  matters  es.sayed  to  make  an  examination  of  the  propert.y, 
but  broke  down  from  weakness  incident  to  his  disease,  and  told 
the  plaintiffs  he  would  have  to  rely  on  their  statements.  Fur- 
ther, there  was  evidence  tending  to  show  artifice  used  to  induce 
the  buyers  to  forbear  uiaking  inquiry  about  the  matter.  In  14 
Am.  &"  Eng.  Euc.  (2d  ed.).  123.  we  fuid  it  stated:  "In  no  ca.se 
ean  a  jjerson  escape  responsibility  for  representations  on  the 
ground  thai  the  other  party  was  negligent  in  relying  on  them,  if, 
in  addition  to  making  the  repi-eseiilal  ions,  he  resorted  to  artifiee 
which  was  reasonably  calculated  1o  induce  the  other  party  to 
foreg(»  making,  inquirv."  Our  deci.sions  are  to  like  effect 
AValsh  V.  Hall,  supra;  flill  v.  Hrower.  76  X.  ('.  124;  lUacknall  v. 
Kowlaml.  ins  X.  C.  r,ry{.  13  S.  E.  101  -.  s.  e..  116  X.  C.  380.  21  S.  E. 
296. 

Again,  it  is  eontended  that  Ibese  i-epre.sentations  were  not  as 
to  faeis.  bnt  were  mailers  of  opinion,  and  we  ai'e  eiled  to  a  niun- 
ber  of  authorities  as  support intr  tlu'  plaintiff's  position  -  Eagan  v. 


704  KKIIl'l'S  CiUDWl.Ni;   Ol    I'   <»|-   CONI'lvAt"!'.  |('//.    cS\ 

Nfwsoiii.  IL'  N.  i".  -0;  S.iuihIcis  v.  llaitninnn.  24  N.  C.  32;  Lytic 
V.  Bin!.  K^  N.  C  222;  ('r.tllr  v.  Swiiidfll.  (i;{  N.  C.  30');  l^^thcr'ulKe 
V.  \'«Miio\.  70  N.  ('.  724.  Miul  soiiu'  otlu'is.  As  stalod  in  Cash  Ixi'g- 
ister  Co.  V.  'rowiisciul.  i:?7  N.  ('.  (ir)2.  ;')()  S.  K.  30(5:  "  Exprossions 
of  i'Oinnu'ndatioii  or  opinion  or  cxti-ava^'anl  statt'iiiciits  as  to  value 
or  prospirts,  or  llic  liki'.  arc  not  roj>ar(lt'il  as  rrauilulcnt  in  law;' 
but  tlu'so  n-prcscntalions  in  Ihc  i-asc  hcforc  us  were  not  of  that 
(.'haraotor ;  thrv  \\tr(>  not  \ucvc  niatliM-s  of  o|)inion,  t)ut  purported 
to  ho  statenu'iils  oi'  facts  and  wcic  so  nil(  ndcd  and  accc|)t('d  hy  tho 
parties. 

Kniiwiiif,^  tliat  the  only  one  of  the  defendants  wliose  oxperienec 
i|ualilied  him  to  make  an  examination  of  the  pi-ojxM-ty  with  any 
intelliirence.  was  physically  unable  to  do  so.  tlic  plaintiffs  assured 
the  defendants  that  they  had  caused  the  timber  on  the  land  to 
be  carefully  estimated,  and  such  estimate  showed  that  there  won- 
3.()00.(Htd  feet  of  lumlwood  timl)er  on  the  tract;  whereas,  in  fact 
and  truth,  the  knowledp:e  furnished  to  the  jdaintiffs  by  those  es- 
timates showed  only  1.000.000  feet  on  the  same.  Even  where 
there  is  do\d)t  on  the  (luestion.  the  matter  nnist  be  referred  to  the 
jury  to  determiiu'  whether  representations,  thoufih  expressed  in 
the  form  of  an  opinion,  were  given  and  reasona])ly  relied  on  a.s 
material  facts  inducing  the  trade.  And  the  authorities  cited  do 
not  support  the  plaint itt's  on  the  facts  of  the  ca.se  Ix^fore  us.      .      .      . 

The  only  cases  which  give  support  to  the  plaintiffs'  position  are 
those  of  Lytle  v.  Bird  and  Credle  v.  Swindell  supra,  in  both  of 
which  it  was  expressly  held  that  an  action  for  deceit  would  lie  in 
no  case,  on  the  sale  of  land,  for  fraudulent  representation  as  to  the 
(luantity  sold  or  what  pai-ticular  land  was  included  in  the  deed; 
and  this  on  the  ground  that  the  parties  should  inform  themselves 
by  a  survey.  These  two  cases  are  contrary  to  the  trend  of  modern 
decisions;  were  expressly  disapproved  as  to  the  point  for  Avhich 
they  are  now  cited,  in  tlie  case  of  Walsh  v.  Hall,  supra,  and  have 
since  been  ignored  as  authority. 

Where  a  sale  has  been  effected  by  an  actionable  fraud,  the  pur- 
chaser has  an  election  of  remedies.  ITe  may  ordinarily,  at  leas! 
at  the  outset,  rescind  the  trade,  in  which  case  he  can  recover  the 
I>urchase  price  or  any  portion  of  it  he  may  have  paid,  or  avail 
himself  of  the  facts  as  a  defense  in  bar  of  recovery  of  the  pur- 
chase price  or  any  part  of  it  which  remains  unpaid,  or  he  may 
hold  the  other  party  to  the  contract  and  sue  him  to  recover  the 
damages  he  has  sustained  in  consequence  of  the  fraud. 

In  order  to  rescind,  howevier.  the  party  injured  nuist  act 
promptly  and  Mnthin  a  reasonable  time  after  the  discovery  of  the 
fraud,  or  after  he  should  have  discovered  it  by  due  diligence ;  and 
he  is  not  allowed  to  rescind  in  part  and  affirm  in  part;  he  must 
do  one  or  the  other.  And.  as  a  general  rule,  a  party  is  not  allowed 
to  rescind  where  he  is  not  in  a  position  to  put  the  other  in  statu 
<pio  by  restoring  the  consideration  pa.ssed.  Furthermore,  if.  after 
discovering  the  fraud,  the  injured  party  voluntarily  does  some 
act  in  recognition  of  the  contract,  his  power  to  rescind  is  then  at 


Sec.    7.]  RIGHTS   GROWING   OUT   OF    CONTRACT.  705 

an  end.  These  principles  will  be  found  in  accord  with  the  authori- 
ties. Bishop  on  Cont.  §§  679.  688;  Beach  on  Cont.  §  812;  Page  on 
Cont.  J;i;  137.  131);  Clark  cu  Cont.  pp.  236.  23*  ;  Trust  Co.  v.  Au- 
ten.  68  Ark.  299,  57  S.  W.  936;  Parker  v.  Marquis,  64  Mo.  38. 

Applying  these  principles  to  the  facts  before  us.  the  defendants 
could  not  now  rescind  the  trade  and  ]ilead  the  fraud  in  bar  of 
recovery  on  the  notes.  They  have  made  payments  in  recognition 
of  the  contract ;  they  have  manufactured  and  sold  the  timber,  and 
are  not  in  a  position  to  restore  the  consideration.  They  contracted 
to  manufacture  and  sell  the  timber  on  the  land,  according  to  the 
evidence,  not  long  after  the  trade,  and  their  explanation  seems 
satisfactory.  They  had  put  out  large  sums  of  money  on  the  enter- 
prise; and'  the  witness  Loomis  states  that  he  complained  of  the 
fraud  before  the  note  was  due.  but  went  on  and  cut  the  timber  as 
the  best  and  only  thing  to  do  to  save  themselves.  The  fact,  how- 
ever, that  they  are  not  now  in  a  position  to  rescind  the  trade  and 
plead  the  fraud  in  bar  of  recovery  on  the  notes,  does  not  prevent 
them  from  setting  up  the  fraud  by  way  of  counterclaim  and  re- 
covering for  the  damages  sutfered.  This  may  be  done,  though  the 
defendants  have  made  payments  in  recognition  of  the  contract, 
and  may  have  continued  to  manufacture  and  sell  the  lumber  after 
knowledge  of  the  fraud.  Trust  Co.  v.  Auten  and  Parker  v.  Mar- 
(|uis.  su])ra. 

The  damages  usually  are  the  difference  between  the  value  of  the 
{)roperty  sold  as  it  was  and  as  it  would  have  been  if  it  had  come 
up  to  the  representation.  The  sale  having  been  ratified,  the 
plaintiffs  can  maintain  an  action  on  the  notes,  subject  to  any 
counterclaim  the  defendants  may  have  against  the  plaintiff,  to  be 
determined  uudei-  the  law  as  here  declared  and  on  the  facts  as 
they  may  be  established.  There  is  error.  The  judgment  will  be 
set  aside  and  a  new  trial  awarded. 

See  8  L.  R.  A.  (X.  S.)  804,  and  note  (measure  of  damages  in  deceit  in 
sale  of  realty);  10  lb.  640,  and  note  (when  action  for  deceit  lies  for  fail- 
ure to  fulfill  a  promise).  See  "Fraud,"  Century  Dig.  §§  12,  19-2:V.  De- 
cennial and  Am.  Dig.  Key  No.  Series  §§11,  22;  "Sales,"  Century  Dig. 
§§  6.^-85,  296-301,  973-986;  Decennial  and  Am.  Dig.  Key  Xo.  Series  §§  42, 
121,  348. 


SETZAR  V.  WILSON,  26  N.  C.  501,  513.     1844. 
Deceit  for  Fraud  Practiced  by  Vendee  on  Vendor. 

\\i  the  course  (if  a  long  opinion  disc,us.sing  the  rights  and  reme- 
dies of  one  who  lias  been  indui-ed  to  sell  his  i)ropei-ty  1o  another 
by  the  ]>)(rrlia.s(-r\s  representarmns  as  Id  valm-.  M  is  said  liy  KuF- 
Ki.v.  (',  .1.:  "  .\  vendor  is  liable  in  an  action  oT  deceit  foi'  false 
re|.resent;ili<ins.  as  1<i  llie  title  <»i-  ijualities  of  a  chattel  sold  by  him. 
lint  no  iiclion  for  a  elie;it  lias  evei-  hecn  nuiintained  by  a  seller 
against  I  lie  |iiircli;iser.  for  the  misrepresentations  ol'  the  latter 
upon  thfise  points.  The  l;iw  docs  not  give  an  action  against  the 
vendor  for  liis  False  iifliniKilion  :k  to  the  value  of  tlic  Ihiug  sold. 
RenicdiPH — 4.'). 


TOl)  KlciiTs  (;u'i)\viN(i  oi  r  ok  ('onikac'I'.  \('li.  S. 

S.-imuK'is  \.  I  l.illci  iii;iii,  L'l  N.  ('.  :>"J.  Mucli  less  will  an  action  lie 
against  a  |>nrrlia.sfr  I'oi-  sndi  an  allirnial  i(Ui.  (U-  l)n\  inji;  at  an  nnder 
\ahu'.  In  tlh'  nature  of  tliinj^s,  tlio  owner  of  a  eliattel  is  supposed 
to  l)e  the  l)t"st  .iu(lu:e  of  its  value,  or  to  ho  most  capable  of  ascer- 
taining it. '" 

In  Smith  v.  Heatty,  ;{7  N.  C.  at  p.  •ir)S.  it  is  said  l\v  Daniel,  J.:  "A  ven- 
dee wlio  Ivnows  tluil  tliere  is  a  gold  mine  on  the  land  I  he  is  seeking  to 
pnrchasel  is  not  iom|)elled  to  disclose  that  faet  to  the  vendor.  But  if  he 
Is  uitcnogntrd  as  to  his  huovlrdpr  of  surh  a  (hinp:  and  he  then  denies 
any  knowledge  of  the  mine,  the  denial  will  make  the  transaction  fraudu- 
lent." This  was  said  in  a  case  in  equty.  See  "Saies,"  Century  Dig. 
§§  sr.  100;    Decennial  and  Am.  Dig.  Key  No.  Series  §  43. 


JOYXER  V.  EARLY,  139  N.  C.  49,  51  S.  E.  778.     1905. 

Deceit  Practiced  by   Vendee  on   Ve7Ulor.     Vendor's  Choiee  of  Remedies. 

Recovery  of  the  Specific  Chattel.     Damages. 

(Action  to  recover  i)ossession  of  a  mule.  .Judgment  against  defendant, 
and  he  appealed.  Affirmed.  The  facts  appear  in  the  beginning  of  the 
opinion.] 

l^ROwx.  J.  The  plaintiff  sued  out  claim  and  delivery  proceed- 
incrs  for  tlu^  nnile.  and  filed  the  ordinary  eoiiiplaint,  allefjing  sim- 
ply ownerslii])  upon  the  part  of  the  plaintiff  and  wrongful  deten- 
tion by  the  defi^ndant.  On  the  trial  the  plaintiff  offered  evidence 
tendins:  to  prove  that  the  defendant  obtained  possession  of  the 
mule  in  a  trade  with  the  plaintiff  by  false,  fraudulent,  and  deceit- 
ful representations.  At  the  conclusion  of  the  ])laintiff 's  evidence 
the  defendant  moved  to  nonsuit.  The  court  denied  the  motion 
and  permitted  the  plaintiff  to  amend  his  complaint  by  setting  out 
the  allegations  of  fraud,  misrepresentation,  and  deceit,  npon  the 
payment  of  costs,  "and  the  trial  proceeded  without  objection  by 
the  defendant."  Tn  his  brief  the  defendant  reviews  the  iniling 
of  the  court.  Waiving  the  fact  that  the  defendant  did  not  except 
to  the  allowance  of  the  amendment,  we  sustain  the  ruling  of  the 
judge  below.  It  was  in  no  sense  the  introduction  of  a  new  cause 
of  action,  nor  is  it  ])rohibited  in  Ely  v.  Early,  04  N.  C.  1.  The 
mule  was  the  property  in  controversy.  The  amended  complaint 
simply  set  out  in  full  the  allegations  of  fraud  and  deceit. 

Tnder  the  facts  testified  to  by  the  plaintiff  he  had  the  right  to 
sue  for  damages  for  the  alleged  false  warranty,  or  repudiate  the 
trade  and  sue  to  recover  the  specific  property.  This  is  well  set- 
tlerl.  Des  Farges  v.  T'uch.  93  N.  C.  31.  53  Am.  Rep.  446;  Wilson 
v.  White,  SO  X.  C.  2S0;  Wallace  v.  Cohen,  111  N.  C.  103,  15  S.  E. 
802;  Bishop  on  Contracts.  ?  667;  Berijamin  on  Sales.  §  656.  and 
note;  Donaldson  v.  Farwell,  03  TT.  S.  631,  23  L.  Ed.  903;  Blake  v. 
Blackley.  109  N.  C.  262.  13  S.  E.  786.  26  Am.  St.  Rep.  566.  The 
allowance  of  this  amenrlment  was  a  matter  in  the  sound  discre- 
tion of  the  court,  and  not  reviewable. 


Sec.    8.]  RIGHTS  GROWING   OUT   OF   CONTRACT.  707 

If  vendor  sue  lor  the  price,  is  he  thereby  estopped  to  sue  for  the  fraud 
and  deceit?  See  Sewing  Mach.  Co.  v.  Owings,  140  N.  C.  503,  53  S.  E.  345, 
8  L.  R.  A.  (N.  S.)  582,  and  note.  See  "Sales,"  Century  Dig.  §§  890-895; 
Decennial  and  Am.  Dig.  Key  No.  Series  §  316. 


Sec.  8.  Conspiracy. 

KIMBALL  V.  HARMAN  and  BURCH,  34  Md.  407,  6  Am.  Rep.  340.     1871. 

Remedy  for  Conspircuy  to    Injure.     Necessary    Allegations    and    Proof. 

Conspiring  Without  Actiyig. 

[Action  on  the  Case  by  Harman  and  Burch  for  an  alleged  conspiracy  to 
injure.  There  were  three  defendants,  Kimball,  Hanson  and  Phillips. 
Verdict  and  judgment  against  Kimball  alone,  and  he  appealed.  Re- 
versed. 

The  declaration  alleged  that  Kimball  et  als.  combined  and  conspired 
together  to  prevent  the  plaintiffs'  receiving  some  bedsteads  which  Kim- 
ball had  sold  to  them;  and  that  the  plaintiffs  were  thereby  subjected  to 
great  trouble,  delay,  and  vexatious  litigation.  The  defendants  pleaded 
not  guilty.  The  proof  was,  that  the  bedsteads  had  been  purchased  by 
plaintiffs,  and  had  been  shipped  to  them,  but  were  not  delivered  because 
of  acts  of  the  defendants;  and  that  plaintiffs  had  thereupon  brought  re- 
plevin for  the  bedsteads.  There  was  no  proof  of  any  particular  damage 
that  had  been  done  to  plaintiff's,  nor  of  any  injury  to  their  business. 
There  were  several  prayers  for  instructions  refused.] 

Alvey.  J.  Before  considering  any  of  the  questions  raised  by 
the  exceptions,  it  may  be  proper  that  we  state  briefly  the  general 
prineii)lo.s  that  goveni  cases  of  this  character,  as  by  so  doing  we 
may  tlie  more  readily  determine  whether  there  be  any  sufficient 
ground  disclosed  in  the  record  to  sustain  the  plaintiff's  right  to 
recover  a.s  against  the  appellee. 

There  is  no  doubt  of  the  right  of  a  plaintiff  to  maintain  an  ac- 
tion on  the  case  against  several  foi*  conspiring  to  do.  and  actually 
doing,  soiiK^  unlawful  act  to  his  damage.  But  it  is  equally  well 
established  Ihal  no  sudi  action  can  be  maintained  unless  the 
}dnintiff  can  .'ihon-  that  he  has,  in  fact,  hecn  aggrieved,  or  has 
siislainrd  actual  legal  damage  hy  some  oveH  act,  done  in  pursu- 
ance atid  execution  of  the  conspiracy.  Cartrique  v.  Behrcns.  30 
Law  J.  Q.  i>.  108.  Tt  is  not.  therefore,  for  simply  conspiring  to  do 
the  ui'.lawful  act  lliat  the  action  lies.  Tt  is  for  doing  the  act  itself, 
and  th(-  resulting  actual  damage  to  the  plaint  iff  that  aflf'ord  the 
groinid  of  the  action.  Indeed,  tlie  allegation  of  con.s[>iracy  by  the 
defendants  would  seem  to  be  itmiiaterial  as  to  the  right  of  action. 
"A  simple  consjiiracy."  says  Nelsfm.  Cliief  Justice,  in  TTulchins 
v.  Ilulcliins.  7  Hill  (S.Y.).  1(>7.  "however  atrocious,  nnless  it  vo- 
suited  in  actual  damatre  to  tlie  party,  nevei*  was  the  subject  of  a 
civil  action,  not  even  wlien  the  old  foi-iii  of  a  writ  of  conspiracy, 
in  its  limited  and  most  technical  character,  wa.s  in  use.  Then,  in- 
det'd,  the  allegation  of  conspiracy  was  inatcrial  and  substantive, 
because,  unless  eslabli.slx'd  by  tlie  ])roof.  the  pl.-iinliCf  f.iiled,  as  it 
wa«  essential  that  the  vej-diel  should  be  ;i<;ains1  two  at  least  in 
order  to  lie  nplieM  "'     Tin    ;ictioii  like  the  present,  therefore,  may 


7(.l>  RK^UTS  (5RinVIX(^   (ITT   OK   roNlincT.  [('It.    ^'. 

l>i'  hrouijhl  iitraiiist  (Uic  (Ict'cinlnnt.  i>r.  il'  hiMULrlit  njiniiist  soveral, 
oiu'  iiKiy  he  t'Diivictftl  :iii(l  llic  Dtlit'l's  ;i('(|iiitt('(l.  liul  \\iuM'i>  the 
ju'tiiHi  is  hrouirlit  iiiriiinst  si'ViTjil.  as  haviiijj;  combimHl  to  do  tlie  un- 
lawful act.  it  is  lu'ci'ssai'v.  ol'  cDUfsc.  in  oi'(1(M'  to  itcov(M'  aijainst 
tluMM  all.  to  i-rovi"  that  tlicv  were  all  cu^ancd  in  \hv  conspii'aey. 
The  riMMuliilion  or  irist  of  I  lie  action,  howi^vcr.  is  the  ;iclual  dain- 
ajro  sustained  i>y  I  he  plaint  ilV.  Sonic  I'ijjlit  ol"  liis  must  ho  violated, 
and  llamas:!'  nnist  i-csnlt  thtM-cTrom  as  the  direct  and  proximate 
cousv'(|ucuce,  otherwise  the  action  caiuiot  be  sustained.  This  has 
been  repeatedly  decided.  In  S.iville  v  Koborts,  1  Ld.  Raym.  374. 
Lord  Holt,  in  answer  to  the  su^f^estion  at  tlie  bar,  that  the  fact  of 
the  conspiracy  was  sullicient  to  maintain  the  action,  said.  "Hint 
conspinu n  is  iiol  llu  (iroiind  ttf  IIk s<  (ulions,  but  the  damage  done 
to  the  part)!,  for  an  action  will  not  lie  for  the  greatest  conspiracy 
iniasjinablc.  if  nothinir  be  put  in  execution;  but  if  the  party  be 
damaiTcd.  the  action  will  lie.  From  whence  it  follows."  continued 
his  lorilship,  '"that  the  damage  is  the  ground  of  the  action,  which 
is  as  great  in  the  present  case  as  if  there  liad  been  a  conspiracy. 
And  F.  X.  H..  114  D.,  says,  that  wliere  two  cause  a  man  to  be  in- 
dicted. iF  it  be  fidse  and  malicious,  he  shall  have  conspiracy; 
whei'i'  one.  he  shall  have  case,  so  that  the  actions  are  founded  upon 
one  cominon  foundation ;  but  the  number  of  parties  defendants 
determines  it  to  the  one  or  to  the  other.  Though  in  the  old  books, 
such  actions  are  called  conspiracies,  yet  they  are  nothing  in  fact 
but  actions  on  the  case.  For  consi)iraey  (to  speak  properly)  lies 
only  I'oi-  ]>rocuring  a  man  to  be  indicted  of  treason  or  felony. 
where  life  was  in  danger  F.  N.  B.  116  A.  And  if  such  an  action 
be  sued  against  two  defendants  for  ])rocuring  a  man  to  be  indicted 
of  a  smaller  olfense.  though  the  word  conspiraverunt  be  in  the 
wi'it.  yet.  if  one  of  them  be  acquitted,  the  other  may  be  found 
guilty.  11  Hen.  YII.  25.  Contra,  of  a  proper  action  of  con- 
spiracy; for  there,  if  the  one  be  acquitted,  no  judgment  can  be 
given  against  the  other." 

It  is  clear,  therefore,  as  well  upon  the  authority  of  other  cases 
as  that  of  Saville  v.  Roberts,  that  an  ad  vJiicli,  if  done  hy  one 
alonf,  ronsiilntps  no  (/round  of  action  on  the  case,  cannot  he  made 
the  ground  of  sucJi  action  hy  alleging  it  to  have  been  done  hy  and 
througti  a  conspiracrj  of  several.  The  quality  of  the  act,  and  the 
nature  of  the  injui'y  inflicted  by  it.  must  determine  the  question 
whethei*  tln'  action  v>iU  lie.  TTutchins  v.  Ilutchins,  7  TTill.  104; 
Wellington  V.  Small.  8  Cush.  145;  Adlcr  v.  Fenton,  24  IIow.  407; 
Cottercll  V.  Jones.  11  Com.  Bench.  713;  73  p]ng.  Com.  Law  Rep. 
713  [^•  Cyc.  646.  note  901 .  The  fact  of  cons])iracy  is  matter  of 
aggravation,  and,  as  we  have  before  .stated,  it  onl.^  becomes  neces- 
sary. n\  order  to  entitle  the  idaintiff  to  recover  in  one  action 
against  several,  thai  the  fact  of  the  combination  or  conspiracy 
should  Ite  proved. 

Now.  with  these  general  princijdes  in  view,  h^t  us  turn  to  the 
prayers  that  were  offered  by  the  defendants  and  rejected  by  the 
court  below,  and  ascertained  whether  there  was  error  in  their  re- 


Sec.    8.]  EIGHTS  GROWING   OUT   OP   CONTRACT.  709 

jection.  The  third  and  sixth  would  seem  to  be  tiie  most  material. 
By  the  third  prayer,  the  court  was  requested  to  instruct  the  jury 
that,  even  if  there  had  been  an  unlawful  combination  among  the 
defendants  to  injure  the  plaintiffs,  there  icas  no  evidence  tlmt 
any  damage  ivas  done,  and  they  were  not,  therefore,  entitled  to 
recover.  As  we  have  seen,  the  gist  of  the  action  is  not  the  con- 
spiracy, but  the  actual  damage  done  to  the  plaintiffs;  and  this 
prayer  must  be  taken  as  referring  to  such  damage  as  was  properly 
recoverable  in  this  form  of  action.  The  combination  or  conspiracy 
among  the  defendants  to  damage  the  plaintiffs  was  negatived  by 
the  verdict  of  the  jury  in  acquitting  two  of  the  defendants,  Han- 
.son  and  Phillips ;  and  whether  the  other  defendant,  the  appellant, 
should  not  also  have  been  acquitted,  depends  upon  the  nature  of 
the  act  proved  and  the  consequent  damage  to  the  plaintiffs. 

The  only  evidence  in  the  case  upon  which  the  plaintiffs  could 
pretend   to   rely   for   recovery   as   against   the   present   appellant 
alone,  was  the  well  established  fact  that  the  bedsteads,  Avhich  had 
been  purchased  by  the  plaintiffs  and  shipped  to  them  in  Balti- 
more, were  withheld  from  them  by  the  direction  of  and  through 
the  instrumentalities  employed  by  the  appellant,  when,  as  it  sub- 
sequently appeared,  they  were  entitled  to  receive  them.     They 
resorted* to  replevin  and  recovered  them;  but  it  is  very  manifest 
from  all  the  evidence  in  the  cause,  both  on  the  part  of  the  plain- 
tiff's and  defendants,  that  the  replevin  was  more  the  result  of  the 
election  of  the  parties  than  the  necessity  of  the  case.     Be  that, 
however,  as  it  may,  it  is  very  clear,  that  no  matter  how  flagrant 
may  have  been  the  intention  of  the  appellant  to  violate  his  con- 
tract with  tlie  plaintiffs,  or.  however  nuich  he  may  in  fact  have 
violated  it.  this  action  Avas  not  the  remedy  for  such  wrong.    If  the 
property  had  been  so  far  delivered  to  the  ])hiintiifs  as  to  vest  ni 
them  the  riglit  of  possession,  then,  for  any  unauthorized  obstruc- 
tion of  or  interference  with  that  right,  such  as  is  complained  of 
in  this  ca.se,  the  actions  of  trespass  or  trover  were  the  appropriate 
remedies  for  the  recovery  of  damages.    But  an  action  on  the  ca,se, 
in  which  consequential  damages  only  are  recoveral)le,  is  not  the 
proper  remedv,  and  especially  not  in  the  face  of  the  testimony  of 
one  of  the  phiintiffs  themselves,  that  "he  could  not  say  anything 
about  any  particular  damage,"  and  did  not  know  of  any  instance 
in   which   their  l)nsiness  had  been  hurt.     Finding,  therefore,  no 
sufficient  evidence  in  the  record  of  damage  to  the  plaintiffs  that 
could  be  recovered  in  this  action,  we  think  the  court  ])elow  was  in 
error  in  ref\ising  the  third  prayer. 

liy  tlu'  sixth  prayei-.  the  court  was  requested  to  instruct  the 
jury  that  the  plaintiffs  were  not  entitled,  luider  tlie  pleadings  in 
the  cause,  to  recover  any  damage  against  the  appellant  for  breach 
of  anv  contract  of  sale  I'o  the  plaintilTs;  which  prayer  was  refused. 
;ind.  in  which  refusnl.  we  lliink  tlie  court  wa.s  clenrly  in  error. 
The  action  is  not  foinided  u[)oii  breaeli  of  contniet.  and  the  jury 
shoiihl  n(»t  have  been  allowed  to  take  any  sucli  (juestion  into  con- 
sideration      II    appears  by  the  hill   of  exceptions  thiit    the  i)l:nn- 


71U  KUJI1TS5  lIKOWINc;   «»l  •!"   OF   rONTK.VCT.  \  (' ll .    >. 

tills'  couiisi'l  v'diu'i'dcd  lilt'  cornTl  iicss  nl  lln-  praviT.  but  ;i.s  llic 
I'ourt  rt'.ji'otrd  it.  it  was  williluld  Iroiii  tlio  jury,  and,  eonse- 
qiu'iillx.  the  apiu'lhml  dci  ivtnl  wo  Ix-iiotit  from  the  concession. 
It  was  cU^arly  his  riiilit  lo  liavc  tlic  iiisl ruction  jj^i'aiiied  by  the 
court,  bcin.ij;.  as  \vc  thiiii<.  siu-li  as  ousj^ht  lo  have  been  granted. 

Tlie  judfTUicnt  of  the  court  below  will,  therefore,  be  reversed; 
but.  in  (iider  that  Ihi'  jdainlilVs  may  have  an  opportunity  of  pro- 
(hieiuii  other  proof,  or  to  make  application  for  leave  to  amend  in 
such  i-cspcel  as  tlu\v  may  be  advised,  we  shall  remand  the  cause 
for  a  new  trial.  JUit,  of  course,  any  further  proceedings  that  may 
be  had  in  the  present  case  can  only  be  taken  against  the  appellant, 
as  the  othei'  two  original  defendants  stand  acquitted  and  dis- 
eharged.    Judgment  reversed. 

■It  is  frequently  criniiiial  for  many  to  coiubino  to  effect  even  a  lawful 
end.  It  is  doing  a  lawful  thing  by  unlawful  means.  But  that  offense  is 
to  the  public.  A  private  person  cannot  complain  of  the  conspiracy  as 
such  :  but  only  when  it  operates  to  his  injury — that  is  to  say,  when  as  to 
him  the  object  of  the  conspiracy  is  unlawful.  There  must  be  a  fraudu- 
lent combination."  Eason  v.  Petway,  IS  N.  C.  at  p.  47.  For  further  au- 
thorities on  the  subject  of  Conspiracy  as  a  cause  of  a  civil  action,  see 
Mcintosh  Cont.  390,  407,  and  note;  8  Cyc.  645  et  seq.  2  L.  R.  A.  (N.  S.) 
292,  789,  824,  4  lb.  302,  5  lb.  899,  6  lb.  1067,  9  lb.  904,  12  lb.  642,  16  lb. 
85,  17  lb.  162,  18  lb.  707,  22  lb.  607,  and  notes  (conspiracies  by  unions, 
strikes,  boycotts,  blacklisting,  etc.);  3  lb.  470,  and  note  (to  alienate  af- 
fections of  spouse);  4  lb.  1119,  and  note  (to  blacklist  a  servant).  See 
"Conspiracy,"  Century  Dig.  §§  1-5;  Decennial  and  Am.  Dig.  Key  No. 
Series  §§  1-6. 


Sec.  9.     Injunction  Against  Breach  of  Contract. 

HARRIS   V.   THEUS,   149  Ala.   133,  43   So.   131,  10   L.   R.   A.    (N.   S. ) 

204.     1907. 

Contracts  in  Restraint  of  Trade. 

Statement  of  facts  by  Dexson,  J. :  This  was  a  bill  filed  by  Theus 
against  Harris  and  Avife  for  an  injunction  to  restrain  the  said 
Harris  from  engaging  in  or  carrying  on  the  business  of  buying 
crude  gum  and  distilling  turpentine  within  ten  miles  of  the  town 
of  Geneva.  The  bill  is  based  on  a  contract  Avherein  Theus  pur- 
chased of  Harris  certain  leases  of  pine  land  for  turpentine  pur- 
poses, and  erected  a  distillery  for  the  manufacture  of  turpentine, 
and  a  covenant  in  said  contract  that  said  Harris  would  not  engage 
in  the  naval  stores  business  within  ten  miles  of  the  town  of 
Geneva,  so  long  as  Theus  should  be  engaged  in  said  business  at 
Geneva.  The  allegations  of  the  bill  and  of  the  answer,  together 
with  the  pleadings  in  the  cause,  are  sufficiently  set  out  in  the  bill 
of  exceptions.  The  chancellor  declined  to  dismiss  the  bill  for 
want  of  equity,  overi-uling  the  demurrer  thereto,  and.  on  a  final 
hearincr.  decreed  that  complainant  was  entitled  to  the  relief  prayed 
for.     From  this  decree,  respondents  appealed. 

Denson,  J.  It  may  be  conceded  as  being  the  general  rule  in  all 
the  states,  as  well  as  in  England,  that  contracts  in  general  re- 


Sec.    9.]  RIGHTS   GROWING   OUT   OF   CONTRACT.  711 

straint  of  trade  are  void  as  against  public  policj'.  24  Am.  &  Eng. 
Ene.  Law  (2d  ed.),  842;  3  lb.  882;  9  Cyc.  525;  2  Pom.  Eq.  Jur. 
§  984;  .MeCurry  v.  Gibson,  108  Ala.  451,  54  Am.  St.  Rep.  177,  18 
So.  8(Xi;  Brewer  v.  Marshall.  19  N.  J.  Eq.  537.  97  Am.  Dec.  679; 
.^litehcll  V.  Reynolds.  1  P.  Wm.s.  181;  Trenton  Potteries  Co.  v. 
01iphant_.  58  N.  J.  Eq.  507,  46  L.  R.  A.  255,  78  Am.  St.  Rep.  612, 
43  At).  (23.  "In  detennining  what  is  the  public  policy  in  this 
regard,  we  have,  however,  to  take  into  account  certain  contracts 
whieii  restrain  trade.  It  is  of  public  interest  that  every  one  may 
freely  acquire  and  sell  and  transfer  property  and  property  rights. 
A  tradesman,  for  example,  who  has  engaged  in  a  manufacturing 
business,  and  has  purchased  land,  installed  a  plant,  and  acquired 
a  trade  connection  and  good  will  thereby,  may  sell  his  property 
and  business,  with  its  good  will.  It  is  of  public  interest  that  he 
shall  be  able  to  make  such  a  sale  at  a  fair  price,  and  that  his  pur- 
chaser shall  be  able  to  obtain  by  his  purchase  that  which  he  de- 
sired to  buy.  Obviously,  the  only  i)ractical  mode  of  accomplish- 
ing that  purpose  is  by  the  vendor's  contracting  for  some  restraint 
upon  his  acts,  preventing  him  from  engaging  in  the  same  busi- 
nes.s  in  competition  with  that  which  he  has  sold.  His  contract  to 
abstain  from  engaging  in  such  competitive  business  is  a  contract 
in  restraint  of  trade,  but  one  which  .  .  .  has  been  recognized 
as  not  inimical  to.  but  permitted  by.  public  policy.  Therefore, 
while  the  public  interest  may  be  that  trade  in  general  shall  not  be 
restrained,  yet  it  also  permits  and  favors  a  restraint  of  trade  in 
certain  ca.ses.  Contracts  of  this  soi-t.  which  have  been  sustained 
and  enforced  by  courts,  have  been  generally  declared  to  be  such 
as  restrain  ti-adc  iiol  generally,  but  only  partially,  and  no  more 
extensively  than  is  rea.sonably  re<iuired  to  protect  the  purchaser 
in  the  use  and  enjoyment  of  the  business  purchased,  and  are  not 
otherwise  injurious  to  the  public."  This  is  the  doctrine  recog- 
nized in  the  courts  of  many  of  the  states,  including  our  own 
court.  fCyc.  529.  and  ca.ses  cited  in  note  70;  24  Am.  &  Eng.  Enc. 
Law  (2d  ed.),  850;  McCurrv  v.  Gibson,  supra;  Tuscaloosa  Ice 
Mfg.  Co.  v.  Williams.  127  Ala.  110.  .50  h.  R.  A.  175.  85  Am.  St. 
Rep.  125.  28  So.  669;  Trenton  Potteries  Co.  v.  Oliphant,  supra. 
It  appears  .     that  the  covenant  is  that  the  cove- 

nantor shall  not  enter  into  nor  engage  in  the  turpentine  business 
at  any  point  williin  Icn  miles  of  the  town  of  Geneva  so  long  as  the 
covenan1<'e  shall  ((jx-rate  a  Inipentiiie  still  at  Geneva.  The  bill 
avers  that,  "soon  after  taking  possession  of  the  property  pur- 
cha.sed  from  Harris.  comy)lainant  erected,  at  consid'Crable  ex- 
pense, a  turpentine  distillery  near  Geneva;  said  town  being  the 
shifiping  point  of  c(tnq)lainant."  The  contention  of  Tlarj-is.  the 
covenantor,  is.  that  this  avei-ment  does  not  show  that  conqdainant 
is  ojierating  a  still  "at"  Geneva — that  operating  tlie  still  "near" 
Geneva  does  not  show  thr  opei-.-ition  of  it  "at"  Geneva — and. 
therefore,  tliat  no  breach  of  the  covenant  is  shown  by  tlie  bill. 
.  .  .  The  proof  shows  that  complainant's  distillery  is  located 
about  a  mile  fcoin  the  eonnty  court-house  in  Geneva,  and  about 
half   a    mile   outside   f)f  the   eor])orate   limits   of   the   town;   tliat 


71  J  UUi UTS  GROWING  OUT  OF  CONTRACT.  [CIl.    S. 

Ooueva  is  the  slii|>|)iiii;  point  for  all  tlio  products  of  his  euior- 
priso.  Const niiuy:  the  word  "at"  in  the  light  of  the  cireuni- 
stances  shown  by  the  evidence,  and  on  the  consi(Un-ations  hereto- 
fore adverted  to  m  respei-t  to  tiiis  (piestion  and  the  authorities 
cited,  we  are  o(  the  opinion  that  this  insistence  is  not  well  made. 
^Ve  coiu'ur  with  the  chancellor  that  the  complainant  has  nuide  a 
ease  eutitlini?  him  to  the  relief  prayed  for,  and  the  decree  must 
be  attirmed. 

See  note  to  the  principal  case  in  10  L.  R.  A.  (N.  S.)  204;  Mcintosh  ou 
C'ont.  3Sl-:^87;  r>  Pom.  Eq.  .lur.  §  '2\):\.  That  s|)orific  performance  of  a 
contract  of  service  between  master  and  servant  will  not  be  decreed,  see 
In  re  Mary  Clark,  1  Blackf.  122,  inserted  at  ch.  6,  §  3,  (c).  See  further, 
as  to  what  contracts  are  and  are  not  void  for  being  in  restraint  of  trade, 
and  for  when  injunctive  relief  will  be  afforded  in  such  cases,  Ty  L.  R.  A. 
(N.  S.)  136.  G  lb.  847.  892,  9  lb.  44C..  ftOl,  14  lb.  t)(i:>,  1!)  lb.  762,  769,  and 
notes.  See  Key  No.  Series  Vol.  2,  "Contracts."  §§  62,  117,  202;  "Injunc- 
tion." §§  61,  114. 


PHILA.  BALL  CLUB  v.  LA.IOIE,  202  Pa.  210,  51  Atl.  973,  58  L.  R.  A.  227. 

1902. 

Enforcement  of  Negative  Covenants. 

Potter.  J.  The  defendant  in  this  case  contracted  to  serve  the 
]daintiff  as  a  baseball  player  for  a  stipulated  time.  During  that 
period  he  was  not  to  play  for  any  other  club.  He  violated  his 
agreement,  however,  during  the  term  of  his  engagement,  and,  in 
disregard  of  his  contract,  arranged  to  play  for  another  and  a 
rival  organization.  The  plaintiff,  by  means  of  this  bill,  sought 
to  restrain  him  during  the  period  covered  by  the  contract.  The 
court  below  refused  an  injunction,  holding  that,  to  warrant  the 
interference  prayed  for.  "the  defendant's  service  must  be  unif|U(\ 
extraordinary,  and  of  such  a  character  as  to  render  it  impossible 
to  replace  him;  so  that  his  breach  of  contract  would  result  in  irre- 
parable loss  to  the  plaintiff."  In  the  view  of  the  court  below  the 
defendant's  qualifications  did  not  measure  up  to  this  high  stand- 
ard.    .     .     . 

The  learned  .iudge  who  filed  the  opinion  in  the  court  below, 
with  great  industry'  and  painstaking  care,  collected  and  reviewed 
the  English  and  American  decisions  bearing  upon  the  question  in- 
volved, and  makes  apparent  the  wide  divergence  of  opinion  which 
has  prevailed.  We  think,  however,  that,  in  refusing  relief  unless 
the  defendant's  .services  were  shown  to  be  of  such  a  character  as  to 
render  it  impossihle  to  replace  him.  he  has  taken  extreme  ground. 
It  seems  to  us  that  a  more  just  and  equitable  rule  is  laid  down  in 
Pom.  Spec.  Perf.  p.  31.  where  the  principle  is  thus  declared: 
"Where  one  person  agrees  to  render  personal  services  to  another, 
which  require  and  presuppose  a  special  Icnowledge,  skill,  and 
ab-ility  in  the  employe,  so  that  in  case  of  a  default  the  same 
service  could  not  be  easily  obtained  from  others,  although  the 
aflfirmative  specific  performance   of  the  contract   is  beyond  the 


iStC.    9.]  RIGHTS   GROWING   OUT   OF   CONTRACT.  713 

power  of  the  court,  its  perfonnanee  will  be  ncgafivehj  enforced 
by  enjoining  its  breach.     .     .     .     The  damages  for  breach  of  such 
contract  cannot  be  estimated  with  any  certainty,   and  the  em- 
ployer cannot,  by  means  of  any  damages,  purchase  the  same  serv- 
ice in  the  labor  market."    We  have  not  found  any  case  going  to 
the  length  of  requiring,  as  a  condition  of  relief,  proof  of  the  im- 
possibifitij  of  obtaining  equivalent  service.    It  is  true  that  the  in- 
iury  must  be  irreparable :  but.  as  observed  by  "Slv.  Justice  Lowrie 
in  Com.  V.  Pittsburgh  &  C.  K.  Co..  24  Pa.  160.  62  Am.  Dec.  372: 
'•The  argument  that  there  is  no  'irreparable  damage'  would  not 
be  so  often  used  by  wrongdoers  if  they  would  take  the  trouble  to 
observe  that  the  word  'irreparable'  is  a  very  unhapjuly  chosen 
one.  used  in  expressing  the  rule  that  an  injunction  may  issue  to 
prevent  wrongs  of  a  repeated  and  continuing  character,  or  which 
occasion  damages  which  are  estimated  only  by  conjecture,  and 
not  by  any  accurate  standard."      We   are  therefore   within   the 
term  whenever  it  is  shown  that   no  certain  pecuniary  standard 
exists  for  the  measurement  of  th.-  damages.     This  principle  is 
applied  in  Vail  v.  Osburn.  174  Pa.  580,  34  Atl.  315.    That  case  is 
authority  for  the  i)roposition  that  a  court  of  equity  will  act  where 
nothing  Van  answer  the  justice  of  the  case  but  the  performance  of 
the  contract  in  specie,  and  this  even  where  the  subject  of  the  con- 
tract is  what,  under  ordinary  circumstances,  would  be  only  an 
article  of  merchandise.    In  such  a  case,  when,  owing  to  the  special 
features,  the  contract  involves  peculiar  convenience  or  advantage, 
or  where  the  loss  would  be  a  matter  of  uncertainty,  then  the  breach 
may  be  deemed  to  cause  irreparable  injury.     .     .     . 

We  feel  therefore,  that  the  evidence  in  this  case  justifies  the 
conclusion  that  the  services  of  the  defendant  are  of  such  a  unique 
character,  and  disi)lay  such  a  special  knowledge,  skill,  and  ability, 
as  renders  them  of  i>e('uliar  value  to  the  plaintiff,  and  so  difficult 
of  substitution  that  their  loss  will  produce  "irreparable  injury." 
in  the  legal  sigiiifieance  of  thai  term,  to  the  plaintitf.  The  action 
of  the  defendant  in  violating  his  contract  is  a  bivaeh  of  good  faith, 
for  which  there  woiild  be  no  adequate  redress  at  law.  and  the  case, 
therefore,  properly  calls  for  the  aid  of  equity  in  negatively  en- 
forcing the  performance  of  the  contract  by  enjoining  against  its 
breach.     .     .     .     Decree  reversed. 

For  other  rases  on  enforcing  negative  covenants,  see  6  L.  R.  A.  G't?,, 
7  lb.  3S1.  r,  lb.  (N.  S.)  IIIT),  23  Tb.  (N.  S.)  nnc.  and  notes;  see  INIcIntosh 
Cent.  381-386.  and  note,  for  North  Carolina  cases  and  other  authorities 
on  contracts  in  restraint  of  trade;  for  a  full  presentation  of  the  sul)ject, 
see  Part  I-VT,  Ames'  Cases  in  Kq.  .Tur.  89-122;  see  also  22  Cvc.  856.  For 
a  contract  bv  a  shareholder,  who  sells  his  sfocU,  that  he  will  not  compete 
with  the  corporation,  see  23  L.  R.  A.  fX.  S.t  r.nfi.  and  note.  See  "In 
junction."  10  Decennial  Dig.  §§  14.  60. 


714  KiuiiTs  (;ko\\in(;  oi  r  ok  cuntkact.  \('Ii.  f^. 


Sec.  ]().    "l^REACii  ov  Promise." 

SHOUT   V.  srOTTS.  58   Ind.   JK.     1877. 
Brtavh   uf  Promise  oj  ManUuif. 

IMaipait't  Stotts  sued  Short  for  damages  for  a  breach  of  contrait  to 
marry  her.  Verdict  and  jiidpment  against  Short,  who  carried  the  case 
to  the  supreme  court  by  writ  ol  error.     Adii  incd. 

The  comphiim  was  as  follows:  •"I'he  plaintiff,  Margaret  Stotts.  for  her 
amended  complaint  herein,  complains  of  the  defendant,  Samuel  W. 
Short,  and  says,  that  on  the  1st  day  of  .July,  1869,  she  was,  and  still  is, 
unmarried:  that  on  said  day  the  defendant,  in  consideration  of  a  prom 
ise  liy  plaintilT  tliat  she  would  marry  him.  undertook  and  agreed  lo 
marry  tlie  plaintiff  within  a  reasonal)le  time  thereafter,  upon  request: 
that  the  plaintiff,  conlidinf;  in  said  promise,  has  always  since  remained, 
and  is  now,  ready  and  willing  to  marry  the  defendant;  hut  she  avers 
that  the  defendant,  althougli  often  by  her  since  thereunto  requested,  and 
especially  so  requested  on  ov  about  the  Idtb  day  of  Maich.  187(t.  has 
theretofore,  then,  and  ever  since  refused,  and  still  refuses,  to  marry  the 
plaintiff;  and,  further,  that  on  the  l.'tth  day  of  September,  1871,  at  the 
county  of  Monroe  and  state  of  Indiana,  the  defendant,  in  violation  of  his 
promise  to  her  as  aforesaid,  married  one  Jennie  Ratterton;  and  the 
plaintiff  avers  tliat.  by  reason  of  the  refusal  and  faihiie  to  marry  her  as 
defendant  had  promised  and  agreed  to  do,  she  became  sick  and  greatly 
aiHicted  in  lx)dy  and  mind,  and  so  remained  sick  and  distressed  from 
that  time  to  the  present:  and  for  all  the  matters  herein  complained  of 
she  says,  she  has  been  damaged  in  the  full  sum  of  five  thousand  dollars, 
for  which  she  demands  judgment,  and  for  all  other  i)roi)er  relief." 

It  wa^  insisted  "that  the  complaint  was  not  good,  because  there  was  no 
law  in  Indiana  which  authorized  an  action  to  recover  damages  for  the 
breach  of  a  contract  to  marry."] 

WoRPEX.   J.  .     .     The  counsel   for  t)ic  appellant,   in   their 

brief,  which  shows  much  indtistry  and  research,  claim  that,  prior 
to  the  year  1607.  the  cDiili-aet  for  niarriajie  was  one  exelnsively 
of  ecclesiastical,  and  not  of  common  law.  jurisdiction  ;  and  that, 
prior  to  that  time,  no  action  had  hoon  maintained  in  a  commnn 
law  court  for  the  breach  of  such  contract.  AVe  are  referred  by 
counsel  to  the  case  between  Stretcher  and  Parker.  1  Rol.  Abr.  22. 
as  the  fir.st  case  in  which  such  action  was  maintained  in  England, 
and  this  was  in  1639.  AVc  have  not  found  any  ca.se  of  an  earlier 
date.  The  case  of  Holcroft  v.  Dickenson.  Carter.  233,  decided  in 
25  Car.  2.  is  an  important  one.  and  shows,  as  it  seems  to  us,  that  it 
was  always  regarded  as  a  principle  of  the  common  law.  that  an 
action  would  lie  for  damafres  in  such  a  case. 

In  Anglo-Saxon  times,  there  was  no  distinction  between  the  lay 
and  ecclesia.stical  jurisdiction ;  the  county  court  was  as  much  a 
spiritual  as  a  temporal  tribunal;  the  rights  of  the  church  were  as- 
certained and  asserted  at  the  same  time,  and  by  tlie  same  judges, 
as  the  rights  of  the  laity.  Tt  was  not  until  after  the  Norman  con- 
quest, that  the  common-law  and  the  ecclesiastical  courts  w^ere  sep- 
arated, and  the  latter  invested  with  sole  jurisdiction  over  eccle- 
siastical causes.  3  Chitty's  Blk.  61-63.  T'ntil  the  pontificate  of 
Pope  Alexander  III.,  which  commenced,  we  b(;lieve.  in  1159,  mar- 
riage, it  .seems,  was  not  a  subject  of  ecclesiastical  jurisdiction. 


Sec.    10.]  RIGHTS   GROWING   OIT   OF    CONTRACT.  715 

Xow.  tlie  case  of  Ploleroft  v.  Dickenson,  snpra.  establishes  that, 
by  the  principles  of  the  common  law  which  existed  long  anterior 
to  1607.  an  action  for  the  breach  of  contract  for  marriage  will  lie. 
Indeed,  the  principle  which  upholds  such  action  is  as  old  as  the 
})rincii)le  whidi  gives  damages  in  any  case  for  the  breach  of  a 
conti-act.  And  it  is  immaterial  whether  any  case  can  be  found  in 
England  prior  to  1607  in  which  such  action  has  been  maintained. 
The  principle  is  what  we  have  adopted  as  a  part  of  the  common 
law.  The  doubt  which  seems  to  have  arisen  in  the  early  cases  was, 
not  whether,  on  the  principles  of  the  common  law,  the  action 
would  lie,  l)ut  whether,  as  the  ecclesiastical  courts  had  connusanee 
of  matrimonial  matters,  such  action  could  be  maintained  in  a 
common-law  court.  Thus,  Yaughan,  Chief  Justice,  in  the  case 
above  cited,  thought  it  could  not,  because  if  there  was  any  impedi- 
ment to  the  marriage,  it  could  not  be  shown  in  the  common  law 
court.  J^ut  the  establishment  of  separate  ecclesiastical  courts  in 
England  was  no  i)art  of  the  common  law.  William  I.,  says  Black- 
stone,  "was  at  length  prevailed  upcm  to  establish  this  fatal  en- 
croachment, and  separate  the  ecclesiastical  court  from  the  civil." 
3  151k.  62.  Xor  were  any  statutes  of  England,  on  the  subject  of 
such  separate  ecclesiastical  courts,  statutes  in  aid  of  the  com- 
mon law,  but  rather  in  derogaticm  of  it ;  and  they  Avere  local  to 
that  kingdom,  and  never  in  force  here.  The  whole  system  of  Eng- 
lish ecclesiastical  courts,  as  separate  from  the  civil,  is  foreign  to 
our  institutions,  and  has  no  place  in  our  juri.sprudence.  There  is 
here,  therefore,  no  conflict  ol"  jurisdiction  between  the  courts  of 
the  one  class  and  the  otliei'.  Here,  all  wrongs  are  redressed  and 
remedies  furnished  in  the  ci\  il  iribunals.  And  there  is  no  reason 
why  an  action  may  not  be  maintained  for  the  breach  of  a  contract 
of  marriage,  in  our  courts,  according  to  the  principles  of  the 
common    law.  Judgment    affirmed. 

See  Bouv.  Law  Diet.  "Promise  of  Marriage,"  4  Am.  &  Eng.  Enc.  L.  882 
et  seq.;  5  C.vc.  1001  et  seq.:  10  L.  R.  A.  584,  and  note;  47  lb.  385;  4  L.  R. 
A.  (N.  S.»  eifi.  and  note  (damages);  7  lb  582,  and  note,  86  N.  C.  91,  (ill 
health  as  a  defense);  9  L.  R.  A.  (N.  S.)  1020,  and  note.  86  N.  C.  91 
(abatement  of  action);  19  L.  R.  A.  (N.  S.)  656,  and  note  (release  of,  as  a 
consideration  for  a  i)romise  to  snpport);  14  lb.  at  p.  748  (character  of 
female  plaintiff  as  a  defense).  See  Mordecai's  L.  L.  265-275,  176,  n57.  See 
Vol.  3  Cent.  Dig..  "Appeal  and  Error."  S  2933;  Vol.  8.  "Breach  of  Mar 
riage  Promise,"  8§  1,  36;  Vol.  10,  "Common  Law,"  §  10;  Vol.  13,  "Courts." 
§  162;   Vol.  23.  "Frauds,  Statute  of."  §  3;    Vol.  39,  "Pleading,"  S  1401. 


71G  Ki: mi; I) IKS  in  .xpixiai,  casks.  [Ch.  !>. 


('\\\VT\<]\{   IX. 
RKiMEUIKS   IN  SPECIAL  CASES. 


Sec.  1.     IJii.i.s  FOR  Advice  to  a  Fiduciary. 

TAYLOE  V.  BOND.   4.".  .\.  C.   5.   14-17.     1852. 

The  Jurisdiction  for  Advising  Fidticiaries  and  the  Limits  of  Such  Juris. 

diction. 

[Bill  in  Equity  filed  by  the  executors  appointed  l)y  a  will,  against  the 
legatees  and  devisees,  to  obtain  the  advice,  direction  and  opinion  of  the 
court  in  construing  the  will.  Twelve  questions  were  jjropounded  to  the 
court.  The  cause  was  transferred  to  the  supreme  court  and  heard  upon 
bill  and  answer.  Only  so  much  of  the  opinion  as  discusses  the  remedy, 
is  here  inserted.! 

Pearson.  J.  The  bill  is  filed  by  the  executors  of  Lewis  Bond, 
against  the  legatees.  It  sets  out  the  will,  and  prays  for  a  construc- 
tion in  reference  to  several  matters  specified,  and  submits  to  dis 
pose  of  the  fund  under  the  direction  of  the  court.  It  also  prays 
for  the  advice  and  opinion  of  the  court  in  reference  to  sevei'al 
other  matters. 

The  (questions  of  construction,  although  furnishing  proper 
groiuids  for  the  application,  are  not  very  difficult  of  solution  : 
and  the  case  would  have  been  disposed  of  at  last  term,  but  for  the 
.several  matters  in  reference  to  which,  the  opinion  and  advice  of 
the  court  (as  distinguished  from  its  direction),  is  asked.  The 
subject  was  thus  made  complicated,  and  an  advisari  was  taken, 
for  the  purpose  of  ascertaining  the  full  scope  and  object  of  the 
bill  and  of  clefining  the  jurisdiction  of  a  court  of  equity  in  regard 
to  such  matters. 

Besides  asking  for  a  construction  of  the  several  parts  of  the 
will,  which  is  necessary  for  the  present  action  of  the  court,  a  con- 
struction is  asked  for  on  various  other  parts,  in  reference  to  the 
past  conduct  of  the  executors,  and  to  their  future  rights,  and  the 
future  rights  of  the  legatees — the  bill  proceeding  on  the  assump- 
tion, that  an  executor  has  a  right  to  ask  for  the  opinion  and  ad- 
vice of  the  court,  as  to  any  matter,  past,  present  or  future,  pro- 
vided it  has  grown,  does  or  may  grow,  out  of  the  construction  of 
the  will,  npon  the  general  idea,  that  a  court  of  equity  has  a  sweep- 
ing jurisdiction  in  reference  to  the  construction  of  mills.  This 
idea  is  an  erroneous  one.  The  jurisdiction  in  matters  of  C07i- 
struction,  is  limited  to  such  as  are  necessarii  for  the  present  action 
of  the  court,  and  upon  which  it  maif  enter  a  decree,  or  direction  in 


Sec.    1]  REMEDIES  JX  SPECLVL   CASES.  717 

the  nnture  of  a  decree.  The  court  cannot,  for  instance,  entertain 
a  bill  for  the  construction  of  a  devise.  Devisees  chiini  by  pur- 
chase under  the  devise,  as  a  conveyance  Their  rights  are  purely 
legal,  and  must  be  adjudicated  by  the  courts  of  law.  A  court  of 
equity  can  only  take  jurisdiction  when  trusts  are  involved,  or 
when  devises  and  legacies  are  so  blended,  and  dependent  on  each 
other,  as  to  make  it  necessary  to  construe  the  whole,  in  order  to 
ascertain  the  legacies:  in  which  case,  flie  court  having  a  jurisdic- 
tiun  in  regard  to  the  legacies,  takes  jurisdiction  over  all  other 
jnatters  necessary  for  its  exercise. 

The  power  of  a  court  of  equity  to  decree  the  payment  of  lega- 
cies is  a  well  settled  and  ancient  jurisdiction,  assumed  on  the 
ground  that  the  ecclesia.stical  court  cannot  take  the  accounts  usu- 
ally involved,  or  enforce  its  decree.  The  power  to  entertain  bills 
of  intei-plcader  is  also  a  well  settled  and  ancient  jurisdiction,  as- 
sumed in  cases  of  conflicting  trusts,  on  the  ground  that,  as  the 
court  has  exclusive  control  of  trustees,  it  is  right  to  allow  them, 
where  there  are  conflicting  claims,  to  bring  in  the  fund,  have  the 
claims  adjusted,  and  the  fund  disposed  of  under  its  decree,  so  as 
to  save  the  trustees  from  responsibility  and  future  litigation ;  and 
assumed,  in  eases  of  conflicting  legal  claims,  for  the  protection  of 
any  person,  of  whom  several  claim  the  thing,  debt,  or  duty  (pro- 
vided he  has  incurred  no  independent  liability  to  either,  and  has 
no  interest),  on  the  broad  ground  of  protecting  a  mere  stake- 
holder, and  because  this  principle,  although  always  recognized  at 
common  law.  is  excluded  from  practical  application  in  the  courts 
of  law,  by  their  technical  forms  of  pleading. 

From  these  two  powers  is  clearly  derived  jurisdiction  to  enter- 
tain a  bill,  at  the  instance  of  executors,  for  the  purpose  of  con- 
struing will.s.  fixing  the  legacies,  and  having  tliriii  paid  under  the 
direction  of  the  court.  Tliis  jurisdiction  has  been  long  exercised. 
and,  in  fact,  is  nothing  more  than  an  extension  of  the  doctrine  of 
interpleader  to  the  ca.se  of  executors  and  legatees,  under  the  power 
of  the  court  to  decree  payment  of  legacies — treating  the  executor 
as  a  trustee  or  stake-holder  of  a  fund  over  which  the  court  has 
control.  The  jurisdiction  is  extended  even  further,  and  in  cases 
of  difificult  and  complicated  accounts,  a  court  of  equity  will  have 
the  accounts  taken,  the  debts  ascertained,  and  the  assets,  legal  as 
w(!ll  as  equitable,  paid  over  to  the  ci-editors  under  its  direction — 
in  the.se  cases,  the  ingredient  of  account  fa  very  extensive  head  of 
equity  jurisdiction),  being  also  involved. 

We  can  see  no  ground  \\])<n\  wliich  to  base  a  j\irisdiction.  in 
nllotr  executors  io  a.<ik  the  ojtinitni  of  the  court  as  to  the  futuro 
rights  of  a  legatee: — for  instance.  "Who  will  be  entitled,  when  a 
lif(>  ('State  expires?" — "When  projierty  is  given  to  one  for  life. 
Avitli  a  limitation  over,  does  tlie  first  taker  have  the  entire  interest 
by  the  rule  in  Sbelly's  case?" — or.  "What  would  be  the  con.se- 
(rnence  of  a  snpj)osed  slate  of  facts  that  may  hereafter  arise?" 
Tine,  these  ;ire  matters  of  construction,  but  the  fpiestions  cannot 


(I>  UK  MED  IKS    IN    SIMXIAL   CASKS.  [(,'/*,    i). 

now  be  prisentcd,  so  as  to  be  scithd  bti  a  decree.  A  (Ifcliii-ntion 
of  opinion  would  lu'  iiuTi'ly  in  tlu*  Jihstnu't.  until  exist injr  rij^hts 
coino  in  I'ontlit't,  so  as  to  <riv('  tlir  court  a  sul)j(M't  to  ncf  on. 

Ajrain.  \V(>  »'an  st>(>  no  ui'ound  lor  Wxe  jurisdiction  to  -iivc  an 
opinion  to  cxiMMitoiN  as  to  whrtlici'  their  past  conduef  icas  right, 
if  they  elu^e  to  act.  It  is  then  too  late  to  ask  the  opinion  of  the 
court,  liccausc  the  court  can  IIkmi  make  no  decree  in  the  premises. 
Such  a  jurisdictiDii  is  direct  l\'  exciudi'(-l  by  the  doctrine  of  inti'r- 
l)leader.  It  is  well  settled,  if  the  stake-holder  pays  oxcv  the  I'und 
to  one  of  the  j)arties.  he  eomes  too  late;  for  he  is  not  then  able  to 
put  the  fund  in  the  power  of  the  court,  so  that  it  can  l)e  disposed 
of  under  its  direction.  A^ain,  we  can  s(H'  no  gi'ound  for  the  juris- 
diction to  give  advice  to  an  executor  in  rcirard  to  his  future  con- 
<luct  or  his  futun  ri(ihts.  lie  nnist  get  such  advice  fi-om  a  lawyer; 
hut  he  can  oid_\  '^ct  the  advice  (more  properly,  the  dii'cction)  of 
the  court,  when  its  itns(nl  action  is  invoked  in  regard  to  some- 
thing to  be  done  undi'r  a  decree. 

These  conclusions  are  almost  self-evident,  and  ai-e  necessary 
consequents  of  the  fact,  fliat  tlie  court  can  only  act  bif  its  decree, 
which  must  b(  tnadi  on  an  (xisting  state  of  facts,  so  as  to  be  the 
action  of  the  court,  as  distinguished  from  an  abstract  opinion. 
It  is  therefore  unnecessary  to  ]Mirsue  the  discussion  fiu'ther,  es- 
pecially as  no  authofity,  dictum,  or  intimation  to  the  contrary  was 
cited.  It  was  i-onsidcred  propci*  to  announce  them,  and  to  trace 
the  limits  of  the  jui-isdiction  of  the  court,  in  order  to  prevent  the 
present  hill  from  being  drawn  into  precedent.  wherel)y  bills  may 
become  lumecessarily  complicated,  by  the  introduction  of  matters 
foreign  to  the  jurisdicticm. 

The  principal  case  is  ai)provecl  in  Heptinstall  v.  Newsome,  146  N.  C. 
503,  60  S.  E.  416.  For  a  good  form  of  a  bill  lor  advice,  see  Clark  v.  At- 
kins, 90  N.  C.  629.  See  28  Am.  &  Eng.  Enc.  L.  (2d  ed.)  p.  10.50,  c;  Hay- 
wood V.  Trust  Co.,  149  N.  C.  208,  62  S.  E.  915.  See  "Wills,"  Century  Dig. 
§§  1665-1669;   Decennial  and  Am.  Dig.  Key  No.  Series  §  695. 


LITTLE  V.  THORNE,   93   N.  C.  69.     1885. 

Limits  of  the  .J urisdiction  in  Bills  for  Advice.    Devises  Construed  in  Such 
Cases.  M'hen.     Parties.     What  Questions  Answered. 

[Action  by  those  claiming  as  legatees  and  devisees  under  the  will  of 
Gray  Lodge,  against  other  legatees  and  devisees  under  his  will,  for  a 
construction  of  certain  trusts  and  devises  in  such  will.  Cause  heard 
upon  a  "case  agreed."  The  court  was  asked  to  decide:  1.  Whether  under 
the  will  the  widow  of  testator  took  in  fee,  or  for  life  only,  the  realty  de- 
vised to  her;  2.  Whether  she  took  absolutelv,  or  for  life  only,  the  per- 
sonalty bequeathed  to  her.  The  judge  below  gave  judgment  settling 
these  points,  and  the  i»lain1iffs  api)ealed.  Both  the  action  and  the  appeal 
dismissed. 1 

Ashe.  .T.  The  action  seems  to  be  p?-(>dicated  upon  the  general 
idea  that  a  couit  of  eiuiit.v  has  a  sweeping  iurisdiction  in  ref(M-enee 
to  the  construction  of  wills.  Avhich  Chief  Justice  Pearson  said,  in 


Sec.    1]  REMEDIES  IN  SPECI.VL   CASES.  719 

the  ease  of  Tayloe  v.  Boud.  45  X.  C.  5.  was  an  erroueous  idea.  In 
that  ease,  the  learned  judge,  in  liis  well  considered  opinion,  has 
given  a  verj-  clear  exposition  of  the  jurisdiction  of  a  court  of 
equity  in  the  construction  of  wills,  and  from  it  we  deduce  the  fol- 
lowing rule  as  established:  That  the  jurisdiction  in  matters  of 
construction  is  limited  to  such  as  are  necessary  for  the  ]iresent  ac- 
tion of  the  court,  and  upon  which  it  may  enter  a  decree  or  direc- 
tion in  the  nature  of  a  decree.  It  will  never  give  an  abstract  opin- 
ion upon  the  construction  of  a  will,  nor  give  advice,  except  when 
its  present  action  is  involved  in  respect  to  something  to  be  done 
under  its  decree.  That  it  will  not  entertain  an  action  for  the  con- 
struction of  a  devise,  for  the  rights  of  devisees  are  i)urely  legal, 
and  nuist  be  adjudged  by  the  courts  of  law.  The  only  exception  to 
this  is  where  a  case  is  properly  in  a  court  of  e(|nity,  under  some 
of  the  known  and  accustomed  heads  of  jui'isdiction.  and  a  ques- 
tion of  construction  incidentaUy  arises,  the  court  will  determine 
it.  it  being  necessary  to  do  so  in  order  fo  decide  ihe  cause — as  for 
instance,  in  actions  for  partition,  or  for  the  recovery  of  legacies 
where  devises  and  legacies  are  so  blended  and  dependent  on  each 
other,  as  to  make  it  necessary  to  construe  the  whole,  in  order  to 
ascertain  the  legacies;  because  the  court  having  jurisdiction  over 
legacies  nuist  take  jurisdiction  over  nil  matters  necessary  to  its 
exercise. 

The  advisory  jurisdiction  of  the  court  is  primarily  confined  to 
trusts  and  trustees,  Alsbrook  v.  Reid.  89  N.  C.  151.  and  cases  there 
eited.  Hence  the  court  will  advise  executors  who  are  7-egarded  as 
tmistees.  as  to  the  discharge  of  the  trusts  with  which  they  are 
clothed,  and  as  incident  thereto,  the  construction  and  legal  effect 
of  the  instrument  by  which  they  are  created,  when  a  case  is  pre- 
sented wberi'  the  action  of  the  court  is  invoked  as  distinguished 
from  an  abstract  opinion.  Simpson  v.  Wallace,  83  X.  C.  477;  Tay- 
loe v.  Bond,  supra.  But  in  the  latter  case  it  is  said  there  is  no 
ground  upon  which  to  base  a  jurisdiction,  to  give  advice  to  an  ex- 
I'cutor  in  regard  to  his  future  conduet  or  future  rights  or  to  al- 
low him  to  '"a.sk  the  opinion  of  the  court  as  to  the  future  rights 
of  a  legatee,"  as,  for  instance,  "who  will  be  entitled  when  a  life 
estate  expires?"  But  the  advice  is  only  given  upon  an  existing 
state  of  facts,  upon  which  a  decree  or  some  direction  of  the  court 
in  the  nature  of  a  decree  is  solicited. 

In  the  ca.se  presented  by  the  appeal  for  our  consideration,  the 
rxecvlor  docs  not  invoke  the  aid  of  the  court  with  respect  to  any 
of  his  duties  arising  under  the  will  of  the  testator.  Inil  the  action 
is  conslitnlfd  !>}/  some  of  tlir  }f(/alr(s  (tnd  d(  visets  under  the  u'ilJ 
against  others,  for  the  abstract  o|)inion  of  the  coui't  witli  r(^gard 
to  their  several  rights  under  the  will.  The  cxecntor  is  made  a 
f)arty.  ]»ro  forrita.  after  the  institntion  of  the  ;iction.  and  he  who 
is  a  trustee,  and  is  the  ordy  ])arty  to  the  action  who  could  ask  the 
aid  of  the  cftnrt.  asks  nothing.  And  then  there  are  no  |)Ieadings 
in  the  (;ase,  no  conqtlaint.  no  answer,  no  older.  oi-  derri-e  asked — 
nothing  but  a  summons  and  a  case  aerreed  bi-tueeii  Ihr  i);iities.  who 


Tl'O  KK.MKDlKb    I.N    Sl'KCIAl.    C.\8KS.  [('/(.    i/. 

liavr  lU'Xcr  ln'i'ii  rcrotriii/i'tl  ;i.s  |M'1's(iiis  wIki  miiilit  iiivtikc  llic  ;k1- 
visory  aiil  of  llu-  coiiri  It  is  a  case  nf  llic  Hrsl  impression,  and 
is  not  aut lioii/i'il  liy  any  (Iccision  oi*  (lictuiii  ot"  any  coni'l  that  we 
are  aware  of.  The  action  is  tlitTefore  disiiiisseil,  and  eaeh  party 
will  pay  his  owji  eosts.     Appeal  dismissed. 

Tlio  idea  that  the  rourts  ol'  oqiiiiy  possess  a  sweeping  jurisdietion  to 
ronstnie  wills,  is  an  erroneous  one.  The  jurisdietion  in  matters  of  con- 
struetion  is  limited  to  such  questions  as  are  ncccssori/  to  the  present 
actiun  of  the  court.  Devises  will  not  be  construed  in  bills  for  advice, 
because  the  rights  of  devisees  are  purely  legal  and  must  be  adjudged 
when  a  cause  of  action  arises  with  respect  thereto— and  not  before. 
Heptinstall  v.  Newsome,  146  N.  C.  ".03,  60  S.  E.  416.  For  a  full  review  of 
the  jurisdiction  and  practice  in  Bills  for  Advice,  see  3  Pom.  Eq.  Jur. 
§§  llor.-lins.  See  also  28  Am.  &  Eng.  Enc.  (2nd  ed.)  1050,  c.;  Haywood 
V.  Trust  Co.,  14!t  n.  c.  20S,  62  S.  E.  915.  See  "Courts,"  Century  Dig.  §  11; 
Decennial  and  Am.  Dig  Key  No.  Series  §  5;  "Wills,"  Century  Dig.  §§ 
1665-1669;    Decennial  and  Am.  Dig.  Key  No.  Series  §  695. 


Skc.  l*.     (\\vi:.\t  t(»  the  Probate  of  a  Will. 

HUTSON  V.  SAWYER,  104  N.  C.  1,  10  S.  E.  85.     1889. 

Mature  of  the  Proceeding.     Proceeding  in  Rem.     Nonsuit.    Withdrawal. 
Citation   ''To   See  Proceedings."     Parties. 

I  Issue  of  Devisavit  vel  non.  The  propounders,  because  of  an  adverse 
intimation  from  the  judge,  submitted  to  a  judgment  of  nonsuit  and  ap- 
pealed.    Error.     Judgment  set  aside. 1 

Merrimon.  J.  The  i)roeeedinfi:  is  not  like  an  ordinary  action 
or  special  proceeding  to  which,  reyidarly.  there  are  parties  plain- 
tiff and  defendant ;  nor  is  the  purpose  of  it  to  litigate  a  cause  of 
action  which  tlie  plaintiff  may  abandon  or  withdraw  from  the 
court  by  suffering  a  judgment  of  nonsuit,  or  otherwise.  It  is  a 
proceeding  in  rem.  to  which  strictly  there  are  no  parties.  The 
court,  in  tlie  way  prescribed  by  statute,  takes  jurisdiction  of  the 
paper  writing  or  script  propounded  for  probate  as  the  will  of  the 
alleged  testator.  The  jiu'isdiction  is  in  rem,  and  the  chief  pur- 
pose is  not  to  settle  and  admini.ster  the  rights  of  the  parties  claim- 
ing under  or  against  the  alleged  will,  but  to  ascertain  whether  the 
supposed  testator  died  testate  or  intestate;  and.  if  he  died  testate, 
whether  or  not  the  script  propoiuided.  or  any  part  of  it.  be  his 
will.  When  the  issue  devisavit  vel  non  is  raised  the  court  de- 
sires to  have  all  persons  interested  before  it  to  see  proceedings. 
When  they  are  cited  they  come  into  court,  and  may  stand  pas- 
sively, or  take  active  part  on  either  side  of  the  contest,  accordingly 
as  they  may  be  interested  in  favor  of,  or  adversely  to,  the  script 
propounded  as  the  will.  And  any  party  thus  before  the  court 
may  withdraw  from  the  proceeding,  paying  such  costs  as  he  may 
properly  be  chargeable  with  :  but.  in  that  case,  the  script  is  left 
with  the  court,  to  be  proven  or  disposed  of  according  to  law.  In 
the  xery  nature  of  the  matter,  a  party  before  the  court  does  not 


Sec.    2]  REMEDIES  IN   SPECIAL   CASES.  721 

sustain  sueii  rclatiuii  to  \hv  proceediiiii  as  to  give  him  t-outrol  of 
it  or  the  subject-matter  of  the  i&sue.     He  is  there  to  see  proceed- 
ings and  take  active  part,  if  he  will,  in  any  inquiry  as  to  a  matter — 
the  script — of  which  the  court  has  control,  and  which  it  is  its  duty 
to  settle  and  determine.     The  purpose  is  to  determine  the  nature 
of  the  script,  for  the  benefit  of  all  whom  it  may  concern,  and  not 
specially  for  that  of  any  particular  person,  whether  he  be  before 
the  court  or  not.     The  proceedings — the  script,  the  issue — are  not 
of  the  persons  before  the  court.     They  cannot  control  or  direct 
the  same  as  parties ;  that  is  the  sole  province  of  the  court,  as  to  the 
issue.     The}'  are  not  parties,  and  hence,  whether  they  take  part 
on  one  side  or  the    other  of  it.  they  cannot  take  or  suffer  a  judg- 
ment of  nonsuit ;  nor  can  they  dismiss  the  proceeding.     Lodge  v. 
Callender,  4  Ired.  335;  Sawyer  v.  Dozier.  5  Ired.  97:   Enloe  v. 
Sherrill.  6  Ired.  212;  Whitfield  v.  Ilurst.  9  Ired.  17U;  Love  v. 
Johnston.  12  Ired.  855;  Syme  v.  Broughton.  85  N.  C.  367.     The 
appellants  could  not  therefore  suffer  a  judgment  of  nonsuit,  as 
they  undertook  to  do.    If  they  could,  and  this  court  should  affirm 
the  judgment  appealed  from,  the  consequence  would  be  to  with- 
draw the  script  from  the  jurisdiction  of  the  court,  put  an  end  to 
the  proceeding,  and  leave  the  issue  undeter^nined ;  and  thus  the 
purpose  of  the  law  would  be  defeated.     Obviously,  the  action  of 
the  court  was  erroneous.     The  appellants,   having  excepted  be- 
cause of  the  rejection  of  evidence  offered  by  them  on  the  trial, 
.should  have  waited  until  after  a  verdict  and  judgment,  and  then 
assigned  errore.  and  appealed.    This  is  the  proper  course  of  prac- 
tice in  this  and  like  cases.     There  is  no  formal  assignment  of  the, 
ciTor  wc  have  pointed  out.  but  it  is  the  duty  of  this  court  to  in- 
spect the  whole  record,  and  give  such  judgment  as  in  law  ought 
to  be  given.    Code,  §  957 ;  Thornton  v.  Brady.  100  N.  C.  38,  5  S.  E. 
Rep.  910.     Upon  an  examination  of  the  record  before  us  we  see 
that  the  judgment  a]^pealed  from  is  not  warnnited  by  law.    It  con- 
travenes the  nature  and  purpose  of  th«'  proceeding.     It  is  hence 
erroneous,  and  this  court  must  so  declare.     The  judgment  of  non- 
suit nuist  be  set  aside,  and  fhe  issue  tried  and  disposed  of  accord- 
ing to  law.     To  that  end  )( t  tliis  opiniim  ho  ceiliticd  to  the  superior 
court.    It  is  so  ordered. 

As  to  right  of  withdrawal,  nonsuit,  etc.,  and  agreements  not  to  con- 
test, or  to  defeat  probate,  see  19  L.  R.  A.  (N.  S.)  121,  16  lb.  23.").  13  II). 
484,  and  notes.  See  "Wills,"  Century  Dig.  §  771;  Decennial  and  Am. 
Dig.  Kev  Xo.  Series  §  326. 


BEX.TAMIN  V.  TEEL,  33  X.  C.  49.     IS.'.O. 
M'ho   }rfni   Tnhc    I'nrI    in   the   Coutrnrrrsy.   and  at   M'hnl    Tiiiif   ami    Tfow 

Thry  Should  Proceed. 

(A  script,  was  proitoundcd  in  ilie  county  innrt  liy  tlio  exe«-»itor  named 
therein.  The  widow  of  the  testator  filed  a  Caveat.  Tbc  county  court  or- 
dered an  issue  of  devisavit  vel  non  to  l)e  made  up  and  a  notice  to  issue 
to  the  heirs  and  next  of  l<ln  "to  (onif  in  and  see  proceedings."     Those 

Remedies — 46. 


l'22  KEMEDlIiS   IN    SIM'.CIAL   CASKS.  [CIl.    .'^ 

persons  boing  infants,  a  guardian  ail  litoni  was  appointed  lor  them.  The 
issue  was  tried  and  the  verdict  was  against  tlie  validity  of  the  script  as 
a  will.  The  propounder  appealed  to  the  superior  court.  In  that  court 
the  propounder  moved  to  set  aside  the  issue  ui)on  Ihe  ground  that  the 
widow  was  not  a  party  in  interest  and  had  no  right  to  file  the  caveat. 
This  was  opposed  by  the  infants  through  their  guardian  ad  litem,  who 
also  moved  that  they  be  admitted  to  contest  the  will  as  parties  to  the 
issue.  The  propounder's  nuition  was  ov(>rrule(l;  that  of  the  infants  was 
allowed;    and  the  pro|)(>undcr  appealed.     Allinned.l 

KiFKiX.  i\  J.  I'ristnis.  to  wlidin  iiolicc  to  .see  pr()('e('(l"m«rs  is 
jriven.  are  boiiiKi  1)\  lliciii.  aiul  arc,  in  the  view  of  tlu'  court  of  pro- 
bate, parties  to  the  proceedings,  as  far  a.s  tiicre  can  ho  said  to  he 
parties  in  such  a  controversy.  It  is  tnir.  (hey  may  not  he  actors 
in  the  cause,  a.nd  theref(tre  not  liahK'  to  <-(ists.  But,  indcss  they 
do  soiiielliinir  to  preclude  theni,  they  may  hecomi'  active  at  any 
time  before  the  sentence  is  pronounced  -.  for.  until  that  is  done. 
any  party  in  interest  is  entitled  to  he  heard  for  or  against  the 
.script.  The  usual  manner  td'  elVcctiiig  that  with  us  lias  not  been 
by  a  new  and  distinct  allegation  for  or  against  the  will;  but  by 
becoming  a  party  to  the  issue  made  up  under  the  direction  of  the 
court,  according  to  the  statute.  For.  if  such  allegation  were  made, 
it  would  not  entitle  that  person  to  an  issue  to  be  tried  separately, 
as  that  might  lead  to  opposite  verdicts  on  the  same  matter;  but  th(^ 
course  is  merely  to  state  on  the  record  such  matter  as  .shows  on 
which  side  the  per.son  becomes  an  actor,  so  as  to  show  distinctly 
whether  he  may  in  the  result  he  entitled  to  or  liable  for  costs. 
The  proceeding  being  in  rem.  any  person  may  intervene  to  protect 
his  interest  while  the  thing  continues  sub  judice.    Orders  af^rmed. 

Can  the  state  take  part  in  order  to  protect  its  rights  in  escheats?  2  L. 
R.  A.  (N.  S.)  643,  and  note. 

For  the  law  as  to  who  is  and  who  is  not  estopped  by  the  judgment  in 
caveat  proceedings,  see  IMordecai's  L.  L.  1071-1072.  See  "Wills,"  Cen- 
tury Dig.  §§  609,  610;   Decennial  and  Am.  Dig.  Key  No.  Series  §  263. 


BRYAN  V.  MORING,  94  N.  C.  687.     1886. 

Double  Caveat.     Tico  Wills  Propounded,  the  Propounders  of  the  One  Be- 
ing Caveators  of  the  Other.     Issues.     Forvi  of  Judgment. 

I  Issue  of  devisavit  vel  non.  Verdict  and  judgment  against  one  script 
and  establishing  another  script  as  the  will.  The  propounders  of  the  first 
.script  appealed.  The  judgment  below  was  reversed  and  a  venire  de 
novo  was  ordered  because  of  an  error  in  excluding  certain  evidence.  A 
Ijortion  of  the  oi)inion  is  here  inserted  because  it  is  a  ])recedent  for  hav- 
ing two  scripts  passed  upon  in  one  trial  and  points  out  the  practice,  is- 
sues to  be  submitted,  and  form  of  judgment  in  such  cases.] 

Smith.  C.  J.  .\  paper  writing,  iiiirporling  to  be  the  will  of 
"William  (\  Faucette.  who  died  in  June,  1888.  was  shortly  there- 
after produced  before  the  clerk  of  the  su])erior  court,  of  Chatham 
county,  at  his  office,  by  Elias  TT.  Bryan,  and  Rosa  J.,  liis  wife.  and. 
upon  the  written  examination  of  witnesses,  admitted  to  probate 


Sec.    2]  REMEDIES  IX  SPECIAL   CASES.  723 

in  common  form,  as  his  liolographie  will,  and  k'tters  of  adminis- 
tration cum  testamento  annexo  issued  to  the  propounder.     .     .     . 

To  the  proliate.  a  caveat  was  entered  by  Emma  V.  ^loring,  her 
husband.  John  ]\[.  ;^[oring■.  uniting  with  her.  early  in  December 
thereafter,  and  in  ]\Iay  of  the  next  year,  she,  the  said  Ennna.  and 
her  children,  by  their  said  father  and  next  friend,  propounded 
for  probate  and  proposed  to  establish,  a  later  holographic  \\\\\ 
of  the  said  A\'illiam  C.  P^aucette.  alleged  to  have  been  lost,  and  the 
substance  of  wliieh  is  set  out  in  their  complaint.  The  said  John 
M.  was  subsequently  appointed  guardian  to  said  infants,  to  de- 
fend their  interests  in  the  action.  To  prevent  the  double  contro- 
versy, an  issue  in  the  alternative  was  framed  and  submitted  to 
the  jury,  as  follows:  "Is  the  paper  writing,  dated  July  21,  1879, 
or  any  part  thereof,  the  last  will  and  testament  of  W.  C.  Faucette; 
or  does  the  paper  marked  A,  contain  the  substance  of  a  holo- 
graphic will,  dulv  executed  bv  AV.  C.  Faucette  and  dated  Julv  12, 
1880?" 

Upon  the  rendition  of  the  verdict,  judgment  was  entered  as 
follows:  "The  jury  having  found  the  following  paper  writing, 
marked  A.  to-wit :  [Here  is  inserted  a  copy  of  the  paper]  con- 
tained in  substance  the  last  will  and  testament  of  W.  C.  Faucette, 
deceased ;  it  is  now  on  motion  of.  etc.,  .  .  .  adjudged,  that  the 
finding  of  the  jury,  together  with  a  copy  of  this  judgment,  be  cer- 
tified to  the  clerk  of  the  superior  court  of  Chatham  county,  with 
in.structions  that  he  proceed  as  the  law  directs,  and  in  accordance 
with  the  finding  of  the  jury  and  this  judgment,  to  admit  to  pro- 
bate the  paper  writing,  fimnd  by  the  jury  and  hereinbefore  set 
forth,  as  and  for  the  last  will  and  testament  of  AV.  C.  Faucette, 
deceased,  and  that  he  proceed  in  other  respects  as  the  law  directs. 
Ordered  that  the  defendants  Emma  V.  ]\Ioring  and  others  named, 
E.  H.  Bryan  and  wife,  Rosa  J.,  pay  costs  of  this  proceeding." 

In  this  connection,  it  may  not  be  amiss  to  observe,  in  order  to 
prevent  the  ad()i)tion  of  the  foregoing  form  of  judgment  as  an 
approved  precedent,  that  in  such  case,  the  probate  is  in  the  ver- 
dict, and  the  judgment  so  declaring,  should  direct  the  remission 
of  the  transcript,  in  which  the  last  script  is  contained  fwith'the 
original  script,  if  there  be  one  among  the  papers),  to  the  probate 
court,  to  the  cud  that  they  may  he  recorded-  and  filed,  and  other 
neccssarif  proceeditufs  had  ilurdn.  A  precedent  is  found  in 
Eaton's' Forms.    444.    44S:    McXeill    v.    ^McNeill.  14    X.    C.    393. 


In  Love  V.  .Tohnston.  34  X.  C.  at  p.  n64.  it  is  ruled,  that,  when  theie  are 
two  scripts  set  up  as  wills,  the  issue  of  devisavil  vel  non  should  be  so 
framed  as  to  pass  upon  both— as  was  done  in  the  principal  case. 

The  followinK  forms  taken  from  Eaton's  Forms  have  been  frequently 
approved  in  Xorth  Carolina.  While  these  forms  are  adapted  to  the 
practice  in  the  court  of  Pleas  and  Quarter  Sessions,  as  it  existed  before 
the  constitution  of  l.SGS,  still,  b.v  a  very  little  and  obvious  substitution  of 
terms,  they  are  suitable  to  the  pre.sent  practice  and  are  almost  invari- 
ably used  in  Xorth  Carolina: 


"24  KEMEDIES   IN    SPECIAL   CASES.  [<lt. 


PROPOUNDINT.    OF    A    WILL    \\)\i    I'KOBATK    IN    SOLEMN    FORM. 

CAVEAT. 

A  paper  writing;  puriJorting  to  hv  tlio  last  will  and  lostanient  of  A.  B., 
deoeasod.  ami  which  is  in  words  and  lignifs  roUowing.  to-wit  |  hero  coiiy 
larolully  iho  will  as  to  lan^nafio  and  punctnalion.  giving  tlio  spelling  of 
the  testator  however  iiicont-.t,  1  is  proi)onnde(l  tor  probate  in  open  court 
by  C.  D.,  the  executor  therein  named.  Whereupon  E.  F.  and  G.  M.,  two 
of  the  heirs  at  law  and  next  of  kin  of  the  said  A.  B.,  come  into  court  and 
enter  a  caveat  to  the  probate  thereof,  and  say  that  the  same  is  not  the 
last  will  and  testament  oi'  the  said  A.  R.,  or  any  i)art  thereof.  And  there- 
upon the  court  directs  the  following  issue  to  be  made  up  and  submitted 
to  a  jury,  to-wit,  "Is  the  said  paper  writing,  or  any  part  thereof,  and  if 
so,  what  part,  the  last  will  and  testament  of  the  said  A.  B.,  or  not?"  And 
on  motion  it  is  ordered  that  a  citation  be  issued  against  .T.  K.  and  L.  M., 
two  of  the  heirs  at  law  and  next  of  kin  of  the  said  A.  B.,  who  reside  in 
this  state,  to  api)ear  at  the  next  term  of  this  court,  to  see  proceedings  in 
this  cause,  and  to  make  themselves  parties  to  the  said  issue,  if  they  shall 
think  i)roper.  And  it  apjiearing  to  the  satisfaction  of  the  court,  that 
M.  X.  and  O.  P.,  the  other  lieiis  at  law  and  next  of  kin  of  the  said  A.  B., 
reside  beyond  the  limits  of  the  state,  it   is  ordered  that  publication  hi-~ 

made  in  the  for  six  |  successive  |  weeks,  notifying  them  to  appear 

at  the  next  term  of  this  court,  then  and  there  to  see  proceedings  in  this 
cause,  and  to  make  themselves  ])arties  to  the  said  issue,  if  they  shall 
think  proper  so  to  do. 


VERDICT  AND  .JUDGMENT  IN  AN  ISSUE  OF  DEVISAVIT  VEL  NON 

IN  THE   SUPERIOR  COURT. 

C.  D.  Executor  of  A.  B.  v.  E.  F.  and  G.  H. 

The  parties  aforesaid,  by  their  attorneys,  come  into  court,  and  there- 
upon the  following  jurors,  to  wit:  (name  them)  being  chosen,  tried,  and 
sworn  to  speak  the  truth  of  and  concerning  the  issue  joined  between  the 
said  parties,  upon  their  oath  say,  that  the  said  paper  writing,  and  every 
part  thereof,  is  the  last  will  and  testament  of  the  said  A.  B.  It  is  there- 
fore declared  by  the  court  that  the  said  paper  writing,  and  every  part 
thereof,  is  the  last  will  and  testament  of  the  said  A.  B.,  and  it  is  ordered 
that  the  original  will  remaining  in  the  office  of  this  court,  be  remitted  to 
the  court  of  Pleas  and  Quarter  Sessions  of county,  with  a  tran- 
script of  the  proceedings  thereupon  in  this  court,  to  the  end  that  the 
said  will  may  be  duly  recorded  and  filed  in  the  said  court  of  Pleas  and 
Quarter  Sessions,  and  that  further  proceedings  may  be  had  thereon  ac- 
cording to  law.  It  is  considered  that  the  said  C.  D..  executor  as  afore- 
said, do  recover  against  the  said  E.  F.  and  G.  H.,  and  L.  M.  and  O.  P.,  their 
sureties  to  the  appeal,  his  costs  of  suit. 

Order  of  the  county  court  after  the  probate  of  a  Will  in  the  superior 
court. 

A  transcript  of  the  record  from  the  superior  court  of  • —  county, 

duly  authenticated,  showing  the  probate  in  that  court  at  its  fall  term, 
1860,  of  the  last  will  and  testament  of  A.  B.  deceased,  having  been  trans- 
mitted to  this  court,  together  with  the  original  will  of  the  said  A.  B. 
which  has  been  proved  as  aforesaid,  it  is  therefore  ordered  that  the  said 
transcript  and  the  said  will  be  recorded  and  filed. 

These  forms  have  been  approved  in  the  principal  case  and  in  Cornelius 
V.  Brawley,  109  N.  C.  rA2,  14  S.  E.  78;  Crenshaw  v.  .Tohnson,  120  N.  C. 
270,  26  S.  E.  810;  Collins  v.  Collins.  12.^)  N.  C.  at  p.  \0?.,  ?A  S.  E.  193,  and 
in  many  other  cases.  For  a  full  review  of  the  North  Carolina  practice 
in  caveat  proceedings,  see  Mordecai's  L.  L.  1082-1088. 


Sec.    2]  KEMEDIES  IX  SPECIAL   CASES.  725 


IN  RE  PALMER'S  WILL.  117  X.  C.  133,  33  S.  E.  104.     1895. 
Effect  of  Caveat  on  the  Executor  or  Administrator  c.  t.  a. 

[Motion  before  the  clerk  of  the  superior  court  to  set  aside  a  summary 
order  removing  E.  A.  Johnson  as  executor  of  Franlv  Palmer's  will.  Mo- 
tion overruled  by  the  clerk  and  appeal  by  Johnson  to  the  judge  of  the 
superior  court.  Johnson  also  moved  before  the  clerk  to  remove  a  col- 
lector of  the  estate  of  Frank  Palmer — such  collector  having  been  ap- 
pointed by  the  clerk  at  the  time  of  Johnson's  removal.  Motion  over- 
ruled and  appeal  by  Johnson  to  the  judge.  The  judge  overruled  the 
clerk  in  lx)th  instances,  and  the  collector  and  caveators  appealed.  Af- 
firmed. 

Frank  Palmer  left  a  will  of  which  E.  A.  Johnson  was  the  executor. 
Johnson  propounded  the  will;  it  was  admitted  to  probate;  letters  testa- 
mentary were  issued  to  Johnson  who  duly  qualified  as  executor.  After- 
wards a  caveat  was  filed.  Thereupon  the  clerk,  without  any  notice  to 
Johnson,  removed  him  from  his  executorship  and  appointed  Marcom 
collector.] 

Montgomery.  J.  The  question  for  consideration  is :  Can  the 
clerk  of  the  superior  court,  after  a  will  has  been  admitted  to  pro- 
bate in  eonunon  forni,  and  letters  testamentary  issued  to  the  ex- 
ecutor, remove  such  executor,  and  appoint  a  collector  for  the  es- 
tate, without  a  hearing  based  upon  notice  to  show  cause  why  he 
should  not  be  removed?  "We  are  of  the  opinion  that  he  cannot. 
In  this  case  the  caveat  was  lilcd  after  the  will  had  been  proved 
and  the  executor  qualified.  Under  this  condition  of  facts,  it  was 
the  duty  of  the  clerk,  upon  the  giving  by  the  caveators  of  the  bond 
refjuired  by  law.  to  have  transferred  the  case  to  the  suj^erior  court 
for  ti-ial.  and  also  lo  have  issued  an  order  to  the  executor,  Johnson, 
the  appellee,  requiring  him  to  preserve  the  property  and  collect 
the  debts  of  the  decedent  until  the  issue  devisavit  vel  non  should 
be  determined.  Code.  §  2100.  Instead  of  doing  this.  he.  on  the 
caveat  being  entered,  ordered  that  tlie  jii-obate  be  recalled,  and 
that  the  letters  testamentary  which  he  had  issued  to  the  executor 
be  revoked  ;  no  notice  to  show  cause  why  this  should  not  be  done 
having  been  given,  nor  any  cause  shown.  The  clerk  afterwards 
refused  to  set  a.side  his  order  revoking  the  letters  testamentai-y. 
and  appointed  J.  C.  iMarcom  collector.  ...  In  Hughes  v. 
ITodges.  94  X.  C.  56,  this  court  said  concerning  2160  of  the  Code: 
"Tliis  j»rovision  is  manifestly  intended,  in  cases  to  which  it  is 
applieat)le.  to  dispense  with  the  necessity  of  appointing  an  ad- 
ministrator j)endente  lite.  ;md  confers  very  similai*  pow(>rs  upon 
the  executor,  and  more  especially  when  he  has  entered  upon  the 
duties  of  his  office  before  the  caveat  is  ciitenMl."  There  is  no  way 
in  this  state  by  which  an  exeeutor  or  an  ;nlminist  rator.  who  iins 
had  letters  issue<l  to  him.  ;ni(I  wIki  is  in  iliar'^'e  of  his  decedent  "s 
e.state.  can  Ite  i-rmovrd  i-xccpt  al't<'r  a  iH'.ninu'  and  u|iiin  notice 
given  to  shov/  cause  wliy  lie  sliould  not  lie  removiMl.  Tlic  cjuises 
for  such  renutval  ami  the  maimer  of  having  it  done  ;ire  preseril)ed 
in  §;;  2170  and  2171  of  the  Cfxle  .Mnrrill  v.  Sandlin.  Sd  N.  C.  54; 
Kdwanls  v.  Cobb.  05  N.  C.  at  page  0. 


-(i  KK.MKDIKS    IN    SPECIAL    (WSKS.  [('A.    ^). 


Section  1383  ol"  tlir  Code.  pinN  idimr  I'or  cdllcctdrs.  does  not  ap- 
ply to  I'jusos  where  the  will  lias  Itcfii  proved  ami  the  cxcciilur  (piali 
tiod.  but  it  applies  wherf  then'  are  diriieidties  in  limine  diseon- 
neeted  with  eontrovi-rsx  or  eoiitest  over  iiie  will.  |)reveiit  iiiir  tor 
the  time  the  admission  ot"  the  will  to  jirobate  or  the  issuing  of  let- 
ters testamentary. — e.  g.  i)roti'aeted  absence  oT  witnesses,  illness 
of  exeeiitor.  ete. ;  and.  alsi).  it  ai>plies  where  a  eaveat  is  entered  at 
the  time  the  will  is  olfered  for  probate.  A  eolleetor  is  apj)ointed 
only  in  eases  where  there  is  no  one  in  rijjhtfnl  charge  of  the  es- 
tate; and  in  this  respect  there  is  a  resemblance  between  him  and 
an  administrator  pendente  lite  nndei-  the  old  system.  Wherever 
a  will  has  been  ailmitted  to  proi)ate,  and  the  executor  or  admin- 
istrator c.  t.  a.  (pialilied.  there  can  be  no  necessity  for  the  appoint- 
ment of  a  collector  under  the  Code,  nor  would  there  have  been 
for  the  appointment  of  an  administi-alor  ])endente  lite  under  the 
old  system,  for  the  executor  or  administrator  c.  t.  a.  had  the  riglit 
to  act  to  tlie  extent  of  preserving  the  property  and  collecting  the 
debts  until  the  contest  was  decided.  Syme  v.  Broughton.  supia ; 
Floyd  v.  Herring.  G-4  N.  C.  409.  In  the  matter  before  ns.  his  honor 
held  that  there  was  error  in  tlic  order  of  the  clerk  removing  the  ex- 
ecutor without  notice  to  him  and  without  cause  shown,  in  the 
clerk's  refusal  to  set  aside  the  order  revoking  the  letters  testa- 
mentary, and  in  his  refusal  to  i-evoke  tlie  letters  he  had  issued  to 
^larcom.    There  is  no  error  in  the  rulings  of  his  honor.     No  error. 

See  and  compare  21  L.  R.  A.  (N.  S.)  275,  and  note.  See  "Executors 
and  Administrators,"  Century  Dig.  §  249;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  35. 


Sec.  3.    Partition. 

LEASE  et  als.  v.  CARR,  5  Blackford  353,  355.     1840. 

History  of  the  Remedy  at  Law  and  in  Equity.     Proper  Allegations  of 
the  Petition.     Practice.     Form  of  Judgment. 

[Proceedings  for  partition  among  tenants  in  common,  instituted  under 
a  statute  of  Indiana.  Commissioners  were  appointed  to  make  the  parti- 
tion; and  they  filed  their  report,  which  was  confirmed.  To  reverse  the 
order  of  the  circuit  court  appointing  the  commissioners  and  the  judg- 
ment confirming  the  report.  Lease  et  als.,  the  defendants  below,  carried 
the  case  to  the  supreme  court  by  writ  of  error.] 

Dewey,  J.  .  .  .  The  proceedings  in  this  case  were  insti- 
tuted under  the  act  "to  provide  for  the  partition  of  real  estate." 
The  provisions  of  this  statute  are  very  general  and  vague.  They 
authorize  any  two  or  more  persons,  who  are  proprietors  of  real 
estate,  to  apply  to  the  circuit  court  of  the  county  within  which 
the  estate  may  be  situate  (notice  of  the  intention  to  make  such  ap- 
plication having  been  previously  given,  at  least  four  weeks,  in 
some  newspaper  in  the  state),  to  appoint  three  commissioners  to 
divide  such  estate.  The  commissioners,  or  any  two  of  them,  hav- 
ing taken  the  prescribed  oath,  are  "to  make  division  of  said  es- 


tScC.    3]  KEMEDIES  IX  SPECIAL   CASES.  727 

tate  as  directed  by  the  court  anioiig  the  owners  and  proprietors 

thereof  aeeording  to  their  respective  rights."'    R.  C.  1S31,  p.  387 

R.  S.  1838.  p.  -426.  In  making  this  hiw.  doubtless,  the  legislature 
designed  to  give  a  more  sunnnary  and  simple  remedy  respecting 
partition  among  connnon  owners  of  land,  than  existed  before  its 
passage ;  but  as  they  have  omitted  to  specify  the  form  or  substtmce 
of  the  petition  or  application  for  a  division,  which  the  statute 
authorizes,  we  apprehend  they  intended  the  proceedings  under  it. 
so  far  as  regards  the  case  to  be  made  out  by  the  petitioner,  and 
the  action  of  the  court  upon  that  case,  should  be  governed  by 
principles  and  rules  already  known  and  established. 

By  the  common  law.  coparceners  can  compel  a  division  of  their 
laud  by  writ  of  partition — whence  they  derive  their  name;  and 
by  statutes  passed  in  the  reign  of  Hen.  8.  joint  tenants  and  tenants 
in  common  have  the  same  privilege.  Both  the  writ  and  the  declara- 
tion must  state  that  the  plaiiitilf  and  defendant  hold  together  and 
undivided  the  land  sought  to  be  divided ;  2  Sell.  ]*r.  330.  313  ;  and  if 
default  be  made,  or  the  title  of  the  i)laintiff  be  denied,  he  must  es- 
tablish it  by  proof.  2  Sell.  Pr.  314:  Ilalton  v.  Thanet.  2  Blk.  Rep. 
1134.  1150.  If  the  ]»]aintitf  pn  vail,  there  are  two  judgments:  the 
first,  that  partition  be  made  'netween  the  parties,  etc..  and  that  the 
sheriff  cause  the  land  to  be  divided  into  as  many  parts  as  the  case 
may  require,  and  lo  be  delivered  and  assigned  to  each  party 
('naming  him)  his  respective  i»art  to  be  holden  to  him  and  his 
heirs  in  severalty;  upon  this  judgment,  the  writ  de  facienda  par- 
titione  issues  to  the  sheriff  and  upon  his  return  showing  the  man- 
ner of  his  executing  it  agreeably  to  the  first  judgment,  the  second 
and  final  judgment  is  rendered  "that  the  aforesaid  i)artition  be 
holden  Hriii  and  effectual  forever."     2  Sell.  Pr.  315.  31!). 

But  the  more  usual  mode  of  enforcing  partition  in  England 
now,  is  by  resort  to  the  courts  of  equity.  It  is  essential  that  the 
title  of  the  plaintiff'  sliould  be  s<4  out  in  the  bill  of  complaint,  and 
shown  to  the  court.  The  i-iglits  of  the  parties  are  declared  by  the 
decree  whidi  orders  a  partition;  or  the  master  is  directed  to  as- 
certain the  rights  and  shares  of  the  parties — which  ha\nng  been 
done  and  reixirted — a  partition  is  decreed,  and  a  commission  to 
divide  the  estate  issues;  but  the  commissioners  have  no  power  to 
ascertain  the  rights  of  the  ])arties.  nor  the  proportions  to  which 
they  are  entitled.  1  Smith's  Ch.  Pr.  477.  478;  ^Miller  v.  Wann- 
ington.  1  J.  ,Jt  AV.  4»i4;  C'artwright  v.  Pultney.  2  Atk.  380. 

Tested  by  tlie.se  princi])les.  the  petition  or  a])])lication  for  a  i)ar- 
tition  in  this  ea.se.  is  obviously  defective;  and  the  order  or  decree 
api)ointing  the  commissioners,  and  investing  them  with  power  lo 
divide  the  land  in  question  l»etween  the  parties  "agree;ibly  to  the 
statute  in  such  case  made  and  provide<l."  is  elearl.v  ei-i-oneous. 
The  petition  should  have  shown  the  nature  ;md  extent  of  the  in- 
terest of  the  petitioner  in  the  l;ind.  and  that  he  held  it  in  cdnimon 
with  the  defendants;  il  should  also  have  staled  their  interest  in 
till'  premises  s(»  far  as  il  was  known  to  \\u-  petilionei-.  On  these 
fioints  the  [)etition  is  silent.     It  merely  requests  the  appointment 


726  KKMKDIKS    IN    srKClAl-   CASKS.  \('ll.    .'). 

of  c'Oininissioiu'i's  to  tlividc  tlic  I.iikI  (Icsi^ii.-itcil  iii  tlic  luilicc.  Ix'- 
twoon  the  lu'litioncr  and  (ii'i>r>i('  Lcasr  ;iii(l  tlic  unl^iuiwii  licifs  of 
William  Lcnsc.  (Iceoascd.  As  tlicrt'  was  im  aiipcaranci'  by  aii_\'  oi' 
tlu'  di'tVlulaiils.  the  title  of  the  pet  it  ioiuM-  sluuild  have  been  slidWii 
to  tlio  court,  and  jtrooi'  iiiatlr  that  the  dfl'i'iidaDts  ucit  (•(Uiiiiinn 
proprietors  witii  liiiu  of  the  land,  to  jiistifv  the  appoiutiueut  of 
(.'oiiiinis.sionci's ;  and  the  ('(Mirt  sliould  have  dt'dait'd  the  ])ropoiM  i(»u 
of  tlu'  pi'titioiu'r.  and  also  have  tstablislicd  the  lights  of  the  otlici' 
parties,  unless  they  had  been  satisfied  tliat  |»i'oof  of  sueh  rifjhls 
was  not  in  tlio  power  of  the  petitionei-.  'Phe  decree  havinj?  tluis 
ascertained  the  riirhts  and  jiroportions  of  the  ])arties.  the  eonnnis- 
sioners  should  have  been  directed  to  divide  the  land  accordingly. 
and  to  deliver  and  assign  to  each  party  his  share;  they  should 
have  had  no  discretionary  power  to  judge  of  the  provisions  of  the 
statute. 

This  view  of  the  nuitter  is  greatly  strengthcnt-d  by  a  reference 
to  the  2nd  section  of  the  statute,  which  provides,  that  if  the  real 
estate  held  in  common  is  so  situated  as  not  to  be  susceptible  of  an 
equitable  partition,  and  the  commissioners  shall  so  report,  the 
court  shall  order  the  whole,  or  that  ])art  which  cannot  be  so  di- 
vided, to  be  sold;  and  on  partition  of  a  part  of  it  being  made  "to 
any  portion  or  number  of  the  proprietors  thereof,  such  proprietors 
shall  release  of  record  in  court  all  claini  to  the  residue  and  un- 
divided portion  of  the  land,  and  the  proceeds  thereof,  to  the  resi- 
due of  the  proprietors."  R.  C.  1831,  p.  388;  R.  S.  1838,  p.  426. 
The  purchasers  under  this  provision  of  the  statute  would  run 
great  risk,  were  it  not  incumbent  upon  the  ]ietitioner  to  set  forth 
and  prove  a  title  to  the  land  before  he  can  procure  an  order  of 
sale.  As  the  act  directs  the  court  to  decree  a  sale  upon  the  report 
of  the  commissioners  without  any  additional  proof  on  the  part  of 
the  petitioner,  we  conceive  the  law  contemplates  that  he  shall  es- 
tablish title  to  the  premises  before  the  appointment  of  the  com- 
missioners. In  this  respect,  the  statutory  proceeding  under  con- 
sideration is  analogous  to  a  bill  in  chancery  for  partition,  the  cle- 
cree  in  which  presupposes  a  conveyance  of  title.  1  Smith's  Ch. 
Pr.  479 ;  1  J.  &  W.  473. 

It  has  been  objected  to  the  legality  of  the  proceedings  in  tliis 
ease,  that  a  part  of  the  defendants  are  unknown  heirs.  This  ob- 
jection, we  think,  cannot  be  sustained.  The  provision  of  the  stat- 
ute regulating  the  practice  in  chancery,  that  when  the  complain- 
ant does  not  know  all  the  heirs,  he  may  proceed  against  those  un- 
known, as  well  as  the  known,  we  conceive  to  be  applicable  to  cases 
of  partition.    R.  8.  1838.  p.  443. 

Per  Curiam.  The  order  ai)pointing  the  commissioners,  and  tlu; 
decree  contirming  their  report,  are  reversed,  and  the  proceedings 
subsequent  to  the  proof  of  publication  set  aside,  with  costs.  Cause 
remanded,  etc. 

Can  assignee  in  bankruptcy  or  assignee  for  creditors  maintain?  20 
L.  R.  A.  (X.  S.)  lO.o,  and  note.  See  'Partition,"'  Century  Dig.  §§  152, 
199,  304;    Decennial  and  Am.  Dig.  Key  No.  Series  §§  55,  73,  95. 


SfC.    3]  REMEDIES  IN   SPECIAL   CASES.  729 


WOOD  V.  SUGG,  91  X.  C.  93,  97-99.     1884. 

History  of  the  Remedy.     What  Estates  May  Be  Divided  by  Actual  Par- 
tition  or  by  Sale  for  Partition. 

[Special  proceeding  for  Partition  l)y  Sale.  Upon  issues  joined  before 
the  clerk  the  proceedings  were  transferred  to  the  superior  court  in  term, 
for  trial.  The  plaintiffs  were  the  owners  in  fee  of  the  reversion  after 
the  life  estate  of  a  widow  who  held  a  dower  right  in  the  locus  in  quo. 
The  defendant,  who  had  purchased  the  widow's  life  estate  and  the 
shares  of  some  of  the  reversioners,  resisted  a  sale  for  partition  on  the 
ground  that  reversioners  and  remaindermen  were  not  entitled  to  the 
remedy  sought  in  this  proceeding,  so  long  as  the  life  tenant  lived.  The 
judge  ruled  with  the  defendant,  and  judgment  was  entered  to  that  ef- 
fect.    Plaintiff  appealed.     Affirmed.] 

Ashe.  J.  .  .  .  At  the  common  law.  parcemn's  only  were 
eoinpellable  to  make  partition  by  a  writ  of  partition,  but  the  benelit 
of  that  writ  was  extended  to  joint-tenants  and  tenants  in  common 
by  the  statute  of  31  and  32  Henry  S.  V>\  the  former  statute,  none 
but  tenants  of  the  freehold  who  had  (^states  of  inheritance  could 
have  partition,  and  only  against  tenants  of  the  freehold.  By  the 
latter,  tenants  for  life  or  years  might  have  partition,  but  not  to 
affect  the  reversioner  or  remainderman.  The  essential  provisions 
of  these  statutes  are  still  in  force  in  this  state,  with  only  a  mod- 
ification of  the  remedy.  In  1767  an  act  was  pa.ssed  by  the  general 
assembly  which  gave  to  tenants  in  common  of  real  estate  the  peti- 
tion for  partition,  in  place  of  the  ancient  writ  of  partition.  Act 
1787.  ch,  274.  s.  1.  brought  forward  in  the  Revised  Statutes  and 
Revised  Code.  [Revisal,  s.  2-1:87.]  The  construction  ]nit  upon  this 
statute  is.  that  it  applied  only  to  such  cotenants  as  had  seizen 
where  the  estate  was  freehold,  but  had  no  application  to  reversion- 
ers or  remaindermen.  ^NFaxwcll  v.  ^Maxwell,  43  X.  C.  25;  Ilassell 
v.  ]\Iizell.  41  X.  C.  392.  And  in  so  holding  this  court  has  followed 
the  English  decisions  in  construing  the  statute  of  Ilcnry  8.  Oiu* 
act  of  1787  has  made  no  change  in  the  principles  or  law  applicable 
to  partition,  but  has  only  changed  the  remedy.  ^Fr.  Freeman  in 
his  work  on  Cotenancy  says:  Tt  is  a  general  rule  prevailing  in 
England  without  exception,  and  also  throughout  a  majoi'ity  of  the 
Cnited  State.s,  that  no  person  has  Ihe  light  to  demand  any  court 
to  enforce  a  compulsory  ])aitition.  unless  he  ha.s  an  estate  in  pos- 
session; one.  by  virtue  of  which  he  is  entitled  to  enjoy  the  present 
rents  or  the  possession  of  the  projierty  as  one  of  the  cotenants 
thereof,  .sec.  44f).  The  .same  doctrine  is  announced  .iml  maintaineil 
in  1  Wa.sh.  on  Real  Prop.  ch.  13.  s.  7.  sub-div.  7. 

In  Xew  Yolk  it  has  been  held  that  ]>roceedings  in  pai-tition  can 
be  instituti'd  only  by  a  parly  \\h«t  has  an  estate  entitling  him  to 
inuiiediale  po.ssession.  Hrownell  v.  Urown<'ll,  19  ^Vend.  307.  See 
also  I\lill(r  ex  parle.  90  X.  C.  02.").  Tn  \'<'w  TTniii|isbire  i|  is  held: 
"To  maintain  a  |>roceeding  for  partition  the  ;ipplic;uit  must  sliow 
a  present  rit'lit  of  possession."  30  X.  IT.  .327.  .\nd  again,  thai 
"one  who  is  interested  with  olliei-s  in  a  remaindei-  or  reversion, 
after  an  e.state  nf  I'rei'lH  Id.  cininol    inaiiitaln   m   |>rtitiiin    Idi-  parti 


730  km;mi:i)ii;s  in  si'i:ri.\i,  r.\si:s.  [r//.   '). 

tion  (if  llic  hiiiils  ill  wliicli  \\r  is  so  iiitcicMiil. " '  >  \.  II.  \):\.  \\\> 
miixht  Jiiultipiy  iiutliorilics.  ImiI  w.  dc. m  iIk.sc  cilrd  jnc  surticiont 
to  show  thjit  tile  pi'in('i|tl('  is  well  cst.-ililislird.  ili.ii  cutcii.iiits  in  ]•.■- 
iiiaiiuUM-  oi-  n'vcrsion  Ikivc  no  riiilil  to  ciiroicc  a  coininilsdiv  paiii- 
tioii  of  land  in  w  hirli  tlicy  lia\c  sucli  cstalc. 

1\\'  tlif  ai-l  o\'  ISiL*.  eh.  S47.  .jnrisdict  ion  was  '_dvcn  lo  coiii-ts  of 
oqiiity  to  ordt'i-  thi'  salo  of  lands  for  parlition.  when  an  atlnal  i)ar- 
lition  rould  not  l)t>  made  witlioul  injury  to  sonic  of  llic  patties-,  hul 
it  was  lu'ld  to  ai>i)ly  only  to  siit-li  cases  wlici-c  |iai-tition  inijrht  lia\.' 
boon  made  at  law.  Maxwell  v.  Maxwell,  and  ilassell  v.  Mizell, 
supra.  Now.  by  llie  aet  of  IStlS-i).  c-li.  122.  s.  12.  and  The  ("ode.  s. 
IDOH.  jurisilictioii  is  sjiven  to  the  el(M'k  of  the  sii])erior  eoiiit  of  the 
eounty  where  the  i-eal  estate  or  some  part  thereof  lies.  We  ai'e  of 
opinion  tliere  is  no  error  in  the  jiidjiineiit  ^f  the  superior  eo.urt. 
AHfirmeil. 

"Partition  can  onl.v  he  made  h.v  tenants  in  coninion  who  are  seized  of 
tlie  freehold,  and  not  l)y  those  wlio  have  tiie  reniaindei-  or  reversion. 
Ordinarily,  partition  lies  only  in  iavor  of  one  who  has  a  seizin  and  a 
right  of  immediate  possession.  Hassell  v.  Mizell.  41  X.  C.  392;  Maxwell 
V.  Maxwell.  4:1  X.  C.  2.'.;  Wood  v.  Sugg,  91  X.  C.  93;  1  Wash.  Real  Prop. 
583."  Osborne  v.  Mull,  91  X.  C.  at  p.  207.  Remainders  and  reversions 
may  now  be  the  subject  of  jiaitition  by  judicial  sale,  under  the  statutes 
of  North  Carolina.  See  Mordecai's  L.  L.  i)p.  .")70.  ."71;  Pell's  Rev.  sees. 
2487,  21^08.  2:"i09.  See  "Partition,"  Century  Dig.  SS  o9-.51;  Decennial  and 
Am.  Dig.  Key  Xo.  Series  §  12. 


BRAGG  v.   LYOX,   93   X,   C.   151,  153.     1885. 

Equity  Jvrisdiction  and  Practice  ih  Partition,  fiale  for  Partition,  uhrn 

Ordered   and   when   not    Ordered.     Partial  Partition.    Acliial   or    hy 
Sale.     Clerk's  Jvrisdiction. 

[Special  proceeding  for  partition  by  sale.  The  locus  in  quo  consisted 
of  nine  acres  of  land  on  which  there  were  a  grist  mill,  saw  mill,  carding 
machine  and  water  power.  The  property  was  owned  in  common  by  the 
plaintiffs,  who  together  owned  one-third;  .James  B.  Floyd,  who  owned 
one-third;  and  Pattie  X.  Lyon,  who  owned  one-third  subject  to  the  life 
estate  of  her  father,  Edward  B.  Lyon,  who  held  it  as  tenant  by  the  cur- 
tesy. The  petitioners  alleged  that  a  sale  was  necessary  because,  owing 
to  the  nature  and  size  of  the  tract  of  land,  an  actual  partition  could  not 
be  made  without  material  injury  to  some  or  all  of  those  interested. 

The  defendant  Pattie  X.  Lyon  answered,  denying  the  necessity  for  a 
sale.  Edward  B.  Lyon  answered,  denying  the  necessity  for  a  sale  and 
setting  up  as  a  defense  that  a  sale  v.-ould  injure  him  because  his  interest 
was  for  life  only;  he  also  insisted  that  the  court  had  no  power  to  order 
a  sale  under  the  facts  and  circumstances  of  this  case.  The  clerk  ruled 
with  Edward  B.  Lyon,  as  far  as  the  sale  of  his  life  interest  was  con- 
cerned, and  dismissed  the  proceeding  as  to  him;  but  ordered  a  sale  of 
the  two-thirds  of  the  land  not  embraced  in  his  life  estate.  The  plaintiff 
appealed  to  the  judge  at  chambers,  who  affirmed  the  judgment  of  the 
clerk.  They  then  appealed  to  the  supreme  court.  Reversed  and  pro- 
ceeding dismissed.! 

AsiiE.  J.  .  .  .  AYlien  thoro  is  a  tenancy  in  common,  each 
claimant  has  the  ri^ht  to  partition,  and  to  have  hi.s  interest  appor- 
tioned to  him  in  severalty  if  the  estate  he  .snseeptihle  of  division. 


Sec.    3]  REMEDIES  IX  SPECIAL   CASES.  731 

but  if  not  or  it  shall  be  made  to  appear  upon  the  application  of 
any  one  or  more  of  the  claimants  by  satisfactory  proof,  that  an 
actual  partition  cannot  be  made  Avithout  injury  to  one  or  more  of 
the  parties  interested,  the  court  shall  order  a  sale  of  the  property. 
The  Code,  sec.  1904.  The  court  of  equity  has  always  had  the 
power  to  make  partition  as  one  of  its  known  and  accustomed  heads 
of  jurisdiction,  but  it  had  no  power  to  order  a  sale  of  land  for 
that  purpose,  before  such  jurisdiction  Avas  conferred  upon  it  by 
statute.  After  it  was  invested  with  that  jurisdiction,  it  possibly 
had  the  power  to  make  a  decree  directing  a  partial  sale  such  as 
was  ordered  by  his  honor  in  the  court  below.  But  this  proceedinij; 
is  not  in  a  court  of  equity,  but  in  the  superior  court  before  the 
clerk  who  had  no  equity  jurisdiction ;  and  besides,  the  statute  giv- 
ing jurisdiction  to  courts  of  equity  over  sales  for  partition,  has 
been  repealed  by  sees.  ]903  and  1!)01:  of  The  Code,  which  confer 
that  jurisdiction  upon  the  superior  court  to  be  exercised  by  the 
clerk,  who  is  not  vested  with  any  equity  powers,  except  where 
specially  conferred  by  statute. 

It  would  seem,  therefore,  that  as  the  right  to  decree  a  partial 
partition  was  a  power  incident  to  an  equity  jurisdiction,  the  clerk 
could  have  no  such  power  as  was  exercised  by  him  in  this  case,  to 
order  a  sale  of  part  of  the  land  and  leave  the  residue  unsold.  The 
legislature,  we  think,  in  enacting  the  above  cited  section  of  The 
Code,  contemplated  a  sale  of  the  whole  land,  and  the  clerk  had  no 
right  to  order  a  partial  sale.  Our  conclusion  therefore  is.  that 
tlicre  was  erior  in  the  judgment  rendered  by  the  eierk.  and  also 
in  that  of  his  honor  in  affirming  the  judgment  of  the  clerk,  and  as 
Edwaid  B.  Lyon,  the  tenant  by  the  curtesy,  objected  to  the  .saie. 
we  cannot  do  otherwise,  imder  the  decision  of  Park  v.  Siler.  7() 
y.  C.  im.  than  dismiss  the  petition.    Petition  dismissed. 

The  existence  of  a  life  efctate  is  no  longer  a  bar  to  a  sale  for  partition. 
See  Pell's  Rev.  sees.  2.')08,  2509.  That  a  .irilial  division  may  l)e  had  in 
an  ordinary  proceeding  for  partition  is  provided  for  l)y  Rev.  sec.  2.50C>. 
See  "Partition,"  Century  Dig.  §§  211-223;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  77. 


DAVIS  v.  DAVIS,  37  N.  C.  607,  608.     1843. 

Kssenttals  to  an  Applicatioii  for  a  l^alr  for  Partition.     Policy  of  the  Law 

as  to  such  fiahs. 

[Bill  in  oqiiity  asking  for  a  sale  of  lands  for  jiaitiiion.  Sale  refiisctl 
and  bill  dismissed.     Plaintiffs  appealed.     Affirmed. 

Thf  bill  was  fibd  by  the  owners  of  two  undivided  eighths  of  the  locus 
in  quo  against  thos"  who  were  supi)osed  to  own  the  other  six-eighths. 
One  of  the  defendants,  Semjile  Davis,  answi-red  that  he  had  l)ouglit  tlip 
shares  of  the  other  rotenants  and,  consequently,  owne<l  the  six-eighths 
not  owned  by  the  plaintiffs.  He  also  alleged  that  he  owned  other  lands 
adjoining  thr  lofus  in  quo  and  dfsirrd  to  havo  his  part  of  the  locus  in 
(jiio  sft  a|iart  to  him.  He  fuithei  alleged  that  a  sale  for  parlillon  was 
not  only  unnereH.saiy,  but  would  be  a  detriment  to  him.  and  that  an 
aetual  partition  was  praetleablo  and  would  be  beneficial  to  all  concerned. 


7o-  RFMKDIES   IX   SPKCIAl.   CASES.  {Cll.    9. 

The  locus  in  qiu)  i ontaiiicd  niiioty-nine  acros.  Tlio  judge  below  dis- 
missed  the   hill,   aiul    |ilaiutilT  aiMiealed.      .MlirMifdl 

l\ri'KiN.   ('.   ,1.  Nil  (illirr  (It'crcc,   it    srciiis  to   \is.   coiihl 

have  Ix't'ii  iiiiulc  llum  the  luic  lliat  was  iiiadc  Thr  caiisr  was  hoard 
uitluuit  |>r»titf.  and  u|t(>ii  tlic  an.swcr  adiiiil ted  to  l)t'  ti'iir,  and  tlio 
(•i)urt  was  ohli^'cd  to  taki'  it,  that  actual  pai'litioii  coidd  i)roporly 
hi'  made  willioiit  projuditH'  ttt  any  part\.  and  that  a  sah'  i-oidd 
not  Ix'  iiiach'  hut  to  the  pi'cjudii'i'  ol'  liii'  (h'lVnihiiit  Scmplo.  But 
if  was  insisted  at  thi'  har  that  the  answer  itself  furnished  a  sulH- 
eient  lirouud  to  deei'ee  the  sale  as  prayed,  iuasmueh  as  tlu'  judges 
must  understmid  that  so  small  a  tract  of  huul  could  not  he  actually 
divided  anuui^  so  man\  persons  without  a  prejudice  to  the  owners, 
each  of  whom  would  i;et  a  little  more  than  twehu'  acres  in  sev- 
eralty, which  in  this  .state  nuist  he  of  little  or  no  value  for  pur- 
poses of  agriculture.  AVe  answer  that  the  court  is  not  at  liberty 
to  make  such  an  inference  against  the  positive  statements  of  the 
answer,  touching  the  elVects  of  a  sale  or  pai'tition  of  the  land  upon 
the  interests  t)f  the  several  propi'ietoi's.  Hut  furthermore,  it  does 
not  ap[)ear  that  this  land  is  valuable  only  for  agriculture  in  the 
eonnnon  acceptation  of  the  term.  Its  situation  does  not  appear,  nor 
its  ([ualily.  Tt  may  have  minerals  on  it,  or  it  may  be  near  Char- 
lotte, or  there  may  be  many  other  circumstances  which  would  ren- 
der even  so  small  a  parcel  as  twelve  acres  of  value  sufficient  to 
render  it  proper  to  divide  the  land  itself  among  the  claimants,  in- 
stead of  selling  it.  Prima  facie,  each  party  is  entitled  to  actual 
partition,  and  it  is  incumbent  on  him  who  asks  for  a  sale  to  show 
that  his  advantage  will  be  promoted  by  it,  and  that  no  loss  will  be 
worked  by  it  to  any  other  party.    Decree  affirmed. 

As  to  the  reluctance  of  the  courts  to  order  a  sale  unless  it  be  clearly 
necessary  in  order  to  do  justice,  see  Craighead  v.  Pike,  58  N.  J.  Eq.  15, 
43  Atl.  424,  inserted  post  in  this  section.  See  "Partition,"  Century  Dig. 
§  223;   Decennial  and  Am.  Dig.  Key  Xo.  Series  §  77. 


SIMMONS  v.  HENDRICKS,  43  N.  C.  84.     1851. 

Jurisdiction  in  Equity.  "Tenants  in  Common  with  a  Partial  Division 
Made  hy  the  Donor."  When  Deeds  and  Wills  Construed  in  Bills  for 
Partition. 

fBill  in  equity  seeking  a  jiarlition.  ■  Defendant  demurred.  Demurrer 
sustained.  Plaintiffs  appealed.  Reversed.  The  facts  appear  in  the 
opinion.! 

Pp:arson,  J.  The  will  of  Tobias  TTendricks  contains  this  clause: 
"T  will  and  bef|ueath  unto  my  son  Solomon  80  acres  of  land,  the 
|)lace  on  whicli  he  lives,  getting  his  complement  on  the  north  side. 
I  will  and  bequeath  unto  my  daughter  ]\Iary.  the  remainder  of  the 
place,  on  which  my  son  Solomon  lives."  IMary  is  the  plaintiff, 
together  with  her  husband  and  Alderd  an  allr'god  purchaser  under 
them.     Solomon  is  the  defendant.     The  bill  alleges  that  the  tract 


Sec.    3.]  REMEDIES    IX    SPECIAL    CASES.  733 

contains  about  ]30  acres,  and  the  defendant  refuses  to  make  a 
division  by  runninof  a  straight  line  across  the  tract  so  as  to  take 
off  80  acres  for  him  on  the  north  side,  or  to  make  one  any  other 
way.  The  prayer  is  that  a  partition  may  be  made  by  a  decree  of 
this  court.  A  demurrer  was  sustained  in  the  court  below.  In  this, 
there  is  error. 

It  is  said,  this  bill  is  an  application  to  a  court  of  equity  to  put  a 
construction  upon  a  devise;  which,  beintr  purely  a  legal  (luestion. 
should  be  decided  in  an  action  of  ejectment,  and  a  court  of  equity 
has  no  jurisdiction.  We  grant  that  a  court  of  equity  never  has  as- 
sumed jurisdiction  simply  to  construe  a  devise,  for  it  is  in  the 
nature  of  a  conveyance.     The  title  passes  directly  to  the  devisee. 

.  .  But  courts  of  equity  have  always  taken  jurisdiction  in 
cases  of  partition,  and  if.  in  the  exercise  of  that  jurisdiction,  it 
becomes  necessary  incidentally  to  put  a  construction  upon  a  de- 
vise, there  is  no  reason,  when  the  court  is  constituted  like  oui*s. — 
that  is.  when  both  courts  are  held  by  the  same  judge — why  the 
judge,  sitting  in  a  court  of  equity,  should  arrest  the  case,  and  send 
it  to  himself,  sitting  in  a  court  of  common  law.  for  the  purpose 
of  obtaining  a  construction  of  the  devise.  This  is  every  day  prac- 
tice. If  a  case  is  in  a  court  of  equity,  and  it  becomes  necessary,  in 
order  to  the  decision,  to  say  whether  by  a  proper  construction 
"the  rule  in  Shelly's  ca.se"  (for  instance)  applies,  that  court  pro- 
ceeds to  determine  the  (|uestion.  whethci-  it  be  presented  by  a  deed 
or  by  a  devi.se.  The  amount  of  it  is  this.  A  court  of  equity  will 
not  take  jurisdiction  simply  to  put  a  con.struction  on  a  deed  or  a 
devise.  l)ecause  tbat  is  a  pure  legal  (|U('stion.  There  is  a  plain  rem- 
edy at  law.  and  such  an  assumption,  on  the  paii  of  a  court  of 
equity,  would  break  down  all  distinction  between  the  two  jurisdic- 
tions. But  where  a  case  is  properly  in  a  court  of  equity,  under 
some  of  its  known  and  accustomed  beads  of  jurisdiction,  and  a 
question  of  construction  incidentally  arises,  the  court  will  deter- 
mine it.  it  being  necessary  to  do  so,  in  order  to  decide  the  cause. 

The  present  is  a  case  strictly  of  jiartition,  and  there  is  no  rem- 
edy except  in  a  court  of  equity;  tor.  fifty  actions  of  ejectment 
(supposing  either  i)arty  could  maintain  one)  would  not  establish 
the  dividing  line,  because  there  is  in  fact  no  such  line;  and  none 
other  but  a  court  of  equity  can  make  the  line,  and  this  that  court 
has  jurisdiction  to  do.  bccaiise  thci-e  is  no  other  rem(Mly.  and  it  is 
against  conscience  for  tiic  ])arty  to  ol)jcct  to  a  division. 

But  it  is  said,  these  ])arties  ari'  iicitlicr  joint  tenants,  co-parceu- 
crs.  nor  t(>nants  in  coiiniion.  and  conscMiucnt ly  tliis  cannot  be  a 
question  of  pai't  it  ion.  It  is  Ir'uc,  ihc  pai't  ics  arc  not  st  I'ictly  spcak- 
uig  tenants  in  conuiion  :  luit  lbc>  ;irc  in  a  similai-  i-chition  towards 
cacb  otbcr;  neither  has  an>  p.irl  in  severalty.  ;iih1  xct  tb(\v  own  the 
wliole  tract  to  be  divirled  betwccd  thi-ni.  And  in  fact.  Ibeir  rela- 
tion is  tbat  f>f  tenants  in  common  bctwiMii  wlKtni  the  (i<'visor  ba.«i 
iriade  a  partial  division;  leaving  it  to  Ix'  coitq)letcd  by  llicir  afrr<'e- 
irieiit.  or  otherwise  by  a  »'ourt  of  e(|ui<y.  which  is  the  only  court 
that   can  "enforce  the  rit'lit."     A  <|i'visor  gives  a  tract   of  land  to 


T34  U'KMKDIKS    IN    SPKCIM.    CASES.  |  ( 7( .    .0. 

1»«'  rt|iially  (liviilfd  Itftwccii  Iwit.  Tlifv  arc  hMumfs  in  coiniiioii, 
strictly  speaking.  And  lie  irivcs  a  trad  of  land  to  lie  (Miually 
divided  lu'twocii  A  and  W.  hut  li  is  to  liaAc  tli(>  ''upper  part.'' 
'Plieir  relation  is  that  of  tenants  in  eonininn  with  a  partial  division 
made  by  the  devisor,  lie  i,Mves  (as  in  this  ease)  a  fi-aet  of  130 
aeres  of  land  t<>  i)e  divided  between  A  and  B;  hut  1>  is  1o  liave 
80  aoros  laid  otV  on  the  nortli  side,  and  .\  is  to  lia\'e  Hie  residue. 
Their  relatit)n  is  that  of  tenants  in  eonnnon  with  a  |)artial  divi.sion 
made  by  the  devisor,  pro\  idini:  that  U 's  share  shall  not  oidy  be  on 
till'  north  side,  but  shall  contain  SO  acres;  and  A  shall  have  the 
nMunant  as  his  share:  withonl  i;i\in^'  any  be<rinninir  or  course  for 
the  tlividina;  line  or  the  forni  of  tin'  ]a?i(l. 

The  decretal  oi'der  must  be  i-eversed.  and  this  opiinon  be  certi- 
fied. If  the  defemiant.  by  iiis  answei-.  admits  tlie  facts  allejied,  he 
will  sujigest  the  mode  of  division  which  he  insists  will  be  right. 
Tlie  court  can  then  decide  between  the  two  modes  of  jiartition 
suiigested ;  or  he  may  ivfei-  tlie  matter  lo  tlie  master,  with  direc- 
tions to  have  a  survey  and  to  rejjort  a  sclieme  of  division,  together 
with  tlie  facts.  To  this  report  eithei-  party  may  except,  and  the 
qm^stion  will  thus  be  dii-eetly  liefore  the  court. 

See  also  Wright  v.  Harris,  116  N.  C.  462,  21  S.  E.  914,  and  Harris  v. 
Wright,  lis  N.  C.  422.  24  S.  E.  T")!,  for  otlier  oases  of  jiartition  among 
"tenants  in  common  with  a  partial  division  made  by  the  devisor."  See 
"Wills,"  Centurv  Dig.  §  1454;  Decennial  and  Am.  Dig.  Kev  No.  Series 
§  627. 


CRAIGHEAD  v.  PIKE,  .',8  N.  J.  Eq.  15,  22-25,  43  Atl.  424.     1899. 

Partition  of  Partncishii)  Lands.  Sale  for  Partition  and  Actual  Parti- 
tion in  Equity.  Setting  Apart  the  Share  of  One  Tenant  and  Leav- 
ing the  Residue  to  be  Held  in  Common  by  tlie  Other  Tenants. 

[Bill  in  equit.v  for  actual  i)artition  of  lands  held  by  several  persons  as 
co-partners  in  a  land  speculation.  The  lands  consisted  of  what  is  known 
as  Salt  Marsh,  and  the  main  tract  contained  2800  acres.  The  plaintiff's 
share  was  one  sixty-fourth.  The  income  from  the  lands  was  insufficient 
to  defray  the  taxes  and  other  expenses.  The  defendants  resisted  an 
actual  partition  ui)on  various  .grounds,  none  of  which  need  be  stated 
except:  (1)  That  it  was  contended  that  the  lands  should  be  sold  in  one 
body,  because  such,  it  was  contended,  was  the  intention  of  the  co-part- 
ners when  the  lands  were  purchased.  The  court  held  that  such  was 
not  the  intention — a  conclusion  arrived  at  upon  the  facts  before  the 
court;  (2)  That  so  small  a  share  as  one  sixty-fourth  could  not  be  allotted 
to  one  co-owner  without  great  prejudice  to  the  other  owners;  (3)  That 
it  was  impracticable  to  set  apart  one  sixty-fourth  of  the  land  in  sev- 
eralty.    Decree  for  the  plaintiff.l 

Pitney,  V.  C.  .  .  .  The  rule  in  this  country  is  well  settled 
that  lands  held  for  partnei-sliij)  ])ur])o.ses  will  he  considered  as 
converted  into  personalty  only  to  the  extent  necessary  to  pay  the 
partnership  debts.  All  lands  remaining  after  that  purpose  is 
sensed  are  liable  to  be  divided  in  sjx'cie  by  i)artition  proceedings. 
So  that  the  case,  under  the  view  most  favorable  to  the  defendants' 
contention,  stands  thus.     The  complainant  is  entitled  to  have  the 


Sec.    3.]  REMEDIES    IN    SPECIAL    CASES.  735 

partnership  enterprise  wound  up.  Its  assets  in  part  consist  of 
lauds.  There  ai"e  no  debts.  Under  those  circumstances  I  can  see 
no  rea.son  why  she  should  not  have  her  share  set  off  to  her  in  specie. 
Freein.  Co-Ten.  {'2d  ed.)  §§  118.  443;  Shearer  v.  Shearer.  98  :\Iass. 
111.  Formerly  the  same  rule  prevailed  in  England,  but  latterly 
the  disposition  of  the  English  courts  has  been  to  hold  that  land 
held  by  partners  foi-  partnership  purposes  is  converted  absolutely 
into  personalty,  and  nuist  be  disposed  of  as  such  upon  dissolution. 
Probably  the  secret  of  this  tendency  of  decision  is  the  disposition 
of  the  English  courts  to  avoid  the  injustice  of  the  English  canon 
of  descent  of  real  estate  to  the  eldest  son.  The  disposition  of  the 
law  is  against  holding  land  to  l)e  perpetually  free  of  the  right  of 
partition,  and  the  courts  have  only  held  such  freedom  under  pe- 
culiar circumstances  and  for  limited  periods. 

The  leading  case  in  this  countiy  is  Coleman  v.  Coleman.  19  Pa. 
St.  100.  That  was  a  suit  for  the  partition  of  the  famous  Cornwall 
ore  banks  and  mine  hills  in  Lebanon  county.  Pa.,  which  were  held 
under  a  peculiar  agreement  sanctioned  by  a  decree  made  in  the 
last  century,  and  the  decision  against  partition  was  put  on  the  in- 
trinsic difficulty,  if  not  impossibility,  of  malting  an  actual  parti- 
tion, and  on  the  feasibility  of  the  property  being  held  in  a  sort  of 
severalty  according  to  the  special  agreement  mentioned.  Another 
case  is  one  in  England,  of  Peck  v.  Cardwell  (decided  by  Lord 
l^angdale  in  1839i  2  Beav.  137.  There  land  was  bought  by  four 
persons  and  laid  out  into  building  lots  under  a  special  and  partic- 
ular scheme  by  which  the  lots  were  to  be  sold  for  the  benefit  of  all 
parties,  and  there  was  a  provision  for  buying  out  the  share  of  an,v 
one  of  the  parties  who  desired  to  withdraw  from  the  enterprise. 
The  agreement  is  not  fully  set  forth,  and  the  question  apparently 
not  much  debated  or  fully  considered,  the  attention  of  counsel  and 
court  l>cing  devoted  to  another  question  arising  in  the  cause. 
Xeithcr  of  these  cases  covers  the  present. 

But.  in  the  second  place,  the  defendants  allege,  and  offer  proof 
tending  to  .show,  that  these  lands  cannot  be  divided  or  even  so 
small  a  share  as  ^-('A  set  oft'  without  great  prejudice  to  the  re- 
mainder. The  theoi-y  of  the  defense  is  that  it  will  be  unfair  to 
the  great  majority  who  desire  to  keep  the  whole  premises  in  a  body 
to  take  away  even  so  small  a  portion.  I  have  carefully  considered 
all  the  evidence  on  that  to])ie.  and  T  am  unable  to  accede  to  that 
contention.  It  seems  to  me  that  thei-e  can  be  no  injury  to  the  body 
of  the  tract  by  .setting  off  1-64,  which  will  amount  to  only  between 
forty  and  fifty  acres.  Parcels  larger  and  smaller  than  that  were 
sold  vdliuitarily  by  the  original  joint  ])i'oprietors.  and  without  any 
undertaking  on  the  |)art  of  the  grantees  lo  contribute  1(t\\;u'ds  the 
expen.se  of  sustaining  the  (likes.  But  it  is  further  said  that  the 
value  of  the  ditTerr'nt  portions  varies  so  much  that  it  will  be  ini- 
praetieable  to  set  off  to  the  coiii|>liiin;nit  luT  part  so  Ih.it  it  will  be 
in  value  just  ef|ual  to  1-fi-l  of  the  whole.  Here,  iigain.  I  am  un- 
able to  adojit  that  view.  As  we  have  seen,  the  land  is  traversed 
in   iiiJiny  directions  by  railroads,  turnjukes.  and   trolleys;  and  it 


~M  KKMKOIES    IN    SPKCIAl,    CASES.  \CJl.    !). 

stTiiis  to  iiir  lli;il  tlirrc  will  \)r  no  ilirticiilt.v  ill  pickiii^'  out  I'orty  or 
lifty  jUTt's  or  ;i  tr.irt  of  sudi  size  Jis  in  I  tic  .iii(li,'ni(Mit  of  llircc  sciisi- 
hit'  ;nul  iiiti'Ilit;fiit  coiiiiuissioiuM-s  will  niiKuiiil  in  xjiluc  to  l-()4  of 
tlu'  wiioltv  Foi'  it  must  he  i-onicinltcrcd  tli.il  I  lie  coiiiniissioiu'i's  jiri' 
not  I'onfincd  to  l.iyiiii:  o(T  a  plot  wliicli  sliiill  he  in  acros  l-()4  of  the 
whoK'  iuul  l-(i4  in  vahu".  Tlicy  may  vaiy  tlic  size  of  the  lot  to 
make  it  in  tlirir  jndiiiiifiit  ('(|ual  in  value  lo  l-()4  of  llic  whole. 
Airain.  1  tiunk  it  would  he  a  jrreat  hardship  upon  the  eompiaiiunit. 
to  compel  liei-  to  sulmiif  to  a  sale  of  the  whole  ])remises  in  one 
hloek.  and  to  take  l-(i4  of  the  proceeds.  The  i*ikes  and  Tilnoys 
have  been  trying  for  years  to  make  a  sale  of  Ihese  |)i'emis(\s  in  ono 
hloek.  and  proceedinj^s  in  this  partition  were  (h'layed  from  time  to 
time  upon  tlu'  statement  of  counsel  that  a  sale  was  about  to  bo 
completed,  and  yet  it  iiev(>r  has  been  eoiiii)leted  ;  and  if  the  prem- 
ises were  deci'eed  to  he  sold,  as  at  pi'esent  advised.  [  would  not  ad- 
vise a  decree  that  they  be  sold  in  a  body,  but  in  reasonable  })arcels. 
so  tliat  each  person  holdinjr  a  small  share  would  be  able  to  protect 
himself.  I'pon  tlie  whole  ca.se  I  thiid<  it  but  just  to  the  complain- 
ant, and  b.\-  no  means  unfair  to  the  defendants,  that  she  should 
have  her  l-(i4  i)art  set  off  to  her.  The  defendants  desiring  not  to 
have  a  pai'tition  amonfj  themselves,  but  to  have  the  power  to  sc^ll 
as  they  shall  be  advised,  may  have  a  decree  to  that  effect,  wliich 
may  he  enforced  to  suit  their  convenience. 

See  also,  for  i)artition  of  co-partnership  lands,  Collins  v.  Dickinson, 
2  N.  C.  240,  where  it  is  held  that  a  partition  of  such  property  is  a  mat- 
ter of  right,  which  a  court  of  equity  will  enforce;  and  Planner  v.  Moore. 
47  N.  C.  120,  which  holds  that  there  will  be  no  decree  for  the  i)artition 
of  such  proi)erty  unless  and  until  all  the  i)artnership  accounts  have 
been  adjusted  between  the  nienibeis  of  the  firm,  and  the  clear  interest 
of  each  partner  ascertained;  and,  as  a  court  of  law  cannot  take  such 
accounts,  the  jurisdiction  for  a  partition  of  co-partnershiji  lands  must 
necessarily  be  in  equity,  whenever  it  is  necessary  to  adjust  the  ac- 
counts before  the  respective  interests  of  the  several  members  can  be  as- 
certained. As  to  the  jurisdiction  in  equity  for  partition  of  partnership 
realty,  see  6  Pom.  Eq.  .lurisp.  sec.  943;  30  Cyc.  184;  21  Am.  &  Eng.  Enc.  L. 
(2d  ed.)  1154.  See  "Partition,"  Century  Dig.  §§  37,  211-223;  Decennial 
and  Am.  Dig.  Key  No.  Series  §§  14.  77. 


XIXON  v.  LINDSAY,  55  N.  C.  230.     1855. 

Contribution    for    Defects.      Implied    Warranty    in    Partition.      Caveat 

Emptor. 

r Cause  in  equity  removed  to  the  supreme  court,  and  heard  there  upon 
bill,  answer  and   proofs.     Decree   for  con1ril)ution   and   account. 

The  bill  in  equity  alleged  that  the  plaintiff  and  defendants,  being 
owners  in  common  of  certain  slaves,  had  agreed  that  a  partition  thereof 
might  be  made  by  certain  commissioners;  that  the  commissioners  so 
selected  valued  the  slaves  at  the  aggregate  sum  of  $4,600,  the  share  of 
each  tenant  in  common  being  $1,150;  that  a  division  was  made  and  two 
slaves,  Gabriel  and  Mary,  were  set  apart  to  the  plaintiff  at  the  respective 
values  of  $750  and  $400;  that  Mary  was  sick  at  the  time  she  was  turned 
over  to  the  plaintiff,  but  the  commissioners  and  all  the  interested  parties 
thought  her  malady  was  of  no  importance:    that    in   fact  Mary,  at  that 


Sec.    3.]  REMEDIES    IX    SPECIAL    CASES.  737 

time,  was  afflicted  witli  African  consumption,  of  wiiich  she  died  two 
months  thereafter;  that  plaintiff  had  paid  out  a  good  deal  of  money  in 
administering  to  the  necessities  of  Mary.  There  were  also  charges  of 
fraud  and  deceit,  on  the  part  of  some  of  the  defendants  in  putting  off 
Mary  upon  the  plaintiff,  such  defendants  having  knowledge  of  her  con- 
dition and  concealing  it,  etc.  The  bill  prayed  that  the  defendants  be 
decreed  to  contribute  pro  rata  to  make  good  the  plaintiffs  loss  by  the 
death  of  Mary  and  the  expenses  incurred  in  attending  to  her  while  sick. 
The  allegations,  other  than  the  charges  of  fraud,  etc.,  were  practically 
admitted  by  the  answer.! 

Pearson,  J.  The  bill  contains  an  allegation  that  the  defendants 
knew  of  the  nnsonndness  of  the  slave,  and  frandnlently  concealed 
it  from  the  persons  selected  to  make  the  division  and  from  the 
guardian  of  the  plaintiffs;  and.  by  misrepresentation  and  false- 
hood, caused  them  to  believe  that  she  was  laboring  under  tempor- 
ary indisposition,  from  want  of  sleep,  etc.,  in  attending  at  a  sick 
bed.  "Without  pa.ssing  upon  the  proofs,  we  put  this  allegation  out 
of  the  case ;  nor  do  we  lay  any  stress  upon  the  fact  that  the  plain- 
tiffs were  infants,  and  according  to  Lord  Coke,  are  n^t  lumnd  by 
the  partition,  unless  it  be  equal.     Coke  Lit.  171.  a. 

The  qtiestion  is  this :  Tenants  in  common  of  slaves  select  com- 
missioners who  make  partition ;  in  the  lot  assigned  to  the  plaintiffs 
is  a  girl.  Mho.  at  the  time  of  the  division,  was  unsound,  having  an 
inctirable  disease  called  African  consumption,  of  which  she  died 
about  two  months  thereafter;  the  tenants  in  common  and  the  com- 
missioners had  no  knowledge  of  this  unsoimdness.  and  all  sup- 
posed the  girl's  indisposition  to  be  slight  and  temporary,  and  she 
was  valued  at  .^-K^*^:  have  the  plaintiflPs  an  equity  for  contribution? 

The  plaintiffs  ai-e  entitled  to  contribution,  upon  the  broad 
ground  of  substantial  justice,  expressed  in  the  books  by  the  maxim 
"equality  is  equity.''  This  conclusion  may  be  supported  upon 
two  well  settled  principles: 

1.  Tn  partition  of  diottch,  which  is  an  ef|uitable  proceeding,  a 
warranty  is  implied,  not  only  of  title,  hut  of  soundness:  and  the 
common  law  maxim  "caveat  emptor"  has  no  application,  being 
restricted  (as  the  word  "emptor"  imports)  to  sales  of  chattels. 
Tn  tlie  conveijanee  of  a  fee  simple  estate  in  land,  no  warranty  is 
implied;  because  there  is  no  tenure.  In  partition  of  land,  a  war- 
ranty is  implied;  ])ecause  of  the  privity  of  estat(.  Tn  sales  of 
chattels  a  warranty  of  title  is  implied;  but  there  is  no  implied 
warranty  of  soundness,  the  maxim  of  the  connnon  law  being  "ca- 
veat emptor;"  becjiusc  it  was  Ihought  some  "play"  (as  mechanics 
call  it)  ought  1(>  l)r  ;ill()\vc<l  l'(ir  the  cjiairci-iiiii'  ;in(1  exercise  of  in- 
dividual .iudgiiK'iil.  ;i1t<'ii(lant  upon  Ihc  Irattie  in  such  articles 
when  tin-  j)arli('s  ai-f  at  "arm's  Iciiglh."  and  each  is  sujiposed  to 
ti'rulc  w  illi  his  eyes  (ipen  ;  so  lliat  in  llir  absence  of  an  ('X])ress  war- 
ranty of  soundness,  the  /m  rrli(is(  r  of  ;i  cliiilti'l  li;is  no  iiincdy  ex- 
cept on  the  ground  of  deceit.  This  ina.xini.  liowever.  was  ix't-nliar 
to  \hr.  eornmon  hiw.  The  civil  law  eni'oreed  a  more  n-tined  mor- 
ality, and  aeied  (in  the  inle.  in  the  sale  of  ehattels.  "a  sound  |)rice 
implies  sound  properly,"  Tlie  edmrnon  la\s  iiiaxini  was  eoiilined 
Remedle.s — 47.  — 


'I'SS  REMKOIKS    IN    Sl'bX'lAI.    CASKS.  [CIl.    .9. 

to  sal(s.  wlifiv.  !)s  \\(>  lijivc  seen,  the  pai'tifs  ni-c  suiiposcd  to  bt>  ;iL 
anu's  It'iiixth.  aiul  no  authority  or  iiit  iiuat  ion  in  tlio  hooks  i-an  he 
I'oiuul.  tliat  it  ever  was  supposed  lo  cxleiul  in  kis(s  of  parliliini. 
1  Story's  K.|.  l>lM  ;  l'  K.ni.  ITii;  L'  iSuk.  Com.  4;")!.  I'poii  partition, 
the  parties  are  in  etpiali  jure;  tliere  i.s  supposed  to  he  nnitual  con- 
tidenee  l)y  reason  of  the  privity  of  estate:  and  the  ohjiM-l  is  to  make 
an  e«pial  ilivision  of  a  coninion  fund.  Thcrf  is  no  ehalVerinj?  or 
tratliekinji'  alxuit  il  ;  third  |>ersons.  seleeted  l)y  themselves,  or  ap- 
pointed l)y  the  eourt.  make  tlie  division,  and  if  the  common  fund 
is  not  as  hii'ire  as  the  pai'ties  suppose',  either  from  defeet  of  tith\  or 
of  nnsoundni'ss  as  to  part,  the  h)ss  sliould  he  borne  equally;  in 
other  words,  in  pari  il  ion  I  here  is  an  implied  warrant  ij  bolh  as  lo 
I  Hit   and  soiindcsji. 

'2.  WhiM-e  the  ])arties  aet  upon  a  mutual  jnistake  as  to  a  fact, 
equity  will  relieve,  for  the  i)ui'i)ose  of  eai'rying  the  intention  into 
etTeet.  ITi-rc  the  intention  was  to  make  a  fair  and  equal  division. 
In  cousequenee  of  a  nuitual  }nistake  as  to  a  fact,  i.  e.  the  unsound- 
ness of  one  of  tlie  slaves,  the  division  is  <;rossly  une(|ual;  so  that 
the  share  allotted  to  the  plaint ilfs  is  of  less  value  than  the  other 
shares  1)\-  moi-e  than  one-third.  Need  any  authority  be  cited  to 
show  that  a  court  of  equity  will  compel  contribution  in  order  to 
set  the  matt»M'  i-iplit.  so  that  the  loss  may  be  divided?  By  way  of 
familiar  illustration:  four  boys  have  four  a])ples;  they  divide; 
one  of  the  apples,  althoujih  sound  outside,  is  rotten  at  the  core  and 
not  fit  to  be  eaten  ;  will  the  others  hesitate  to  make  their  comrade, 
who  was  so  nnfortunate  as  to  get  the  rotten  apple,  equal,  by  each 
giving  him  a  jjart  of  theirs? 

The  plaintitfs  are  entitled  to  contribution  for  the  estimated 
value  of  the  slave,  and  also  for  the  necessary  and  reasonable  ex- 
pense incidental  to  her  last  illness,  and  for  loss  of  service;  in  re- 
gard to  which  there  must  be  an  account. 

See  also  Cheatham  v.  Crews,  88  N.  C.  38,  for  an  approval  of  the  prin- 
cipal case  and  a  further  ruling  that  if,  through  mistake,  a  parcel  of  land 
be  allotted  to  one  of  the  parties  at  a  valuation  based  upon  an  erroneous 
impression  as  to  the  number  of  acres  it  contains,  such  party  can  obtain 
compensation,  in  money,  from  the  others.  In  adjusting  such  matters, 
the  lost  or  deficient  property  is  valued  as  of  the  time  of  the  partition, 
and  that  value,  plus  interest  to  the  time  of  contribution,  is  the  amount 
the  Injured  party  is  entitled  to  receive — less  his  share  of  the  incidental 
loss.  As  to  the  jurisdiction  and  practice  in  partition  of  chattels,  see 
Robinson  v.  Dickey,  143  Ind.  205,  42  N.  E.  679,  inserted  post  in  this  sec- 
tion. See  "Partition,"  Century  Dig.  §  450;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  116. 


CLARENDON  v.  HORNBY,  1   Peere  Williams,  446.     1718. 
Charges  of  Owelty  to  make  the  Partition  Equal  and  Reasonable. 

fBil!  in  equity  for  partition.  Of  the  lands  held  in  common,  the  plain- 
tiffs Bligh  and  wife  owned  two-thirds  and  the  defendant  one-third.  The 
lands  consisted  of  "a  great  house  called  Cobham  House,  and  Cobham 
Park  in  Kent,  and  of  farms  and  lands  about  it  of  1000  pounds  per  an- 
num." The  defendant  insisted  on  having  allotted  to  him  specifically 
a  third  of  the  great  house  and  a  third  of  the  i)ark.| 


Sec.    3.]  REMEDIES    IN    SPECI-VL    CASES.  739 

Lord  Chancellor  Parker.  Care  must  be  taken,  that  the  defend- 
ant Hornby  .shall  have  a  third  part,  in  value,  of  this  estate ;  but 
there  is  no  colour  of  reason,  that  any  part  of  the  estate  should  be 
lessened  in  value,  in  order  that  the  defendant  Hornby  should  have 
one  third  of  it;  now  if  Mr.  Hornby  should  have  one  third  of  the 
house  and  of  the  park,  this  would  very  much  lessen  the  value  of 
both.  If  there  were  three  houses  of  different  value  to  be  divided 
amongst  three,  it  would  not  be  right  to  divide  every  bouse,  for 
that  would  be  to  spoil  every  house;  but  some  recompense  is  to  be 
made,  either  by  a  sum  of  money,  or  rent  for  owelty  of  partition, 
to  those  that  have  the  houses  of  less  value.  It  is  true,  if  there  were 
but  one  house,  or  mill,  or  advowson,  to  be  divided,  then  this 
entire  thing  must  be  divided  in  manner  a.s  the  other  side  contend ; 
secus  when  there  are  other  lands,  which  may  make  up  the  defend- 
ant's  share.  By  the  same  reason,  every  farm-house  upon  the  es- 
tate must  be  divided,  which  would  depreciate  the  estate,  and  oc- 
casion perpetual  contention ;  and  it  may  be  the  intent  of  the  de- 
fendant, when  this  partition  is  made,  to  compel  the  plaintiff  to 
give  the  defendant  forty  years  purchase  for  his  third  of  the  house 
and  park. 

Therefore,  since  the  plaintiff  Bligh  and  his  wife  have  two-thirds, 
I  recommend  it  that  the  seat  and  park  be  allowed  then,  and  that 
a  liberal  allowance  out  of  the  rest  of  the  estate  be  made  to  the  de- 
fendant, in  lieu  of  his  share  of  the  house  and  park. 

See  Rev.  sec.  2491  and  Pell's  notes  thereto;  also  Rev.  sees.  2496,  2497. 
See  "Partition,"  Century  Dig.  §§  230-235;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  84. 


HALL  V.  PIDDOCK,  21  X.  J.  Eq.  311,  313-317.     1871. 
Betterments  put  on  Common    Property    by.   One    Tenant    in    Common. 
Equitable  Partition.     Adjustment  of  Rights  ivhcn  Betterments  arc 
Made.     .S'u?e  for  Partition. 

[Bill  in  equity  to  restrain  partition  proceedings  at  law  and  tor  i)arti- 
tion  by  the  court  of  chancery.  The  cause  was  heard  upon  bill,  answer, 
and  proofs.     Decree  for  the  plaintiff. 

The  bill,  etc..  showed  that  the  plaintiff  and  defendants  were  tenants 
in  common  of  an  acre  of  land  covered  with  buildings,  which  were 
erected  by  those  from  whom  plaintiff  derived  liis  share—no  part  thereof 
having  been  erected  by  the  defendants  or  those  under  whom  they  claim; 
the  plaintiff  owned  an  undivided  three-fourths,  and  the  defendants,  one- 
fourth.! 

ZAHHii^Kii;.  Clwiiic'llor.  .  .  .  The  rule  thill  a  IcikiiiI  in  coiii- 
iMon.  who  has  made  iiiii»r()vcmcnts  on  the  land  held  in  common,  is 
entitli'd  to  an  ('(luitablc  partilioii.  is  wrll  cslalilisln-d.  and  is  hardly 
disputed  by  coiuisei.  The  only  -rood  faith  ivtjuin'd  in  such  in 
provcnicnt.s  is  that  they  shouhl  l)e  mad<-  honestly  for  the  purpose 
of  improving;  the  propi-rty.  and  not  for  cniliarrassing  his  co-ten- 
ants, or  cncniMhcrintr  tlnir  estate,  or  hindering  partition.  The 
fact  that  the  tenant  making  such  improvements  knows  that  an  un- 
divide<l  share  in  tlw  lan<l  is  li.-ld  l.y  another,  is  no  bar  t-.  e.juilable 


\- 


740  K-K.Mi;mKs  i\  sn'ciM,  casks.  [(7(,  9. 

partition.  No  dIIut  \\;inl  of  i^dtnl  I'nitli  is  ;ill('i;c(l  or  .•ontcmlcd  foi- 
by  tlio  dcrciuliinls  in  this  cjiusc. 

Tho  |)t\-uli;ii-itii's  of  ;iii  ciiuiljihlc  pari  it  ion  ai'c:  {])  That  such 
part  of  till'  hnul  as  may  hi'  mdrc  advantaircoiis  Id  any  pait\  on  nc- 
count  of  its  proximity  to  liis  otlicr  land,  of  foi-  any  other  i-cason. 
will  1)0  tlirt'ctod  1o  l)o  sot  oil'  to  iiiui  if  it  can  lie  {]n\\o  witliont  in- 
jury to  the  others;  (LM  That  when  the  lands  ari'  in  se\'eral  parcels 
each  joint  owner  is  not  entitled  to  a  share  of  each  i)arc(>l,  hut  only 
to  his  e(|ual  share  in  the  whole;  (8)  That  where  a  partition  ex- 
actly etpial  cannot  he  made  without  injury,  a  jiross  sum  or  yearly 
rent  may  he  dii-ecled  to  he  ])aid  for  owelty  oi-  erpiality  of  ])arti- 
tion.  by  one  whose  shai'c  is  too  larj^-e.  to  otlu'rs  wliose  shares  arc 
too  small,  ami.  (4)  That  where  one  joint  owner  lia.s  put  improve- 
ments on  the  propei'ty.  he  shall  receive  compensation  for  his  im- 
jn-ovi'ments.  either  hy  having  the  ])art  n]ion  which  the  improve- 
ments iwc.  a.ssiuned  to  him  at  the  value  of  the  land  without 
the  impi'ovement,  or  l)y  compensation  directed  to  he  made  foi- 
them.  The  docti-ine  as  to  allowance  foi'  improvements  is  laid 
down  hy  -lust  ice  Stoiy  in  Kq.  Jur.  sec.  Oof).  It  was  reeofjnized  and 
acted  on  hy  the  Knj^'lish  Court  of  ExcluMjuer  in  e(|uity,  in  Swan 
V.  Swan.  S  Price.  518;  by  the  courts  of  New  York,  in  Town  v. 
Xeedham.  :?  Paijie.  55:3;'St.  Felix  v.  Rankin.  3  Edw.  Ch.  823; 
Conklin  v.  Coiddin.  '.^  Sandf.  Ch.  Go.  and  Creen  v.  Putnam.  1  Parh, 
S.  C.  5<10:  and  by  this  court,  in  Prooklield  v.  Williams,  1  Green's 
Ch.  341  ;  Chert  v.  Obert.  1  ITalst.  Ch.  397,  and  Dou^hadav  v. 
Crowell.  3  Stockt.  201 .... 

Tn  makincr  the  partition  in  this  ease,  if  any  can  be  made  without 
great  injury,  the  share  or  one-fourth  to  be  alloted  to  the  defend- 
ants must,  if  practicable,  be  set  off  from  such  part  of  the  premises 
as  has  no  improvements  upon  it  or  improvements  of  small  value, 
and  nmst  be  equal  in  value,  without  im])rovements.  to  one-fourth 
of  what  would  be  the  value  of  the  whole  land  if  it  had  no  improve- 
ments upon  it. 

I  am  not  satisfied  from  the  evidence  that  this  tract  cannot  be 
partitioned  in  this  maimer  witliont  great  injury.  The  report  of 
The  commissioners  a])pointed  by  the  Chief  Justice,  and  his  action 
in  confirming  it,  do  not  affect  the  question  as  res  adjudicata. 
There  the  direction  Avas  to  divide  the  whole  premises,  including 
the  buildings,  into  four  equal  shares,  and  to  assign  one  share  by 
lot  to  each  of  the  original  tenants  in  common.  I  am  satisfied  that 
the  premises  could  not  be  divided  in  that  manner  without  great 
prejudice  to  the  owners. 

Tn  examining  the  map  annexed  to  the  answer.  I  see  that  the 
northeast  side  fronts  on  a  public  road,  and  that  on  the  northwest 
side  of  the  tract  a  lot  of  ninety  feet  in  front.  Avitli  a  depth  which 
might  be  extended  to  two  hundred  and  forty-five  feet,  being  nearly 
line-half  of  the  whole  tract,  has  upon  it  only  a  granary  and  ashed. 
If  these  ai'e  of  small  value,  their  value  might  be  disregarded  by 
consent  of  the  complainant;  or  if  they  are.  as  seems  probable, 
buildings  that  can  be  removed  without  much  loss,  the  right  to  re- 


Sec.   3.]  REMEDIES   IN   SPECIAL    CASES.  741 

move  them  within  a  reasonable  time  might  be  reserved  to  the  eoni- 
phiinaut.  Coupled  with  the  right  in  equity  to  allow  a  proper 
amount  as  owelty  to  equalize  the  partition,  the  evidence,  which 
consists  mainly  of  the  opinions  of  witnesses  without  regard  to 
these  matters,  does  not  convince  me  that  a  partition  cannot  be 
made  without  great  injur^^ 

It  nuist,  therefore,  be  referred  to  a  master,  to  inquire  into  and 
report  what  would  be  the  value  of  the  whole  tract  if  no  improve- 
ments had  been  made  upon  it,  and  whether  some  part  of  the  tract 
upon  which  no  improvements  have  been  made,  or  only  improve- 
ments of  small  value  or  that  can  be  removed  without  material 
loss,  cannot  be  set  off,  which  will  be,  without  improvements,  equal 
in  value  to  one-fourth  of  the  value  of  the  whole  tract  so  ascer- 
tained ;  or  whether  such  part  cannot  be  set  off  in  that  manner  by 
allowing  or  charging  a  reasonable  sum  for  owelty;  and  whether 
such  partition  can  be  made  without  great  prejudice  to  the  owners 
of  the  property.  And  further  to  inquire  into  and  report  what  is 
the  present  value  of  the  premises  with  the  improvements  now 
standing  on  them,  and  also  what  has  been  the  yearly  net  value  of 
the  premises  from  April  1st,  1865,  when  the  defendants  acquired 
their  title  to  the  one-fourth  of  it.  The  defendants  are  entitled  to 
such  portion  of  the  fourth  of  the  net  proceeds  of  the  premises  as 
belongs  to  the  land.  The  proper  way  to  ascertain  and  apportion 
that  is,  to  give  to  the  land  such  proportion  of  the  whole  net  yearly 
value,  as  the  value  of  the  land  bears  to  the  value  of  the  whole 
premises,  and  to  award  one-fourth  of  it  to  the  defendants. 

If  it  shall  appear  that  the  premises  cannot  be  divided  in  the 
manner  directed,  a  sale  must  be  ordered,  and  out  of  the  proceeds 
of  the  sale  a  proper  allowance  made  for  the  value  of  the  improve- 
ment put  upon  the  premises.  The  part  of  the  proceeds  to  be  al- 
lowed for  the  inq)rovemcnts  must  be  such  proportion  as  the  value 
of  the  improvements,  that  is  the  excess  of  the  value  of  the  whole 
over  the  value  of  the  land.  l)ears  to  the  value  of  the  whole  premises. 
The  cases  of  fVmklin  v.  Conklin  and  Green  v.  Putnam  are  author- 
ity for  such  allowance  out  of  the  i)roceeds  of  the  sale.  In  the  last 
case,  Justice  Paige  says:  "Where  one  tenant  in  common  lays  out 
money  in  improvements  on  the  estate,  a  court  of  equity  will  not 
grant  a  partition  without  first  directing  an  account  and  suitable 
compensation,  or  else  in  the  partition  it  will  assign  to  such  teiuuiL 
in  common  that  part  of  the  premises  on  which  the  improvements 
have  been  made."  And  he  directs  a  reference  to  inquire  into  the 
value  of  the  buildings,  and  by  whom  paid  for,  and  the  amount  of 
rents  and  profits,  and  Ity  whom  received,  so  fhat  in  case  a  sale 
should  b(!  ordered  the  proper  allowance  might  be  made. 

See  Holt  V.  Coudi.  llT)  N.  C.  456.  :'.4  S.  M  To:;;  Wetherell  v.  GornKin. 
74  N.  C.  603.  See  ch.  3.  sec.  4,  ante.  See  "Partition,"  Century  Dig. 
58  236-2:19.  Decennial  anrl  Am.  Die  No.  Srrios  §  Sf). 


T4L'  UEMEDIKS    I.N    Sl'lXlAL    lASES.  |  ('/( .    U. 

UERMAX   V,   WATTS.   107  X.  C.  GUi.  Gf)!,    IJ   S.   E.  437.     ISltO. 
licnifdi/  for  Collritiini  of  Oiccltij. 

I  Action  to  reoovcr  a  ;uiii  of  ino.ioy  cliaiiAoil  as  owelty  upon  lands  held 
by  delVndnnt  at  the  time  the  action  was  brought.  Tliore  was  a  prayer 
for  judgment  lor  a  sale  of  the  land  unless  the  owelty  were  paid  hy  a 
day  to  he  lixed  hy  the  eourt.  The  defendant  moved  to  dismiss  the  action 
upon  the  ground  that  plaint ifl's  remedy  was  by  motion  in  the  cause  in 
which  the  partition  had  been  ordered  and  the  owelty  charged.  Motion 
overruled.  Verdict  and  judgment  against  the  defendant.  Defendant 
appealeil.  Reversed.  Only  so  much  of  the  opinion  as  disposes  of  the 
motion  to  dismiss,  is  here  inserted.] 

Mekkimon.  C.J.  .  .  .  Wliatevoi-  may  have  been  tlir  iiuilhud 
(if  procedure  and  practice  in  enforcing  the  charge  of  money  upon 
the  dividend  of  land  of  .snp(M-i(M-  Aaliio  lo  make  equality  in  parti- 
tion cases,  it  is  well  settled,  under  tlie  present  method  of  civil  pro- 
cedure, that  it  should  be  done  by  the  writ  of  venditioni  exponas, 
granted  upon  application  by  motion  or  petition  in  the  proceeding 
made  by  the  party  or  parties  inlcresled.  Such  metliod  is  orderl}', 
prompt,  and  economical,  and  should  be  observed,  unless  in  possi- 
ble cases  involving  complicated  litigation.  Waring  v.  Wadsworth. 
80  N.  C.  345;  Halso  v.  Cole,  82  N.  C.  IGl ;  Turpin  v.  Kelly,  85 
N.  C.  309;  Dobbin  v.  Rex.  10(1  N.  C.  444,  11  S.  E.  260;  INFevers  v. 
Rice,  307  N.  C.  G().  12  S.  E.  66.  and  Ex  parte  Walker,  107  N.  ('. 
340,  12  S.  E.  136.  ~  .  .  Upon  the  motion  the  is.sue  as  to  pay- 
ment could  have  been  raised  easily,  as  in  case  of  a  motion  for  exe- 
cution upon  a  judgmetit  that  has  become  dormant,  and  the  judg- 
jnent  debtor  alleges  that  the  judgment  has  been  paid,  or  raises  any 
other  proper  defense.  The  i:)resent  method  of  civil  procedure  does 
not  tolerate,  much  less  encourage,  unnecessary  actions.  Long  v. 
Jan-att,  94  N.  C.  443;  Knott  v.  Taylor.  99  N.  C.  511,  6  S.  E.  788; 
Wilson  V.  Chichester,  ante,  139  (decided  at  this  term),  and  the 
cases  there  cited.  The  counsel  for  the  plaintiffs  insisted  that  the 
partition  proceeding  was  ended, — that  a  final  judgment  therein 
had  been  entered, — and  therefore  the  i)la.intift'  could  not  have  the 
remedy  by  motion  therein.  It  is  true  that  the  rights  of  the  parties 
had  been  settled,  and  the  merits  of  the  subject-matter  of  the  pro- 
ceeding had  been  determined  by  a  final  decree,  and  no  motion 
could  be  entered  to  disturb  that  decree  unless  for  irregularity, 
but  the  final  decree  had  not  been  enforced,  and  it  was  orderly  and 
proper  to  take  any  appropriate  steps  in  the  proceedings  subse- 
quent to  that  decree  to  enforce  it.  This  is  always  done  when  need 
be.  The  final  judgment  nnist  be  enforced  ordinarily  in  the  pro- 
ceeding or  action;  certainly  in  particular  proceedings.  We  are 
therefore  of  opinion  that  the  action  should  have  been  dismissed, 
and  that  the  court  erred  in  denying  the  motion  to  dismiss  the 
same.  To  the  end  that  the  judgment  may  be  reversed,  and  the 
motion  to  dismiss  the  action  allowed,  let  this  opinion  be  certified 
to  the  superior  court.    It  is  so  ordered. 

For  the  law  in  North  Carolina  as  to  when  a  claim  for  owelty  Is  barred 
by  the  statute  of  presumptions  or  the  statute  of  limitations,  see  Smith 


Sec.   3.]  REMEDIES    IN    SPECIAL    CASES.  743 

ex  parte,  13"4  X.  C.  495,  47  S.  E.  16.  For  further  rulings  on  the  same 
subject,  see  Pell's  Revisal  sec.  2491  and  notes.  As  to  proceeding  by  sepa- 
rate action  or  by  motion  in  the  cause,  see  Townshend  v.  Simon,  38  X.  J.  L. 
233,  inserted  at  ch.  8,  sec.  6,  ante.  See  "Partition,"  Century  Dig.  §  233; 
Decennial  and  Am.  Dig.  Key  Xo.  Series  §  84. 


ROBIXSOX  V.  DICKEY,  143  Ind.  205,  208-210,  42  X.  E.  679.     1895. 

Partition  of  Chattels.     Remedies  of  One  Co-tenant  of  Chattels  Against 

Another. 

[Action  for  partition  of  personal  property.  The  complaint  alleged 
that  the  plaintiff  and  defendant  were  tenants  in  common  of  $800  in 
cash  and  a  stock  of  goods — clothing,  etc.,  worth  $10,700— all  of  which 
was  in  the  possession  of  the  defendant;  that  such  property  was  capable 
of  actual  partition;  that  the  defendant  refused  to  divide,  but  excluded 
the  plaintiff  from  any  possession  or  control  of  the  property:  that  the 
defendant  was  endeavoring  to  take  all  of  the  property  out  of  the  state 
and  sell  it;  that  the  plaintiff  was  entitled  to  his  share  and  to  a  division. 
Prayer  for  a  division  and  the  appointment  of  a  receiver. 

The  defendant  insisted  that  the  complaint  was  insufficient  in  that  it 
failed  to  allege  a  request  that  the  defendant  divide,  and  raised  this 
point  by  demurrer.  Demurrer  overruled.  A  receiver  was  appointed  and 
judgment  rendered  that  the  goods  be  sold  for  partition  and  the  proceeds 
divided  between  the  parties.     Defendant  appealed.     Affirmed.! 

Monks.  J.  .  .  .  AVe  think  this  paragraph  of  the  complaint 
sufficient  to  withstand  the  denuirrer.  A  co-tenant  of  personal 
pi-oporty  out  of  possession  has  no  remedy  at  law  against  the  ten- 
ant in  possession,  unless  his  dealing  with  same  has  heen  such  as  to 
amount  to  a  conversion  of  the  property  by  him.  Each  of  the  co- 
tenants  is  equally  entitled  to  the  possession  of  such  property,  and, 
if  the  pos.session  of  one  excludes  the  other,  this  does  not  amount  to 
a  conversion.  There  is  no  liability  at  law.  unless  the  co-tenant 
lias  been  guilty  of  an  actual  or  practical  conversion,  or  an  actual 
or  practical  de.stniction  of  the  conniion  propei-ty.  IMills  v.  ^lalott. 
4:^  Ind.  24S.  251  :  Bowen  v.  Roach.  7S  Ind.  361  :  Schenck  v.  Long. 
<i7  Ind.  579.  581.  582;  Lowman  v.  Sheets.  124  Ind.  41 G,  425,  24 
X.  E.  351  :  Dain  v.  Cowing,  22  Me.  347;  Oviatt  v.  Sage,  7  Conn. 
f)5;  Frans  v.  Young.  24  Iowa.  376:  Conover  v.  Earl.  26  Iowa.  167; 
Russel  V.  Allen.  13  N.  Y.  173;  Tripp  v.  Riley.  15  Barb.  334:  Wil- 
son V.  Reed.  3  Johns.  175;  Xowlen  v.  Colt.  6  Hill.  461  ;  Gilbert  v. 
Diekerson.  7  Wend.  449;  White  v.  Osborn.  21  Wend.  72;  Hyde  v. 
Stone.  9  Cow.  230.  18  Am.  Dec.  501.  and  note.  503.  Preem.  Part. 
5;J5  287.  298.  426.  It  is  well  settled  by  the  authorities  that  equity 
has  exclusive  jurisdiction  of  suits  for  the  partition  of  ])ei-sonal 
pro[)ertv.  even  though  the  defendant  denies  plaintiff's  title.  Go<l- 
frey  v.  White.  60  :\Ti('h.  449.  27  X.  W.  593;  Marshall  v.  Crow.  29 
Ala.  279;  Smith  v.  Smith.  4  Rand.  (Va.~)  102;  Conover  v.  Earl, 
supra;  Tinney  v.  Stcbbins.  2.S  liarb.  290:  Tripp  v.  Riley.  15  Barb 
334:  Forbes  V.  Shattuck.  22  Bar!).  568;  Swam  v.  Knapp.  32  Minn 
431.  21  X.  W.  414:  Crapster  v.  Griffith.  2  Bland.  5;  Low  v. 
llnbiics.  17  X.  J  Kq.  148:  Spaiii(lin«r  v.  Warner.  59  Vt.  646.  11 
AM.  1S6:  Irwin  v.  King.  6  Ired.  219;  AVeeks  v.  AVecks.  5  Tred.  Eq. 


744  REMEDIES    IN    SPECIAL,    CASES.  [i'll.    9. 

nS;  Edwartls  v.  Honnott.  10  Ired.  363;  Smith  v.  Dunn,  27  Ala. 
.Uli;  Fiv.Mii.  Part,  ij  426 :  17  Am.  &  Kuj;.  Eiio.  Law,  G81 ;  5  Wait, 
Ai't.  &  l)i>f.  p.  S;),  ij  4;  <i  i.awsoM,  Ri<:lit.s.  Kimu.  &  IVac.  5;  2735. 
A  law  writer  of  ominont  ai)ility,  .spoakiiijj;  ol"  IIk-  question  under 
consideration,  said  that  'tlic  necessity  of  some  remedy  by  which 
partition  of  tliis  species  of  property  could  be  compelled  was  much 
irreater  than  in  the  ease  of  I'cal  (>state ;  for  real  e.slat(>  was  susceit- 
tihle  of  a  common  possession  and  enjoyment,  and,  in  case  of  a  total 
exclusion  of  eitiier  co-tenant,  he  luid  his  remedy  at  law  by  an  ac- 
tion of  ejectment.  The  entire  absence  of  any  remedy  at  law  in- 
duced courts  of  chancery  to  take  jurisdiction  of  actions  for  parti- 
tion of  juM-sonal  j>roperty.  At  what  time  or  under  what  circum 
stances  this  jurisdiction  was  fii^st  assumed  we  are  unable  to  state, 
but  that  it  exists  and  was  exercised  by  the  courts  of  chancery  botb 
in  Entjland  and  in  the  T^nited  States  is  undisputed."  FnM'm. 
Coten.  §  426.  In  Tinney  v.  Stebbins.  28  Jiarb.  21)0,  the  court  said : 
* '  A  court  of  equity  is  competent  to  give  relief  in  such  cases  by  de- 
creeing partition  of  the  property,  or  a  sale  thereof  where  partition 
is  impracticable,  and  a  division  of  the  proceeds.  The  powers  of  a 
court  of  equity  were  conferred  and  exist  to  meet  .just  such  cases 
where  no  adequate  remedy  exists  at  law."  It  follows  that  the 
court  did  not  err  in  overruling  the  demurrer  to  the  second  para- 
graph of  complaint.  .  .  There  is  no  available  error  in  the 
record.     Judgment  affirmed. 

For  jurisdiction  in  equity  for  partition  of  chattels,  see  Nixon  v.  Lind- 
say, 55  N.  C.  230,  inserted  ante  in  this  section.  For  the  liability  of  one 
tenant  in  common  to  another  in  trover,  see  Waller  v.  Bowling,  108  N.  C. 
289,  12  S.  E.  990,  12  L.  R.  A.  261,  and  notes.  For  statutory  provisions  in 
North  Carolina  regulating  partition  of  chattels  by  special  proceedings 
before  the  clerk  of  the  superior  court,  see  Revisal,  sees.  2504-2505.  For 
further  rulings  as  to  remedies  of  tenants  in  common  of  chattels  against 
each  other,  see  Pell's  notes  to  Revisal,  sees.  2504-2505.  See  "Partition," 
Century  Dig.  §§  149-156;   Decennial  and  Am.  Dig.  Key  No.  Series  §  55. 

The  cases  inserted  in  this  section  illustrate  the  general  princi- 
ples of  the  remedy  by  partition.  The  matter  is  to  a  great  extent 
regulated  by  the  statutes  of  the  several  .states.  There  have  been 
important  amendments  to  the  North  Carolina  statutes  since  the 
decisions  above  selected  were  made.  See  Pell's  Revisal.  §§  2485- 
2520.  and  notes.  For  a  general  discussion  of  the  remedy  by  parti- 
tion, see  6  Pom.  Eq.  Jurisp.  §§  701-722. 


Sec.   4.     Sale  of  Real  Estate   and   Chattels  Belonging   to 

Infants. 

GOODMAN  V.  WINTER,   64   Ala.  410,  38  Am.  Rep.  13.     1879. 
Jurisdiction  of  Equity  Courts.     What  Estates  may  be  Sold.     What  Cir- 
cumstances Will  Justify  a  Sale. 

fin  the  opinion  is  the  following  discourse  on  the  sale  of  realty  and 
personalty  belonging  to  infants.] 

Brickell.  C.  J.     It  is  insisted  that  a  court  of  equity,  being 
without  jurisdiction  to  decree  a  sale  of  the  lands  of  an  infant,  is 


Sec.    4.]  REMEDIES    IX    SPECIAL    CASES.  745 

without  jurisdiction  to  ratify  or  coufiriu  an  unaulhiti'ized  sale  of 
his  lands  by  a  guardian  or  trustee,  or  by  a  stranger  ijitruding  hini- 
.self  into  the  relation  of  either ;  and  that  no  estoppel  can  be  raised 
against  them.  Whatever  maj^  be  the  doctrine  prevailing  in  the 
court  of  chancery  in  England,  or  whatever  contrariety  of  opinion, 
or  of  doubt,  may  prevail  in  the  diti'erent  states  a.s  to  the  jurisdic- 
tion of  a  court  of  equity  to  decree  a  sale  of  the  real  estate  of  an  in- 
fant, in  this  state  the  jurisdiction  must  be  regarded  as  existing. 
Ex  parte  Jewett,  16  Ala.  410:  Rivers  v.  Durr.  46  Ala.  418.  The 
jurisdiction  does  not  spring  from,  nor  is  it  dependent  upon,  the 
character  of  the  estate — whether  absolute  or  contingent ;  whether 
in  possession,  or  the  possession  postponed  until  the  happening  of 
a  future  event.  It  rests  upon  the  power  and  duty  of  the  court  to 
protect  infants — to  take  care  of.  and  i)reserve  their  estates  while 
under  disability  debarring  them  from  the  administration  of  prop- 
erty. The  courts  would  be  more  reluctant  to  decree  the  sale  of  an 
estate  in  remainder,  or  of  a  contingent  estate,  lest  it  might  operate 
a  sacrifice  of  the  interests  of  the  infant ;  but  the  jurisdiction  exists, 
though  it  may  be  more  seldom  and  more  sparingly  exercised.  It 
may  be  that  the  infant  has  no  other  source  from  which  mainte- 
nance and  education  can  be  derived.  Or.  it  may  be  the  estate  is 
deteriorating  in  value,  without  fault  or  neglect  on  the  part  of  the 
tenant  of  the  particular  or  prior  estate,  and  that  the  deterioration 
will  continue,  so  that  when  the  preceding  estate  expires,  it  will  be. 
if  not  valueless,  of  greatly  less  value  than  when  the  Cdurt  is  re- 
quested to  order  a  sale.  A  sale  is  then  necessary  for  the  mainte- 
nance and  education,  or  to  conserve  the  interests  of  the  infant,  and 
it  has  been  the  practice  of  the  courts  of  chancery  in  this  state  to 
decree  it.     .     .     . 

The  reasons  controlling  the  English  court  of  chancery  for  repu- 
diating jurisdiction  to  decree  a  sale  of  an  infant's  real  estate,  .seem 
to  have  been,  that  on  the  death  of  the  infant,  the  course  of  descent 
might  have  been  interrupted;  and  if  converted  into  personal  prop- 
erty, he  could,  during  minority,  bequeath  it.  The  first  reason 
could  never  have  been  of  force  in  this  state,  as  the  same  persons 
who  would  take  real  estate  by  descent,  as  heirs,  would  take  per- 
sonal property,  as  next  of  kin  under  the  statute  of  distriliution. 
Each  reason  subordinates  the  necessity  and  interest  of  the  infant. 
while  living,  to  that  of  tho.se  who  would  succeed  to  the  estate  on 
his  death ;  while  with  us,  the  court  looks  only  to  the  care,  protec- 
lion.  and  advantage  of  the  infant.  2  Perry  on  Trusts,  sec.  60r>.  In 
Kngland.  real  estate  may  be  of  fixed  and  certain  value,  and  the 
lietter  investment  f(»i-  infants  or  other  persons  resting  under  dis- 
ability. The  courts  here  are  admonished  that  real  estate  is  fluctu- 
ating in  value,  and  often  in  some  kinds  of  pei-sonal  property  in- 
vestments are  of  more  certain  value,  yielding  a  larger  and  more 
reliable  incomr*.  There  seems  no  substantial  reason  for  distin- 
guishing here  between  the  power  of  a  cuiiit  (o  decree  a  sale  of  real 
and  of  personal  properly;  and  in  pi-;i(tice  none  has  been  recog- 
nized. 


^•i*.'  Ki;.Mi:i)IK8    IN    Sl'Kn.M,    C-ASKS.  \Cll.    n. 

See.  for  a  lull  ilisiussion  of  this  remedy,  the  proitrr  praitiie,  vie 
SuUon  V.  Sthoiiwiild.  St!  N.  C.  1!>S;  Moidocars  I..  L.  Kn;  loS;  L'O  L.  R.  A. 
-47:  L'l  Oyo.  li;t.  Fm-  the  lale  of  an  estate  of  a  uoii  eoniiios  lueiuis,  see 
DmlRer  v.  Cole,  't?  111.  ;!;:s.  ;!7  Am.  Hep.  Ill;  In  re  Fiopst.  144  N.  C.  562. 
r>7  S.  K.  342.  See  •Infants."  (\>ntiiry  Dij;.  §  Gli;  Decennial  and  Am  Dig' 
Key  No.  Series  §  o;'.. 


COFKIELD  V.  .MeLEAN.  49  N.  C.  IT).     1S.^j6. 
Stotutunj  Piviecditips   to   Srll   Rcalti/  of  on    Infant    t<>   make  Assetn   for 

Painnrnt    of   I)cl)tN. 

[Ejeetment  li\  an  infant  whose  land  had  been  .sold  by  order  of  court. 
.TudKinent   against  defendant  and  he  appealed.     Afllrmed. 

The  defendant  lield  under  a  sale  made  by  order  of  court  in  a  |)roceed- 
ing  instituted  by  the  plaintiffs  guardian.  The  petition  of  the  guardian 
set  fortli  that  his  ward  was  "indebted  to  tlie  amount  of  $216  and  up- 
wards; ■  that  the  guardian  liad  no  assets  in  hand  with  which  to  pay  such 
debts  nor  was  there  enough  i)ersonalty  belonging  to  his  ward  to  dis- 
charge such  debts.  The  question  before  the  court  in  this  action  of  eject- 
ment was  as  to  the  sufTicieiuy  of  the  proceedings  and  the  validity  of  the 
sale  of  the  plaintiffs  land.  | 

Pearson.  J.  The  salo  was  void,  because  it  does  not  appear  that 
the  couHfii  court  pass-cd  on  and  ascertained  the  fact,  that  there 
Avas  a  debt  of  demand  against  the  estate  of  the  ward.  Si)niill  v. 
Davenport.  48  N.  C.  42 ;  Pendleton  v.  Trnel)k)od.  48  N.  C.  96.  But 
there  is  another  fatal  objection.  The  petition  doea  not  allege  that 
there  was  a  debt  or  demand  ae/ainst  the  estate  of  the  ward.  The 
allegation  is.  that  the  ward  is  indebted  to  the  amount  of  $216.  and 
the  guardian  has  no  assets,  and  there  is  no  personal  property  out 
of  wliich  the  debt  can  be  paid.  There  is  a  material  difference  be- 
twcen  a  personal  debt  of  the  ward  and  a  debt  against  the  estate 
of  the  ward — i.  e.,  a  debt  of  the  ancestor,  for  which  the  land  of  the 
ward  is  liable.  It  is  manifest,  by  a  perusal  of  it.  that  the  statute 
under  which  this  proceeding  Avas  had  (Kev.  Stat.  ch.  68)  is.  as  its 
title  shows.  "A  mode  of  subjecting  the  land  of  deceased  delators  to 
the  payment  of  their  debts."  and  consequently  does  not  extend  to 
personal  debts  contracted  by.  or  on  account  of,  infants.  At  com- 
mon law.  an  heir,  sued  for  the  debt  of  his  ancestor,  might  pray 
the  parol  to  demnr  uiitil  he  arrived  at  full  age.  The  statute 
changes  this  by  substituting  a  provision,  that  no  execution  .shall 
issue  against  the  lands  of  heirs,  who  are  under  age.  until  after  the 
expiration  of  one  year,  (lining  which  time,  it  is  the  duty  of  guard- 
ians, under  the  11th  section  of  the  act,  to  apply  for  an  order  of 
sale. 

It  was  stated  at  the  bar.  that  the  debt  for  Avhich  the  land  was 
.sold,  was  contracted  in  prosecuting  or  in  defending  a  suit  for  or 
against  the  infant.  So,  it  was  not  a  debt  of  the  ancestor.  but^Avas 
a  personal  debt  of  the  ward;  and  the  defendant's  title  is  bad.  not 
for  a  mere  omission  of  the  proper  entries  by  the  court,  but  upon 
the  merits,  because  upon  the  facts,  the  county  court  had  no  power 
to  order  a  sale.    There  is  no  error.    Judgment  affirmed. 

See  "Guardian  and  Ward,"  Century  Dig.  S  342;  Decennial  and  Am. 
Dig.  Key  No.  Series  §  86. 


Sec.    4.]  REMEDIES    IX    SPECIAL    CASES.  74:1 


IN  RE  DICKERSOX,  111  X.  C.  108,  15  S.  E.  Iu25.     1892. 
Statutory  Proceeding  to  Sell  Realty  Belonging  to  an  Infant  for  Change 
of  Investment,  or  the  like.     Proper  Practice.     Reference  to  Ascer- 
tain if  Sale   be  Proper  or  Xecessary.     Report  and  Confirmation   of 
Sale. 

[Motion  in  the  cause  to  vacate  an  order  of  sale,  and  to  set  aside  a  sale 
of  land  made  thereunder  and  to  restore  the  land  to  its  original  owner, 
lola  Dickerson,  an  infant.  At  the  same  ume  the  assignees  of  the  pur- 
chaser made  a  counter  motion  for  the  confirmation  of  the  sale.  The  sale 
had  been  made  under  a  special  proceeding  before  the  clerH  of  the  su- 
perior court,  and  the  above  motions  \vere  made  before  the  clerk.  The 
clerk  refused  the  motion  to  vacate  and  set  aside  the  sale,  but  granted  the 
motion  to  confirm  the  sale.  lola  Dickerson  appealed  to  the  judge  of 
the  superior  court.  The  judge  overruled  the  clerk,  and  ordered  a  re 
sale  of  the  land.  From  this  order  of  the  judge,  the  Bells,  who  were  the 
assignees  of  the  purchaser,  appealed.     Modified  and  affirmed. 

In  Dec.  1882,  the  guardian  of  loia  Dickerson  filed  a  petition,  in  her 
name,  before  the  clerk,  asking  for  an  order  to  sell  her  interest  in  160 
acres  of  land  belonging  to  her  and  to  Solomon  Fisher,  as  tenants  in 
common.  The  reason  assigned  for  requesting  such  sale  was,  that  the 
ward's  interests  yielded  no  income  because  the  land  was  in  woods,  etc.. 
and  that  the  taxes  were  in  arrears  some  five  or  six  years  because  there 
was  no  income,  etc.,  out  of  which  to  pay  such  taxes.  The  petition  stated 
that  the  guardian  had  been  offered  $125  for  his  ward's  share  in  the 
land.  The  prayer  for  relief  was.  that  the  guardian  be  empowered  to 
sell  the  ward's  interest  in  the  land  and  ai)ply  the  i)roceeds  to  the  wards 
maintenance  and  education.  I'pon  this  ex  i)arte  application  it  was  or- 
dered by  the  clerk  that  the  guardian  'make  a  deed  to  the  purchaser  for 

said  land  upon  ))aynient   of  the  purchase  money That  said 

land  shall  first  be  advertised,  etc..  prior  to  said  sale  and  that  no  bid  less 
than  $125  be  received  therefor."  This  order  was  ai)proved  by  the  judge 
of  the  superior  court;  a  sale  was  made  thereunder  to  Samuel  S. 
Willis;  and  the  guardian  made  a  deed  to  him  for  the  ward's  interest  in 
the  land.  Willis  conveyed  his  interest  to  another  person,  and  it  finally 
became  the  property  of  the  Bells.  There  uas  no  order  confirming  the 
sale.  The  infant's  interest  was  worth  about  $300  at  the  time  it  was 
sold  for  $125.] 

^MacRae.  J.  It  is  contended  by  the  counsi^l  foi-  the  appeHant 
that  the  order  of  sale  made  by  the  clerk  and  approved  by  the  judge 
December  23.  1882,  was  a  final  decree,  and  that  there  was  no  need 
for  a  confirmation  of  the  s;ile;  it  being  admitted  ni>on  the  argu- 
ment, thougii  it  docs  not  so  ai)pear  in  the  case  or  in  the  record,  that 
the  interest  of  the  petitioner  brought  -tloO  at  the  sale,  this  sum 
being  more  than  the  .sum  named  in  the  petition  as  a  fair  pric<\ 
and  ill  the  order  as  the  lowest  bid  which  should  be  received.  If 
this  content idii  were  cf»n-cct.  if  by  a  i)ropcr  i-onsti"uction  of  the 
order  of  sale,  directing  a  deed  to  be  made  "!•»  the  purcha.ser  for 
said  land  upon  the  payment  of  the  purchase  money  by  said  pur- 
cha.ser.'' we  were  rerjiiired  tf»  hold  that  the  ])rii-e  was  fixed  at  any 
sum  not  less  than  $12.'>.  ;ind  the  sale  eonfiniied  in  advance  at  sueli 
price. — we  couhl  do  no  otiierwise  than  hold  the  decree  to  be  final 
and  the  parties  bound.  Hut.  impressed  as  we  are  by  the  extreme 
looseness  of  the  whole  proceeding,  it  is  a  relief  to  \is  to  be  able. 
u|)on  examination  of  the  order  and  of  its  api)roval.  to  hold  it  evi- 


'<"-iS  KKMKDIKS    IX    Sl'KCIAl,    CASKS.  [Ch.    9. 

dont  that  tin-  .|ii(li;c  wlio  approved  it  intciidcd  thai  thcfc  shouhl 
bo  a  pid)li('  siih'.  and  that  uo  hid  shouhl  h.>  ciitcrtaiiicd  I'or  a.  less 
sum  tliaii  $lL*r>.  and  that  it  shouM  \;\kr  the  rc.^uhii-  course  in  such 
proceed injrs.  that  it  nii.Lrht  Itc  ascertained  whether  the  laud  soUl 
tor  a  fair  pi-ice.  hel'ore  tlie  judirnieid  shouhl  he  made  couiii-nniif^ 
tlie  sale.  We  ma.\  .  with  prolil.  reproduce,  as  a|)|»lical)le  to  tiie 
present  case,  the  remarks  ol"  the  \-euei-ahlc  Chiel'  Justice  Ivufliu  in 
Ilarristui  v.  Iiradh'\ .  40  X.  ('.  l;{(i:  "The  court  cannot  forbear 
expressini;  a  decided  (.lisappi-ohat  ion  of  the  loose  and  mischievous 
]>ractiee  adopted  in  this  cast-  of  decreein*:'  the  sale  of  an  iuL'anl's 
land  upon  ex  parte  alUdavits  offered  to  the  court,  without  any 
reference  to  ascertain  tlie  necessity  and  proi)riety  of  the  sale  and 
the  value  of  the  propei-ty.  so  as  to  compare  the  i)i-ice  witli  it.  The 
court  ou^dit  not  to  act  on  mere  (»pinions  of  liie  ^niardian  or  wit- 
nesses, but  the  material  faets  ought  to  be  ascertained  and  put 
upon  the  record,  either  by  the  report  of  the  master  or  the  finding 
of  an  issue;  and.  after  a  sale,  it  ought  to  ajipear  in  like  manner  to 
be  for  the  benelit  of  the  infant  to  coidirm  it.  Otherwise,  there  is 
great  danger  of  imposition  on  the  court,  and  much  injury  to  in- 
fants." As  was  said  by  the  present  chief  justice,  delivering  the 
opinion  in  ^Morris  v.  Gentry.  8!)  X.  C.  248:  "It  is  the  duty  of 
courts  to  have  special  regard  for  infants,  their  rights  and  interest, 
when  they  come  within  their  cognizance;"  and,  in  the  exercise  of 
this  duty,  nothing  but  clear  internal  evidence  of  a  confirmation 
of  this  sale  should  induce  us  so  to  construe  the  order.  The  sale, 
then,  not  having  been  confirmed,  the  commissioner's  deed  has  not 
yet  divested  the  title  out  of  the  petitioner.  The  proceeding  is 
still  pending.  The  petitioner  is  still  an  infant,  and  she  has  a 
right  to  be  heard  upon  the  report  of  sale  and  the  motion  for  con- 
firmation, and  to  move  to  set  aside  the  sale  for  inadequacy  of  the 
sum  bid  for  the  land.  Foushee  v.  Durham.  84  N.  C.  56.  "While  a 
formal  direction  to  make  title  is  not  always  necessary,  a  confirma- 
tion of  the  sale  cannot  be  dispensed  with.  IMebane  v.  Mebane,  80 
N.  C.  34;  Latta  v.  Vickers.  82  N.  C.  501 ;  Brown  v.  Coble,  76  N.  C. 
391 ;  England  v.  Garner,  90  N.  C.  197. 

"We  concur  in  the  view  of  his  honor  upon  his  finding  of  fact  that 
said  sale  had  not  been  made  for  a  fair  price;  that  a  resale  should 
be  ordered,  provided  it  shall  be  made  to  appear,  as  required  in 
section  1602  of  the  Code,  that  the  interest  of  the  ward  would  be 
materially  promoted  by  a  sale  of  her  interest  in  said  land,  and 
that  report  of  sale  to  be  made  to  the  court.  Dula  v.  Seagle,  98 
X.  C.  458.  4  S.  E.  Rep.  549.  As  it  was  admitted  that  the  pur- 
chaser. S.  S.  Willis,  paid  the  purchase  money,  and  took  a  deed  for 
said  land  from  the  guardian,  and  that  said  Willis  conveyed  the 
land  for  value  to  R.  W.  Bell,  who  is  now  dead,  and  whose  interest 
in  .said  land  is  now  vested  in  W.  R.  and  J.  X.  Bell,  the  appellants, 
it  will  l)e  proper  that  an  account  be  taken  of  the  amount  paid  to 
the  guardian  by  said  Willis,  and  of  the  rents  and  profits  of  said 
land  since  said  attempted  sale,  and  the  possession  of  said  Willis 
and  those  claiming  under  him  :  and  that  the  balance  of  the  sum 


Sec.    5.]  REMEDIES    IX    SPECIAL    CASES.  749 

SO  paid,  after  cledncting  the  sum  a.seertained  to  be  due  for  rents 
and  profits,  be  a  cliartre  upon  tlie  fund  arisins:  from  the  sale  now 
ordered  in  favor  of  the  appollant.s.     ^lodified  and  affirmed. 

See  further  as  to  the  proper  practice  in  such  proceedings  and  es- 
pecially as  to  the  propriety  of  a  reference  to  ascertain  the  facts,  etc., 
relating  to  the  necessity  or  propriety  of  selling,  In  re  Propst,  144  N.  C. 
at  p.  .567,  57  S.  E.  342. 

The  sale  of  an  infant's  realty  is  regulated  by  statute  in  North  Caro- 
lina. See  Pell's  Revisal,  sees.  1798-lSOl,  and  notes,  which  give  clear 
information  upon  all  points.  For  the  sale  of  timber,  see  sec.  1790,  and 
for  sale  of  chattels,  sees.  1787.  1791.  of  Fell's  Rev.  See  also,  for  the 
practice  in  such  proceeding,  Mordecai's  L.  L.  406-408.  See  "Guardian 
and  Ward,"  Century  Dig.  §§  349,  379,  396;  Decennial  and  Am.  Dig.  Key 
No.  Series  §§  90.  103,  108. 


Sec.  5.    Inquisition  of  Lunacy. 

HUGHES  V.  JONES,  116  N.  Y.  67,  73-77,  22  N.  E.  446.     1889. 
Jurisdiction  and  Practice  in  Equity.     Acts  of  the  Lunatic  after  Adju- 
dication.   Estoppel  by  the  Adjudication.     Scope  of  the  Inquiry. 

fAction  by  the  heir  of  Richard  Hughes  to  set  aside  a  deed  executed 
by  him  to  tlie  defendant  Jones,  and  a  mortgage  made  by  Richard  Hughes 
and  Jones  to  Caroline  Root  whose  executors  were  also  defendants  in  the 
action.  The  plaintiff  was  the  son  of  Richard  Hughes  and  caused  his 
father  to  be  imprisoned  for  debt.  In  order  to  have  him  released,  the 
defendant  instituted  proceedings  to  have  Hughes  declared  a  lunatic.  A 
commission  was  issued  from  the  county  court  which  resulted  in  an  ad- 
judication that  Hughes  was  a  lunatic  incapable  of  governing  himself  or 
managing  his  estate.  The  inquisition  further  found  that  Hughes  had 
been  in  such  condition  for  five  or  six  years  previous  to  the  inquisition. 
Thereafter  a  committee  was  appointed  by  the  court  for  the  estate  of 
Hughes.  The  inquisition  and  the  appointment  of  the  committee  took 
place  in  1871.  The  deed  to  Jones,  which  is  attacked  in  this  action,  was 
made  in  1870— about  a  year  before  the  inquisition  of  lunacy.  The 
mortgage  attacked  was  made  by  Hughes  and  Jones  in  1S74— about  three 
vears  after  the  inquisition. 

There  was  evidence  tending  to  show  that  Hughes  was  not  a  lunatic, 
but,  on  the  contrarv,  was  fully  capable  of  attending  to  his  affairs,  when 
the  deed  was  made  in  1870.  The  plaintiff  objected  to  such  evidence, 
but  his  objection  was  overruled.  The  plaintiff  had  put  in  evidence  the 
record  of  the  inquisition,  and  he  also  introduced  other  evidence  tending 
to  show  that  Hughes  was  a  lunatic  when  the  deed  was  made.  The  court 
found  that  Hughes  was  sane  when  he  made  the  deed,  and  gave  judgment 
against  the  plaintiff  dismissing  his  action.     Plaintiff  appealed.     AlTumed. 

As  .Tones,  the  grantee  in  the  deed  attacked  in  this  action  and  a  de- 
fendant, had  been  instrumental  in  bringing  about  the  inquisition  of 
lunacv— he  having  joined  with  another  iierson  in  the  i)etltion  for  such 
inquisition— and  as  the  inquisition  had  found  that  Hughes  was  a  lunatic 
at  the  time  the  deed  in  question  was  executed,  i.  e.  the  deed  from  Hughes 
to  .Tones,  made  prior  to  the  inquisition— the  plaintiff  insisted  that  Jones 
was  estopped,  by  the  proceedings  upon  the  in(iuisition,  to  deny  that 
Hughes  was  a  lunatic  when  the  deed  was  made.  | 

Vann.  J.  <')n  the  trial  of  this  action,  th-'  .-ourt  foiuid  as  a  fact, 
upon  a  conflict  of  evidence,  "that  said  Kichanl  lliifrlies.  at  Ihe 
lime  of  the  exr'cutioii  and  delivery  of  the  said  rleed.  .     was 


~'»*^  KKMEOIKS    IN    Sl'KCIAl,    CASES.  [('/(.    .9. 

iiirnlally  roiiiprlnit  to  i-xiH-iilc  tin-  s;iiiu-;  lliat  siiul  tlcccl  was  not 
oxiH'uted  l)y  said  K'icliaril  Huirhos  llii(»ii>ili  force,  fraud,  or  undue 
iuHuenee  iniposeil  upon  liiin  by  said  defendants,  .  .  .  or  any 
or  either  of  tlieiii.  l)Mt  the  same  was  the  free  and  vctliuitary  aet 
and  deed  of  said  Kichai'd  lluiihes."  It  is  eonee(h'd  that  there  was 
sufheient  eviiienee  to  sustain  tliis  liudin^',  uidess  the  reeord  in  tlie 
huiaex  proceedings  w  ;is  conclusive  evidence,  and  henco  the  facts 
t'ouiul  Ity  tlie  jnrx  tliercin  are  incapal)le  of  contradiction  l)y  the 
defendants  in  this  acti(»n.  All  contracts  of  a  lunatic,  habitual 
druid<ard,  or  pei'son  of  unsound  mind,  made  aftei-  an  iiKpiisition 
ami  eontinnation  thereof,  ai-e  absolnldy  void  nnlil  hy  pcnnission 
of  the  court  he  is  allowed  to  assuiin'  conli-ol  of  his  property, 
1/Amoureux  v.  C"ro.sby,  2  Paio-e.  42 2  :  Wadsworth  v.  Sliari)stoen, 
8  N.  Y.  388;  2  Rev.  St.  ((ith  ed.)  10f)4.  ^  10.  In  such  cases  the  lu- 
nacy reeord  a.s  long:  as  it  remains  in  force,  is  conclusive  evidence 
of  inca]iaeity.  Id.  Contracts,  however,  made  by  this  class  of  per- 
sons before  offic(^  found,  but  within  the  period  overreached  by  the 
finding  of  the  jui-y,  are  not  uttei-ly  void,  although  they  are  pre- 
sumed to  be  so  luitil  capacity  to  contract  is  shown  by  satisfactory 
evidence.  Id.:  Van  Deusen  v.  Sweet.  51  N.  Y.  378;  Banker  v. 
Banker,  63  N.  Y.  400.  T'nder  such  circumstances,  the  ]iroeeedings 
in  lunacy  are  presumptive,  but  not  conclusive,  evidence  of  a 
want  of  capacity.  The  presumption,  whether  conclusive  or  only 
])rima  facie,  extends  to  all  the  world,  and  includes  all  persons, 
whether  they  have  notice  of  the  inquisition  or  not.  Ilart  v. 
Deamer,  G  Wend.  497;  Osterhout  v.  Shoemaker,  3  Hill,  513; 
1  Greenl.  Ev.  §  556.  These  principles  are  now  well  settled  in  this 
state,  and  no  question  could  have  ari.sen  as  to  the  right  of  the  de- 
fendants to  show  that  the  grantor,  at  the  time  the  conveyance  in 
question  was  executed,  was  of  sound  mind,  but  for  the  fact  that 
the  grantee  was  the  petitioner  in  the  lunacy  proceedings.  It  is 
claimed  that  he  thereby  became  a  technical  party  to  the  record,  as 
that  expression  is  commonly  nndiM-stood  in  law.  and  hence  that  he 
is  so  completely  boiuid  by  the  finding  of  the  .jury  as  to  be  pre- 
cluded from  attempting  to  .show  the  actual  truth.  This  point  doas 
not  appear  to  have  been  passed  upon  by  the  courts,  although  there 
are  dicta  of  learned  judges  bearing  somewhat  upon  it.  A  party 
is  ordinaiily  one  who  has  or  claims  an  interest  in  the  subject  of  an 
action  or  proceeding  instituted  to  afford  some  relief  to  the  one  who 
sets  the  law  in  motion  against  another  person  or  persons.  Inter- 
est, or  the  claim  of  interest,  is  the  statutory  test  as  to  the  right  to 
be  a  party  to  legal  i)roeeedings.  almost  without  exception.  Unles.s 
a  party  has  some  personal  interest  in  the  result,  he  can  have  no 
standing  in  court.  But  any  one,  even  a  stranger,  can  petition  for 
a  eonmiission  to  inquire  as  to  the  sanity  of  any  other  person  within 
the  jurisdiction  of  the  court.  While  this  is  now  i)rovided  by  stat- 
ute, it  was  also  the  rule  at  common  law,  although  a  strong  case  was 
required  if  the  application  was  not  made  by  some  person  standing 
in  a  near   relation   to    the   supposed    lunatic.      Code    Civil    Proc. 


Sec.    J.J  REMEDIES    IN    SPECIAL    CASES.  751 

?  2323 ;  In  re  Smith,  1  Russ.  348 :  In  re  Persse.  1  :\Ioll.  439 ;  Shelf. 
Lun.  94;  2  Crary.  Pr.  5;  Ordr.  Jnd.  Ins.  218. 

Thf  origin  and  history  of  hmacy  proceedings  throw  some  light 
upon  the  subject.  It  was  provided  by  an  early  statute  in  England 
that  "the  king  shall  have  the  custody  of  the  lands  of  natural  fools 
[idiots],  taking  the  profits  of  them  without  waste  or  destruction, 
and  shall  find  them  in  necessaries,  of  whose  fee  soever  the  land  be 
holden ;  and  after  their  death  he  shall  restore  them  to  their  right- 
ful heirs,  so  that  no  alienation  shall  be  made  by  such  idiots,  nor 
their  heirs  be  in  any  wise  disinherited."  17  Edw.  II.  e.  9.  The 
same  statute  provided  for  lunatics,  or  such  as  might  have  lucid  in- 
tervals, by  making  the  king  a  trustee  of  their  lands  and  tenements, 
without  any  beneficial  interest,  as  in  the  ea.se  of  idiots,  who  were 
the  source  of  considerable  revenue  to  the  crown.  Id.  e.  10;  Bev- 
erley's Ca.se.  4  Coke.  127;  1  lil.  Comm.  c.  8.  ?  18.  p.  304.  This 
statute  continued  in  force  from  1324  until  1863.  Ordr.  Jud.  Ins. 
4.  The  method  of  procedure  thereunder  is  described  by  an  early 
writer  as  follows:  "And  therefore  when  the  king  is  informed  that 
one  who  hath  lands  or  tenements  is  an  idiot,  and  is  a  natiu-al  from 
his  birth,  the  king  may  award  his  writ  to  the  eseheator  or  sheriff 
of  the  county  where  such  idiot  is,  to  inquire  thereof."  Fitzh.  Nat. 
Brev.  232.  The  object  of  the  writ  was  to  ascertain  by  judicial  in- 
vestigation whether  the  person  proceeded  against  was  an  idiot  or 
not,  so  that  the  king  could  act  under  the  statute ;  for  his  right  to 
control  idiots  or  lunatics  and  their  estates  did  not  commence  until 
office  found.  Shelf.  Lnn.  14.  Subsequently,  authority  was  given 
to  the  lord  chancellor  to  issue  the  writ  or  commi.ssion  to  inquire 
as  to  the  fact  of  idiocy  or  lunacy,  and  the  method  of  procedure  was 
by  petition  suggesting  the  lunaey.  Id.;  In  re  Brown.  1  Abb.  Pr. 
108,  109.  It  was  the  ordinary  writ  upon  a  snppo.sed  forfeiture  to 
the  crown,  and  the  proceeding  was  in  bcliall'  of  the  king,  as  the 
political  father  of  his  people.  Id. ;  Fitzh.  Nat.  Brev.  581.  As  the 
means  devised  to  give  the  king  his  right  by  solemn  matter  of  rec- 
ord, it  was  neeessarv  before  the  sovereign  conld  dive.st  title.  3  Bl. 
Comm.  259:  Phillips  v.  Moore,  100  U.  S.  208.  212:  And.  Law  Diet. 
tit.  •'r)ffice  Found."  It  was  used  to  establish  the  fact  upon 
which  the  king's  rights  depended,  as  in  the  case  of  an  alien,  who 
could  hold  land  until  his  alienage  wa.s  authoritively  established  by 
a  public  offieer.  upon  an  inquest  held  at  the  instance  of  the  govern- 
ment. Whether  the  basis  of  action  was  infancy,  or  alienage,  or 
otherwise,  the  proceeding  was  in  behalf  of  the  public,  represented 
by  the  king.  Id.  The  inquisilion  was  an  inquiry  made  by  a  jury 
before  a  sheriff,  coroner,  escheatoi-.  or  other  governineiit  oilieer.  or 
by  conunissioners  si)ecially  appointed,  conceming  any  mailer  that 
entitled  the  sovereign  to  the  possession  of  lands  or  lenemenls. 
goods  or  chattels.  I)y  reason  of  an  eseheaf.  foi-feiture.  idioey.  and 
the  like.  Chit.  I'rerog.  24(;.  250:  Slaunl".  I'lviotr.  55;  ]h\]).  &  L. 
Law  Diet.  tit.  "Inquest  of  Ofliee."  Tims  lie'  l;iw  .•;iin.'  1<i  us  li-oni 
England:  and   aft-r-  tlie   Ijrx  (.liil  hm   the  care  and   -iLstudy  of   piT- 


"•">-  KKMKPIKS    IN    Sl'KOIAh    CASES.  \C}l.    9. 

Sims  of  unsDuiiil  iiiiiul.  niul  llic  possi'ssion  mid  fdiiti-dl  i)\'  llirir  cs- 
tati's.  wliicli  li;ul  hclonircd  \o  the  kiiiir  ■•is  ;i  |>;ii-t  ot'  his  prcroujit ivc, 
hoi'jinu'  \ost»'<l  ill  tlu>  ]»i'(>|)l('.  who  liy  .-iii  (■;iily  ;ict  ('oiilidcd  it  to  Hu- 
fliiUU'oUor.  mill  jifttM-wmds  to  the  courts.  Liiws  17SS,  c.  I'J ;  Ll 
(^nvnl.  Kv.  2.");  l.aws  ISOl.  ,-.  ;50:  L.-iws  1S17.  v.  :V2;  1  Kcv.  Laws. 
147;  2  Hov.  St.  .')2.  lint,  whili-  the  smiic  power  wa.s  confided,  the 
l>rai'tiee  or  iiielliod  of  exorcisinir  that  |)ower  was  not  regulated  by 
the  le<;islature :  so  thai  almost  of  iiece.ssity  the  Entrlish  eonrse  ol" 
l>roi'eduro  was  followcnl.     In  re  Hi-own.  supra. 

For  neaily  a  eeiitiny  thei(  was  no  statute  authorizing  any  court 
or  officer  to  iss\ie  a  eoimnission  of  inquiiy.  except  as  the  riglit  to 
judicially  ascertain  who  were  hniatics.  etc..  was  implied  from  tlie 
acts  committing  their  care  and  custody  at  first  to  the  chancellor, 
and  later  to  the  supreme  court.  The  right  to  judicially  learn 
whether  a  person  was  a  lunatic  or  not  wa.s  inferred  from  the  right 
to  his  care  and  custody,  provided  he  was  such.  Thus  it  appears 
that  these  proceedings  have  always  been  instituted  in  liehalf  of  the 
public ;  at  first  in  behalf  of  the  king,  as  the  guardian  of  his  sub- 
jects, and  then  in  behalf  of  the  people  of  the  state,  who  succeeded 
to  the  rights  of  the  king  in  this  regard.  In  both  countries  the  the- 
ory of  the  proceeding  was  the  .same,  resting  upon  the  interest  of 
the  public,  as  is  apparent  from  an  examination  of  the  various 
statutes  and  decisions  upon  the  subject  already  cited.  That  in- 
terest is  promoted  by  taking  care  of  the  persons  and  property  of 
those  who  are  unable  to  care  for  themselves,  and,  by  preserving 
their  estates  from  waste  and  loss,  preventing  them  and  their  fami- 
lies from  becoming  burdens  upon  the  public.  The  inquisition  is  an 
essential  step,  preliminary  to  assuming  control.  It  is  a  judicial 
determination  that  the  person  proceeded  against  is  one  of  the  class 
of  persons  whose  care  and  custody  has  been  delegated  to  the  courts 
by  the  public.  Although  it  involves  the  forfeiture  or  suspension 
of  civil  rights  over  person  and  property,  it  acts  upon  the  statiis 
of  the  individual  only.  All  the  other  results  follow  the  judicial 
decision  that  the  status  of  the  alleged  lunatic  has  changed  front 
soimdness  to  unsoundness  of  mind.  It  is  then,  and  only  then,  that 
the  courts  assume  control,  which  they  exercise  through  their  own 
appointee,  who  is  subject,  at  all  times,  to  their  orders.  The  whole 
world  is  bound  by  the  inquisition,  and  no  one,  unless  it  is  the  luna- 
tic himself,  more  than  another.  The  law  is  set  in  motion  by  in- 
formation, of  a  more  or  less  formal  character,  spread  before  the 
court,  not  by  a  party,  but,  as  in  a  ci'iminal  ])rosecution,  by  some 
one  who  as.sumes  to  act  in  the  matter.  While  the  petitioner  in  rare 
cases  has  been  required  to  pay  costs,  it  was  becaiLse  he  acted  in 
bad  faith  towards  the  court  by  calling  upon  it  to  act  when  he  knew 
that  there  Avas  no  ground  for  action.  For  the  same  reason,  Loi'd 
P^ldon  required  the  brothers  and  sisters  of  a  supposed  lunatic,  who 
could  not  be  considered  parties  in  any  sense,  to  pay  the  costs  occa- 
sioned by  their  opposition  to  a  petition  for  a  commission  of  lunacy. 
})resented  by  .strangers  to  the  family.  In  re  Smith,  supra.  The 
primary  object  of  the  proceeding  is  not  to  benefit  any  particular 


;SCC.    5.]  REMEDIES    IN    SPECIAL    CASES.  753 

iudividiial.  but  to  see  whether  the  fact  of  mental  incapacity  exists, 
so  that  the  public,  through  the  courts,  can  take  control.  The  pe- 
titioner can  derive  no  direct  benetit  from  it.  The  advantage  to 
him.  if  any,  is  only  such  as  would  result  if  any  other  pei'son  had 
first  acted  in  the  matter.  Attentive  study  of  the  history,  nature, 
and  object  of  lunacy  proceedings  leads  to  the  conclusion  that  the 
petitioner  therein  is  not  a  party  to  the  record  so  as  to  be  pei-sonally 
estopped  by  the  finding  of  the  jury,  except  as  all  the  world  is  es- 
topped. 

We  also  agree  with  the  learned  general  term  in  its  conclusion 
that  the  title  to  land  was  not  involved  in  the  proceeding  under  con- 
sideration, and  that  a  commission  to  inquire  as  to  the  mental  status 
of  an  alleged  lunatic  has  no  power  to  settle  any  such  question. 
Such  a  tribunal  is  not  adapted  to  so  important  an  inquiry.  It  is 
not  constituted  for  such  a  purpose,  but  simply  to  inform  the  con- 
science of  the  court  as  to  a  particular  fact,  for  a  special  purpose. 
It  would  have  no  pleadings  to  guide  it.  No  distinct  issue  upon  the 
subject  could  be  presented.  It  would  be  only  incidental  to  the 
iriain  question.  Avhich  relates  to  existing  incapacity.  AYhen  that  is 
found,  the  care  of  the  person  and  estate  belongs  to  the  court.  Un- 
less that  is  found,  the  court  has  no  further  jurisdiction,  whatever 
else  may  be  found.  No  other  inquiry  can  become  material  except 
from  its  relation  to  that  question.  The  command  of  the  commis- 
sion is  to  inciuirc  whether  the  person  is  a  lunatic,  and,  if  so,  from 
what  time,  in  what  manner,  and  how.  The  period  of  the  inca- 
pacity is  of  no  imi)ortance,  unless  it  includes  the  present  time. 
Tile  .secondary  character  of  the  inquiry  as  to  duration  is  evident 
from  the  fact  that,  if  the  jury  find  the  alleged  lunatic  to  be  of 
sound  mind,  they  have  no  power  to  pass  upon  any  other  question, 
even  if  they  are  of  the  opinion  that  he  has  been  insane.  IMore- 
over.  the  petitioner  would  not  be  allowed  to  control  the  proceed- 
ing by  a  settlement  or  discontinuance,  or  by  submitting  to  a  non- 
suit, except  by  permission  of  the  court,  which  could  allow  any  one 
to  continue  if  he  abandoned  it.  Shelf.  Lun.  22.  The  difficulty  of 
correcting  errors  by  appeal  or  review  is  obvious.  In  fine,  such  a 
method  of  determining  tlie  title  to  real  estate  is  opposed  to  the 
theory  and  policy  of  the  law,  which  surrounds  landed  property 
with  so  many  safeguards.  We  think  that  the  validity  of  the  deed 
in  fpiestion  was  not  at  issue,  and  that  it  could  not  jiroperly  be  tried 
in  the  lunacy  jjrneeeding.  The  judgment  should  be  affirmed,  with 
cost.s. 

For  remedies  at  law  and  in  equity  to  attack  a  deed  of  an  insane  per- 
Bon  both  before  and  after  an  adjudication  of  insanity,  see  10  L.  R.  A. 
(N.  S. )   461.  and  note;    see  also  note  to  the  next  succeeding  case. 

The  briefs  of  counsel  ijrinted   in  the  volume  with  the  principal  case 
furnish  nnich  valuable  information  and  cite  many  authorities.     See  "In- 
sane   Persons."   Century    Dig.    §§   :it;,    l.^iP. ;    Decennial   and    Am.    Dig.   Key 
No.  Series  §§  26.  89. 
Remedies — 48. 


754  UKMKDIES    IN    Sl'KCIAI.    t'ASKS.  [CIl.    !>. 


IN  RE  ni.EWlTT.  i;!l   N.  Y.  .Ml.  :?0  X.  E.  587.     1892. 
Practici'  under  Modern  Statutes. 

(.Motion  ol"  .lames  Blewltt  to  vacate  and  set  aside  a  commission  and 
pioreodinprs  in  lunacy,  wlioroby  ho  had  boon  dcclarod  insano,  and  to 
revoke  the  appointment  of  a  oommitteo  of  his  person  and  estate.  The 
ground  of  the  motion  was.  that  no  notice  of  the  pi-oceedings  in  question 
had  been  served  on  .Tamos  Hlewitt,  the  mover,  and  other  alleged  irregu- 
larities in  the  |)roteedinf;s.  lie  also  moved,  as  an  alternative,  that  an  issue 
be  submitted  to  a  jury  to  try  the  fact  of  lunacy,  etc.  The  court  refused 
to  vacate  the  proceedings,  but  directed  the  suggested  issue  to  be  tried  by 
a  jury.     Blewltt  appealed.     Affirmed. 

The  lunacy  proceedings  were  commenced  in  .Tune,  1890,  upon  the  peti- 
tion of  niewitfs  wife,  supported  by  the  affidavit  of  a  i)hysician.  Upon 
the  presentation  of  the  petition  and  the  alFulavit,  the  court  ordered  a 
commission  to  issue  to  three  persons  "to  inquire  into  the  matters  set 
forth  in  the  petition,"  and  also  as  to  the  nature  and  value  of  Blewltt's 
estate.  The  commissioners  were  also  ordered  to  cause  a  jury  to  be  sum- 
moned to  pass  upon  the  sanity  of  Blewitt,  and  to  give  notice  to  Blewltt 
himself,  and  to  his  wife  and  sons,  of  the  time  and  place  of  the  execution 
of  the  commission.  The  wife  and  sons  were  notified  accordingly.  The 
inquisition  was  executed  on  .June  23,  1890,  and  resulted  in  finding  that 
Blewitt  was  "an  insane  person  with  lucid  intervals,"  but  not  competent 
to  attend  to  his  personal  or  business  affairs.  There  was  no  formal  con- 
firmation of  the  inquisition,  but  on  June  25,  1890,  Blewltt's  wife  was 
appointed  the  committee  of  his  estate  and  person.  There  was  nothing 
in  the  record  or  proofs  to  show  that  Blewitt.  the  alleged  lunatic,  had 
ever  been  served  with  any  notice  of  the  proceedings.  It  was  sworn  by 
Blewitt  that  the  first  intimation  he  had  that  any  such  proceedings  had 
been  taken,  was  in  November,  1890;  but  his  wife  swore  that  a  written 
notice  of  the  date  set  for  executing  the  commission,  had  been  directed 
to  him  and  received  by  her,  and  that  on  June  22nd,  she  had  told  him  of 
the  pendency  of  the  proceeding,  and  that  the  hearing  would  talte  place 
next  day,  at  the  court  house,  at  4  o'clock.  She  further  swore  that  such 
was  Blewltt's  condition — mental  and  physical — at  the  time  she  gave  him 
this  information,  that  she  doubted  if  he  understood  its  purport. 

Some  time  previous  to  this  motion,  Blewitt  had  made  a  motion  before 
Mr.  Justice  Ingraham  to  supersede  the  commission  in  question  and  the 
proceedings  thereunder,  on  the  ground  that  he  had  recovered  his  reason 
and  'is  now  (at  the  date  of  that  motion)  of  sound  mind  and  understand- 
ing." After  hearing  mucli  evidence  on  both  sides.  Judge  Ingraham 
denied  the  motion.  Thereafter  Blewitt  made  the  motions  in  controversy 
in  this  appeal. 1 

Andrews.  J.  Tho  jurisdiction  which  formerly  was  vested  in 
the  chancellor,  over  the  person  and  estate  of  lunatics,  is  now  exer- 
cised by  the  supreme  court.  But  the  supreme  court  exercises  the 
power  under  the  same  rules  as  appertained  to  and  regulated  the 
jurisdiction  of  the  chancellor,  subject  to  such  statutory  provisions 
on  the  .subject  as  are  contained  in  the  Code  of  Civil  Procedure. 
Code.  §  2320  et  seq.  The  power  of  the  court  to  appoint  a  com- 
mittee of  the  person  and  estate  of  a  lunatic  is  very  essential,  but 
it  should  l)e  exercised  with  scrupulous  regard  to  tlie  rights  of  the 
alleged  lunatic  and  under  the  protection  which  attends  other  judi- 
cial proceedings  aflFecting  person  or  property,  modified  only  .so  far 
as  the  peculiar  nature  of  the  inquiry  and  the  condition  of  the  al- 
leged lunatic  may  render  modification  necessary.     The  fact  of 


Sec.    5.]  REMEDIES    IX    SPECIAL    CASES.  755 

lunacy  must  be  ascertained  judicially  before  the  court  can  deprive 
the  lunatic  of  the  custody  of  his  estate,  or  submit  his  person  to 
the  control  of  a  eonmiittee.  The  proceeding  for  the  appointment 
of  a  committee  is  no  exception  to  the  rule  that  the  person  pro- 
ceeded against  must  have  notice  of  the  proceedings,  to  give  valid- 
ity to  an  adjudication  against  him.  AVhere  the  lunacy  is  of  such 
a  character  as  to  wholly  deprive  him  of  his  undei-standing.  and 
this  is  made  to  appear  to  the  court  on  the  initiation  of  the  pro- 
t-eedings.  it  Wfis  the  practice  in  chancery  for  the  chancellor  to  di- 
rect notice  of  the  proceedings  to  be  served  on  some  relative  or 
some  other  person,  in  order  that  opportunity  might  be  afforded  to 
l>rotect  the  interests  of  the  alleged  lunatic.  The  Code  now  pre- 
scribes that  in  all  eases  the  court  must  require  notice  to  be  given 
of  the  presentation  of  the  petition  in  lunacy  proceedings  to  the 
husband  or  wife,  or  to  one  or  more  relatives,  or  to  an  officer  speci- 
tied.  unless  sufficient  reasons  are  set  forth  in  the  petition  or  accom- 
panying affidavits  for  dispensing  with  such  notice.  Code.  §  2325. 
This  section  does  not  touch  the  question  of  the  right  of  the  al- 
leged lunatic  to  have  notice  also.  It  was  said  by  the  chancellor 
in  Ke  Tracy,  1  Paige,  580,  that,  if  there  "were  any  peculiar  cir- 
cumstances in  the  case  which  rendered  it  improper  or  imsafe  to 
give  notice  to  the  party,  as  in  .some  cases  of  furious  madness,  the 
facts  should  be  stated  in  the  application  to  the  court,  so  that  a  pro- 
vision might  be  inserted  in  the  conunission  dispensing  with  the 
necessity  of  notice."  In  our  opinion,  a  very  clear  case  should  be 
made  before  the  court  should  proceed  in  lunacy  proceedings,  in 
the  absence  of  actual  personal  and  written  notice  to  the  party,  and 
that,  unless  such  a  case  is  made  by  the  petition  or  affidavits,  aaid 
an  order  made  by  the  court  dispensing  with  personal  notice  and 
providing  for  notice  to  relatives  or  others  in  lieu  of  personal  no- 
tice, an  adjudication,  in  the  absence  of  such  notice,  should  be  set 
aside.  The  ca.ses  nuist  be  very  rare  in  which  a  notice  may  not  be 
served  on  the  alleged  limatic.  and  it  seems  to  us  the  better  practice 
would  be  to  require  service  of  notice  upon  the  party  (if  within  the 
jurisdiction)  in  all  cases,  in  addition  to  notice  to  relatives  and 
othei-s.  as  recpiired  b}-  section  2325  of  the  Code.  Attempts  by  in- 
teiested  persons  to  get  control  of  the  person  and  property  of  an- 
other by  the  aid  of  lunacy  proceedings,  or  proceedings  on  the 
crroujid  of  hnbitu;il  drunkenness  arc  not  infrequent,  and  no  pvc- 
cjiiitioi)  should  be  omitted  whieli  may  appi'ise  the  party  of  (he 
proposed  action,  and  enable  him  to  ap))ear  and  defend.  The  au- 
thorities and  text- writers  a.ssuiiH'  that  the  party  proceeded  against 
should  have  notiee  of  tlie  time  and  place  of  executiiitr  tb(>  commis- 
sion. In  re  Tracy,  supra;  In  re  Petit,  2  Paige.  173;  Chase  v.  Hath- 
away. 14  Ma.ss.  222:  2  Parb.  Ch.  Pr.  231. 

fn  the  present  case  there  was  no  gi-ouiid  presented  in  the  peti- 
tion why  the  alleged  lunatic  could  not  be  sensed  with  notice,  and, 
as  bis  insanity  was  with  lucid  intenals,  there  is  no  i-eason  for  sup- 
po.sing  tliat  notice  would  have  been  useless.  We  are  of  opinion 
that    the  proceeding  .itid   adjudication   were  invalid    for  want   of 


7r>()  RKMKDIES    IN    SrECIAI.    CASES.  \  (' ll .    9. 

notii'O  to  tilt'  piirty.  'IMic  statt'iiu'iit  i>l"  Mrs.  Blcwitt  \\\;\\  she  in- 
foniu'il  hov  luisl\'iiul.  oil  the  day  before  the  iiiquisilion  \v;is  taken, 
that  she  had  applied  to  the  court  to  liave  a  eoiiiiuittee  ap|)ointed. 
and  that  heariiii:  was  ajipoiiited  I'or  an  hour  on  the  next  day,  was 
not  iiotiet'.  within  the  r(>tpiireinent.  It  would  !>(>  daiij;(M-ous  (o 
bind  a  party  li\'  a  notice  so  inlorinal.  Tlieic  is  no  r.eason  \o  sup- 
pose that  these  proeeediiiijfs  were  instituted  hy  the  petitioner  in 
bad  faith,  hut  .instie<\  and  the  possible  p;rave  injuries  wliieh  may 
How  from  irretrular  proceediii<^s  in  these  cases,  adnionisli  courts  to 
iXuanl  ihem  witli  «:reat  strictness,  and  to  riMpiire  an  observance  of 
all  practicatile  sareijuards  ajrainst  fraud  and  in  justice.  We  have 
couehuled  tlial  the  oi'der  appealed  from  may  be  anirmed,  without 
W(>akeniiiir  the  j»rincii)le  which  we  have  announced,  on  these 
•rrounds:  First,  that,  on  tlie  proceeding's  instituted  before  Judfjje 
liiLrraham  by  the  allejijed  lunatic,  there  was  a  full  opportunitN' 
afforded  liim  to  present  and  litip:ate  the  (piestion  of  his  sanity,  and 
it  was  liti«rated  and  decided  adversely  to  him  witliout  his  raising; 
any  ((uestion  of  jurisdiction;  second,  that  the  ai)|)ellant  in  his 
prc.sent  motion  ask(Hl  alt(M'iiativ(^  relief,  viz..  that  the  proceedings 
should  be  vacated,  or  that  the  petitioner  be  permitted  to  traverse 
the  in<piisition.  which  latter  relief,  or  relief  more  favorable,  has 
been  awarded  him;  thiixl.  that  the  order  below  allows  th(»  appel- 
lant to  traverse,  not  the  inquisition.  l)ut  the  orijijinal  i)etition, 
thereby  putting:  him  in  the  same  position  as  upon  an  original  hear- 
ing thereon ;  and,  fourth,  that  it  was  discretionary  with  the  court, 
pending  the  traverse,  to  let  the  iiKjuisition  and  proceedings  stand 
until  the  termination  of  the  inquiry.  In  re  Tracy,  supra.  The 
other  objections  taken  to  the  procedure,  which  resulted  in  the  ap- 
jiointment  of  a  committee,  are  not,  we  think,  available  as  a  ground 
of  reversal.  The  orders  of  the  special  and  general  terms  should 
therefore  be  affirmed. 

Effect  of  commitments  to,  and  discharges  from,  asylums  for  the  in- 
sane, see  14  L.  R.  A.  (N.  S.)  469.  and  note.  Collateral  attack  upon  in- 
quisition of  lunacy,  12  lb.  895,  and  note.  Effect  of  acquittal  on  a  crimi- 
nal charge,  upon  the  gound  of  insanity,  on  liberty  of  the  prisoner.  See 
In  re  Watkins,  3  Pet.  193,  inserted  at  ch.  5,  sec.  8  (a)  ante. 

For  the  practice  in  North  Carolina  in  inquisitions  of  lunacy,  and  for 
the  rulings  and  dicta  as  to  whether  or  not  the  acts  of  one  who  has  been 
adjudged  insane  are  void  or  voidable,  if  such  acts  be  done  while  such 
adjudication  remains  unvacated.  see  Bethea  v.  McLennon,  23  N.  C.  523; 
Sims  v.  Sims,  121  N.  C.  297,  28  S.  E.  407;  .Johnson  v.  Kincade.  37  N.  C. 
470;  Crump  v.  Morgan,  38  N.  C.  91;  Sprinkle  v.  Wellborn,  140  N.  C.  163, 
52  S.  E.  666;  Mordecai's  L.  L.  219-224.  See  further  as  to  when  and  how 
inquisitions  of  lunacy  are  to  be  conducted,  Pell's  Revisal,  sec.  1890, 
et  seq.;  In  re  Propst,  144  N.  C.  566,  57  S.  E.  342;  In  re  Anderson,  132 
N.  C.  243,  43  S.  E.  649;  Woerner's  Am.  Law  of  Guardianship,  384;  Mc- 
intosh Cont.  237.  See  "Insane  Persons,"  Century  Dig.  S  21;  Decennial 
and  Am.  Dig.  Key  No.  Series  §  13. 


Sec.    6.]  REMEDIES   IK    SPECIAL    CASES.  757 


Sec.  6.  Sale  of  Real  Estate,  by  the  Personal  Representa- 
Tiv"E.  TO  ^Iake  Assets  for  the  Payment  of  the  Debts  op  a 
Decedent. 

BLOUNT  V.  PRITCHARD,  88  N.  C.  445.     1883. 
What    the    Complaint    or   Petition    Should    Contain.     Amount   of   Debts. 

Value  of  Personalty. 

[Special  proceeding  to  make  real  estate  assets,  filed  before  the  clerk 
of  the  superior  court.  The  complaint  stated  that  the  debts  outstanding 
against  the  estate  of  the  decedent  amounted  to  about  $900  and  that  the 
value  of  the  personalty  of  the  estate  did  not  exceed  $500.  The  defend- 
ants demurred  for  that  the  complaint  failed  to  state:  That  the  person- 
alty had  been  exhausted:  the  application  thereof;  or  that  it  "had  been 
made  assets  according  to  law."  Demurrer  overruled,  and  defendants 
appealed.     Affirmed.  1 

Ashe,  J.  The  statute  authorizing  the  sale  of  land  to  make  as- 
sets for  the  payment  of  debts  (Bat.  Rev.,  eh.  45,  sec.  61)  provides, 
that  when  the  personal  estate  of  a  decedent  is  insufficient  to  pay 
all  his  debts,  including  the  charges  of  administration,  the  executor, 
administrator,  or  collector  may.  at  any  time  after  the  grant  of  let- 
ters, apply  to  the  superior  court  of  the  county  where  the  land  or 
some  part  thereof  is  situated,  by  petition,  to  .sell  the  real  property 
for  the  payment  of  the  del)ts  of  such  decedent. 

See.  62.  The  petition,  which  must  be  verified  by  the  oath  of  the 
applicant,  shall  set  forth,  as  far  as  can  be  ascertained:  (1)  The 
amount  of  the  debts  outstanding  against  the  estate;  (2)  The  value 
of  the  personal  estate  and  the  application  thereof;  (3)  A  descrip- 
tion of  the  legal  and  equitable  real  estate  of  the  decedent,  with  the 
estimated  value  of  the  respective  portions  or  lots;  (4)  The  names, 
'  ages,  and  residences,  if  known,  of  the  devisees  and  heire  at  law  of 
the  decedent. 

It  is  the  insufficiency  of  the  personal  estate  of  a  decedent  to  pay 
his  debts  which  is  the  es.sential  fact  that  gives  jurisdiction  to  the 
court,  and  imposes  upon  the  n-preseiitative  the  duty  of  applying 
for  leave  to  sell  the  real  i)roperty.  In  Finger  v.  Finger,  64  N.  C. 
183,  it  is  held  that  "on  a  petition  to  sell  lands  of  a  deceased  per- 
son, the  administrator  must  satisfy  the  court,  either  that  the  per- 
sonal estate  has  been  rrhniisUd  in  the  payment  of  debts,  and  that 
others  are  due.  or  thai  it  will  be  clearly  insn/ficifiil  for  that   pur- 


> ) 


pose. 

In  Shields  v.  :\Icl)owell.  82  N.  C.  137.  Judge  Dillard  says,  in 
relation  to  HMt.  Rev.  ch.  45.  sec  61  :  "In  cmsl  ruing  this  section,  it; 
.'onncction  with  the  clause  of  the  .siu-tion  reipiiriiig  a  statement  in 
the  p.'tition  of  the  amount  of  the  personalty  and  its  application, 
w.'  tliijik  the  meaning  of  the  statute  is,  ttiat  the  power  and  duty 
to  apply  for  a  license  exist  wbciH-vcr  insuriicicncy  occurs,  and  can 
b(>  shown  foHh  in  the  petition,  wbrtlier  presently  or  remotely, 
after  the  grant  of  letters,  or  before  or  after  a  full  api>licat.ion  of 
the  personal  a.s.sets  "     In  thai  ease  there  Imd  liern  ;ui  a|»plieat ion. 


/5b  KKMEniEij  IN  t;rEnAi,  cases.  [Ch.  !f. 

in  ])!irt.  of  the  assets  oi'  tlu>  tostatdr  to  his  debts,  niul  the  jiulp:.' 
was  no  iK»nl)l  speakinj:;  in  rel'erenee  to  tlie  i'aels  ul'  Uie  case,  when 
he  said  license  to  sell  nnjj;ht  he  >iraiilcd  "before  or  after  a  full 
apjdieation  of  the  persoinU  assets."  For  we  think  the  proper  con- 
strnetion  of  the  statute  is.  that  license  may  hv  granted  even  if 
there  has  been  no  application  of  the  asset.s;  but  if  tliere  has  been 
an  upplication,  it  should  be  stated  that  the  court  may  see  that 
there  lias  not  been  a  misapplicalion. 

The  statute  exi)ressly  ])rovides  that  in  case  of  an  in.su flficiency  of 
assets,  the  personal  representative  may  at  any  time  after  the  grunt 
of  letters,  apply  for  the  license ;  and  if  he  may  apply  at  any  time, 
he  may  do  so  just  so  soon  as  he  ascertains  there  is  an  insufficiency, 
and  before  he  can  possibly  convert  the  ]iersonal  estate  into  money 
ami  make  an  application  of  it  to  the  debts.  As  under  the  present 
plan  of  administration  the  assets  must  be  applied  pro  rata  to  the 
several  classes  of  debts  according  to  their  priorities,  we  do  not 
well  see  how  any  application  can  be  safely  made  before  an  ad- 
ministrator ascertains  what  amount  of  [personal]  assets  he  will 
have  to  apply. 

The  main  and  essential  fact  to  be  stated  in  the  petition  is,  that 
there  is  an  insufficiency  of  [personal]  assets  to  pay  the  debts,  and. 
that  the  court  may  know  this,  the  statute  requires  a  statement  of 
the  amount  of  the  debts  and  the  value  of  the  pei-sonal  estate ;  but 
these  statements  are  not  required  to  be  made  with  exact  particu- 
larity, but  onl}''  "as  far  as  can  be  ascertained,"  for  these  italicized 
words  used  in  section  sixty-two.  according  to  grammatical  con- 
struction, qualify  each  of  the  subdivisions  of  that  section.  There 
is  no  error  in  his  honor's  judgment  in  overrviling  the  demurrer. 
Let  this  be  certified  to  the  superior  court  of  Pa.squotank.  to  the 
end  that  a  procedendo  may  be  issued  to  the  probate  court  [clerk  of 
the  superior  court]  of  the  county,  to  proceed  upon  the  petition 
for  the  sale  of  the  land  as  prayed  for.    Affirmed. 

The  present  statute  of  North  Carolina  is  identical  with  that  quoted 
in  the  principal  case.  See  Pell's  Revisal,  sec.  77  and  notes,  where  the 
later  cases  are  digested.  The  amount  of  the  debts  and  the  value  and 
dispositiion  of  the  personalty  must  be  set  out  in  the  complaint.  See 
"Executors  and  Administrators,"  Century  Dig.  §  1370;  Decennial  and 
Am.  Dig.  Key  No.  Series  §  336. 


PERSON  V.  MONTGOMERY,  120  N.  C.  Ill,  113,  26  S.  E.  645.     1897. 
Defenses  Open  to  the  Heirs  and  Devisees.    Reference. 

[Special  proceeding  to  make  real  estate  assets.  In  the  course  of  the 
opinion  is  the  following:] 

FuRCHES,  J.  .  .  .  An  administrator  has  a  right  to  have 
land  sold  to  pay  debts  and  costs  of  administration,  where  the  per- 
sonal assets  are  not  sufificient.  Code.  §  1436.  The  heirs  must  be 
made  parties  to  a  proceeding  to  sell  land  for  assets,  and  where 


Sec.    6.]  REMEDIES    IN    SPECIAL    CASES.  759 

they  deny  that  it  is  necessary  to  sell,  that  there  are  sufficient  per- 
sonal assets  if  properly  administered,  or  that  the  debts  upon 
which  it  is  askecl  fhat  the  land  be  sold  are  not  due  by  the  estate, 
the  court  will  not  order  a  sale  until  these  questions  are  deter- 
mined ;  and  the  usual  course  is  to  refer  the  matter,  as  was  done  in 
this  case.  This  reference  is  not  for  the  purpose  of  settling  the  es- 
tate, but  for  the  purpose  of  informing  the  court  whether  it  is  nec- 
essary to  sell  the  land  for  assets,  and  the  probable  amount  that  it 
will  be  necessary  to  raise  out  of  the  land.  In  this  proceeding,  it 
being  against  the  heirs  and  for  the  purpose  of  taking  and  con- 
verting their  land  to  the  payment  of  debts  due  by  their  ancestor, 
they  are  at  liberty  to  show  any  personal  estate  that  should  be  first 
made  liable,  and  a  solvent  debt  due  the  estate,  that  might  be  col- 
lected, is  a  part  of  the  personal  assets.  They  are  also  at  liberty 
to  dispute  and  contest  the  liability  of  their  ancestor's  estate  to 
the  debts  for  which  their  lands  are  sought  to  be  sold ;  and  even  to 
plead  the  statute  of  limitations  against  the  debts  claimed  to  be  due, 
unless  they  have  been  reduced  to  judgment ;  and,  if  fraud  and 
collusion  can  be  shown  between  the  administrator  and  the  creditor, 
it  may  be  pleaded  where  there  has  been  judgment.     .     . 

See  "Executors  and  Administrators.'  Century  Dig.  §§1334-1342,  1418; 
Decennial  and  Am.  Dig.  Key  No.  Series  §§  322-325,  339. 


MORRISETT  v.  FEREBEE,  120  N.  C.  6,  8,  26  S.  E.  628.     1897. 
Claiming  the  Homestead. 

[Special  ijroceeding  to  sell  land  for  assets.  Judgment  against  the 
plaintiff,  and  he  appealed.  The  complaint  was  in  the  proper  form. 
Some  of  the  defendants  were  infants  who  were  duly  represented  by  a 
guardian  ad  litem.  The  answer  filed  on  behalf  of  these  infants  admitted 
the  allegations  of  the  complaint,  and  the  clerk  gave  judgment  for  a  sale 
of  the  land  subject  to  the  widow's  dower  estate — the  dower  having  been 
theretofore  allotted.  After  a  sale  and  report  thereof  to  the  court,  a 
petition  was  filed  in  the  cause  on  behalf  of  the  infants,  asking  that  $1,000 
of  the  proceeds  of  the  sale  be  invested  for  the  benefit  of  the  infants  until 
they  arrived  at  full  age.  The  clerk  confirmed  the  sale  and  ordered  the 
investment  of  the  $1,000  as  prayed.  The  plaintiff  administrator  ap- 
Iiealed  to  the  sui)erior  court  in  term.  The  judge  of  the  stiperior  court 
reversed  the  judgment  as  to  the  $1,000,  but  held  that  the  infants  were 
entitled  to  a  homestead  in  the  land  to  be  allotted  by  metes  and  bounds 
so  as  to  include  that  part  of  the  land  which  was  already  covered  by  the 
widow's  dower,  and  gave  judgment  accordingly.  He  further  adjudged 
that  the  administrator  refund  to  the  purchaser  of  the  reversion  after 
the  widow's  dower  the  amount  paid  for  such  interest.  The  widow  was 
the  purchaser  of  such  reversionary  interest.] 

FiRr'ME.s.  J.  .  .  .  There  is  error  in  both  rulings.  The  in- 
fant defendants  wen-  entitled  to  their  homestead,  which  sliould 
have  lieen  hiid  off  on  flic  (if)wer  land.  Waifs  v.  T^eggeff,  (IG  N.  C 
iri7:  Graves  v.  TTines,  108  N.  C  202.  1^^  S.  E.  15;  Gregory  v.  El- 
lis. 86  N.  C.  570.  r?ut  wlicii  fliey  were  made  parties,  and  were 
propei'ly  in  cmirt.  represented  by  a  guardian,  as  is  found  to  be 


760  REMEDIES    IN    SrEOI.U,    PASES.  [T//.    ,'). 

the  case  horo.  adiniltod  tho  allojijations  ol'  tlio  coinplaiiil.  aiul  maile 
uo  olaiiM  \o  tliiMi-  lioniostoad.  and  allowed  .iudjjinent  to  be  taken 
asxainst  them,  antl  an  order  of  sale  subject  to  the  dower  of  the 
witlow.  a  sale  of  the  pi'opcrty.  a  eonfirjtiatioTi  of  the  sale,  and  a 
payment  of  the  iinrchasc  moncN',  as  imisl  have  been  the  ease  here. 
as  the  order  of  the  court  is  "that  the  plaintilV  pay  haek  the  pur- 
chase money."  it  is  too  late.  They  are  estopped  hv  this  pidjxment. 
Diekens  v.  I.on^',  10!)  N.  (\  Klf).  i'm  S.  E.  S41.  Tliird  parties  liave 
beeome  interested,  and  this  ,iud<j;ment  eannot  be  thus  collaterally 
attacked.  Dickens  v.  Lonp.  supra,  and  cases  there  cited.  It  is 
tnie  that  the  defendants  luiule  their  application  to  have  the 
$1,000  paid  into  court  for  their  benefit  befon^  the  sale  was  con- 
firmed. lUit  they  did  not  object  to  the  condi-mation.  in  fact,  the 
order  they  asked  to  have  made  substantially  asks  a  confirmation 
of  the  sale,  as  there  could  have  been  no  money  in  the  hands  of  the 
plaintiff  to  pay  into  court  without  such  confirmation.  Defendants 
not  beinjr  entitled  to  a  homestead,  there  is  no  j]^round  to  .support 
the  order  for  plaintiff  to  pay  back  to  the  widow  the  money  she 
paid  him  for  the  reversionary  interest  in  the  land  covered  by  the 
dower.  She  is  the  owner  of  this  reversion,  and  mast  jiay  for  it, 
if  she  has  not  done  so.  For  the  erroi-s  pointed  out.  the  judgment 
appealed  from  is  reversed,  and  the  judgment  will  be  the  ordinary 
judgment  of  confirmation.     Error. 

See  "Executors  and  Administrators."  Century  Dig.   §   377;    Decennial 
and  Am.  Dig.  Key  No.  Series  §  1543. 


TILLETT  V.  AYDLETT,  90  N.  C.  551,  552.     1884. 

Clerk's  Powers  and  Duties  in  Designuting  What  Portion  of  the  Lands 

Shall  Be  Sold. 

rSpecial  proceeding  for  sale  of  land  for  assets.  The  defendants  in- 
sisted that  the  clerk  had  no  authority  to  designate,  in  the  judgment  of 
sale,  what  particular  tract  or  portion  of  the  land  should  be  sold.  The 
clerk  ruled  otherwise,  and  gave  judgment  directing  that  certain  specified 
portions  of  the  land  be  sold.  Upon  appeal  to  the  court  in  term  the  judge 
reversed  the  clerk's  ruling  and  remanded  the  case  with  instructions  to 
the  clerk  to  make  an  order  granting  to  the  plaintiff  license  to  sell  all  of 
the  lands  described  in  the  complaint  "or  so  much  thereof  a^  may  be 
necessary."     From  this  judgment  the  plaintilT  appealed.     Reversed.! 

]\rEHRiMOX.  J.  .  .  .  The  appellant  contends  that  in  making 
this  jndement  the  judge  erred,  and  we  are  of  that  opinion.  The 
st.atute  (The  Code.  §  1436)  allows  the  administrator,  in  the  contin- 
gencies therein  mentioned,  to  apply  to  the  siitperior  court  ("for  li- 
cense] to  soil  the  real  proporty  for  the  payment  of  the  debts  of  the 
deceased  debtor.  Tt  is  further  provided,  in  section  1443,  that  "as 
soon  as  all  proper  parties  are  made  to  the  proceeding,  the  clerk 
of  the  superior  court  before  whom  it  is  instituted,  if  the  allega- 
tions in  the  petition  are  not  denied  or  controverted,  .shall  have 
power  to  hear  fho  same  summarily  and  decree  a  .sale,"  and  section 


Sec.    6.]  REMEDIES    IN    SPECIAL    CASES.  761 

1444  provides,  "that  the  court  may  decree  a  sale  of  the  whole,  or 
of  any  specified  parcel  of  the  premises,  in  such  manner  as  to  size  of 
lots,  place  of  sale,  terms  of  credit  and  security  for  payment  of 
purchase  money,  as  may  be  most  advantageous  to  the  estate,"  etc. 

It  is  manifest  that  the  last  mentioned  section  confers  upon  the 
court  a  large  power  of  discretion,  and  in  terms  authorizes  it  to 
decree  a  sale  of  the  real  estate  of  the  decedent  in  whole  or  in  part. 
and  to  designate  w  hat  part  shall  be  sold.  It  might,  and  often  does, 
happen  that  only  a  part  of  a  deceased  debtor's  land  is  required  to 
he  sold  to  pay  his  debts,  and  in  many  cases  it  may  be  advantageous 
to  the  estate  and  thosv  interested  in  it  to  sell  only  particular  parts 
of  it.  Such  a  discretion  must  be  lodged  somewhere,  and  the  legis- 
lature has  chosen  to  confer  it  upon  the  court.  This  discretion  is 
not  an  arbitrary  one:  it  is  a  sotoul  legal  discirtioit,  having  in  view 
the  best  interests  of  the  est<ite  and  all  persons  interested  therein. 
To  direct  a  sale  of  the  whole  or  any  particular  part  or  tract  of 
laud  to  suit  the  convenience  of  one  or  two  of  the  parties  interested, 
to  the  prejudice  of  others  having  a  like  or  similar  interest,  would 
not  be  a  sound  discretion  or  a  just  exercise  of  the  power  conferred. 
The  court  should  endeavor,  according  to  its  information,  to  sub- 
serve the  best  interests  of  the  estate,  and  fairly  the  interest  and 
convenience  of  all  interested  in  it  The  clerk  of  the  superior 
court,  for  the  purpose  of  decreeing  a  sale  in  the  case  provided  in 
.section  1443.  rrpresoifs  and  is  the  court,  and  has  authority  to  ex- 
ercise the  discretionary  powers  conferred.  Indeed  the  clerk  im- 
plies the  court  in  ca.ses  like  this,  as  well  as  in  manv  other  like 
cases.    The  Code.  §  132. 

We  are  not  at  liberty  to  decide  upon  the  propriety  and  expe- 
diency of  the  decree  made  by  the  clerk  of  the  court  in  this  case, 
or  to  say  that  a  .sale  of  the  land  should  not  be  made  as  directed  by 
tlie  judge:  but  we  think  we  may  properly  suggest  that  the  decree 
should  direct  a  sale  to  be  made  in  such  way  as  to  disturb  as  little 
as  practicable  the  will  of  the  testatorT  This  is  enjoined  by  the 
.statute.  The  Code,  §  1430.  There  is  erroi-.  and  the  judgment  and 
nrdi  r  of  the  judgr  must  he  reversed. 

See  '  Executor.s  and  Aflniinistratois."  Century  l^ig.  §§  1365,  1444.  1445; 
Decennial  and  Am.  Dig.  Key  No.  Series  §§  o?,0,  346.  347. 


THOMPSON  V.  COX,  '>?.  N.  C.  311.     1860. 

Parties.     Creditors'  Tiiffhts.     Report  and  Confirmation  of  Sale.     Raising 
the  Bid.     (tprnitui  the  Biddings.     Attacking  the  Sale  for  Fraud. 

fPetition  filed  in  the  county  court  to  set  aside  a  sale  made  under  an 
order  of  that  court  rendered  in  a  iietition  to  make  real  estate  assets. 
There  was  a  sale  of  the  decedent's  lands  under  the  order  of  the  court, 
report  of  sale,  and  judRment  confirniinR  the  report  and  sale.  Thereafter 
certain  creditors  of  the  decedent  filed  this  petition  aRainst  the  adminis- 
trator and  the  purchaser,  charRlng  fraud  and  collusion  between  them: 
that  the  land  brought  much  helow  its  value;  tlial  the  aduiinistralor  and 
the  purchaser  had   a  secret  understanding  by    which   the  administrator 


7G2  HKMEDIES    IN    SIMX  lAl,    CASES.  [Cli.    9. 

was  to  jmrtiripaii-  in  tlio  luiicliasc;  tliai  ilic  adniiiiistiator  had.  liy  false 
statoiuents  and  Iraud.  induced  tlie  tomt  to  ronlirni  the  sah';  and  that  by 
reason  of  these  tilings  the  i)et itioneis  and  other  creditors  of  the  deced- 
ent would  be  losers  to  a  large  amount.  The  i)rayer  was.  that  the  sale 
and  order  of  roulirnialioii  he  set  aside  and  a  re-sale  ordered,  etc.  The 
administrator  and  the  imrchaser  aitswered  the  petition  and  testimony 
was  taken.  The  county  court  dismissed  the  petition,  and  the  petitioners 
a|)pealed  to  the  superior  court,  where  the  judgment  of  the  county  court 
was  alhrmed.     TheN    then  a|ipealed  to  the  supreme  court.     Affirmed. ] 

I'EAKSON.  ('.  ,\.  riio  .stntiitc.  ell.  4lt,  vj  47.  Rev.  Code,  iciiuircs 
that  "tlio  lioirs  mid  (l('viso(\s  or  other  prisons  interested  in  said  es- 
tate." shall  lie  iiiiidc  iiai'tics  (o  tlic  iM'titioii  ol'  ;iii  cxcciilof  or  ad- 
iniiiisti-ator  lo  sell  I'oal  cslalc.  \V(i  think  it  olivioiis  Ih-it  tlie  words, 
"or  other  persons  iiitcrtsti'd  in  said  estate,"  were  intended  to  em- 
hraee  tlie  assignees  of  the  heir  or  devisee,  that  is,  their  heirs  or 
devisees  or  persons  taking  by  purehase  or  alienation  within  two 
years  after  the  (|iiali(ieation  of  an  exeentor  or  letters  of  adminis- 
tration jxranh'd.  whieli  convcyanees  are  made  void  against  credit- 
ors or  exeeutoivs  and  administrators  by  section  61,  and  do  not  em- 
brace the  creditors  of  a  deceased  debtor;  for:  (1)  They  are  repre- 
sented by  the  exeentor  or  administrator  who  made  the  applica- 
tion for  the  license  to  sell  the  real  estate  for  their  benetit.  and  the 
only  adversary  interest  is  that  of  the  heir  or  devisee,  or  their  as- 
signees; (2)  The  creditors  may  not  be  known,  or  their  debts  as- 
certained; (3)  Creditors  linve  no  direct  interest  in  the  estate, 
and  can  only  reach  it  by  charging  the  executor  or  administrator 
with  the  proceeds  of  the  sale  as  assets. 

There  is  no  express  provision  in  the  statute  requiring  the  sale 
made  by  an  executor  or  administrator  to  ])e  reported  to  the  court 
and  be  confirmed.  It  may  be  that  tlie  49th  section,  which  omits 
the  word  "license"  and  substitutes  that  of  "decree,"  and  re- 
(luires  "that  the  title  shall  Ix'  mad(  to  the  purchaser  by  such  per- 
son, and  at  such  time  as  the  court  shall  prescribe,"  furnishes  suf- 
ficient ground  for  the  inference  that  the  sale  ought  to  be  rcjioited 
to;  and  confirmed  by,  the  court ;  yet,  in  the  absence  of  some  ex- 
press provision,  we  are  not  at  liberty  to  carry  the  construction  fur- 
ther, and  infer  that  the  fund,  in  respect  to  its  collection  and  mode 
of  application,  is  to  be  under  the  control  and  direction  of  the 
court;  for.  by  section  51,  it  is  provided,  "the  proceeds  of  the  sale 
shall  be  assets  in  the  hands  of  the  executor  or  administrator  for 
payment  of  debts,  etc..  and  applied  as  though  the  same  were  the 
proceeds  of  personal  estate."  It  follows  that  after  granting  a 
license  or  decree  of  sale,  and  the  order  confirming  the  sale  and 
to  make  title  to  the  purchaser  is  passed,  the  court  has  nothing  more 
to  do  in  the  matter,  and  its  jurisdiction  is  at  an  end.  Having  ar- 
rived at  these  conclusions  in  regard  to  the  construction  of  the 
statute,  the  application  to  the  case  under  consideration  shows  that 
the  proceeding  cannot  be  sustained. 

Viewed  in  the  light  of  a  petition  to  open  the  biddings,  there  are 
two  fatal  objections :  Xo  responsible  specific  otfer  is  made  in  re- 
spect to  the  amrumt.  and  no  assurance  given  that  tlie  price  will  be 


Sec.    6.]  REMEDIES    IN    SPECIAL    CASES.  76;i 

increased.  After  the  term  at  which  a  sale  is  confirmed,  a  court  of 
equity  [even]  in  the  ease  of  a  decree  of  sale  or  for  i)artition.  of  an 
infant  "s  land  and  the  like,  where  the  fund,  in  respect  to  its  collec- 
tion, distribution,  and  application,  is  still  under  its  control,  will 
not  open  the  biddings;  Ashby  v.  Cowell.  45  N.  C.  158;  a  fortiori 
the  court  cannot  do  so  in  a  case  Avhere.  after  passing  the  order  of 
confirmation,  etc..  its  jurisdiction  is  at  an  end. 

Viewed  in  the  light  of  a  petition  to  rehear,  it  cannot  be  enter- 
tained, because  the  petitioners  were  not  and  ought  not  to  have 
been  parties  to  the  original  proceeding.  One  who  is  not  a  party 
cannot  appeal,  or  petition  to  rehear,  or  file  a  bill  of  review.  This 
is  settled,  according  to  the  practice  of  the  courts,  and  no  precedent 
to  the  contrary  can  be  found. 

Viewed  in  the  light  of  a  hill  iit  rquitji  to  conrert  the  purcliascr 
into  a  trustee,  on  the  allegation  of  a  fraudulent  collusion  between 
him  and  the  administrator  to  suppress  competition — buy  the  land 
at  a  sacrifice  and  divide  the  spoils — and  on  the  footing  of  fraud, 
to  hold  them  liable  for  the  actual  value  of  the  land  instead  of  the 
price  at  which  it  was  sold,  the  proceeding  cannot  be  entertained ; 
because  the  county  court,  in  which  it  originated,  had  no  such  eq- 
uity jurisdiction.  It  has  general  original  jurisdiction  in  causes  of 
a  civil  nature  at  the  common  law;  its  equity  jurisdiction  is  limited. 
Jind  depends  on  specific  statutory  provisions  (Leary  v.  Fletcher. 
28  X.  C.  257)  —  e.  g.,  "petitions  for  filial  portions,  legacies,  and 
distributive  shares,  matters  relating  to  orphans,  idiots  and  luna- 
tics, and  the  management  of  Ihcir  estates."  Revised  Code,  ch. 
31,  §  5. 

"Whether  by  force  of  the  53rd  section  of  the  statute  under  con- 
sideration, which  subjects  to  sale,  on  the  application  of  an  execu- 
tor, or  admiiiislrator.  "all  rights  and  interests  in  land  which  may 
be  devi-sed  or  woidd  descend  to  the  heirs,  and  all  such  other  in- 
terests in  real  estate  as  would  be  liable,  in  a  court  of  equity,  to  be 
applied  in  discharge  of  debts."  ha«  the  effect  of  giving  jurisdiction 
to  the  county  courl  in  such  cases,  is  a  question  not  now  ])resented ; 
but  it  is  certain  that  these  matters  are  peculiarly  fit  to  be  dealt 
with  by  a  court  of  full  equity  powers,  and  the  interests  of  all 
parties  will  bo  best  protected  by  having  the  rights  declared  by  a 
decree  in  a  court  of  equity,  before  the  land  is  exposed  to  sale. 
This  section,  however,  has  no  application  to  the  case  before  us; 
the  powers  of  a  court  of  limited  jni-isdiction  cannot  be  enlarged  by 
iiiiplicjitioii.     Order  affirmed. 

That  fhf  creditors  are  not  proper  parties,  and  should  not  be  jnincfl 
with  the  administrator  as  plaititiffs.  see  Strickland  v.  StriiUland.  ^'2'^ 
N.  C.  84.  39  S.  K.  T?..",.  For  who  slK/iiJd  be  and  who  may  he  parties  plain- 
tiff or  defendant,  see  Pell's  Revisal.  sees.  f.8.  74-76.  and  notes.  As  to 
raising  the  bid.  sof  Vass  v.  ArrinKton.  SO  N.  C.  at  p.  13.  whore  it  is  said: 
"In  this  state  our  miirts  have  ado|)ted  the  lOn^ilish  practice,  and  will  set 
aside  a  sale  for  inadcrniacy  of  price,  when  Hint  fad  is  shown  to  the  court 
bv  affidavit  or  otherwise;  but  when  the  commissioner  has  reimrted  thrit 
the  property  sold  has  brouRht  a  fair  price,  and  there  is  no  evidence  ad- 
duced to  the  rontrary,  the  court  will  confirm  the  sale,  unless  before  con- 


7t;4  KKMKOIKS    IN    Sl'KCl.M.    CASES.  K'/(.    9. 

firviation  an  offor  is  made  to  raiso  llu'  bid  ton  i)oi-  cent.;  in  whWh  case 
our  rourts  will  always  set  aside  liie  sale  and  oixmi  biddings.  Blue  v. 
Blue,  79  N.  C.  09:  Bost  ex  parte.  5(1  N.  C.  4S2;  rritchani  v.  Askew.  80 
N.  C.  8«:  Wood  V.  Parker.  63  N.  C.  379;  Atty.  Gen.  v.  Roanoke  Nav.  Co., 
S6  N.  C.  408." 

In  Attorney  (General   v.   Roanoke   Nav.  Co..  S(i   N.  C.  408.  referred   to 
above,  is  this:  "The  practice  here,  established  l)y  long  usage  in  our  courts 
of  equity,   has  been   to  re-open   biddings  and   order  a   re-sale   whenever 
an  advance  bid  has  been  offerd  of  ten  per  cent,  upon  the  amount  bid  at 
the  sale,  provided  it  is  made  before  tlie  conliiniation  of  the  sale  and  in 
apt   time,   which    is  at   the  term   ensuing  the  sale,   but   never   to   re-open 
biddings  after  contirmation  except  in  cases  of  fraud,  meaning  fraud  in 
its  broadest  sense.     The  rule  laid  down  by  Mr.  Justice  Rodman  in  Blue 
V.  Blue.  79  X.  C.  GO.  is,  we  think,  the  correct  rule,  and  is  in  accordance, 
so  far  as  our  information  extends,  with  the  uniform  jiractice  which  has 
obtained    in   our   courts  in   such   cases.     He   says,   'the   practice   in   this 
state  is  to  set  aside  a  sale  before  confirmation,  upon  an  offer  of  an  ad- 
vance of  ten  per  cent,   upon  the  i)rice.     That  is  also  the  lilnglish   rule.' 
S.  P.     In  the  matter  of  l^ost  and  others,  56  N.  C.  482;    Wood  v.  Parker, 
63  N.  C.  379.     In  Daniel,  Ch.  Pr.  146.").  we  find  the  English  rule  laid  down 
as  follows:   "When  estates  are  sold  before  a  master  under  the  decree  of 
a  court  of  equity,  the  court  considers  itself  to  have  greater  i)ower  over 
the  contract  than  it  would  have  were  the  contract  made  between  party 
and  party;    and  as  the  chief  aim  of  the  court  is  to  obtain  as  great  a 
price  for  the  estate  as  can  possibly  be  got.  it  is  in  the  habit,  after  the 
estate  has  been  sold,  of  "opening  the  biddings."  that  is,  of  allowing  a 
person  to  offer  a  larger  price  than  the  estate  was  originally  sold   for, 
and,  upon  such  offer  being  made,  and  a  proportionate  deposit  paid  in, 
of  directing  a  re-sale  of  the  property.'     And  again,  on  page  1466  of  the 
same  book,  it  is  said,    that  the  mere  advance  of  price,  if  the  report  of 
the  purchaser  being    the    last    bidder    is    not    absolutely    confirmed,    is 
sufficient  to  open  the  biddings,  and  that  they  may  be  opened  more  than 
once.'     The  purchasers  insist  there  was  error  in  receiving  the  advance 
bid  of  Arrington,  who  was  present  at  the  sale  and  bid  for  the  property. 
It  is  true,  that  is  an  objection  that  has  been  sometimes  entertained  on 
the  ground  that  it  tends  to  prevent  a  proper  competition,  but  the  ob- 
jection having  been  taken  before  Lord  Eldon.  in  the  case  of  Tyndale  v. 
Warre.  cited  in  Daniel,  Ch.  Pr.  1460.  he  held,  that  although  the  court 
looks  with  jealousy  upon  the  offer  of  such  a  person,  yet  the  largeness 
of  the  bid  offered  will  be  taken  as  a  compensation  for  a  loss  that  may 
have  arisen  from  a  want  of  competition  at  the  sale."     See  "Executors 
and   Administrators,"   Century   Dig.   §§    1400-1403,   1539;    Decennial   and 
Am.  Dig.  Key  Xo.  Series  §§  337,  376. 


VASS  V.  ARRINGTOX,  89  N.  C.  10,  14-15.     1883. 

Status   of   Bidder  Before  and.  After   Confirmation.     Date   at   Which   the 

Purchaser's  Title  Is  Fixed. 

[Action  to  foreclose  a  mortgage.  Decree  of  sale.  Sale  made  on 
May  1st.  1883,  reported  to  .June  term,  1883.  At  the  time  of  the  sale,  the 
state,  county,  and  city  taxes  assessed  on  .Tune  1st,  1883,  amounted  to  .$79. 
The  court  confirmed  the  sale  and  adjudged  that  these  taxes  be  paid  out 
of  the  proceeds  of  sale.     Defendant  appealed.     Reversed  as  to  this  point.] 

AsiiE.  J.  .  .  .  Whore  land  is  sold  under  decree  of  eonrt. 
the  piirehaser  acquires  no  indejicndent.  riglit.     He  is  regarded  as 


Sec.    6.]  REMEDIES    IN    SPECIAL    CASES.  765 

a  mere  proposer  until  confirmation.  Attorney  Gen.  v.  Roanoke 
Nav.  Co..  86  X.  C.  408.  But  wlien  confii-niation  is  made,  the  bar- 
gain is  then  complete,  and  it  relates  back  to  the  day  of  sale.  Rorer 
on  Jud.  Sales,  §  122.  The  case  of  McArlan  v.  :McLauchlin,  88  N.  C. 
391,  is  an  adjudication  on  this  point,  which,  it  seems  to  us,  is  de- 
cisive of  the  question.  There,  a  creditor  of  one  ^FcLeod.  who  died 
in  ]May.  1870.  brought  action  against  his  administrator  and  re- 
covered judgment  for  a  considerable  amount,  and  then  sought  to 
have  the  land  of  ^McLeod  subjected  to  the  payment  of  his  demand. 
The  land  had  been  sold  under  a  decree  of  sale  for  partition  on  the 
3rd  of  Xoveml)er.  1871.  and  the  deeds  to  the  purcha.se rs.  were  ex- 
ecuted after  two  years  from  the  granting  of  letters  of  administra- 
tion, and  the  question  presented  to  this  court  was  whether  the  title 
of  the  purchasers  accrued  from  the  date  of  the  deeds,  or  from  the 
sale.  3Ir.  Ju.stice  Ruffin,  speaking  for  the  court,  said:  "The  court 
thinks  and  so  declares,  that  the  defendants  (who  were  the  pur- 
chasers) took  the  lands  from  the  commissioner  in  the  same  plight 
and  condition  they  were  in  at  the  moment  of  the  sale,  and  subject, 
as  they  were,  to  the  payment  of  the  decedent's  debts." 

Applying  the  principle  there  announced  to  our  case:  By  the 
confirmation  of  the  report  of  the  commissioner,  the  purchaser  ac- 
quired title  to  the  house  and  lot  by  relation  to  the  day  of  sale,  and 
takes  them  in  the  same  plight  and  condition  they  were  in  at  the 
moment  of  the  sale  on  the  1st  day  of  ]\Iay,  1883.  subject  to  the 
taxes  due  in  that  year.  The  judgment  must  therefore  be  reformed 
so  as  to  climinale  therefrom  so  much  as  relates  to  the  charge  of 
the  taxes  of  1883  upon  the  proceeds  of  the  sale,  and  in  all  other 
respects  it  is  affirmed. 

While  the  principal  case  is  one  of  foreclosure  of  a  mortgage,  the  ruling 
applies  to  all  judicial  sales.  See  "Judicial  Sales,'  Century  Dig.  §  90; 
Decennial  and  Am.  Dig.  Key  No.  Series  §  50. 


MOORE  V.  GIDNEY.  75  N.  C.  34.     1876. 
Effect  of  Plaintiffs  Counsel  Advising  Defendants. 

[Special  proceeding  to  make  real  estate  assets.  A  guardian  ad  litem 
was  appointed  for  certain  infant  defendants,  which  ai)i)ointment  was 
made  the  day  before  the  proceeding  was  commenced.  This  guardian 
filed  an  answer  admitting  the  allegations  of  the  comi)laint.  This  answer 
wa,s  written  hy  the  jilnintiff's  counsel,  at  his  own  suggestion  and  without 
any  charge  for  his  services.  In  doing  this  no  imi)roj)riety  was  infonde<i. 
.fudgment  for  a  .sale  of  the  land.  Sale  made,  reported,  and  confirmed. 
The  judgment  confirming  the  sale  was  rendered  on  Ajiril  Kith,  187.'.. 
Some  time  thereafter  the  guardian  ad  litem  moved  in  the  cause,  l)efore 
the  clerk  of  the  superior  court,  to  set  aside  the  judgment  for  the  sale 
and  the  confirmation  thereof,  on  the  ground  that  such  judgments  were 
void.  The  dork  refused  to  vacate  the  judgments  and  I  lie  guardian  ad 
litem  appealed  to  the  judge  of  the  superior  (ourt,  who  ruled  that  the 
whole  proceeding  was  void  and  gave  judgment  nccordingly.  Appeal  by 
the  administrator,  Oidnev.     AfTiiined 


Tl)l)  kkmF':diks  in  spkciai,  cases.  [Ch.  9. 

The  following  additional  lads  wore  I'ouml  by  the  judge  of  the  superior 
eourt:  The  summons  in  the  special  proreeding  was  not  served  on  the 
infants  until  October  Mtii,  ISTl.  thougli  it  was  served  on  their  guardian 
ad  litem  on  Se|)tember  10th,  1S74.  The  order  of  sale  was  entered  Octo 
ber  r.th,  1S74.  The  land  sold  for  a  fair  price.  (The  case  on  appeal 
states  that  the  summons  was  .served  on  the  Infants  on  September  14th, 
1S74,  but  as  it  is  stated,  in  both  the  case  on  appeal  and  in  tlie  oi)inion, 
that  the  service  was  after  the  judgment  for  sale,  it  is  evident  that  Sep- 
tember 14th  is  a  mistake  for  Oi  tober  Mth  in  giving  the  date  of  the 
service  on  the  infants.)] 

JiYNiM.  J.  .  .  .  hi  this  ease  the  fjiiardian  ;ul  litem  was  ap- 
lH)iuled  before  the  iiirants  were  brought  into  court  by  summons. 
Xo  summons  or  copy  of  the  eomphiint  was  served  on  them  until 
after  tlie  decree  of  .sale.  In  law,  Ihey  were  undefended.  Their 
rights  and  property  were  attempted  to  be  ad.judieated  upon  .and 
taken  from  them  inider  the  sanction  of  law,  but  in  violation  of  its 
letter  and  spii'it.  They  had  no  day  in  eourt,  and,  as  to  them,  the 
l^roeeedings  were  irregular,  and  subject  to  be  set  aside. 

It  may  be,  and  it  is  alleged,  that  inasmuch  as  the  estate  is  in- 
solvent, and  the  proceeds  of  the  sale  of  lands  must  all  be  applied 
in  payment  of  the  debts  of  the  intestate,  the  infants  have  no  sub- 
stantial interest  to  be  atVected  by  the  decree  and  are,  therefore,  not 
injured.  But  as  they  were  not  in  eourt,  and  could  not  be  heard, 
these  alleged  facts  do  not  appear  to  us  judicially,  and  we  cannot 
as.sume  them  to  be  true.  What  they  may  be  able  to  show  in  de- 
fense of  this  proceeding  when  they  are  properly  brought  in  court, 
and  are  represented  by  a  guardian,  duly  constituted,  who  will  dis- 
charge his  duty  to  them,  we  cannot  anticipate.  Sutifieient  for  the 
day  is  the  evil  thereof. 

This  application  is  treated  as  a  motion  in  the  original  proceed- 
ing for  the  sale  of  the  land  (which  action  is  still  pending),  to  set 
aside  for  irregularity  the  decree  of  sale  and  all  subsequent  pro- 
ceedings. We  have  disposed  of  the  case  as  far  as  the  infants  are 
concerned.  We  next  proceed  to  examine  it  so  far  as  it  affects  the 
widow  herself.  She  tiled  no  answer  in  her  own  right,  but  an- 
swered in  right  of  the  infants  only.  She  alleges  that  she  was  not, 
at  the  time  of  her  answer,  apprised  of  the  facts  which  constitute 
her  ecpiitable  right  to  the  largest  tract  of  land,  to-wit :  the  Wilson 
tract.  She  further  alleges  that  her  answer  to  the  petition  for  the 
sale  of  the  land  was  filed  for  her  by  the  attorney  of  the  plaintiff; 
and  that  she  was  at  the  time  so  troubled  and  distressed  in  mind 
by  the  reeent  di-alh  of  her  Intsband.  as  to  ])e  disqualified  for  busi- 
ness, and  thus  was  induced  to  as.sent  to  the  answer,  without  knowl- 
edge of  her  rights.  These  allegations  are  not  directly  denied.  But 
it  is  denied  that  the  counsel  of  the  plaintiff  acted  as  the  defend- 
ant's counsel,  farther  than  in  drawing  up  her  answer;  and  we  are 
satisfied  that  no  im])roper  influence  was  intended.  Yet  the  law 
does  not  tolerate  tliat  the  same  coun.sel  may  appear  on  both  sides 
of  an  adversary  proceeding,  even  colorably;  and  in  general  will 
not  permit  a  judgment  or  decree  so  affected  to  stand  if  made  the 
subject  of  exception  in  due  time  by  the  parties  injured  thereby. 


Sec.    7.]  REMEDIES    IN    SPECIAL    CASES.  767 

The  presumption,  in  such  cases,  is  that  the  party  was  unduly  in- 
fluenced by  that  relation,  and  the  opposite  party  cannot  take  the 
benefit  of  it.  It  does  not  appear  affirmatively  in  this  case  that 
]\Irs.  ]Moore.  the  defendant,  was  not  influenced  to  her  prejudice 
and  thrown  off  her  guard  thereby.  The  purity  and  fairness  of  all 
judicial  proceedings  should  so  appear  when  drawn  in  question. 

See  also  Ellis  v.  Massenburg,  126  N.  C.  129,  35  S.  E.  240,  as  to  the 
necessity  lor  avoiding  even  the  appearance  of  evil  in  the  matter  of  rep- 
resenting two  sides  of  a  case,  especially  where  infants  are  concerned. 
As  to  the  necessity  of  making  proper  parties  to  proceedings  to  make 
real  estate  assets,  and  how,  when,  and  by  whom  such  sales  may  be  at- 
tacked after  confirmation,  see  Perry  v.  Adams,  98  N.  C.  167.  3  S.  E.  729; 
Rackley  v.  Roberts,  147  N.  C.  201,  GO  S.  E.  975;  Lanier  v.  Heilig,  149 
N.  C.  384,  63  S.  E.  69.  This  last  case  is  far  more  conservative  than 
many  of  its  predecessors  in  the  matter  of  protecting  the  rights  of  pur- 
chasers. It  holds  that  the  attack  upon  such  sales,  unless  it  be  for  fraud, 
must  be  by  motion  in  the  cause  even  though  a  final  judgment  has  been 
rendered;  even  when  a  judgment  for  sale  of  land  is  set  aside  for  irregu- 
larities, the  rights  of  innocent  parties  will  be  protected;  it  is  only 
where  the  judgment  is  void  because  of  want  of  jurisdiction  of  the  per- 
sons or  subject-matter,  that  rights  acquired  will  be  disturbed;  and  even 
in  these  cases,  if  the  purchase  money  has  been  applied  in  exoneration 
of  the  land,  the  purchaser  ivill  be  subrogated  to  the  rights  of  the  cred- 
itors. "This  .is  common  learning  and  manifest  equity."  See  Speer  v. 
James.  94  X.  C.  417,  for  several  valuable  points  on  these  proceedings. 

For  a  general  discussion  of  the  history  and  practice  in  these  proceed- 
ings and  for  many  points  decided  with  reference  thereto,  see  Mordecai's 
L.  L.  1161  et  seq..  1176,  908-919,  530;  Woerner's  American  Law  of  Ad- 
ministration, sees.  463-488;  Croswell's  Exlrs.  &  Admrs.  pp.  280-301; 
18  Cyc.  pp.  674-846.  See  "Attorney  and  Client,"  Century  Dig.  §  229; 
Decennial  and  Am.  Dig.  Key  No.  Series  §  113. 


Sec.  7.    Creditors'  Bills. 

HAN'COCK  V.  WOOTEX,  107  X.  C.  9,  19-24,  12  S.  E.  199.     1890. 

True  Character  of  a  General  Creditors'  Bill.  Judgment  Creditors'  Bill. 
Rules  of  Equity  Practice.  Present  Rules  of  Practice  under  the 
Code.     Xecessity  for  a  .Judgment  at  Laio.     Priorities. 

IWooten  and  his  wife  made  a  deed  of  trust  for  the  benefit  of  creditors, 
by  which  a  certain  creditor  was  preferred  for  so  large  an  amount  as 
I)ractically  to  absorb  the  trust  estate.  Hancock  Bros,  brought  an  action 
against  Wooten  to  recover  a  debt,  and  several  other  creditors  brought 
similar  actions.  Other  creditors  jointly  sued  Wooten  and  the  trustee 
in  tbe  deed  of  trust  for  the  recovery  of  debts  and  for  the  purpose  of  hav- 
ing the  deed  of  trust  declared  void  in  so  far  as  it  affected  their  interests. 
In  this  action  an  attachment  was  issued  and  levied  on  the  i)ersonalty 
embraced  in  the  trust  deed.  About  the  same  time  sundry  other  actions 
were  lirought  by  other  creditors,  in  which  actions  attachments  were  is- 
sued and  levied  on  the  porsonalty.  Then  other  creditors  ol)tained  judg- 
ments in  magistrates*  courts  and  caused  some  of  the  jiersonalty  to  be 
sold  under  ••xeriition.  The  proceeds  of  such  sales  were  held  by  thf> 
sheriff.     By  an  order  of  the  superior  court  in  term,  nil  nf  these  actions 


7t)8  KK.MEDIES    IN    t^lMX-IAl,    (ASES.  \('h.    !K 

were  eonsolidatoil  with  tlu-  case  of  llaiuoiU  Mros.  v.  Wootoii  et  al  Tho 
order  was  as  follows:  'It  appearius  that  the  above  action,  pending  in 
tliis  lourt.  is  a  creditors'  hill,  and  that  tluMo  are  creditors  of  tlie  de- 
fendant. W.  J.  Wooten.  other  than  the  plaintiffs,  it  is  now  ordered,  on 
motion  of  defendant's  counsel,  that  notice  be  issued  by  the  clerk  of  this 
court  to  the  followinp  creditors  of  W.  .1.  Wooten  (naming  the  present 
parties  plaintiff),  to  appear  at  the  next  term  .  .  .  and  make  them- 
selves parties  to  this  action.  It  is  further  ordered  that  publication  of 
this  notice  be  nu\de  for  all  creditors  of  said  W.  J.  Wooten  for  six  week« 
successively  in  (a  certain  paper),  to  appear  al  next  term  of  this  court 
and  make  themselves  parties  plaintiff." 

Thereafter  Hancock  Hros,  and  their  co-plaintiffs  filed  a  complaint  in 
"behalf  of  themselves  and  all  other  creditors  of  W.  .1.  Wooten  who  may 
become  parties."  The  defendants  answered  denying  all  the  material 
allegations  of  the  complaint.  An  issue  as  to  whether  or  not  the  deed 
of  trust  was  fraudulent  as  to  creditors,  was  submitted  to  a  jury,  and 
the  veidict  was  in  the  alfirmalive.  Thereui)on  the  trustee  was  ordered 
to  render  an  account  and  to  i)ay  over  the  assets  in  his  hands  to  a  re- 
ceiver; and  the  sheriff  was  ordered  to  do  the  like  with  the  proceeds  of 
the  trust  property  sold  by  him.  The  deed  of  trust  was  adjudged  to  be 
void,  and  a  referee  was  ai)i)ninted  to  rei)ort  "the  debts  to  which  said 
money  should  be  applied,  the  amount  of  said  debts,  and  the  pro  rata 
share  of  each  debt  to  be  paid  out  of  said  fund,  and  the  balance  due  them, 
etc."  Acting  under  these  orders,  the  referee  proceeded  to  perform  the 
duties  imposed  upon  him,  and  the  receiver  paid  out  some  money.  There- 
after Simeon  Wooten  filed,  in  the  cause,  an  ani)lication  for  permission 
to  prove  certain  claims  This  was  opposed  and  the  judge  refused  to 
permit  the  claims  to  be  proven  because,  inter  alia,  in  the  opinion  of  the 
court,  the  applicant  was  too  late,  it  being  shown  that  he  was  a  party 
defendant  to  this  action  and  had  once  offered  to  file  his  claims  with  the 
referee-  but,  upon  objection  being  made  thereto,  had  withdrawn  them. 
From  this  ruling  Simeon  Wooten  api)ealed.  There  were  other  objec- 
tions made  by  other  defendants  to  the  disposition  of  the  whole  case, 
which  being  overruled,  they  also  appealed      Affirmed. 

Simeon  Wooten  being  a  defendant  in  the  action  allied  himself  with 
those  who  defended  the  fraudulent  assignment.! 

Shepherd,  J.  .  .  .  The  second  exception  is  to  the  ruling  of 
the  court,  declining  (after  the  deed  was  found  to  be  fraudulent) 
to  allow  Simeon  AVooten  to  prove  his  debt,  and  prorate  w^ith  the 
plaintiff  creditors  in  the  proceeds  of  the  property  conveyed 
therein.  Tt  does  not  appear  that  the  said  Wooten  participated  in 
the  fraudulent  intent  of  the  trustor,  but  he  claimed  under  the 
deed,  and  united  with  the  trustee  in  defending  it  against  the  just 
claims  of  the  plaintiffs.  He  has  never  abandoned  his  adverse  posi- 
tion, and  is.  even  now,  insisting  upon  a  new  trial  upon  the  issue 
involving  the  validity  of  the  said  trust.  Occupying  this  antago- 
nistic position,  be  seeks  to  share  in  the  fruits  of  the  plaintift"s  re- 
covery, and  the  (piestion  is,  shall  he  be  i)ermitted  to  do  so?  In 
order  to  determine  this  point,  it  is  necessary  to  consider  the  true 
eharacter  of  this  action.  It  is  claimed  that  it  is  in  the  nattire  of  a 
creditors'  bill,  and  that  in  such  actions  all  creditors  may,  at  any 
ti)ne  before  final  decree,  be  allowed  to  come  in  and  prove  their 
claims.  Undoubtedly,  such  is  an  incident  of  what  is  ordinarily 
called  a  "general  creditors'  bill."  Such  bills  are  usually  insti- 
tuted for  the  purpose  of  winding  up  the  insolvent  estates  of  de- 
ceased persons  or  thf  aiVairs  of  a  corporation.     These  may  be  illus- 


Sec.    7.]  REMEDIES    IN    SPECIAL    CASES.  769 

trated  by  the  cases  of  Pegram  v.  Armstrong.  82  X.  C.  326;  "Words- 
worth V.  Davis.  75  X.  C.  159:  Long  v.  Bank.  81  X.  C.  41:  Glenn 
V.  Bank.  ^0  X.  C.  97 ;  Dobson  v.  Simonton.  93  X.  C.  268.  In  such 
cases  there  are  many  parties  standing  in  the  same  situation  as  to 
their  rights  or  claims  upon  a  particular  estate  or  fund,  and  the 
.shares  of  a  part  cannot  be  determined  until  the  rights  of  all  the 
others  are  settled  or  ascertained.  Of  this  nature,  also,  are  bills 
brought  to  enforce  trusts  or  assignments  for  creditors,  and  other 
instances  where  there  is  a  comnmnity  of  interest,  or  where  the  law 
devolves  upon  the  court  the  duty  of  taking  a  fund  into  its  custody, 
and  distributing  it  according  to  the  respective  interests  of  the 
parties.  In  such  cases,  no  priority  can  be  accjuired  by  one  party 
suing  or  making  himself  a  party  before  the  others;  and,  perhaps, 
one  who  has  vainly  endeavored  to  defeat  the  purposes  of  the  ac- 
tion, may.  upon  proper  terms,  be  allowed  his  share  in  the  fund. 
Such  creditors'  bills,  however,  are  totally  different  from  those  in- 
stituted by  an  unsecured  creditor  ''or  several  creditors  if  they 
choose  to  unite)  against  a  living  debtor.  Here  the  field  is  open  to 
all,  and  he  who  first  secures  a  priority  shall  reap  the  reward  of  his 
diligence.  Such  bills  are  often  said  to  be  in  the  nature  of  an 
equitable  fi.  fa.  or  equitable  levy  (Bisp.  Eq.  §  528),  and  under 
them  the  vigilant  creditor  may  acquire  a  priority  as  he  does  when 
lie  pui-sues  the  analogous  remedy  of  execution  at  law.  Bills  of 
this  kind  are  called  "judgment  creditors'  bills"  (.see  Ilarv.  Law 
R€v.  Oct.,  1890),  and  are  so  familiar  in  our  practice  that  it  is 
hardly  neccssarv  to  illustrate  them  by  a  reference  to  actual  eases. 
They  were  entertained  in  equity  for  the  purpose  of  subjecting 
equitable  and  other  interests  which  could  not  be  reached  and  sold 
under  execution,  and  also  for  the  purpose  of  removing  obstruc- 
tions to  legal  remedies,  as  by  .setting  aside  fraudulent  conveyances 
and  the  like.  Under  the  former  practice,  in  either  of  the  last- 
mentioned  cases,  it  was  necessary  before  a  resort  could  be  had  to 
a  court  of  equity  that  the  creditor  should  first  obtain  judgment 
and  show  that  the  legal  remedy  by  execution  was  ineffectual ;  but 
this,  under  the  decision  of  this  court  in  Bank  v.  ITan-is,  84  X.  C. 
206.  is  now  unnecessary,  and  both  cau.ses  of  action  may  be  included 
in  one  suit.  This  decision  by  no  means  ignores  the  distinct  char- 
acter of  a  judgment  creditors'  bill.  On  the  contrary,  it  expressly 
recognizes  it  as  it  formerly  existed,  dispensing  onl}'  with  the  ne- 
cessity of  obtaining  a  judgment  in  an  independent  action.  The 
result  of  the  deeisi(»n  is  to  render  the  proceeding  still  more  effica- 
cious, as  we  think  llial.  by  its  institution,  it  creates  a  preference 
by  way  of  an  eqiiilahle  lien  wliellier  the  intei'cst  souglit  to  be  sub- 
jected be  legal  or  equitable.  This  view  is  sui)i)orted  by  Wait  in 
his  Frauduleiii  Conveyances.  §  85.  who,  in  commenting  upon 
I'ank  v.  Harris,  says  tliat.  ii|kiii  tlie  principle  ot'  llie  ease,  "it 
would  seem  to  follow  that  llie  usual  ineideuts  of  ;i  |  judgiiieiit | 
ereditor's  suit  would  attach  to  tiie  jjroeeediug. '"  It  is  believed 
that  any  other  rule  would  be  attended  with  iiiext rieahle  confusion, 
and  eoiiMict  as  to  priorities  among  various  creditors  pursiiiug  their 
Remedies— 4;t. 


770  KKMKOIKS    IN    SPKCIAI,    CASKS.  |  ( 7/ .    !l 

ivinoilics  ill  otiit'i'  ju'tiiins  Jiiul  jurisdictions.  Kwu  if  this  wcro  not 
so  as  to  lt'i,Ml  jisst'ls.  yot.  it'  we  assiniilatc  in  its  oll'cct  tlu'  jiKlgmcnt. 
when  ai'tually  ohtainod.  to  an  execution  at  law  (and  Jis,  we  think, 
must  surely  follow  from  the  principle  of  Hank  v.  HariMs.  supra, 
and  especially  in  view  of  tlie  system  of  judtrment  li(Mis  adopted  by 
the  CodeK  the  plaintilTs  in  this  action  would  still  liave  i)riorit.y,  as 
they  have  all  oI)tained  jud.mncMits,  and  Siincoii  Wooten  has  none, 
ill'  and  the  |)laintitVs  have  been  li^jhting  at  arms-len<rlh.  each  en- 
deavoiiui:  to  establish  a  jiriority  over  \\\c  otlier.  The  plaintiffs 
have  been  victorious,  and  the  deed  having  been  decdared  iraudu- 
lent  and  void,  as  to  them,  their  preference  nuist  be  recognized, 
and  the  claim  of  the  losing  party  postponed.  This,  a.s  we  luive 
said,  would.  perha]>s.  have  been  otherwise  if  there  liad  been  such 
a  eonununity  of  intei'est  in  the  pi'operty  as  to  make  it  the  subject 
of  a  general  creditors'  bill,  but  no  such  result  as  contended  for  can 
follow  where  there  is  no  such  conunon  interest,  and  where  the 
jiroiierty  is  o]>en  and  sn])ject  to  the  action  of  the  most  vigilant 
creditor.  I.ex  vigilantibus  favet.  In  coming  to  this  c(mclusion 
we  are  but  ajiplying  in  one  action  the  same  principles  which  were 
formerly  administered  in  the  divided  jnri.^dietions  of  law  and 
equity.  The  true  spirit  of  equity  in  cases  of  this  character  is,  we 
think.  full\'  i-etleeted  by  the  remarks  of  Chancellor  Walworth  in 
Edmeston  v.  Lyde,  1  Paige,  637.  He  says:  ''On  further  ex- 
amination, it  may  seem  unjust  that  the  creditor  who  has  sustained 
all  the  ri.sk  and  expense  of  bringing  his  suit  to  a  successful  ter- 
mination should,  in  the  end,  be  obliged  to  divide  the  avails  thereof 
with  .those  who  have  slept  upon  their  rights,  or  have  intentionally 
kept  back  that  they  might  profit  by  his  exertion."  To  the  same 
effect  is  the  language  of  Chancellor  Kent  in  ^NTcDermutt  v. 
Strong.  4  Johns.  Ch.  691.  It  is  urged  that  the  order  made  at 
spring  term.  1887  (consolidating  the  various  actions  and  requir- 
ing notice  to  be  published  for  all  creditors  to  come  in  and  make 
themselves  parties),  had  the  effect  of  converting  this  into  a  general 
creditors'  bill.  If  we  are  correct  in  the  view  we  have  taken,  such 
an  order  could  not  have  been  made  over  the  objection  of  the 
I>laintiffs  if  its  effect  was  to  deprive  them  of  the  priority  they  had 
attained  by  the  commencement  of  the  action,  nor  could  the  con- 
solidation of  other  pending  suits  produce  such  a  result.  The  or- 
der, however,  was  not  objected  to.  and  its  effect,  as  to  questions  of 
priority  among  the  plaintiffs,  is  not  before  us,  as  there  seems  to  be 
no  conflict  between  them.  Conceding,  however,  that  the  order 
placed  all  who  availed  themselves  of  its  provisions  upon  an  equal 
footing,  it  amounted  to  no  more  than  if  they  had  united  in  the 
first  instance,  for  the  property  involved  was  not,  as  we  have  seen, 
the  subject  of  a  general  creditors'  bill,  and  the  action  in  its  essen- 
tial features  still  retained  its  original  characteristics.  The  order 
certainly  cannot  be  extended  so  as  to  embrace  those  who,  instead 
of  accepting  its  terms,  allied  themselves  with  the  defenders  of  the 
fraudulent  assignment  in  their  efforts  to  defeat  the  sole  purpose 
of  the  action.     Our  attention  has  been  called  to  the  case  of  Means 


Sec.    7.]  REMEDIES   IX    SPECLVL    CASES.  771 

V.  Dowd.  128  r.  S.  273.  9  Sup.  Ct.  Rep.  65.  In  that  ease  the  cred- 
itors secured  by  the  fraudulent  assignment  were  permitted  to  file 
their  claims,  because  the}-  were  actual  creditors  and  the  estate  of 
the  bankrupt  was  in  the  custody  of  the  law,  and  in  this  respect,  as 
in  many  others,  a  proceeding  in  bankruptcy  is  in  the  nature  of  a 
general  creditors'  bill.  The  entire  estate  had  to  be  settled  among 
all  of  the  creditors,  and  there  seems  to  be  no  positive  rule  of  law 
or  equity  which  makes  the  misconduct  of  a  creditor  a  cause  of  for- 
feiture of  his  debt.  The  decision,  therefore,  is  not  applicable  to 
an  action  like  ours.  For  the  reasons  given,  we  are  of  the  opinion 
that  his  honor  conunitted  no  error  in  declining  to  allow  Simeon 
Wooten  to  file  his  claim  and  share,  equally,  with  the  plaintiffs  in 
the  proceeds  of  the  property  included  in  the  fraudulent  a.ssign- 
ment.     .     .     .     Affirmed. 

As  to  priorities,  see  Butler  v.  Jaffrav,  12  Ind.  504;  Smith  v.  Summer- 
field,  108  N.  C.  284,  12  S.  E.  997:  Fisher  v.  Bank,  132  N.  C.  769.  44  S.  E. 
601. 

Whatever  may  be  the  sum  demanded,  the  superior  court  has  juris- 
diction of  a  creditors'  bill  based  thereon.  Therefore,  a  creditor  whose 
claim  is  less  than  $200  may  file  a  creditors'  bill  in  the  superior  court, 
and  this  is  true  although  his  claim  is  not  reduced  to  judgment.  Bank 
V.  Harris,  84  N.  C.  206;  Mebane  v.  Layton,  86  N.  C.  at  p.  574.  For  an 
exhaustive  review  of  the  authorities  upon  conditions  precedent  to  equi- 
table remedies  of  creditors,  see  23  L.  R.  A.  (N.  S.)  1-123.  See  "Creditors' 
Suits,"  Century  Dig.  §  210;   Decennial  and  Am.  Dig.  Key  No.  Series  §  53. 


NATIONAL  TUBE  WORKS  CO.  v.  BALLOU,  146  U.  S.  517,  522,  13  Sup. 

Ct.    165.     1892. 

Necessity  jor  a  Judgment  at  Laiv.     U.  8.  Courts. 

[Creditors'  bill  filed  in  the  United  States  circuit  court,  in  equity. 
There  was  no  averment  in  the  bill  that  the  i)]aintiff  had  recovered  any 
judgment  in  the  state  in  which  the  suit  was  brought— either  in  a  state 
or  federal  court — ujion  the  debt  which  was  made  the  basis  of  the  suit. 
Defendant  demurre<l.  Demurrer  sustained,  and  decree  against  the  plain- 
tiff dismissing  the  bill.     Plaintiff  appealed.     Affirmed. 1 

:\lr.  Justice  Hl.vtciiford.  ...  Til  Claflin  v.  :\lcDermott, 
20  Hlatehf.  522.  12  Fed.  375.  it  was  held  that  a  creditor's  bill, 
founded  on  a  jiidtrment  recovered  against  a  debtor  in  a  state  court 
in  (Jalifornia.  would  not  lie  in  a  cireuit  court  of  the  Ignited  States 
in  New  York,  to  set  aside  a  fraudulent  transfer  of  personal  prop- 
erty made  by  the  debtor  in  California,  by  means  of  collusive  judg- 
ments and  .sales  under  executions  issued  1  hereon,  no  judgment 
liaving  been  obtained  or  execution  issued  in  sucli  circuit  court  or 
in  any  state  court  of  New  York.  The  case  of  Tarbell  v.  fJriggs. 
3  Paige,  207.  was  cited  as  authority,  wliere  the  court  of  chancery 
of  tfin  state  of  Xrw  York  refused  jurisdiction  of  a  er(>ditor's  bill 
filed  to  obtain  satisfaction  of  a  judgment  rendered  in  tlie  circuit 
court  of  llie  T'nited  Stales  for  the  southern  district  of  New  York, 


77l'  KKMKniKS    IX    SPKCIAI,    CASES.  [Ck.    9. 

;iml  upon  wliu-h  ;iii  cxtH'iit  icni  li;ul  lifcii  rctunicd  unsatislicil.  lh<^ 
jiKljxnii'i'.t  bciiis:  trcjili'd  iis  n  I'oiviirn  jiultriin'iit.  ami  as  standing: 
vin  the  sanu'  footing:  with  the  judirnionts  of  a  court  of  another  state. 
The  ]>riiu'i|>U'  invoked  \vas  tliat  tlu>  i>laintin"s  n>inedy  at  \;\\\  had 
not  been  exhausted  by  the  issuiuj;  and  i-eturn  of  an  execution  on  a 
foreijin  jud^'iuent.  and  McEhuoyle  v.  Cohen.  ^^^  Pet.  312,  was  re- 
ferred to  as  authority. 

Tlie  bill  in  the  present  case  is  defective  in  that  respect.  It  al- 
les:es  oidy  the  recovery  of  a  judirnient  a<xainst  the  corporation  in 
Connecticut,  and  the  issuinjx  and  return  there  of  an  execution  un- 
satisfied. It  tloes  not  allc^'c  any  jndiiincnt  in  New  York,  or  any  ef- 
fort to  obtain  one,  nor  docs  it  aver  that  it  is  ini]iossi])le  to  obtain 
one.  It  allcircs  merely  that  the  corporation  has  no  fund  or  assets 
wlierewith  to  pay  the  claim  of  the  plaint ilT. 

^Yhere  it  is  sought  by  equitable  process  to  reach  equitable  in- 
terests of  a  debtor,  the  bill,  unless  otherwise  provided  by  statute, 
nnist  set  forth  a.  judsrment  in  the  jurisdiction  wliere  the  suit  in 
equity  is  brouiiht,  the  issuing:  of  an  execution  thereon,  and  its  re- 
turn unsatisfied,  or  must  make  allefrations  showing  that  it  is  im- 
possible to  obtain  such  a  judgment  in  any  court  within  such  juris- 
diction. Tavlor  V.  Bowker.  Ill  U.  S.  110,  4  Sup.  Ct.  Rep.  397; 
AVcl)stcr  v.  C'lai-k.  25  IMe.  313;  Parish  v.  Lewis,  Freem.  Ch.  299; 
Brinkerhoff  v.  Brown,  4  Johns.  Ch.  671 ;  Dunlevy  v.  Tallmadgc 
32  X.  Y.  457:  TeriT  v.  Anderson.  95  U.  S.  628;  Smith  v.  Railroad 
Co..  99  r.  S.  398.  401  ;  ITa^^kins  v.  Glenn.  131  T'.  S.  319,  334,  9 
Sup.  Ct.  Rep.  739;  ]\IcLnre  v.  Benceni,  2  Ired.  Eq.  513,  519; 
Famed  v.  Harris,  11  Smedes  &  M.  366,  371,  372;  Patterson  v. 
Lynde.  112  111.  196.    Decree  affirmed. 

If  the  creditor  has  a  trust  in  his  favor,  or  a  lien  for  the  security  of 
his  claim,  he  may  s;o  into  equity  before  exhaust  ins  his  remedies  at  law. 
Case  V.  Beauregard,  101  U.  S.  688.  The  ruling  of  the  principal  case  is 
not  affected  by  the  practice  of  the  courts  of  the  state  in  which  the  fed- 
eral court  is  held,  for  the  equity  jurisdiction  and  practice  of  the  federal 
courts  must  remain  distinct  from  the  legal  jurisdiction  and  practice. 
Scott  v.  Xeely,  140  U.  S.  106,  11  Sup.  Ct.  712;  Mississippi  Mills  v.  Cohn, 
1.50  U.  S.  202,  14  Sup.  Ct.  75;  Hollins  v.  Brierfield,  150  U.  S.  371,  14  Sup. 
Ct.  127.  See  "Creditors'  Suit,"  Century  Dig.  §  56;  Decennial  and  Am. 
Key  Xo.  Series  §  11. 


RICHMOND  V.  IRONS,  121  U.  S.  27,  51-54,  66,  7  Sup.  Ct.  788.     1886. 

Amendment  Converting  a  Bill  l>y  One  Creditor  into  a  Creditors'  Bill. 
Suspension  of  the  Statute  of  Limitations-  Contest  of  the  Claim  of 
One  Creditor  ty  Another  Creditor.  What  Creditors  Can  Participate 
in  the  Fund. 

[Bill  filed  by  the  plaintiff,  who  was  a  judgment  creditor  of  the  de- 
fendant, to  subject  the  assets  of  a  suspended  bank  to  the  .satisfaction 
of  the  plaintiffs  judgment.  At  various  times  subsequent  to  the  filing 
of  the  bill,  other  judgment  creditors  of  the  bank  were,  upon  their  ap- 
plication, joined  as  co-complainants.  On  the  final  hearing,  the  bill  was 
amended,  by  permission  of  the  court,  so  as  to  allege  that  it  was  filed  on 
behalf  of  the  complainant  and  all  other  creditors  of  the  defunct  bank. 


Sec.    7.]  REMEDIES    IX    SPECI.VL    CASES.  773 

To  this  amended  bill  various  defendants — who  were  defendants  because 
of  their  being  stockholders  in  the  bank — filed  separate  answers  setting 
up  the  statute  of  limitations.  Plea  overruled,  and  decree  against  de- 
fendants. The  decree  included  among  the  creditors  directed  to  be  paid 
out  of  the  assets,  persons  who  had  not  been  made  parties  and  had  not 
proved  their  claims  before  the  master.  Defendants  appealed.  Reversed. 
Only  so  much  of  the  opinion  as  bears  upon  certain  points  of  practice  in 
Creditors'  Bills,  is  here  inserted.] 

Matthews,  J.  .  .  .  :Mr.  Daniel  (Ch.  Pr.  -Ith  ed.  c.  5.  §  1. 
p.  245)  says:  "The  court  will  generally  at  the  hearing  allow  a  bill, 
which  has  been  originally  filed  by  one  individual  of  a  numerous 
class  in  his  own  right,  to  be  amended  so  as  to  make  such  individual 
sue  on  behalf  of  himself  and  the  rest  of  the  class."  Our  conclu- 
sion on  this  point  is  that  the  court  below  committed  no  error  in 
permitting  the  amendments  complained  of  to  be  made. 

The  assignment  of  error  next  to  be  considered  arises  upon  the 
defense  made  on  behalf  of  the  defendants  below,  of  the  statute  of 
limitations.  The  limitation  relied  upon  is  that  prescribed  by  an 
act  of  Illinois,  which  provides  that  "actions  on  unwritten  con- 
tracts, expressed  or  implied,  or  on  awards  of  arbitration,  or  to  re- 
cover damages  for  an  injury  to  property,  real  or  personal,  or  to 
recover  the  possession  of  personal  property,  or  damages  for  the 
detention  or  conversion  thereof,  and  all  civil  actions  not  otherwise 
provided  for.  shall  be  commenced  within  five  years  next  after  the 
cause  of  action  accrued."    Rev.  St.  111.  1881,  675. 

It  is  not  necessary  to  decide  in  this  case  whether  the  statute  of 
Illinois  relied  upon  is  applicable,  because,  in  the  view  which  we 
have  already  taken  of  the  nature  of  the  amended  bill  filed  in  Oc- 
tober, 1876.'  the  statute,  if  applicable,  ceased  to  run  against  the 
creditors  of  the  bank  entitled  to  the  benefit  of  the  decree,  at  that 
date.  That  amended  bill  is  to  be  considered,  from  the  date  of  its 
filing,  as  a  bill  on  behalf  of  all  the  creditoi-s  of  the  bank  who  .should 
come  in  under  it  and  prove  their  claims.  When  any  creditor  ap- 
peared during  the  progress  of  the  cause  to  set  up  and  establish  his 
claim,  it  was  necessary  for  him  to  prove  that  at  the  time  of  filing 
the  bill  he  was  a  creditor  of  the  bank.  Any  defense  which  ex- 
isted at  that  time  to  his  claim,  either  to  diminish  or  defeat  it. 
might  be  interposed  either  before  the  master  or  on  the  hearing  to 
the" court.  The  creditor,  having  established  his  claim,  became  en- 
titled to  the  benefit  of  the  proceeding  as  virtually  a  party  com- 
plainant from  Ihe  beginning,  and  the  time  that  had  elapsed  from 
the  filing  of  tho  bill  to  the  proof  of  his  claim  would  not  be  counted 
as  a  part  of  the  time  relied  on  to  bar  the  creditor's  right  to  sue  the 
stockholders  Tn  other  words,  if  he  proves  himself  to  be  a  creditor 
with  a  valid  claim  again.st  the  bank,  be  becomes  a  eomplainant  by 
relation  to  the  time  of  the  filing  of  the  bill.  This  being  so.  it  is  not 
disputed  that  in  October.  1876.  the  bar  of  the  statute  had  not 
taken  efTect.  even  on  tlie  supposition  tbat  the  statute  a])plii'd. 

Tn  the  case  of  Tn  re  Genc^ral  T^ol ling-stock  Co..  Joiiil -stock  Dis- 
eonnt  Co.'s  Claim.  L.  li.  7  Ch  616.  Mellisli.  L  J.,  stated  that  in  a 
case  where  the  as.sets  of  a  debtor  are  to  be  divided  among  creditors. 


774  KKMEIMES    IN    SPKCIAl,    CASES.  [67/.    9. 

vlu'thor  ill  baiikniplcy  or  in  insolvency,  or  midor  a  trust  for  rrod- 
itoi"s,  or  luuliM-  a  (Khm-cc  ol"  tlic  i-ourt  of  cliancery  in  an  adniinist ra- 
tion snit.  "the  v\i\v  is  that  ovoiybody  who  liad  a  subsisting?  cdaini 
at  the  time  of  the  adjudication,  the  insolvency,  the  creation  of  the 
trust  for  creditois.  or  the  administration  deei'ce.  as  the  case  may 
he.  is  entitled  to  participate  in  the  a.sst>ts.  ami  that  the  statute  of 
limitations  does  not  run  against  his  claim;  but,  Jis  long  as  assets 
remain  iniadministered,  he  is  at  liberty  to  come  in  and  prove  his 
clai)n,  not  disturbing  any  former  dividend." 

.Air.  Daniel  {\  V\\.  Vr.  Mi  ed.  c.  15.  par.  2,  p.  (i4;3)  states  that 
"a  decree  for  the  payment  of  debts  under  a  creditor's  bill  for  the 
administration  of  assets  is  also  considered  as  a  trust  for  the  benefit 
of  creditors,  and  will  in  like  manner  prevent  the  statute  from 
barring  the  demand  of  any  creditor  coming  in  under  the  decree. 
The  creditor's  demand,  however,  must  not  have  been  barred  at  the 
time  when  the  suit  was  instituted;  for,  if  the  creditor's  demand 
would  liave  been  barred  by  the  statute  before  the  commencement 
of  the  suit,  the  statute  may  be  set  up.  It  is  to  be  remarked,  upon 
this  point,  that  it  has  been  held  that  it  was  the  decree  only  which 
created  the  trust,  and  that  the  mere  circumstance  of  the  bill  hav- 
ing been  filed,  although  it  might  have  been  pending  six  years, 
would  not  take  the  case  out  of  the  statute,  but,  according  to  the 
later  decisions,  it  seems  that  the  filing  of  the  bill  will  operate  by  it- 
self to  save  the  bar  of  the  statute,  though  the  plaintiff  by  delay  in 
prosecuting  the  suit  may  disentitle  himself  to  relief."  He  also 
says  (ch.  29,  par.  1,  p.  1210)  :  "It  may  be  observed  here  that  where 
a  person,  not  a  party  to  the  suit,  carries  in  a  claim  before  the  mas- 
ter under  the  decree,  the  party  representing  the  estate  out  of 
which  the  claim  is  made  has  the  right  to  the  benefit  of  any  defense 
which  he  could  have  made  if  a  bill  had  been  filed  by  the  claimant 
in  equity  or  an  action  had  been  brought  at  law  to  establish  such 
claim.  Therefore,  as  w^e  have  seen,  an  executor  may,  in  the  mas- 
ter's office,  set  up  the  statute  of  limitations  as  a  bar  to  a  claim  by 
a  creditor  under  the  decree,  provided  such  claim  was  within  the 
operation  of  the  statute  before  the  decree  was  pronounced." 

The  authorities  abundantly  sustain  the  proposition,  also,  that  a 
creditor  who  comes  in  under  and  takes  the  benefit  of  a  decree  is  en- 
titled to  contest  the  validity  of  the  claim  of  any  other  creditor,  ex- 
cept that  of  the  plaintiff  whose  claim  is  the  foundation  of  the  de- 
cree.   2  Daniel,  Ch.  Pr.  c.  29,  §  1,  p.  1210,  note  4,  and  cases  cited. 

In  Sterndale  v.  Hankinson,  1  Sim.  393,  decided  in  1827,  it  was 
stated  by  Vice  Chancellor  Leach  that  "evei-y  creditor  has  to  a  cer- 
tain extent  an  inchoate  interest  in  a  suit  instituted  by  one  on  be- 
half of  him.self  and  the  rest,  and  it  would  be  attended  with  mis- 
chievous consequences  to  estates  of  deceased  debtors  if  the  court 
were  to  lay  down  a  rule  by  which  every  creditor  would  be  obliged 
either  to  file  his  bill  or  bring  his  action."     .     .     . 

It  is  also  objected  to  the  decree  that  it  included,  among  the 
claims  directed  to  be  paid  out  of  the  a.ssessment  upon  the  share- 
holders, an  amount,  alleged  to  be  about  $5,000,  in  behalf  of  per- 


Sec.    7.]  REMEDIES   IN   SPECIAL    CASES.  775 

sons  assumed  to  be  creditors,  but  who  did  not  appear  in  the  cause 
or  before  the  master  to  file  and  prove  their  chiinLs.  This  was  er- 
roneous. No  pereon  is  entitled  to  recover  as  a  creditor  who  does 
not  come  forward  to  present  his  claim.  The  only  proof  in  refer- 
ence to  such  claims  in  the  present  ease  consisted  in  affidavits  made 
bv  Henrv  B.  ^la.son.  one  of  the  attornevs  of  the  receiver,  that  he 
had  ''made  a  personal  investigation  of  all  the  claims  against 
the  INIanuf acturers '  National  Bank.  and.  from  the  evidence  in- 
troduced in  the  cause,  and  from  outside  knowledge  confirmatory 
thereof,  states  that  the  ^Manufacturers'  National  Bank  of  Chicago 
is  justly  indebted  to  the  several  persons  mentioned  in  the  schedule 
hereunto  annexed,  and  made  part  of  this  affidavit,  in  the  principal 
sums  set  opposite  their  several  names,  with  interest  thereon  from 
March  12,  1875.  at  the  rate  of  six  per  cent,  per  annum  in  each 
case,"  etc.  No  one  appeared  as  claimant,  and  no  authority  is 
sho^^^a  to  any  one  to  act  for  him  or  in  his  own  name.  These  claims 
should  have  been  disallowed.     .     .     . 

See  .5  L.  R.  A.  (.V.  S.)  89,  and  note  (removal  of  creditors'  suits  to 
United  States  courts);  2  lb.  988,  and  note  (effect  of  statute  of  limitations 
on  right  to  tile  creditors'  bill).  See  "Creditors'  Suit."  Century  Dig. 
§§  210-212;  Decennial  and  Am.  Dig.  Key  No.  Series  §§  52-54;  "Limita- 
tion of  Actions,"  Century  Dig.  §  541;  Decennial  and  Am.  Dig.  Key  No. 
Series  §  124. 


GLENN  V.  FARMERS'  BANK,  80  N.  C.  97.     1879. 
Precedent  for  Advertising  for  Creditors.     Letting  in  Belated  Creditors. 

[Action,  in  the  nature  of  a  creditors'  bill,  seeking  to  subject  the  as- 
sets of  a  defunft  bank  to  the  payment  of  its  debts. 

"In  the  progress  of  the  cause,  and  in  order  to  ascertain  the  names 
of  the  creditors  and  the  amount  of  the  indebtedness  of  the  bank,  the 
court  at  si)ring  term,  1876,  appointed  two  commissioners  to  take  proof 
of  the  debts,  with  authority  to  limit  the  time  within  which  such  proof 
fould  be  made.  The  commissioners  accordingly  advertised  in  the 
Greensboro  Patriot  for  more  than  six  weeks  for  the  creditors  of  the 
bank  to  come  in  and  prove  their  claims  at  a  certain  place  in  Greensboro 
on  or  before  the  6th  of  Aiigust,  1876,  or  they  would  be  debarred  from  par- 
ticipating in  the  distriljution  of  the  fund.  The  report  of  the  commis- 
sioners was  made  to  spring  term,  1877.  and  confirmed;  and  it  was  de- 
dared  and  adjudged  by  the  court  that  all  such  creditors  as  had  made 
the  required  jiroof  should  share  in  the  assets  of  the  bank,  and  those 
failing  to  do  so  be  excluded  therefrom." 

On  May  24th.  1876,  Calvin  .1.  Cowles,  through  his  counsel,  deposited 
some  bills  of  the  bank  with  the  clerk  and  caused  an  entry  to  l)e  made 
on  the  docket  that  he  was  made  a  jiarty  to  the  action.  At  December 
term,  1877,  Cowles  filed  a  formal  inlition  in  the  cause,  praying  to  be 
made  a  i)arty  anrl  to  be  aliowod  to  prove  bis  claim,  and  stilting  that  he 
ha«i  failed  (o  see  the  advertisement  for  creditors.  He  made  a  similar 
application  at  I)e<f'nii)cr  term,  1878.  to  prove  a  larger  claim.  Both  ap- 
plications wfTP  refused — ^lli«  last  upon  the  ground  that  Cowles  failed 
to  (irovo  his  ciaiiiis  bffor-e  the  exi)ir:ition  of  the  time  fixed  by  the  jiub- 
lished  notice,  and  "that  the  matter  had  iieeii  already  adjuilicated  " 
Cowles  appealed.     Reversed. 


776  REMEDIES    IN    SPECIAL    CASES.  [Cll.    !). 

At  the  tinio  of  the  adverse  ruling  upon  Cowles's  applications,  there  had 
lieeii  no  distribiitiiui  of  thi'  fund,  nor  was  such  ruiid  in  a  condition  to  he 
distrihuted.l 

S.Mrni,  C\  J.  Till'  cofivctiiess  of  the  ruliiii;  of  the  court  by 
whieh  the  appellant  was  exehided  from  sharin<i:  in  the  assets  is  the 
only  point  presented  for  onr  consideration  upon  the  appeal.  Had 
the  appellant  a  riijht  upon  his  statement  of  the  facts  and  accord- 
ing to  the  practice  govei-ning  in  such  case,  to  be  admitted  among 
the  suing  creditors  and  alVoi\l(>d  an  oi^porliuiity  to  show  that  he 
had  and  held  valid  claims  against  the  bank? 

If  the  appellant  had  no  information  of  the  advertisement  limit- 
ing the  time  for  proofs  and  is  not  chargeable  with  negligence  in 
bringing  forward  his  claims,  his  application  should  have  been 
granted,  and  it  was  the  duty  of  the  judge  to  ascertain  and  deter- 
mine these  precedent  facts  before  giving  a  peremptory  refusal. 
This  inquiry  he  does  not  seem  to  have  made,  and  puts  his  decision 
on  the  simple  ground  of  the  appellant's  omission  to  make  proof 
within  the  restricted  time,  and  that  (referring  as  we  suppose  to 
the  first  petition)  the  matter  w-as  already  adjudicated. 

It  was  objected  in  the  argument  here  that  the  bills  held  by  the 
appellant  are  barred  by  the  statute  of  limitations,  and  he  is  not, 
therefore,  entitled  to  be  admitted  among  the  creditors.  The  objec- 
tion is  not  tenable  for  two  sufificient  reasons :  1 .  It  is  not  apparent 
upon  the  face  of  the  complaint,  and  if  it  was,  it  must  be  taken  bv 
answer.  Green  v.  N.  C.  R.  R.  Co.,  73  N.  C.  524.  2.  The  appellant 
only  asks  an  opportunity  to  prove  his  debt,  and  if  allowed,  this  or 
other  sufficient  legal  defense  may  be  set  up,  when  the  proof  is 
offered  bv  the  other  creditors  or  any  one  of  them.  Wordsworth  v. 
Davis,  75  N.  C.  159. 

The  rules  prevailing  in  the  courts  of  chancery  applicable  to 
cases  like  the  present  one  are  well  established  and  understood.  In 
Gillespie  v.  Alexander.  3  E.  Ch.  R.  326.  Lord  Eldon  thus  states  the 
practice :  ' '  Although  the  language  of  the  decree,  when  an  account 
of  debts  is  directed,  is  that  those  who  do  not  come  in  shall  be  ex- 
cluded from  the  benefit  of  that  decree,  yet  the  course  is  to  permit 
a  creditor,  he  paying  the  costs  of  the  proceedings,  to  prove  his 
debt  as  long  as  there  happens  to  be  a  residuary  fund  in  court  or 
in  the  hands  of  an  executor,  and  to  pay  him  out  of  that  residue. 
If  a  creditor  does  not  come  in  till  after  the  executor  has  paid  out 
the  residue,  he  is  not  without  remedv  though  he  is  barred  the  ben- 
efit of  that  decree."  So  in  Lashley  v.  Hogff.  11  Ves.  Ch.  R.  601, 
the  same  eminent  judge  declared  that  "though  the  time"  (for 
proving  the  debt),  "had  elapsed,  yet  the  court  will  let  in  creditors 
at  any  time  while  the  fund  is  in  court."  An  application  on  be- 
half of  a  creditor  for  pei-mission  to  prove  his  debt  after  the  money 
had  been  apportioned  among  the  creditors,  and  transferred  to  an 
officer  to  be  paid  to  them,  was  allowed  by  Vice  Chancellor  Plumer, 
who  remarked:  "The  creditor  must  pay  the  costs  of  this  applica- 
tion, and  the  expense  incident  to  the  same  in  recasting  the  appor- 
tionment of  the  property  amongst  the  creditors."    Angel  v.  Had- 


8eC.    8.]  REMEDIES   IN   SPECIAL    CASES.  777 

den.  1  and  2  Mad.  Ch.  R.  285.  The  same  principle  is  laid  down 
in  Stoiy.  Eq.  PI.  §  106.  and  in  Adams'  Eq.  262.  and  is  recognized 
and  acted  on  in  AVilliams  v.  Gibbs.  17  How.  230.  and  other  cases 
cited  in  the  brief  of  the  appellant's  counsel. 

We  think,  therefore,  the  .judge  erred  in  summarily  rejecting 
the  application  without  inquiring  into  the  facts,  and  if  the  appel- 
lant, in  the  language  used  by  the  court  in  the  last  mentioned  case, 
"was  not  guilty  of  wilful  laches  or  unreasonable  neglect,"  he 
ought  not  to  be  concluded  by  the  decree  from  the  assertion  of  his 
right,  as  a  creditor,  to  share  in  the  common  fund.    Reversed. 

See  Daniel's  Chan.  Prac.  pp.  1203  et  seq.;  2  Wait's  Act.  &  Def.  411; 
6  Pom.  Eq.  Jur.  sees.  871  et  seq.;  and  12  Cyc.  5-65.  for  the  general  sub- 
ject of  Creditors'  Bills.  See  "Creditors'  Suits,"  Century  Dig.  §§  211,  212; 
Decennial  and  Am.  Dig.  Key  Xo.  Series  §  54. 


Sec.  8.     Remedy  of  Creditors  under  13  Elizabeth. 

SOUTHERLAXD  v.  HARPER,  83  X.  C.   200.     1880. 

The  Several  Remedies  of  Creditors  at  Law  and  in  Equity.    Jurisdiction 

to  Restrain  Execution  Sale  by  Creditor. 

[Action  to  restrain  the  threatened  sale  of  plaintiff's  land  under  an 
execution.     Injunction  refused.     Appeal  by  plaintiff.     Affirmed. 

The  plaintiff's  mother  once  owned  the  land  and  conveyed  it  to  the 
plaintiff.  The  grantor  was  indebted  to  Harper  at  the  time  of  such  con- 
veyance. Harper  obtained  judgment  against  the  mother  and  was  about 
to  sell  the  land  which  had  been  conveyed  by  her  to  the  daughter,  under 
execution.  Harper  took  this  step  because  he  claimed  that  the  convey- 
ance to  the  plaintiff  was  fraudulent  and  void  as  to  him  under  13  Eliza- 
beth.] 

DiLLARD,  J.  From  the  view  taken  of  the  case  by  this  court,  it 
wa.s  not  necessary  that  his  honor  nor  that  we  should  find  from 
the  affidavits  any  facts  other  than  those  hereinbefore  i-ecited,  as 
we  are  of  opinion  that  the  plaintifl's.  on  their  own  showing,  were 
not  entitled  to  a  continuance  of  the  injunction. 

It  is  a  fact  shown  by  the  plaintiffs  and  admitted  by  the  defend- 
ant, that  the  tract  of  land  mentioned  in  the  pleadings  was  con- 
veyed by  Elizabeth  Mobk-y  before  the  recovery  of  judgment  by 
defendant,  and  this  being  so,  the  deed  was  good  between  the  par- 
ties and  had  the  operation  to  pass  the  legal  title  to  the  feme  plain- 
tiff, as  against  the  grantor  and  all  volnntcei-s  by,  Ihrough  or  un- 
der her,  and  also  as  against  the  then  existing  creditors  of  the 
grantor,  unless  they  had  ground  to  treat  the  same  as  void  under 
the  13th  of  Elizabeth  copied  in  our  laws,  or  to  j)ut  it  out  of  their 
way  by  decree  of  a  court  a.s  in  equity.  The  plainlKVs  say  the  deed 
was  made  to  tlie  feinale  plaint ifl'  bona  lide  and  in  considei-ation 
of  a  true  debt  from  the  grantor  to  the  grantee  erpial  to  the  value 
of  the  land,  and  the  defendant  denies  this  and  alleges  it  was  exe- 
cut-ed  mala   fide   in   respect  to  creditors  and    uixin   vuluntary  con 


778  RKMEl>IES    IX    Sl'KCIAL    CASKS.  [TA.    />. 

sidoralioii.   iiiul    tlic   Viilidily   or   iiivjilidil.v   o\'   the   ('(uivcn  jiiici'   as 
iiiraiiist  fi-fililors  (U'ptMitUHl  o\\  how  tltcsf  tai'ts  wore. 

If  the  .irraiil  wore  hoiia  Mv  and  on  the  coiisidoration  conti'iided 
for  by  the  plaint itl's.  llu'  fitU"  was  cntiivly  jjood  a<?ainst  any  salo 
hy  defiMuhnit  inuU'i-  his  cxi-cution  airaiiist  the  irraiitor;  hut  if  ex- 
tH'utiHl  wilh  intent  to  liinih'r.  (h'hiy  and  defraud  creditors,  or 
upon  voluntary  consideration,  as  coiilcnih'd  foi-  l)y  defendant,  tlien 
in  either  case  it  was  void  as  a<rainst  an  existing;  creditor,  provided 
in  the  case  of  tlie  vohnitary  eonsid(M-ation  since  the  act  of  1840. 
the  donor  at  the  time  of  the  ^ifl  i-etained  ])i-oi>erty  sutlicient  and 
avaihUiIe  to  pay  existing  creditors  and  liad  in  that  case  no  intent 
to  defrauil.  to  he  submitted  as  an  open  (piestion  of  fact  to  the 
jury,  l^lack  v.  Sanders.  4(i  X.  C.  (iT :  TTonston  v.  Hogle,  82  N.  C. 
4!)G. 

The  creditoi-.  as  before  remarked,  when  courts  of  law  and  courts 
of  etpiity  wei-e  separate,  had  his  cicetion:  (1)  To  reduce  his  debt 
to  judirment  and  by  execution  tak(\  hold,  and  sell  property  ^iven 
away  by  the  debtor,  and,  on  purchase  and  sheriff's  deed,  to  bring 
ejectment  and  to  have  the  title  of  the  donee  held  as  void  and  the 
full  legal  title  as  vested  in  the  purchaser;  (2)  or  he  might  instead 
go  into  the  court  of  equity  and  on  the  notion  of  })ringing  the  prop- 
erty to  sale  under  fair  circumstances,  have  the  fraud  atljudged 
and  a  sale  had  by  a  decree  of  that  court.  Thigpen  v.  Pitt.  3fi 
N.  C.  79.  The  right  of  the  creditor  to  proceed  at  law  and  to  sell 
the  property  of  the  debtor  conveyed  on  voluntaiy  consideration 
was  a  legal  right  under  the  statute  of  Elizabeth  and  when  once  ex- 
ercised no  court  of  equity  would  interpose  at  the  instance  of  the 
purchaser  to  pass  upon  the  legal  title  of  the  donee  on  the  idea  of 
removing  a  cloud  from  his  title,  noi-  at  the  instance  of  the  donee 
on  the  idea  that  the  deed  to  the  purchaser  was  a  cloud  on  his  title. 
It  was  but  a  controversy  between  legal  titles  to  land,  to  the  trial 
of  which  ccmrts  of  law  were  adapted,  and  hence  equity  did  not  in- 
terfere. The  practice  of  non-intei-fei-ence  for  the  purchaser  to  ad- 
judge upon  the  alleged  fraudulent  title  of  the  donee  was  expressly 
decided  in  the  case  of  Thigpen  v.  Pitt,  supra,  and  non-interference 
at  the  instance  of  the  donee  to  declare  the  purchaser's  title  a 
cloud  on  his  title  and  remove  the  same,  was  settled  in  the  case  of 
Dameron  v.  Gold,  17  N.  C.  17.  In  the  last  case.  Chief  Justice 
Ruffin  says:  "A  person  in  possession  under  a  legal  title  cannot 
sue  another  out  of  possession  upon  the  ground  of  a  pretended  dis- 
tinct title  and  to  have  it  declared  invalid,  uidess  there  be  a  fraud 
imputed  to  it  or  some  other  matter  peculiarly  within  this  jurisdic- 
tion. These  are  pure  questions  of  law  and  the  party  in  possession 
may  well  be  content  with  the  advantage  that  possession  gives 
him." 

Just  so  we  think  it  is  under  our  present  system  where  the  su- 
perior courts  exercise  both  legal  and  equitable  powers.  The  cred- 
itor has  the  right  to  sell  the  land  of  his  debtor.  Elizabeth  Mobley. 
by  execution,  and  if  he  does  and  buys  it  himself  or  another,  then 
there  will  bo  the  case  of  conflicting  claims  to  the  .same  property 


Sec.    8.]  REMEDIES    IX    SPECIAL    CASES.  779 

upon  distinct  legal  titles,  and  the  purchaser  will  .soon  have  the 
title  settled  by  an  action  to  recover  the  land :  or  if  he  do  not.  the 
plaintiff,  in  the  language  of  Judge  Rutitin.  may  well  be  content 
with  the  advantage  of  her  present  possession,  or  in  case  of  a  dan- 
ger of  the  loss  of  evidence  to  sustain  her  title,  or  of  the  use  of  the 
sheriff's  deed  by  the  purchaser  to  hinder  the  sale  of  the  property, 
she  may  possibly  make  a  case  of  eipiitable  intervention  by  way  of 
perpetuating  evidence  or  a  decree  against  the  validity  of  the  pur- 
chaser's title  under  the  head  of  removal  of  cloud  upon  the  title. 
But  the  plaintiff's  rights  have  not  been  interfered  Avith.  and  may 
never  be  in  any  way  other  than  what  is  legitimate  by  the  pur- 
chaser when  there  shall  be  one. 

Granting  it  to  be  admissible  for  the  court  to  ad.judge  upon  the 
title  deed  of  a  purchaser  after  the  sale  is  had.  if  instead  of  speedily 
a.sserting  his  title  by  action,  he  shall  use  it  to  impair  the  value  of 
the  land  to  the  plaintiffs  in  the  sale  of  it  or  otherwise,  still  we 
must  hold  there  is  no  such  ease  made  by  the  complaint  in  this  case. 
The  embarrassment  and  irreparable  injury  alleged  cannot  at 
present  be  more  than  a  mere  expression  of  evil,  as  no  sale  has 
been  made,  and  it  may  be  the  evil  will  never  come,  but  whether  it 
shall  come  or  not.  it  is  not  in  our  opinion  competent  to  restrain 
defendant  from  selling  the  land,  as  he  has  a  right  to  do.  lest  a  rival 
title  grow  up.  There  is  no  error,  and  the  judgment  of  the  court 
below  is  affirmed. 

In  Hillver  v.  LeRoy,  179  X.  Y.  at  p.  375,  72  N.  E.  at  p.  238,  it  is  said: 
•The  property  of  a  debtor,  which  has  been  transferred  by  him  in  fraud 
of  creditors,  "still  remains,  as  to  them,  the  debtors  property  and  the  lien 
of  the  creditor's  judgment  attaches  to  the  real  estate.  The  judgment 
creditor  may  enforce  his  judgment  by  a  sale  of  the  land  under  execu- 
tion: or  he  may  bring  an  action  to  remove  the  obstruction  caused  by 
the  debtor's  fraudulent  act  and  proceed  to  enforce  his  judgment  by  a 
sale  of  the  land  unembarrassed  by  the  cloud  of  the  transfer."  In  Cle- 
land  V.  Taylor,  3  IMich.  201.  it  is  held  that  a  creditor  may  obtain  judg- 
ment, sell  the  land  fraudulently  conveyed,  and  he,  or  whoever  happens 
to  be  the  purchaser,  may  bring  ejectment  for  the  same— in  which  action 
the  purchaser  mav  attack  the  title  of  the  fraudulent  grantee.  If  he  does 
so  successfully,  he  will  recover.  But,  if  the  creditor  prefer  it,  he  may 
sue  in  equitv  to  set  aside  the  fraudulent  conveyance  and  subject  the 
land  thereby"  conveyed  to  his  claim.  See  also  Malford  v.  Patterson,  35 
N.  J.  L.  at  "pp.  132,  133.  "In  cases  where  the  legal  title  to  the  property 
is  such  that  it  cannot  be  seized  under  execution,  resort  to  equity  is  nec- 
essary—as where  the  legal  title  never  has  been  in  the  debtor,  having  been 
conveyed  by  a  third  person  directly  lo  another,  in  secret  trust  for  the 
benefit  of  the  debtor  with  a  design  fraudulently  to  screen  it  from  his 
creditors."  But  where  the  legal  title  has  been  in  the  del)tor  and  he 
fraudulently  conveys  it.  judgment,  sale  under  execution,  and  ejectment 
may  be  resorted  to,  if  preferred.     Ibid,  at  p.  133. 

One  who  piirchasps  land  sold  under  execution,  may  go  into  equity  to 
attack  the  title  of  the  fraudulent  vendee  of  the  i)crson  whose  land  was 
thus  purcha.sed  and  sold.  Gerrish  v.  Mace.  0  (Jray  (Mass.)  235;  see 
alHo  1.'.  L.  R.  A.  784.  briefs  and  notes;  but  see  Thigpen  v.  Pitt,  G4  N.  C. 
49,  as  to  th^'  proposition  in  It  dray,  23.'..  Can  life  insurance  be  reached 
by  creditors?  4  L.  R.  A.  (.V.  S, )  ).'.4.  and  note;  70  N.  C.  30:1;  Revisnl. 
55  4771,  4772.  For  right  of  husband's  creditors  (o  reach  the  fruits  of 
his  mangement  of,  or  services  in   connection   with,  his  wife's  separate 


780  KF.MEDIES    IN    SPECIAL    CASES.  [Ck.    9. 

estate  or  business,  see  23  L.  R.  A.  (N.  S.)  H21,  and  nolo;  Moniecai's 
L.  L.  291;  21  L.  R.  A.  l>29.  and  note.  Sec  "Execution,"  Century  Dig. 
§  510;  Decennial  and  .\ni.  Dig.  Key  No.  Series  §  171;  "Fraudulent  Con- 
veyanies,"'   Cent.    Dig     §§    titiO  (UM;     Dee.   and    Am.    Dig.    Key    No.    Series 


GENTRY  V.  HARPER,  515  N.  C.  177.     1855. 
iMttd  riirrhasfd   by  the  Debtor,  Hut   Title  Made  to  a  Third  Person. 

I  Bill  to  subject  the  equitable  estate  in  certain  lands  to  the  payment 
of  the  debts  of  William  llaiper.  William  Harper  being  indebted  con- 
tracted to  p\ircliase  the  land  from  Jacob  Waters.  It  was  charged  in  the 
Itlaiutiff's  bill,  that  Harper,  with  intent  to  defraud  his  creditors,  caused 
Waters  to  contract  to  convey  the  land  to  Elizabeth,  Harper's  infant 
daughter,  instead  of  to  William  Harper  who  lx)ught  it  and  paid  for  it. 

No  conveyance  had  been  made  by  Waters  at  the  time  this  suit  was 
brought.  William  Harper,  Elizabeth  Harper  and  Waters  were  all  made 
defendants.  William  Harper  demurred,  and  the  cause  was  transferred 
to  the  supreme  court  for  trial.     Demurrer  overruled.) 

Pearson,  J.  Fi-om  the  principles  docided  in  Gowan  v.  Rich, 
23  N.  C.  533,  and  Dob^ion  v.  Erwin,  18  N.  C.  570,  it  is  clear  that 
the  debtor  has  not  such  an  equitable  or  trust  estate  as  is  liable  to 
be  sold  under  an  execution  at  law ;  and  it  is  equally  clear  that  he 
has  such  an  interest  in  the  land  as  a  court  of  equity  will  subject 
to  the  claims  of  creditors,  upon  the  broad  ground,  that  it  is 
against  conscience  for  debtors  to  attempt  in  any  way  to  withdraw 
property  or  effects  from  the  payment  of  debts.  If  the  courts  of 
common  law  cannot  reach  the  debtor's  interest,  a  court  of  equity 
will.     Demurrer  overruled. 

Under  the  present  statutes  of  North  Carolina,  it  is  held  that  a  dock- 
eted judgment  is  not  a  lien  on  land  purchased  by  a  judgment  debtor,  if 
the  title  be  made  to  a  third  person  with  intent  to  defraud  creditors  of 
the  real  purchaser.  The  creditors  can  subject  such  land  by  an  action. 
Dixon  V.  Dixon,  81  N.  C.  323.  See  "Fraudulent  Conveyances,"  Century 
Dig.  §  662;   Decennial  and  Am.  Dig.  Key  No.  Series  §  230. 


BURTON  v.  FARINHOLT,  86  N.  C   260.     1882. 
Remedy  When  Fraudulent  Grantor  Is  Dead. 

r Action  by  an  administrator  to  subject  funds  in  the  hands  of  his  in- 
testate's next  of  kin  and  assigns,  to  the  payment  of  intestate's  debts. 
Substantially,  the  complaint  alleged  that  the  fund  in  question  arose 
from  chattel  property  given  to  defendants  by  the  intestate  at  a  time 
when  the  intestate  owed  debts,  and  that  the  intestate  did  not  retain,  at 
the  time  of  the  gift,  assets  sufficient  to  satisfy  such  debts.  Defendants 
demurred.     Demurrer  overruled,  and   defendants  appealed.     Reversed. 

Several  questions  were  raised  by  the  demurrer  and  upon  the  argu- 
ment— one  of  which  was:  "Whether  the  plaintiff  as  administrator  can 
maintain  this  action,  or  whether  he  is  estopped  by  the  assignment  of  his 


Sec.    8.]  REMEDIES    IX    SPECIAL    CASES.  781 

intestate?"     Only  that  part  cf  the  opinion  which  bears  upon  this  ques- 
tion, is  here  inserted.] 

RuFFix.  J.  .  .  .  In  Coltraiiie  v.  Catisey.  38  X.  C.  246,  cited 
by  c-minsel  foi-  tlie  defendants,  this  eourt  i'\iled  that  an  adminis- 
trator could  not  maintain  a  bill  for  setting  aside  a  deed  on  the 
ground  that  it  was  given  by  his  intestate  to  defraud  creditors,  for 
that,  he  occupied  the  exact  relation  to  the  deed  that  his  intestate. 
did.  and  was  equally  estopj>ed  thereby,  but  that  the  defrauded 
creditors  might  have  their  action  against  the  fraudulent  alienee  as 
executor  de  son  tort.  To  the  same  effect  are  the  cases  of  MelMorine 
V.  Storey,  20  N.  C.  329,  and  Sturdivant  v.  Davis.  31  N.  C.  365. 
But  the  most  striking  instance  of  the  application  of  the  nile  is 
foimd  in  Xoi-tleet  v.  Riddick.  14  X.  C.  221.  in  which  case  a  regu- 
lar administrator,  who  held  property  of  his  intestate  under  a  con- 
veyance fraudulent  as  to  his  creditors,  was  sued  by  them,  as  ex- 
cutor  de  son  tort.  And  their  action  was  sustained.  In  discussing 
its  propriety,  Chief  Justice  Henderson  said,  it  must  be  so  from 
necessity ;  that  the  conveyance  operated  alike  as  an  estoppel  on  the 
intestate  and  his  administrator,  but  did  not  bind  the  creditors  as 
to  whom  it  was  void;  and  a.s  they  could  not  reach  the  i^roperty 
through  the  defendant  as  administrator,  they  nuist  be  allowed  to 
have  their  action  against  him  as  executor  in  his  own  ivrong,  or 
else  there  must  be  a  failure  of  justice.  From  a  resolution  of  the 
court,  so  explicitly  pronounced  and  reiterated.  Ave  do  not  feel  at 
liberty  to  depart  because  of  any  difficulty  that  may  exist  (as  is 
suggested)  in  enforcing  it  under  the  present  hiw  touching  the  ad- 
ministration of  deceased  persons'  estates:  at  lea.st.  not  without 
iome  more  specific  expression  of  the  legislative  will  to  that  effect 
than  is  to  be  found  in  anv  law  yet  enacted. 

Winchester  v.  Gaddy.  72  X.  C.  115.  and  Henry  v.  Willard,  73 
N.  C.  35.  were  both  actions,  brought  under  the  present  system, 
against  the  defendants  as  executors  de  son  tort;  and  while  the 
plaintiff  failed  in  both,  on  other  grounds,  there  was  no  suggestion 
in  either  ca.se  of  any  diflieidty  in  maintaining  such  actions  becausi- 
of  the  law  which  directs  a  pro  rata  application  of  the  assets,  and 
we  cannot  suppose  so  importaiil  ;i  nialti'i-  was  ovei-looked. 

AVh(;ther  in  such  an  action,  instil utrd  at  this  day.  tlie  plaintiff 
will  he  permitted  to  sue  in  his  own  name  and  lliercby  a.e(|uire  a 
preferenee  in  the  particular  a,s.sets  recovered,  or  whether  he  shall 
sue,  as  in  a  creditor's  hill.  \'i<\'  liiinsi-ll"  nnd  nil  dllicrs  aiilcc  iiilrc- 
ested.  arc  f|Ucstioiis  not  now  necessary  to  Ite  delci-mined.  and  toi> 
impoi-tant  to  be  lightly  determined.  esj)eciidly.  as  we  do  not  find 
ourselves  in  the  ju'cscnt  state  of  the  ai'gumcnt  I'nil.v  in  accorcl  with 
regard  to  tiieni.  I'nt  tx'  il  eitlnT  wa\'.  we  ;i|i|irr|iciid  it  will  lie 
found  in  actual  practice  to  interfere  with  the  general  administra- 
tion of  estates  by  lawful  repres<'ntat ives.  less  fre(|U(>utIy  and  seri- 
ously than  seems  to  he  su|)|»osed.  and  ci-i-tainl.\-  not  sufficiently  so  to 
justify  the  court  in  dis[)ensing  with  ;i  I'nii.'  .umI  well  cslaMished 
principle  of  law. 


782  UKMEDIES    IX    SPECIAL    CASES.  [Ch.    9. 

Tlh'  plaiutilV  briiiL;'  csloi)!)!'!!  I»y  liis  iiilcst.-itf  "s  ;irt  dl"  .issiuiiiiu'iit 
1(»  (lony  the  title  of  the  (Iffciulaiits  1o  the  pdlicN-  or  its  pi-occcds. 
cannot  luaiutain  this  aftimi.  and  llir  jii(l;jin('iil  o\'  I  he  ((uiil  hcldw 
is  thcrrrorc  rcvcrscil.  ami  the  (Irimini'r  siislaiiicd.      U'cNciscd. 

The  personal  representative  may  now.  in  North  (Carolina,  maintain 
ail  action  in  sneh  e;uses  as  that  presented  by  the  principal  case.  This 
was  first  introdnced  into  the  law  of  the  state  by  the  Revisal  of  1905, 
sec.  .'lO.  The  personal  representative  was  cmiiowered  to  subject  lands 
fraudulently  conveyed  l)y  his  decedent  t)y  the  act  of  184ft— the  remedy 
being  by  proceedings  to  make  real  estate  assets.  See  Rhem  v.  Tull,  35 
X.  C.  r>7.  for  a  construction  of  that  act.  The  act  of  1846  as  now  incor- 
porated into  the  statutes,  is  Revisal.  sec.  72.  See  McCaskill  v.  Graham, 
121  X.  C.  1!)0.  28  S.  E.  204. 

That  there  is  a  conflict  of  authority  as  to  the  ruling  of  the  i)rinclpal 
case,  see  Woerner's  Am.  L.  of  Adm.  sec.  296,  where  the  two  lines  of 
authority  are  given.  See  "Executors  and  Administrators,"  Century  Dig. 
§  309;  Det^ennial  and  Am.  Dig.  Key  No.  Series  §  57;  Century  Dig.  §  290: 
Decennial  and  Am.  Dig.  Key  No.  Series  §  96. 


Sees.    1,   2.]  EXTRAORDINARY    REMEDIES.  783 


CHAPTER  X. 

EXTRAORDIXARY  REMEDIES. 


Sec.  L    Habeas  Corpus. 

This  remedy  has  been  sufficiently  treated  in  Chap.  5,  §  8,  aj 
Chap.  6.  §  1.  a.  and  §  2.  a. 


Sec.  2.    Prohibition. 

CONNECTICUT  RIVER  R.  R.  v.  COI'XTY  COMRS.,  127  Mass.  50,  57-60. 

1879. 

The  Remedy  hy  Prohibition  Explained. 

[Petition  for  a  writ  of  prohibition,  filed  in  the  supreme  court  and  there 
disposed  of.  The  manager  of  Troy  and  Greenfield  R.  R.  and  Hoosac 
Tunnel,  a  corporation,  acting  under  a  statute,  filed  a  petition  for  the 
condemnation  of  certain  lands  of  the  Connecticut  River  R.  R.  under  emi- 
nent domain.  The  proceeding  was  filed  before  the  defendants,  and  was 
in  accordance  with  the  statute  referred  to.  The  Connecticut  River  R.  R. 
having  been  served  with  notice  to  appear  before  the  defendants  to  answer 
such  proceedings,  objected  to  the  jurisdiction  of  defendants.  The  de- 
fendants overruled  such  objection  but  postponed  the  hearing  to  a  future 
day.  Thereujjon  this  petition  for  a  writ  of  prohibition  was  filed  against 
the  defendants,  upon  the  ground  that  the  statute  under  which  thej'  were 
acting  was  unconstitutional.  The  court  granted  the  petition  and  ordered 
the  writ  to  issue.  Only  so  much  of  the  opinion  as  discusses  the  remedy 
by  writ  of  prohibition,  is  here  inserted.] 

Gray.  C.  J.  .  .  .  A  writ  of  ])rohibition  issuiiii;-  from  the 
highest  court  of  conmion  law  is  tlio  .ijipropriate  remedy  to  restrain 
a  tribunal  of  peculiar,  limited,  or  inferior  jurisdiction  from  taking 
judicial  cofrnizance  of  a  case  not  within  its  jurisdiction.  3  Bl. 
Com.  112;  AVashbnrn  v.  Phillips.  2  ^Mot.  296.  The  power  of  issu- 
ing the  wi'it  was  liiibitually  exercised  l)y  the  principol  courts  of 
common  law  in  Enjjland.  and  by  the  superior  court  of  judicature 
of  I\rjLs.sachuset1s  under  the  Province  Charter.  The  earlier  acts  of 
the  Province  ostnlilisbing  the  su])erior  court  of  judicature  wert' 
disallowed  bv  tlie  kiiif;  in  eouneil.  I'rov.  Sts.  101)2^:?  (4  W.  &  M.). 
c.  33;  1697  (9  Will.  3).  c.  9;  1  I'lov.  Laws  (State  ed.).  72.  73.  284. 
285:  Anc.  Chart.  217.  221.  P.iif  the  nel  of  H;99-1700  fll  Will.  3). 
c.  3.  under  which  tlial  eouj'f  existed  until  the  .\iiici-ie;ni  luvolution. 
conferred  npon  it  ;i  ver>'  extensive  jui'isdietion  of  ])leas  of  thi- 
crown  .ind  civil  .letions.  "and  generally  of  all  other  matters,  as 
fidly  ;inrl   ,'irtiiii\-   to  ;i]l    intents  ;infl    pni-poses  whatsoever  as  the 


784  EXTRAI^RDIN  AWY    KKMKDIKS.  [C/(.    10. 

courts  of  Kiiiir's  ImmicIi.  ConiiHon  Tleas  miuI  I'iXclioqnor  within  liis 
Majesty's  kiiiirdoui  nt'  iMiirlaiul  havi'  or  (niiilit  to  have."  1  I'rov. 
Laws.  :i7(>.  :>71 -.  Aiif.  Cliait.  :VM).  I'lKlir  lliat  ad.  the  superior 
court  of  juilicat urc  rifiiiiciitly  issued  writs  of  in'oliihitioii  to  the 
court  of  Vice  Admiralty.  Sec,  foi-  examples  oT  (.liis.  Tliomas  v. 
(^alley.  Kee.  171(!.  fol.  14:?;  1  lutchin.soii  v.  Wyhoiiine,  Ucc.  17m, 
fol.  l(i!>:  Harming'  v.  ^Vvre.  Kec.  1717.  i'oi.  177;  Maiidersoii  v. 
lluirhs.  Rcc.  1718.  fol.  25!);  Tiltoii's  ca.se.  Roc.  1720.  fol.  338; 
Dununer's  Defense  of  New  Kni,daml  Charlers  (1721).  63.  64; 
Scollay  V.  Dunn   (1763).  Quincy,  74.     .     .     . 

In  tlie  ju-esent  case,  if  the  proceedinirs  Tor  tlie  assessment  of 
damages  had  <:dne  on  to  final  judti'menl .  they  mij.;lit  indeed  have 
l)eeu  ([uashed  hy  writ  of  cerlioi-ari.  Charlestown  l>ranch  Uailroad 
V.  County  Conu-s..  7  I\Iet.  78;  Charles  River  Branch  Railroad  v. 
County  Conn-s..  7  Gray.  38f) ;  Fannington  River  Water  Power  Co. 
V.  County  Conirs..  112  INIass.  206.  But  the  fact  that  the  remedy  by 
petition  for  writ  of  certiorari  will  he  open  to  the  landowner  after 
tinal  judfruKMit  affords  no  reason  why  the  court  shonid  now  refuse 
a  writ  <^f  pi'ohil)ition.  and  thereby  put  the  ])etitioner  to  the  trouble, 
expense  and  delay  of  a  trial  before  a  ti-ihuna!  which  has  no  juris- 
diction of  the  case,  and  to  whose  jurisdiction  the  petitioner  has 
obiected  at  the  outset  of  the  proceedings.  Gould  v.  Gapper.  5 
East.  345.  367,  371;  Burder  v.  Veley.  12  A.  &  E.  233,  263,  265, 
313.  314;  Vermont  &  Massachusetts  Railroad  v.  County  Comrs., 
10  Cush.  12.  The  relief  sougrht  by  bill  in  equity  in  Talbot  v.  Ilud- 
.son.  16  Gray.  417.  was  to  re-strain  the  pullinji-  down  of  a  mill-dam 
by  executive  officers,  not  to  prevent  a  judicial  hearing-  and  deter- 
mination by  a  tribunal  transgressing  its  jurisdiction. 

The  fact  that  an  agent  of  the  commonwealth  is  the  adverse  party 
in  the  proceedings  before  the  county  coitnnissioners  affoi'ds  no 
reason  for  refusing  the  writ.  A  writ  of  prohibition,  like  a  writ  of 
mandamus  or  of  certiorari,  is  properly  sued  out  in  the  name  of 
the  crown  or  the  state;  the  only  necessary  defencUnt  is  the  tri- 
hunal  ichose  proceedings  are  sought  to  he  restrained,  controllrd  or 
quashed:  and  there  is  no  cla.ss  of  cases  in  which  the  authority  to 
issue  writs  of  prohibition  is  better  established  than  in  those  cases 
of  courts  martial,  acclesiastical  courts,  or  inferior  courts  of  com- 
mon law,  a.ssuming  to  take  cognizance,  in  excess  of  their  jurisdic- 
tion, of  criminal  in-osecntions.  Washburn  v.  l^hillips.  above  cited; 
Grant  v.  Gould.  2  II.  Bl.  69;  Com.  Dig.  I'rohihition.  F.  6;  Searle 
V.  Williams.  Hob.  288;  The  Queen  v.  TTerford.  3  El.  &  El.  115; 
Zylstra  v.  Corporation  of  Charleston.  1  Bay,  382.  Writ  of  prohibi- 
ticm  to  issue. 

See  "Prohibition,"  Century  Dig.  §  31;  Decennial  and  Am.  Dig.  Key  No. 
Series  §  6. 


Sec.    3.]  EXTRAORDIXARV    REMEDIES.  785 


STATE  V.  WHITAKER,  114  X.  C.  818,  19  S.  E.  376.     1894. 
Prohihition.     Explanation  of  the  Remedy  Continued. 

[Application  filed  in  the  supreme  court  by  the  defendants  in  a  case 
pending  before  the  mayor's  court  of  the  city  of  Raleigh — the  case  being 
entitled  State  v.  Whitaker  et  al.  The  application  to  the  supreme  court 
was  that  a  writ  of  prohibition  might  issue  to  the  mayor's  court  to  stop 
further  proceedings  in  the  case.  The  grounds  assigned  for  the  applica- 
tion were:  (1)  That  the  ordinance,  for  the  violation  of  which  the  de- 
fendants were  prosecuted,  was  invalid;  (2)  Because  a  jury  trial  had 
been  denied.] 

Cl.^rk.  J.  The  defendants  apply  for  a  writ  of  i)roliibition  to 
issue  to  Thomas  Badger,  mayor  of  the  city  of  Raleigh,  upon  the 
ground  that  the  city  ordinance,  for  the  violation  of  which  they  are 
iieing  tried,  is  invalid,  and  because  a  trial  by  jury  had  been  re- 
fused them. 

The  writ  of  prohibiticm  existed  at  common  law.  and  is  also  au- 
thorized by  the  constitutional  provision  (article  4,  §  8)  which  giv^'S 
the  supreme  court  "power  to  issue  any  remedial  writs  necessary  to 
give  it  a  general  supeiwision  and  control  over  the  proceedings  of 
the  inferior  courts."  In  this  state  this  writ  can  issue  only  from 
the  supreme  court.    Periy  v.  Shepherd.  78  N.  C.  83. 

The  writ  of  prohibition  is  the  converse  of  mandamus.  It  pro- 
hibits action,  while  mandanuis  compels  action.  It  differs  from  an 
injunction,  which  enjoins  a  party  to  the  action  from  doing  the 
forbidden  act.  while  prohibition  is  an  extraordinary  judicial  writ, 
issuing  to  a  court  from  another  court  having  supervision  and  con- 
trol of  its  proceedings,  to  prevent  it  from  proceeding  further  in  a 
mattei-  pending  before  such  lower  coui't.  It  is  an  original  remedial 
writ,  and  is  the  remedy  afforded  by  the  common  law  against  the 
encroachment  of  jurisdiction  by  inferior  courts,  and  to  keep  them 
within  the  limits  prescribed  by  law.  10  Am.  &  Eng.  Enc.  Law, 
20:'..  2(i4:  High.  Kxtr.  Hem.  §  762.  It  is  settled  that  this  writ  does 
not  lie  for  grievances  which  may  be  redressed,  in  the  ordinary 
course  of  judicial  proceedings,  by  appeal,  or  by  recordari  or  cer- 
tiorari in  lieu  of  an  appeal.  Xor  is  it  a  writ  of  right,  granted  ex 
debito  justitiac.  like  ha])('as  corpus,  but  it  is  to  be  granted  or  with- 
held according  to  the  circumstances  of  each  particular  case.  Be- 
ing a  prerogative  writ,  it  is  to  be  used,  like  all  such,  with  greil 
e;iution  and  Forbearance,  to  prevent  usurpation,  and  secure  regu- 
larity, in  judii'iiil  jji-oi-ccdiugs.  wIum'c  iKHif  ol'  thi-  oi-dinar\-  kmhc- 
dics  provided  by  l;iw  will  <jiv.'  the  i|vsli-r,l  n-licr.  ;iii(l  <l.iiii;iji'  .ind 
wniig  will  ensue  piudin^'  llnir  .ipplication.  High.  iOxtr.  Rem. 
§?  liuy.  770. 

In  the  present  ease  the  nia\or's  court  has  jurisdidinn  of  the 
persons  of  tl|f»  defendants,  and  (d"tlie  suhi^'et  iii;iHer.  whieli  is  the 
alleged  violation  of  a  town  ordin.nec  1 1  llie  oidinanee  in  (|Ues- 
tion  is  invalid,  that  matter-  can  he  determin.'d  im  apjteid  In  the 
.superior  court,  and  by  a  lurthei-  iippeal.  if  desired,  thenee  In  Ihis 
court.  This  has  been  often  done.  There  is  no  jialpable  Msuip;itiou 
Remedies — .^0. 


7S6  KXTKAitlx'|>IN.\U\     UKMKDIKS.  |(7/.     /(). 

of  jurisdict idii,  m*  .-iluiso  of  its  aiitlioi-ity.  nor  likelihood  of  injury 
to  iK'fciulaiits.  whicli  ciilU  for  [\\c  I'Xti'aordinaiy  i)roc'oss  of  this 
c-ourt.  by  prohilution.  to  stop  the  action  of  the  lower  eourt.  It  is 
more  orderly  to  proi-ecd  in  the  rej^ular  way, — to  have  an  allej^ed 
error  of  this  kind  corrt't'ted  on  ap])eal.  The  writ  niiirhl  properly 
issue  where  the  eourt  In-low  lias  no  jurisdiction  of  the  subject- 
matter,  as,  for  instance,  if  a  justice  of  the  peace  should  attempt 
to  try  a  defendant  foi-  larceny,  or  decree  foreclosui'c  of  a  mort- 
iraire ;  but  (>ven  in  that  case  it  would  rest  in  the  disci-ction  of  the 
supri'me  court  whelher  the  matter  should  be  left  to  correction  b> 
appt>al.  or  by  treating  such  juilgment  as  a  nullity. 

As  to  the  tlenial  of  a  jurv  trial  bv  the  mavor.  it  is  pointed  out 
by  Smith.  C.  J.,  in  State  v.  Powell.  !)7  N.  C.  417.  1  S.  K.  4S2,  that 
unilcr  the  i)resent  constikition  (article  1.  §  13)  the  legislature  is 
authorized  to  vest  the  trial  of  petty  misdemeanors  in  inferior 
couHs,  without  a  jury,  if  the  I'ight  of  appeal  is  preserved.  It  was 
otherwise  under  the  former  ecmstitution.  under  whicli  State  v. 
Moss.  47  X.  C  (it),  was  decided.  The  guaranty  of  a  trial  by  jury 
in  the  sixth  and  seventh  amendments  to  the  constitution  of  the 
United  States  applies  only  to  the  federal  courts,  and  is  not  a  re- 
striction on  the  states,  which  may  pi-ovide  for  the  trial  of  criminal 
and  civil  cases  in  their  own  courts,  with  or  without  jury,  as  au- 
thorized bv  the  state  constitution.  Coolev,  Const.  Lim.  (6th  ed.) 
80:  Walker  v.  Sauvinet,  92  U.  S.  90;  Munn  v.  Illinois,  94  U.  S. 
113.  There  are  instances,  though  infrequent,  when  this  writ  has 
been  invoked.  It  has  been  granted  where,  after  a  conviction  for 
felony,  the  court  has,  at  a  subsequent  term,  granted  a  new  trial 
upon  the  laerits,  without  an\'  legal  authority  for  so  doing. 
(^uiml)o  Appo  V.  People.  20  N.  Y.  531.  It  is  also  the  appropriate 
remedy,  pending  an  appeal  from  an  inferior  to  a  superior  court,  to 
l)revent  the  former  from  exceeding  its  jurisdiction  by  attempting 
to  execute  the  judgment  a])i)ealed  from,  oi"  to  prevent  a  circuit 
court  exceeding  its  powers  by  issuing  an  unauthorized  writ  of  er- 
ror and  supersedeas  to  a  county  court,  and  interfering  improperly 
with  the  jurisdiction  of  the  latter.  Supervisors  v.  Gorrell,  20 
Grat.  484.  Also,  to  prevent  an  inferior  court's  interfering  with, 
or  attempting  to  control,  the  records  and  seal  of  the  superior  court 
by  injimction.  Thomas  v.  Mead.  36  Mo.  232.  It  lies  to  prevent  a 
probate  eourt  exercising  jurisdiction  over  the  estate  of  a  deceased 
person  when  it  cannot  lawfully  do  so.  U.  S.  v.  Shanks.  15  ]\Iinn. 
369  (Gil.  302).  Or  where  justices  of  the  peace  are  proceeding, 
without  authority  of  law.  to  abate  a  supposed  nuisance,  prohibi- 
tion lies  to  stay  their  action.  Zylstra  v.  Charleston  Corp.,  1  Bay, 
382.  These  are  cited  as  illustrations,  but  in  each  case  it  is  in  the 
discretion  of  the  supreme  court  whether  the  writ  .shall  be  granted. 
Prohibition  does  not  issue  to  restrain  ministerial  acts,  but  only 
to  restrain  judicial  action  where  the  latter  would  be  a  usurpa- 
tion and  cannot  be  adequately  remedied  by  an  appeal.  19  Am. 
&  Eng.  Enc.  Law.  268.  269.  It  issues  to  and  acts  upon  courts 
as  an  injunction  acts  upon  parties,  and,  like  an  injunction,   it 


Sec.    3.]  EXTRAORDINARY    REMEDIES.  7S7 

does  not  lie  where  adequate  remedy  can  be  had  by  the  ordinary 
process  of  the  courts.  AVheu  entertained,  the  usual  coui-se.  un- 
less prior  notice  of  the  petition  has  been  given,  is  to  issue  a  no- 
tice to  the  lower  court  to  show  cause  why  the  writ  should  not 
issue,  and  to  order  a  stay  of  proceedings  in  the  mean  time. 
Id.  280.  281.  In  the  present  case,  if  the  defendants  are  con- 
victed upon  an  invalid  ordinance,  there  is  ample  remedy  by 
appeal.  The  constitution  does  not  guaranty  a  jury  trial  in  such 
case,  since  the  defendants  have  the  right  of  appeal.  If  there  is 
aught  in  the  charter  of  the  city  which  grants  the  defendants  a 
trial  by  jury,  if  demanded,  the  error  in  the  refusal  could  be  cor- 
rected by  a  jury  trial  in  the  superior  court.  There  is  no  emer- 
gency which  requires  the  court  to  issue  the  writ  prayed  for.  Pe- 
tition denied. 

For  the  superintending  control  of  inferior  tribunals  by  writs  of  pro- 
hibition, mandamus,  etc..  and  of  courts  martial  by  civil  courts,  see  51 
L.  R.  A.  33,  and  elaborate  note;  20  lb.  (X.  S.)  413,  942,  and  notes.  That 
the  writ  has  been  but  little  used  in  North  Carolina,  see  Perry  v.  Shep- 
herd, 78  N.  C.  83.  It  does  not  lie  to  interfere  with  a  de  facto  officer  in 
the  discharge  of  his  duties  during  the  pendency  of  a  controversy  over 
the  title  to  the  office.  State  v.  Allen,  24  X.  C.  183.  It  is  never  used  as 
a  remedy  for  acts  already  done,  but  only  to  prohibit  the  commission  of 
an  act  threatened.  United  States  v.  Hoffman,  4  Wallace,  158.  The  pres- 
ent practice  in  North  Carolina  is  pointed  out  in  Railroad  Co.  v.  Newton, 
133  N.  C.  126,  4.5  S.  E.  549.  The  writ  issues  from  the  supreme  court 
alone;  its  issue  in  any  case  is  a  matter  of  sound  discretion  and  is  con- 
fined to  cases  of  extreme  necessity.  Ibid.  For  a  general  discussion  of 
the  remedy,  see  9  L.  R.  A.  59  and  note;  Hughes  on  Proc.  1096;  32  Cyc. 
598-632.  See  "Prohibition,"  Century  Dig.  §§  4-19;  Decennial  and  Am. 
Dig.  Key  No.  Series  §  3. 


Sec.  3.    ^Mandamus. 

REX  V.  BARKER,  3  Burrows,  1265,  1267.     1762. 

Xature  of  Remedy.     When  Mandamus  Will  and  Will  Not  Issue.     Prac- 
tice.    Lord  Mansfield's  Form  of  the  Rule  to  Show  Cause. 

(On  Wednesday.  10th  of  June,  17G1,  Mr.  Norton  moved  for  a  mandamus 
to  be  directed  to  the  surviving  trustees  under  a  deed  of  release,  made  by 
one  Charles  Vinsen  to  John  Enty,  a  dissenting  minister  of  Plymouth,  and 
other  trustees,  settling  a  then  new-built  meeting-house,  etc..  requiring 
them  to  admit  rhristoi)her  .Monds  to  the  use  of  the  pulpit  thereof,  as 
jjastor,  minister  or  i)reacher  there;  he,  the  said  Christopher  Monds,  hav- 
ing been  duly  elected  to  such  position.  Mr.  Norton  produced  an  affidavit 
of  the  facts  and  of  Mr.  Monds'  election,  and  of  a  demand  and  refusal  of 
the  use  of  the  meeting-house.  1 

Lord  Mansfield.  A  iiijiiidamus  is  a  prerogative  writ,  lo  the  aid 
(){  which  til'  siil)j('<-t  is  ciilitled.  upon  a  proper  ciiso  |>revioiisly 
shown  to  the  satisfaction  of  the  couit.  The  original  natwi'e  of  tlie 
writ  and  the  end  for  which  it  was  framed,  direct  upon  wliat  occa- 
sions it  should  be  used.  It  was  introduced  fo  pn-vcnl  disorder 
from  a  failurt'  of  justice,  and  defect  of  police.  Therefore  it  ouglil 
to  be   u.seil   upon    all   occasions  whei-e  the   law   has  established   no 


788  K.\  I'K AoKPiN  \i;n    ukmeoiks.  [CIi.   10. 

spoc'ifii'  ri'iiu'tl\'.  Mild  wlu'ir  ill  just  ire  ;iii(l  u:(io(l  cfnvci-niiioiit  there 
oniiht  ti)  lu'  one.  Witluii  tlic  l;ist  cciitury.  it  liiis  hccii  lilicrally 
illtoriMist'il  t'lir  llic  ln'iirlil  nT  llif  sulijccl  nml  ;itlv;iii('('iii(iit  of  jus- 
fifc.  Tlif  viiliH-  (if  llic  iiiattcr.  or  the  di'^rco  of  its  iiiij)oi-lan('o  to 
puMit'  iiolico.  is  not  scnipuloiisly  wcitrluul.  11'  there  he  a  i-ip:hl. 
ami  no  other  six-eitic  remedy,  tliis  should  not  ht>  denied. 

^VI•its  of  mandaiinis  have  Ix'eii  granted.  t(t  admit  lecturers, 
(derks.  sextons,  seavenijers.  etc.;  to  restore  an  aldei-man  to  prc- 
eedeiu-y.  an  attorney  to  prnetiee  in  an  inf(M-ior  court,  etc.  Since 
tlu'  a.ct  of  tolei'ation.  it  ou.nht  to  lie  extended  to  protect  an  endowed 
pastor  of  protestant  dissenters,  from  analogr>'  and  the  reason  of 
the  thinir.  The  i-iirht  itself  heiner  recent,  there  can  be  no  direct  an- 
cient precedent,  hut  every  case  of  a  lectur(>r,  preacher,  schoolmas- 
ter, eurati'.  chaphiiii  is  in  point. 

The  deed  is  the  foundation  or  endowment  of  the  pastorshi[). 
The  form  ot  the  instrument  is  necessarily  by  way  of  trust:  for  the 
meetin<:-liouse.  and  the  laud  upon  which  it  stands,  could  not  be 
limited  to  Knty  and  his  successors.  .Maii\'  lectureships  and  other 
offices  are  endowed  hy  trust-deeds.  The  T'ight  to  the  function  is 
the  substance,  and  draws  after  it  every  thing  else  as  appurtenant 
thereto.  The  power  of  the  trustees  is  merely  in  the  nature  of  an 
authority  to  admit.  The  use  of  the  meeting'-house  and  pulpit,  in 
this  case,  follows,  by  necessary  consequence,  the  right  to  the  func- 
tion of  the  minister,  preacher,  or  pastor;  as  much  as  the  insignia 
do  the  office  of  a  mayor;  or  the  custody  of  the  books,  that  of  a 
town-clerk. 

Lord  ]\ransfield  directed  the  following  rule  to  be  drawn  up : 
It  is  ordered.  That  the  first  day  of  next  term  be  given  to  Pentecost 
"Barker.  "Richard  Dunning.  T^hilip  Cockey.  and  Elias  Lang,  to 
show  cause  why  a  writ  of  mandamus  should  not  issue,  directed  to 
them,  requiring  them  to  admit  Christopher  ]\Ionds  to  the  use  of 
the  pulpit  in  a  certain  meeting-house  appointed  for  the  religious 
wor.ship  of  protestant  dissenters  commoidy  called  Presbyterians, 
in  Plymouth  in  the  county  of  Devon,  as  pa.stor,  minister  or 
preacher  there.  And  it  is  further  ordered,  That  the  said  Pente- 
cost Barker,  Richard  Dunning,  Philip  Cockey,  and  Elias  Lang,  do 
at  the  same  time  acfpiaint  this  court.  ""Whether  they  insist  upon 
the  validity-  of  the  election  of  John  Ilanmer."  and  if  not 
"Whether  they  are  willing  to  proceed  to  a  new  election  of  a  min- 
ister, pastor  or  preacher  there;"  the  prosecutor  of  this  rule  hav- 
ing declared  his  consent  "To  waive  his  claim,  in  order  to  a  new 
election."  And  it  is  further  ordered.  That  notice  of  this  rule  be 
given  to  the  said  John  ITainner.  to  the  intent  that  he  may  be  heard, 
as  he  shall  be  advised:  and  that  he  may  ac(|uaint  this  court 
""Whether  he  insists  upon  the  validity  of  his  election,"  and 
""Whether  he  is  willing  to  have  it  tried  in  a  feigned  issue." 

Mr.  Thurlow  and  ^Ir.  Dunning  now  gave  answer,  by  direction  of 
their  clients.  "That  Pentecost  Barker,  Richard  Dunning,  Philip 
Cockey.  and  Elias  Lang,  do  insist  upon  the  validity  of  the  elec- 
tion of  John  TTanmer.  and  that  they  are  not  willing  to  proceed  to 


Sec.    3.]  EXTRAORDINAUV    REMEDIES.  789 

a  new  election,  etc.  And  that  the  said  John  Hannier  does  insist 
upon  the  validity  of  his  election,  and  is  not  willing  to  have  it 
tried  in  a  feigned  issue."  After  which  ]\lr.  Thurlow  and  ]\Ir. 
Dunning  were  heard  again,  in  general,  and  argued  strenuously 
against  granting  a  mandamus.  They  knew'  the  election  of  Han- 
mer  could  not  be  supported  upon  a  trial.  The  election  of  INIonds 
seems  liable  to  objection  as  irregular.  But,  if  the  matter  was 
proper  for  a  mandamus,  they  were  aware  that  in  case  neither  was 
elected,  the  court  would  issue  a  mandamus  "To  proceed  to  an 
election;"  in  which  case,  the  majority  of  the  congregation  were  in- 
clined to  blonds.  The  trustees  therefore  obstinately  persisted 
in  opposing  a  mandamus  and  refusing  a  trial. 

Lord  ^lanstield.  Eveiy  reason  concurs  here  for  granting  a 
mandamus.  AVe  have  considered  the  matter  fully,  and  we  are 
all  clearly  for  granting  it.  I  have  made  a  collection  of  cases  on 
this  subject,  since  the  last  argument ;  but  I  have  it  not  here  at 
present.  Here  is  a  function  with  emoluments;  and  no  specific 
legal  remedy.  The  right  depends  upon  election ;  which  interests 
all  the  voters.  The  question  is  of  a  nature  to  inflame  men's  pas- 
sions. The  refusal  to  try  the  election  in  a  feigned  issue,  or  pro- 
ceed to  a  new  election,  proves  a  determined  purpose  of  violence. 
Should  the  court  deny  this  remedy,  the  congregation  may  be 
tempted  to  resist  violence  with  force:  a  dispute  "Who  shall 
preach  Christian  charity,"  may  raise  implacable  feuds  and  ani- 
mosities; in  breach  of  the  public  peace,  in  the  reproach  of  the 
government,  and  the  scandal  of  religion.  To  deny  this  writ, 
would  be  putting  protestant  dissenters  and  their  religious  wor- 
ship out  of  the  protection  of  the  law.  This  case  is  entitled  to  that 
protection ;  and  cannot  have  it  in  any  other  mode,  than  by  grant- 
ing this  writ.  The  defendants  have  refused  either  to  go  to  a  new 
election,  or  to  try  it  in  a  feigned  issue.  We  were  <dl  of  opinion. 
when  a  trial  was  proposed  to  them,  that  a  mandanuis  ought  to 
is.sue,  in  case  of  refusal.  Their  answer  ought  to  be  put  into  the 
rule  as  prefatory'  to  it:  and  I  do  this,  with  a  view  that  their  re- 
fusal may  be  authentically  given  in  evidence  to  the  jury  upon 
the  trial.  Many  ea.ses  have  gone  as  far  as  this,  or  farthor.  ^Ir. 
Justice  Deni.son,  Mr.  Justice  Foster,  and  ^Ir.  Justice  Wilmot,  all 
declared  themselves  of  the  same  opinion.  Tlie  couit  (irdei-ed  a 
mandanuis  to  issue. 

In  the  report  of  this  ca.se  in  1  W.  Blackstone's  Reports.  352.  the  fol- 
lowing is  given  as  Lord  Mansfield's  opinion:  "I  think  I  have  seen  it  in 
the  looks,  that  the  first  instance  of  a  mandamus  in  the  case  of  a  cor- 
porator, wa.-^  RapTg's  case.  And  yet  that  was  no  objection  to  the  prantinp 
it.  A  mandamus  is  certainly  a  prerogative  writ,  tlowing  from  the  l<inK 
himself,  sitting  in  this  court,  superintending  the  police  and  preserving 
the  peace  of  this  country;  and  will  be  granted,  wherever  a  man  is  en- 
titled to  an  ofTicf  or  a  function,  and  lliero  is  no  other  adcfpiate  legal 
remedy  for  it.  Therefore  it  is  not  grant,Tblt>  for  a  living,  bec'uisc  there 
the  law  has  provided  a  specific  remedy;  but  for  a  lectureship,  where  a 
profit  or  endowment  is  annexed  to  it.  it  is.  Since  the  Act  of  Toleration, 
dissenters  are  entitled  to  all  manner  of  legal  protection.  (Miarltlcs  to 
their    mode    of    worshij)    have    been    established    since    the    revolution. 


7;>0  i:.\llvAOin>lNAKV    KICMKDlliS.  \('ll.     10. 

though  hold  to  be  siii>orstltious  before."  For  </»/(>  irarra»to  to  try  title 
to  an  otVue  in  a  priratr  toi iioration.  see  llanUins  v.  Newell,  section  4 
post,  and  note  to  that  ease.  See  19  L.  R.  A.  (N.  S.)  I!*,  and  note.  See 
••.Mandannis,"  Century  Dij;.  §  -O:!:  Decennial  and  Am.  Dig.  Key  No.  Series 
§  l-'S. 


LA  tJRANGE  v.  THE  STATE  TREASURER.  24  Mich.  468,  476-479.    1872. 
Mandamus  KspJaiin'd.     When   It   Is  tlic  Aiipropriate  Remedy. 

I  Application  for  a  niandainus.  brought  in  the  name  of  the  People  on 
the  relation  of  the  Townsliip  of  La  Grange  v.  The  State  Treasurer.  ■"The 
relator  having  obtained  an  order  on  respondent  to  show  cause  why  cer- 
tain municipal  bonds,  deposited  with  him  under  the  railroad  aid  laws, 
should  not  be  delivered  up.  he  returns  that  he  has  been  served  with  a 
subpoena  in  a  case  in  equity,  issued  out  of  the  circuit  conrt  of  the  United 
States  under  a  bill  filed  by  .lohn  E.  Young  against  respondent,  relator, 
and  the  ISIichigau  Air  Line  Railroad  Company,  to  obtain  the  same  bonds 
for  the  company.  This  return  being  demurred  to,  the  respondent  relies 
upon  two  principal  grounds:  1.  That  mandamus  is  not  a  proper  remedy 
in  such  cases;  and,  2.  That  the  pendency  of  the  chancery  suit  should 
stay  it."  Only  so  much  of  the  opinion  as  bears  upon  the  first  ground 
of  demurrer,  is  here  inserted.! 

Campbell,  J.  .  .  .  In  these  eases  of  municipal  bonds,  the 
townships  cannot  be  made  to  suffer  for  the  legally  wrongful  ac- 
tion of  their  officers,  and  they  have  a  right  to  recall  the  unauthor- 
ized securities.  The  duty  of  the  treasurer  is  not  discretionary. 
It  is  their  absolute  right  to  demand,  and  his  absolute  duty  to  sur- 
render, what  is  held  in  the  files  of  the  office  in  their  wrong.  The 
duty  is  unconditional  and  it  is  clear.  We  are  then  to  consider 
whether  a  nuindamus  is  the  proper  remedy  for  a  refusal  to  comply 
with  this  duty. 

It  was  urged  on  the  argument  that  this  writ  will  only  lie  where 
there  is  a  positive  statulors'  duty  and  an  entire  absence  of  any 
other  remedy.  And  it  is  claimed  that  the  decisions  heretofore 
made  sustain  this  view.  We  do  not  know  of  any  such  doctrine, 
and  have  never  understood  it  to  have  been  established  in  this  state, 
or  elsewhere.  In  the  frequent  instances  of  application  for  this 
writ,  the  occasion  has  quite  as  often  been  to  enforce  duties  not  im- 
posed by  statute,  as  obligations  which  were  statutory.  There  may 
very  possibly  be  found  isolated  expressions,  which,  apart  from 
their  context  and  the  occasion  of  their  utterance,  might  favor  one 
of  the  grounds  claimed.  Thus,  in  People  v.  Judges  of  the  Branch 
Circuit  Court.  1  Doug.  ]\Iich.  319,  it  was  said  there  must  be  "no 
other  remedy."  In  that  case  there  was  a  betler  remedy  in  the  or- 
dinarv  course  of  law  which  reached  all  that  could  l)e  desired.  But 
in  People  v.  Judge  of  the  Wayne  Circuit  Court.  19  Mich.  296,  the 
doctrine  was  laim  down  more  guardedly,  that  a  relator  must  show 
"a  clear  legal  right,  and  that  there  is  no  other  adefpiate  remedy." 
And  in  People  v.  State  Insurance  Company,  19  IMich.  392.  it  was 
expressed  more  fully  that  the  writ  might  issue  for  a  specific  duty 
where  there  is  no  other  "specific  and  adequate  remedy." 


Sec.    3.]  EXTRAORDINARY    REMEDIES.  791 

Blackstone  very  clearly  defines  the  jurisdiction  in  a  few  words. 
He  says  it  lies  "where  the  party  hath  a  rigrht  to  have  any  thing 
done,  and  hath  no  other  specific  ineans  of  coinpelling  its  perform- 
ance." 3  Bl.  Com.  110.  In  Kex  v.  Windham.  Cowp.  377.  Lord 
]\Iansfield  adopts  a  statement  of  Mr.  Kenyon.  "that  where  there  is 
no  other  legal  specific  remedy  to  attain  the  ends  of  justice,  the 
course  must  be  by  mandamus,  which  is  a  prerogative  writ."  In 
Rex  V.  Barker.  3  Burr.  1265.  he  says:  "Therefore  it  ought  to  be 
used  upon  all  occasions  where  the  law  has  established  no  specific 
remedy,  and  where,  in  justice  and  good  government,  there  ought 
to  be  one.  AVithin  the  last  century  it  has  been  lil)ci-ally  interposed 
for  the  benefit  of  the  subject,  and  the  advancement  of  justice. 
The  value  of  the  matter,  or  the  degree  of  its  importance  to  the 
l)ublie  police,  is  not  scrupulously  weighed.  If  there  be  a  right, 
and  no  other  specific  remedy,  this  should  not  be  denied."  And  in 
Rex  v.  Vice  Chancellor  of  Cambridge.  3  Burr.  1047,  he  says  again: 
"This  is  the  very  rea.son  of  the  court's  issuing  the  prerogative 
writ  of  mandanuis.  because  there  is  no  other  specific  remedy." 
The  other  judges  were  ecpially  emphatic. 

For  most  rights  the  ordinary  legal  remedies  are  ample  to  pre- 
vent a  failure  of  justice,  as  upon  private  contracts  a  judgment  for 
damages  will  usually  suffice.  But  there  are  cases  where,  if  con- 
tracts cannot  be  enforced  specially,  there  will  be  a  failure  of  jus- 
tice; and  as  the  law  can  give  no  specific  remedy  in  such  cases 
parties  are  compelled  to  resort  to  equity.  If  the  law  had  the  requi- 
site machinery,  no  doubt  it  would  so  interfere  as  to  render  a  re- 
sort to  equity  needless.  And  in  all  cases  where  it  can  enforce 
rights  specifically,  and  no  other  relief  is  adequate,  it  certainly 
would  be  unjust  not  to  do  so.  rnfortunately  its  powers  are  lim- 
ited. But  in  eases  where  the  right  is  clear  and  specific,  and  public 
officers  or  tribunals  refuse  to  comply  with  their  duty,  a  writ  of 
mandamus  issues  for  the  very  puri)ose.  as  declared  by  Lord  IMans- 
field,  of  enforcing  specific  relief.  It  is  the  hiadrquacu.  and  not 
fhr  mere  absence  of  all  other  legal  remedits,  and  the  dangt  r  of  a 
feiUiire  of  jusliee  wilhouf  it,  that  nnist  usually  determine  the  pro- 
priety of  the  writ.  AVhere  none  but  specific  relief  will  do  justice, 
specific  relief  should  be  granted  if  f)i"aetieable.  .\iid  wliei-e  a  right 
is  single  and  specific  it  is  usually  practicable. 

The  question  then  arises  whethei-  there  is  any  other  adequate, 
specific,  legal  remedy.  Courts  of  law  do  not.  in  deciding  such 
(|uestions.  take  into  aeeouni  i-emedies  in  equity.  They  may  be 
regarded  in  determining  the  exercise  of  discretion  in  allowing  the 
writ,  but  they  cannot  affect  the  jurisdiction.  There  is  no  case 
where  a  court  of  law  has  its  jurisdiction  cut  off  by  the  existence  of 
equitable  reim  dies.  The  rule  is  the  reverse — that  ecjuity  will  not 
interfere  if  legal  remedies  ai'e  adefjuate.  There  is  the  strongest 
possible  reas(»n  why  a  party  should  not  be  tuiMied  over  to  the  tedi- 
ous and  dilatory  prm-ess  of  a  long  suit,  when  tlicre  jn-e  no  issues 
that   need   if.     The  only  (|nestion   that  conld   ;ii-ise   in   tlie  chiss  of 


792  EXTRAOUni.N  \ia    ici;.\ii:i)IK,s.  |(7/.    tO. 

oases  now  before  us  is.  wliether  tlu'  bonds  arc  in  tlic  possession  of 
the  respondent.  1 1'  llicy  arc  llic  ri^lit  lo  have  tlicni  rcstoriHl  is  a 
leiral  eonelusion  not  open  lo  (piestion. 

The  same  reasons  wouUl  apply  fo  render  it  iniproj)er  to  turn  a 
party  over  to  a  suit  in  ri'plevin.  it'  there  were  not  still  more  sci'ious 
objeetions  to  it.  as  widl  as  doubts  of  its  ajiidieability.  Tlic  iciiiedy 
would  not  only  involvi'  a  needless  leijal  contention,  but  it  is  not  a 
proper  or  lawful  tiling  to  allow  a  sherilV.  on  such  a  writ,  to  inter- 
meddle with  public  papers.  The  i)olicy  of  the  law  i'e(|uires  them 
to  be  guarded  by  their  ofHeial  custodian,  and  it  would  be  a  mon- 
strous abuse  if  the  state  otHiccs  could  be  exposed  to  the  visitation 
of  ministerial  otlici'rs  who  mijjht  be  commanded  by  a  writ,  issued 
without  the  previous  (n-der  or  supervision  of  a  court,  to  seize 
upon  and  deliver  over  to  any  one  who  should  sue  out  the  proc- 
ess, any  document  or  nuniiment  to  be  found  there.  8uch  a  claim 
would  be  prej^osterous.  A  mandannis  is  the  oidy  admissible  writ 
to  command  i)ublie  oHieers  to  produce  and  g\\e  \\\)  pajxns  in  their 
custody.  The  writ  must  be  granted  as  prayed.  And  we  trust 
it  will  not  be  necessary  hereafter  to  interpose  for  the  same  pur- 
pose. 

For  the  distinction  between  Mandamus  and  Quo  Warranto,  see  Brown 
V.  Turner,  70  X.  C.  at  p.  104.  Mandamus  is  no  longer  a  prerogative 
writ.  Ibid,  at  p.  105.  If  the  relief  sought  be,  to  get  possession  of  an 
office — official  position — already  filled  by  another,  the  remedy  is  quo 
uarranto:  if  to  get  possession  of — be  inducted  into — an  official  position 
not  filled  by  another,  the  remedy  is  mandamus.  Lyon  v.  Comrs.,  120 
N.  C.  237,  26  S.  E.  929,  and  see  also  Cunningham  v.  Sprinkle,  124  N.  C. 
638,  33  S.  E.  138,  1  L.  R.  A.  (N.  S.)  588.  13  lb.  661,  19  lb.  49,  and  notes. 
If  a  term  of  office  to  which  the  plaintiff  or  relator  seeks  to  be  inducted, 
expires  before  final  judgment,  the  court  must  dismiss  the  action.  Col- 
vard  V.  Comrs.,  95  N.  C.  515.  See  "Mandamus,"  Cent.  Dig.  §§  8,  135; 
Dec.  and  Am.  Dig.  Key  No.  Series  §§  3,  73. 


SQUIER  V.  GALE,  6  N.  J.  L.  157.     1822. 
Mandamus  From  a  Superior  to  an  Inferior  Court. 

[Upon  an  application  to  the  supreme  court  for  a  mandamus  to  the 
court  of  common  pleas  to  compel  that  court  to  grant  a  new  trial  in  the 
above  entitled  action  which  had  been  finally  determined  in  that  court, 
a  rule  was  issued  that  the  court  of  common  iileas  show  cause  why  the 
mandamus  should  not  issue.  The  judges  of  the  court  of  common  pleas 
answered  the  rule,  and  stated  that  after  a  verdict  in  the  case  a  new  trial 
was  moved  for  on  the  sole  ground  that  the  verdict  was  against  the 
weight  of  the  evidence;  that  the  motion  was  overruled  because  to  grant 
it  was  beyond  the  powers  of  the  court,  in  the  court's  opinion.] 

KiRKPATRiCK,  C.  J.  In  this  case  the  court  are  of  ojiinion — 
1.  That  though  a  mandamus  will  lie  to  an  inferior  court  to  com- 
mand them  to  proceed  to  judgment,  yet  it  will  not  lie  to  command 
them  to  proceed  to  any  particular  judgment;  and  much  less  to 
command  them  to  set  aside  a  verdict  and  grant  a  new  trial,  or 
even  to  grant  a  rule  to  show  cause  for  that  purpose.    2.  That  the 


Sec.    3.]  EXTRAORDINARY    REMEDIES.  793 

courts  of  common  pleas  have,  by  the  constitution  of  the  said 
courts,  and  by  the  principles  of  the  ancient  common  law.  a  right 
to  set  aside  verdicts  and  grant  new  trials ;  and  that  they  have  this 
right,  as  well  in  cases  of  appeal  under  statute  as  in  other  cases. 

la  Hudson  v.  Parker,  156  U.  S.  at  p.  28S,  15  Sup.  Ct.  at  p.  454.  it  is 
said:  "The  discretion  of  a  judge,  indeed,  in  a  matter  entrusted  by  law 
to  his  judicial  determination,  cannot  be  controlled  by  writ  of  mandamus. 
But  if  he  declines  to  exercise  his  discretion  or  to  act  at  all.  when  it  is 
his  duty  to  do  so,  a  writ  of  mandamus  may  be  issued  to  compel  him  to 
act.  For  instance,  a  writ  of  mandamus  will  lie  to  compel  a  judge  to 
settle  and  sign  a  bill  of  exceptions,  although  not  to  control  his  discre- 
tion as  to  the  frame  of  the  bill."  Several  authorities  are  cited  from 
the  United  States  Reports  for  this  position. 

For  the  law  generally  as  to  when  the  writ  will  issue  to  judges  and 
courts,  see  In  r~e  Blake"  et  als.,  175  U.  S.  114,  20  Sup.  Ct.  42;  Biggs  ex 
parte,  inserted  at  section  8,  post;  26  Cyc.  188.  For  when  the  writ  will 
or  will  not  issue  to  the  executive  department  or  to  the  officers  thereof, 
see  People  ex  rel.  Broderick  v.  Morton,  156  N.  Y.  136,  50  X.  E.  791;  Rose's 
Notes  to  U.  S.  Rep.  vol.  6,  p.  623,  and  Vol.  10,  p.  536;  White  v.  Ayer, 
126  X.  C.  570,  36  S.  E.  132;  Keim  v.  United  States,  177  U.  S.  290,  20  Sup. 
Ct.  574.  The  writ  will  not  issue  against  the  legislature  or  its  officers. 
Scarborough  v.  Robinson,  81  N.  C.  409.  For  when  it  will  issue  to  a  pri- 
vate corporation,  see  Am.  Ry.  Frog  Co.  v.  Haven,  3  Am.  Rep.  at  p.  383; 
26  Cyc.  338;  Hughes  v.  N.  C.  Bapt.  Church,  75  N.  J.  L.  167,  67  Atl.  66, 
which  last  case  holds,  that  the  writ  will  issue  to  re-instate  one  turned 
out  of  a  church  membership.  For  other  instances  of  the  use  of  man- 
damus, see  6  L.  R.  A.  (N.  S.)  750,  12  lb.  166,  and  notes  (to  executive 
department);  6  lb.  782,  and  note  (to  officers  of  municipal  corporation 
to  enforce  franchises  granted  by  the  corporation);  7  lb.  525,  and  note 
(to  control  the  discretion  of  municipal  officers);  20  lb.  801,  and  note 
(to  force  municipal  officers  to  perform  contracts);  1  lb.  963,  3  lb.  153, 
13  lb.  1084,  and  notes  (to  public  service  corporations  to  enforce  duties 
to  individuals);  3  lb.  1115,  20  L.  R.  A.  355,  and  notes  (to  medical  col- 
leges, etc.,  to  compel  the  issuing  of  a  diploma). 

For  statutory  provisions  in  Xorth  Carolina,  see  Pell's  Revisal,  sees.  822- 
824.  and  notes.  That  a  mandamus  will  not  issue  as  a  substitute  for  a 
writ  of  error  or  certiorari  to  review  the  judgment  of  a  court,  see  Biggs 
ex  parte,  inserted  at  sec.  8,  post.  That  mandamus  is  no  longer  a  pre- 
rogative writ  in  Xorth  Carolina,  see  Brown  v.  Turner,  70  X.  C.  at  p.  105. 
See  note  to  State  v.  Whitaker,  114  N.  C.  818,  inserted  in  sec.  2,  ante. 
See  "Mandamus,"  Century  Dig.  §  64;  Decennial  and  Am.  Dig.  Key  No. 
Series  §  28. 


LUTTERLOH  v.  BOARD  OF  COMRS.  OF  CUMBERLAXD  CO..  65  N.  C. 

403.     1871. 

Practice.     Alternative  and  Peremptory  Mandamus. 

[The  plaintiff  obtained  a  number  of  judgments  against  the  defendants, 
who  conEtlfuted  the  board  of  county  commissionprs  of  Cumberland 
county,  on  the  indeljtedness  of  the  county  to  the  plaintiff — the  judgments 
being,  in  effect,  against  the  county  as  a  municipal  corporation.  As  the 
judgments  were  not  paid,  and  as  executions  if-su^d  thereon  were  returned 
iinsaf isfifd.  the  plaintiff  undertook  to  obtain  a  mandamus  from  the  su- 
jierfor  court  of  Ciinilicrl.Tnd  enmity  to  force  the  county  coniinissioners 
to  levy  a  tax  sufflcjont  to  i)ay  Ills  judgments.  A  rule  to  show  cause,  why 
the  mandamus  should  not  Issue,  was  served  on  the  defendants.  They 
moved    to   dismiss   the    proceeding.     Motion    refused,   and    a    peremptory 


794  EXTKAOKPIN  \KN     UKMEOIKS.  \('li.    JO. 

maiulaimis  was  onlorcd,  coninianiliui;  (ho  ilofondants  to  levy  iho  tax,  etc. 
Uolt'iulants  aiipoalod.     Atliniu'ii.  | 

Dick,  J.  The  iil.-iiiitilV  Ii;is  rstiiltlislicd  his  dcltt  ;i<x;iinst  the 
rinnity  of  ("uiiiltcrlaiul  by  judiiiiit'iil  duly  dockotcd:  and  as  lie 
caiiiiot  fiil'drcc  imyiut'iit  hy  an  fxcfut  ion.  he  is  cntillcd  lo  a  writ, 
ot"  niandanuis  aiiainst  the  l)oard  of  fonnnissioncrs  (o  compel  thi'iu 
to  levy  a  tax  fof  the  satisfaction  of  said  judirnient.  (loocli  v. 
(ireirory.  (i.")  N.  ('.  14i>. 

There  is  im  piovision  in  llic  (".  ('.  1'..  i-c^nilat  ini;  the  procced- 
in«r.s  in  writs  of  mandamus,  antl  in  such  eases  "the  i)raetice  here- 
tofore in  use  may  he  adopted,  so  far  as  may  be  necessary,  to  jire- 
vent  a  failure  of  justice."  C.  C.  P.  >;  .S!I'J.  The  writ  of  mandamus 
is  an  extraordinary  remedy,  and  can  oidy  be  used  by  the  express 
order  of  a  court  of  superioi-  .iui'isdiclion.  and  is  not  ^^overned  by 
the  rules  jirescribed  for  (he  prosecution  of  oi'dinary  lepral  reme- 
dies. State  V.  Jones.  2'^  X.  C  l-l*.  It  is  not  embraced  in  the  rule 
established  in  Tate  v.  Powe.  (54  X.  C  044.  which  defines  the  dis- 
tiiu'tion  between  civil  actions  and  special  proceedin<;s. 

This  his:h  prerofrative  urit  may  be  obtained  from  the  superior 
court,  and  the  applicant  must  show  by  petition  or  affidavit  tliat  he 
has  a  specific  legal  riglit.  and  has  no  ade(|nate  Icfjal  remedy  to  en- 
force it.  If  the  ease  presented  by  the  applicant  shows  that  the 
riarhts  of  tlie  parties  are  nnadjusted.  and  there  may  be  facts  in  dis- 
pute, the  first  process  is  an  allernative  mandamus,  or  n  rule  to 
show  cause,  which  is  in  the  nature  of  an  alternative  inaiidamus. 
In  all  cases  the  defendant  is  entitled  to  reasonable  notice  to  make 
his  defense:  and  the  manner  of  service  and  th(>  day  of  return  are 
matters  within  tlie  discretion  of  the  court.  When  the  rights  and 
liabilities  of  the  parties  are  ascertained  and  determined  by  the 
.judgment  of  a  court  of  superior  jurisdiction,  and  the  judgment 
cannot  be  enforced  by  an  execution,  there  is  no  reason  why  the 
court  may  not  grant  a  peremptory  mandannis  in  the  first  instance, 
upon  a  rule  to  show  cause,  etc.  In  our  case  there  are  judgments 
of  the  court  establishing  the  rights  of  the  plaintiff;  those  rights 
cannot  be  enforced  by  execution;  the  motion  for  a  rule  to  show 
cause  was  founded  upon  affidavits;  service  of  the  rule  was  ac- 
cepted by  the  defendants,  and  only  a  technical  defense  was  made. 
"We  think  his  honor  was  right  in  granting  a  peremptory  manda- 
mus, and  the  judgment  is  affirmed. 

See  "Mandamus."  Century  Dig.  §§  325,  405;    Decennial  and  Am.   Dig. 
Key  No.  Series  §§  159,  180. 


FRY  V.  COMMISSIONERS  OF  MONTGOMERY,  82  N.  C.  304.     1880. 
Practice.     Alternative  and  Peremptory  Mandamus. 

[Plaintiff  sued  the  defendants  upon  a  debt  of  the  county,  and  asked 
judgment  for  the  debt  and  that  a  mandamus  issue  to  compel  defendants 
to  levy  a  tax  and  apply  the  amount  so  collected  to  the  satisfaction  of  his 
claim.  Defendants  did  not  answer,  and  judgment  by  default  was  en- 
tered for  the  debt  and  that  a  mandamus  issue  as  prayed  for — such  man- 


Sec.    3.]  EXTRAORDINARY    REMEDIES.  795 

damns  to  issue  at  the  expiration  of  six  months.  The  writ  was  issued 
and  served,  but  no  attention  was  paid  thereto  bj-  the  defendants.  There- 
upon notice  was  issued  to  the  defendants  to  show  cause,  if  any  they  had, 
why  a  peremptory  mandamus  should  not  issue  commanding  them  to 
levy  the  tax  and  satisfy  the  plaintiff's  judgment.  The  defendants  an- 
swered that  they  had  levied  all  the  taxes  they  were  empowered  to  levj', 
and  that  the  money  so  raised  was  entirely  consumed  in  the  payment  of 
the  current  expenses  of  the  county,  etc.  Thereupon  the  judge  ordered 
an  alias  peremptory  mandamus  to  issue  commanding  the  defendants 
to  levy  the  tax  and  pay  the  plaintiff's  judgment.  From  this  order  the 
defendants  appealed.     Affirmed.] 

DiLLARD.  J.  It  is  settled  by  the  decisions  of  this  court  that  a 
party  may  site  to  recover  a  debt  from  a  county,  and  in  the  same 
action  may  demand  a  mandamus  for  its  pajniient.  ]\IcLendon  v. 
Comrs.  of  Anson.  71  N.  C.  38;  Lutterloh  v.  Comrs.  of  Cumber- 
land. 65  N.  C.  4:03.  The  mandamus  issued  on  the  est ahlishmcnt  of 
a  debt  by  judgment  is  usually  an  alternative  mandamus  and  on 
insiitficient  cause  shown  for  non-compliance  therewith  the  course 
is  to  issue  a  peremptory  mandamus.  Tucker  v.  Citv  of  Raleigh, 
75  N.  C.  272.     ... 

Unquestionably  a  creditor  of  a  county  having  an  action  to  re- 
duce his  debt  to  judgment,  is  entitled  to  some  means  to  enforce 
payment.  He  cannot  have  a  fi.  fa.  effectual  as  on  a  judgment 
against  a  natural  person,  and  in  such  case  the  writ  of  mandaunis 
in  the  nature  of  an  execution  is  the  only  means  by  which  to  have 
any  fruit  of  his  recover^'.  On  the  rendition  of  the  judgment  the 
creditor  generally  has  an  alternative  mandamus  to  which  a  return 
is  to  be  made,  and  if  good  cause  be  not  shown  for  failing  to  do  the 
thing  required,  then  a  peremptory  mandamus  issues.  And  if  a 
peremptory  writ  issue  and  the  return  thereto  do  not  .set  forth 
obedience  or  a  good  legal  excuse  therefor,  it  is  the  creditor's  right 
to  move  for  compulsory-  obedience  by  process  of  attachment  (for 
contempt). 

In  this  case  the  first  writ  issued  was  in  form  peremptory,  but  the 
creditor  treated  it  as  an  alternative  writ  in  the  form  of  his  notice 
calling  on  defendants  to  show  cause  again.st  the  issue  of  a  per- 
emptory one,  and  so  was  it  regarded  by  his  honor;  and  thus  de- 
fendants had  the  same  opportunity  of  defense  against  the  issuing 
of  the  last  writ,  as  if  the  first  had  been  technically  an  alternative 
mandamus.  This  writ,  we  have  said,  is  in  the  nature  of  an  execu- 
liiMi.  by  means  of  which  payment  is  to  be  had.  Tt  is  for  the  cred- 
itor's benefit  and  may  be  issued  or  not.  as  he  may  ask.  The  cred- 
itor may  enforce  a  return  to  the  writ  or  not.  and  may  waive  or  in- 
sist on  process  of  attachment  for  disobedience.  The  court  will 
not  be  an  actor  and  ex  mero  motu  compel  the  earliest  possible  rais- 
ing of  the  money  in  the  case  of  an  individual  creditor,  but  will 
aj)[ily  the  law  ;itid  a\v;inl  whatsoever  prrwcss  the  law  allows,  if 
moved  so  to  flo  by  the  part>-  to  be  benefited 

No  good  reason  aj)pejii-s  to  us  why  the  pbiintitV.  t-viii  if  the  lir^>t 
writ  were  a  perem[>tory  inatidannis.  might  not  waive  application 
fop  process  of  attachment  on  tin-  coinintr  in  til"  tin-  iTtuiii  thereto,. 


796  KX'l'UAOKUlN  AKN      IvKMIlOIKS.  \('ll.     10. 

and  luivo  an  alias  pcri'inpfory  writ,  tluis  ^ivin^  tld'cmlaiils  an- 
ittluT  opportnnity  to  oltry  tlir  ctiiniiiaiul  of  Iho  law. 

Upon  the  tiiiostion  ol'  the  sntlicicncy  of  the  cause  shown  by  de- 
fomlants  in  answer  to  plaintitV's  notice  foi-  the  writ  to  anthorize 
l>nx'ess  oi'  attachntent.  it  is  not  necessary  to  express  any  opinion, 
as  tlie  creditor  did  not  ask  for,  nor  did  his  honor  pass  npon  his 
right  to  have  sucli  process.  The  complaint  made  of  his  honor's 
order  for  a  peremptoiy  mandanuis  on  the  motion  of  the  jjlaintilV, 
instead  of  proceedinsi:  of  his  own  motion  as  for  contempt  by  at- 
tachment, seems  to  us  most  nnrea.sonable.  The  writ  as  issued  was 
an  indulgence  to  defendants,  and  gave  further  day  of  obedience, 
and  it  seems  singular  that  defendants  or  any  debtor  should  com- 
plain of  not  being  forced  to  pay  a  debt  as  (piickly  as  sti-ict  law 
might  permit. 

We  think  there  was  no  error  in  ordering  the  alias  peremptory 
mandanuis  as  moved  for  by  plaintiff,  and  the  judgment  below  is 
affirmed. 

"It  is  settled  that,  ordinarily,  the  only  remedy  of  a  judgment  creditor 
of  a  county  is  a  writ  of  mandamus  to  compel  its  commissioners  to  levy  a 
tax  to  pay  the  debt.  Gooch  v.  Gregory,  65  N.  C.  142;  2  Dillon  on  Mun. 
Corp.  (3rd  ed.)  sees.  855,  856;  Pegram  v.  Comrs.,  64  N.  C.  557;  Lutter- 
loh  V.  Comrs.,  65  N.  C.  403;  Rogers  v.  .Jenkins,  98  N.  C.  129.  Where  a 
plaintiff  brings  his  action  to  recover  the  debt,  and,  in  his  complaint, 
demands  a  mandamus,  as  well  as  a  judgment  for  the  debt,  the  courts 
issue  first  an  alternative  mandamus,  and  if  the  answer  thereto  be  in- 
sufficient, a  peremptory  mandamus  is  allowed.  Fry  v.  Comrs.,  82  N.  C. 
304."  Hughes  v.  Comrs.,  107  N.  C.  at  j).  605,  12  S.  E.  465.  See  further 
on  this  subject.  26  Cyc.  470,  487.  For  the  general  practice  in  North 
Carolina  in  mandamus  proceedings,  see  Pell's  Revisal,  sees.  822-824,  and 
notes.  "The  rule  of  res  judicata  applies  to  the  judgment  for  a  peremp- 
tory writ  of  mandamus,  and  all  questions  raised,  or  which  could  have 
been  raised,  in  opposition  to  granting  the  writ,  are  concluded  by  the  is- 
sue of  the  writ,  and  cannot  be  raised  again  in  resisting  obedience,  or  in 
justification  of  disobedience."  26  Cyc.  496.  See  "Mandamus,"  Century 
Dig.  §  231;   Decennial  and  Am.  Dig.  Key  No.  Series  §  111. 


Sec.  4.     Quo  "Warranto. 

REX  V.  MARSDEN  ET  ALS.,  3  Burrows,  1812.  1817.     1765. 
Definition  and  Nature  of  the  Writ  of  Quo  Warranto.    Is  It  a  Civil  or 

Criminal  Proceeding? 

[Sir  Fletcher  Norton  moved  for  an  information  in  the  nature  of  a 
quo  warranto  against  the  defendants  for  holding  a  ])ublic  fair  or  mar- 
ket at  Wakefield.     Among  other  things,  it  was  said  by  Wilmot,  J.:] 

The  present  question  is  "whether  the  crown's  name  can  be  made 
use  of  at  the  instance  of  a  subject,  for  this  particular  purpose." 
The  immediate  injury  is  to  the  crown;  the  rest  is  consequential. 
The  old  writ  of  quo  warranto  is  a  civil  writ,  at  the  suit  of  the* 
crown:  it  is  not  a  criininal  prosecution.  Tt  probably  dropped 
with  eires:  which  is  the  more  likely,  because  the  cpio  warranto  was 


Sec.    4.]  EXTRAORDIXAKY    REMEDIES.  797 

to  be  determined  in  eire.  But  be  that  as  it  may.  this  was  the  true 
old  way  of  inquiring  of  usurpations  upon  the  ero\m.  by  holding 
fairs  or  markets:  viz.  by  writs  of  quo  warranto.  Then  information 
in  the  nature  of  a  quo  warranto  eame  into  use.  and  supplied  their 
place. 

See    "Quo  Warranto,'"  Century  Dig.  §  28;   Decennial  and  Am.  Dig.  Key- 
No.  Series  §  26. 


AMES  V.  KANSAS,  111  U.  S.  449,  460,  461.  4  Sup.  Ct.  437.     1883. 
History.     Definition.     Practice.     Criminal  or  Civilt 

(A  resolution  of  the  legislature  of  Kansas  directed  the  attorney  gen- 
eral of  that  state  to  institute  proceedings  "in  the  nature  of  quo  war- 
ranto against  the  Kansas  Pacific  Railroad  Co.  for  an  abandonment,  etc., 
of  its  powers  as  a  corporation,  and  to  institute  similar  proceedings 
against  the  Union  Pacific  Railway  Co.  for  usurping,  holding,  etc.,  the 
powers,  etc.,  of  the  Kansas  Pacific  Railway  Co.  in  the  state  of  Kansas." 
Under  this  resolution  the  attorney  general  proceeded  against  these  cor- 
I)orations  in  the  supreme  court  of  Kansas.  The  railroad  companies  filed 
petitions  to  remove  the  proceedings  from  the  state  court  to  the  circuit 
court  of  the  United  States.  Each  case  was  docketed  in  the  circuit  court 
of  the  United  States,  Ijut  that  court  remanded  the  cases  to  the  state 
court,  and  the  railroad  companies  carried  the  cases  to  the  supreme  court 
of  the  United  States  by  writ  of  error.  Reversed.  Only  so  much  of  the 
opinion  as  discusses  the  nature  of  the  remedy  by  quo  warranto,  is  here 
inserted.  If  the  proceeding  was  of  a  civil  nature  at  law  or  in  equity, 
it  was  removable,  in  this  instance,  under  the  acts  of  congress,  otherwise 
if  the  proceedings  were  criminal  in  their  nature. 1 

^VAITE.  C.  J.  .  .  .  The  original  common-law  writ  of  quo 
warranto  was  a  civil  writ,  at  the  suit  of  the  crown,  and  not  a  crim- 
inal prosecution.  Rex  v.  ]\Iarsden.  '-^  Burr.  1S17.  It  was  in  the 
nature  of  a  wi'it  of  i-iglit  by  the  kiii'^^  against  one  wlio  usui'ix'd  or 
claimed  franclii.ses  or  liliei'ties  to  inciuire  by  what  right  he  chiimed 
them  (Com.  Dig.  "Quo  Warranto."  A),  and  the  first  process  was 
summons.  Id.  C.  2.  This  writ,  however,  fell  into  disuse  i)i  Eng- 
land ccntni'ics  ago.  and  its  i)laci'  was  sui)|)lie(l  by  an  information 
in  the  nature  of  a  quo  warranto,  which,  in  il.s  oi-igin.  was  "a  crim- 
inal method  of  prosecution,  as  well  to  punisli  tiie  nsur])er  by  a  fine 
for  the  usurpation  of  the  franchise  as  to  oust  hiin.  or  seize  it  for 
the  crown."  3  Bl.  C'onnn.  263.  Tiong  bcfoiv  oui"  revolution,  how- 
ever, it  lo.st  its  character  as  a  criminal  proceeding  in  evei'ything 
except  form,  and  was  "applied  to  the  mere  purpo.ses  of  trying  llie 
civil  right,  seizing  the  franchise,  or  ousting  the  wrongful  pos- 
sessor-, the  fine  being  noniinal  only."  ."'i  HI.  ("omuii.  supra;  The 
King  v.  Francis.  2  Term  K.  4S4:  j'.jic.  Ahr-.  til.  "information." 
I);  2  Kyd.  Corp.  4:5!).  And  su<-li.  \\itli(»ut  an\  special  legislation 
to  that  effect,  lia.s  iilways  lieen  its  cluiraciir  in  many  of  the  stat<'s 
of  the  Tnioti.  Com.  v.  lirowiie.  1  S(  r<_'.  ^;  \\.  ■{>^2:  Teople  v.  Kich- 
ard.son.  4  C(»w.  1(»2.  note;  State  v.  Ilardie.  1  Ired.  IS;  Stal<"  Hank 
v.  State.  1  Hlackf.  272;  State  v.  I.ingo.  26  Mo.  4!»S.  Tn  some  of  the 
states,  howevei'.  it  has  lieen  treated  as  criminal  in  fnrm,  imd  iii;it- 


7i)S  EXTKAOUniN  AWV    HKMEDIES.  \('h.     10. 

tiTs  of  plfiiilin;^  ami  jurisilii-lidii  "iox  I'liiril  ;u-curdiii^ly.  Such  is 
the  rule  in  New  York.  Wiseonsin.  New  Jei-sey,  Arkansas,  and  Illi- 
nois, but  in  all  these  states  it  is  used  as  a  eivil  remedy  only.  Atty. 
(len.  V.  rtiea  Ins.  Co..  2  Johns.  Ch.  ;{77 ;  IVoj^lc  v.  Jones.  IS  Wend. 
tiUl;  State  v.  \Vi'st  Wisconsin  Ky.  Co..  ;U  Wis.  21:5;  State  v.  Ash- 
ley, I  Ark.  27!);  State  v.  Koe.  2  Dut.li.  217.  This  being  the  eon- 
dition  of  the  oUl  law.  it  .seems  to  us  elear  that  the  elYeet  of  letyisla- 
tit>n  like  that  in  Kansas,  as  to  the  mode  of  ])roe(>('(linjj:  in  (juo  war- 
ranto cases,  is  to  relieve  the  old  eivil  remedy  of  the  burden  of  the 
eriminal  form  of  proceeding  with  whieli  it  had  become  incum- 
bered, and  to  restore  it  to  its  original  position  as  a  civil  action  for 
the  enfoivement  of  a  civil  right.  The  right  and  the  remedy  are 
thus  brought  into  harmony,  and  parlies  are  not  driven  to  the  ne- 
cessity of  using  the  form  of  a  criminal  action  to  determine  a  civil 
right.  This  has  been  the  construction  put  upon  similar  laws  m 
other  states.  State  v.  McDaniel.  22  Ohio  St.  3(il  ;  Central  «& 
G.  K.  Co.  V.  Taylor,  5  Colo.  42;  Com.  Jiank  of  Rodney  v.  State, 
4  Smedes  &  ]\I.  490,  504.  These  suits  are  therefore  of  a  civil  na- 
ture. 

See    'Quo  Warranto,"  Century  Dig.  §  28;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  26. 


REX  v.  LEIGH,  4  Burrows,  2143,  2145.     1768. 

Quo  Warranto,  or  Proceedings  in  the  Nature  of  Quo  Warranto,  by  the 

Crown.    Burden  of  Proof. 

I  Information  in  the  nature  of  quo  warranto.  Twelve  issues  were 
taken,  and  five  were  withdrawn  by  the  prosecutor.  The  defendant 
claimed  the  office  in  controversy  under  two  titles,  i.  e.,  by  prescription 
and  by  charter,  but  he  relied,  in  his  plea,  upon  the  prescription  only, 
and  that  was  found  against  him.  There  was  a  motion  in  arrest  of  judg- 
ment on  the  ground  that  it  appeared  upon  the  whole  record  that  de- 
fendant's title  to  the  office  was  good  under  the  charter,  and  therefore 
no  judgment  could  be  entered  against  him,  even  if  the  jury  had  found 
against  him  on  the  title  claimed  by  prescription.  The  other  side  insisted 
that  the  defendant,  having  set  up  title  by  prescription  and  having  failed 
to  set  up  the  title  by  the  charter,  could  not  now,  after  verdict,  set  up  any 
defense  growing  out  of  the  charter.  Motion  in  arrest  of  judgment  over- 
ruled.] 

Lord  ]\ransficld  asked  if  they  [the  defendant's  counsel]  could 
cite  any  case  where  judgment  had  been  refused  to  the  crown  upon 
an  information  in  nature  of  quo  warranto,  where  the  defendant 
failed  in  the  title  he  had  set  up.  And  it  seemed  acknowledged, 
that  there  was  none.     At  least,  none  were  mentioned. 

AYhereupon  his  lordship  proceeded  to  observe,  that  in  civil 
eases,  if  the  plaintiff  have  no  cause  of  action,  he  cannot  have  .iudg- 
ment.  But  this  manner  of  proceeding  is  quite  different.  For  if 
ilie  dffendanf  has  usurped  the  francliisr  u-llhout  a  lillf,  ihr  king 
vuist  have  jtidgmpiit.  The  defendant  therefore  is  obliged  to  show 
a  title;  and  the  king  has  no  need  to  traverse  any  thing  but  the 


Sec.    4.]  EXTRAORDINARY    REMEDIES.  799 

title  set  up.    If  any  one  material  issue  is  found  for  the  crown,  the 
crown  must  have  judgment.     .     .     . 

^Ir.  Justice  Yates  proceeded — The  defend-ant  in  quo  warranto 
is  called  upon  to  show  his  title;  to  show  "quo  warranto  he  claims 
the  franchise."  He  accordingly  shows  his  title.  The  crown  has 
only  to  answer  this  particular  claim.  He  must  at  once  show  a  com- 
plete title.  If  he  fails  in  it,  or  in  any  chain  of  it.  judgment  must 
be  given  against  him.  Here,  the  defendant  has  set  up  a  particular 
title;  this  title,  upon  which  he  grounds  his  claim  to  the  franchise, 
is  found  again.st  him.  He  cannot  now  depart  from  it.  Therefore 
the  crown  is  hei-e  entitled  to  judgment. 

See  "Quo  Warranto,"  Century  Dig.  §  63;  Decennial  and  Ani.  Dig.  Key 
No.  Series  §  55. 


SAUNDERS  V.   CATLING.  81  N.  C.  298.     1879. 

To  Try  Title  to  a  Public  Office,  Under  the  Code  Practice.     Nature  of  the 

Common  Laic  Remedy.     Quo  Warranto  and  Mandamus  Distinguished. 

fAotion  to  try  the  title  to  a  public  office.  Judgment  against  the  plain- 
tiff, and  he  appealed.  Affirmed.  The  action  was  brought  by  the  plaintiff 
in  his  oxen  name  and  not  by  the  attorney  general  in  the  name  of  the 
people,  upon  the  relation  of  the  plaintiff.  The  facts  appear  in  the  be- 
ginning of  the  opinion.] 

Ashe.  J.  This  is  an  action  brought  by  the  plaintiff  in  his  own 
name  against  the  defendant,  to  determine  the  question  of  title  to 
tlie  office  of  clerk  of  the  superior  court  for  the  county  of  Hertford; 
and  the  court  is  asked  to  oust  the  defendant  and  have  the  plaintiff 
inducted,  and  give  him  a  judgment  for  the  fees  and  emoluments 
of  the  office. 

We  think  the  plaintiff  has  mistaken  his  remedy,  and  it  is  not 
competent  for  the  court  to  give  him  the  relief  he  seeks  by  this  ac- 
tion. Questions  as  to  the  title  and  possession  of  offices  at  common 
law  wt-rt'  determined  by  the  writ  of  quo  warranto,  which  was  the 
appropriate  leinedy  in  such  cases.  It  was  originally  a  high  pre- 
i<>gati\<'  writ  issued  out  of  chancery,  and  was  usi^d  by  the  crown 
of  Great  Britain  unjustly  and  oppressively  upon  its  subjects,  un- 
til it  was  modified  juid  sti'ipped  of  many  of  its  liai'sher  features 
by  what  were  called  the  statutes  quo  wari-anto;  and  then,  after  the 
justices  in  eyre  were  displaced  by  th(»  judges  of  the  superior 
courts,  it  fell  into  disuse,  and  the  information  in  nature  of  a  writ 
of  fjiKi  w;irr;inl(t  oblnined  in  its  stead,  and  has  ever  sine*-  been  the 
remedy  in  Entrland  aiul  in  this  country  by  whicirthe  title  to  an 
office  cHH  be  established  by  judii-ial  determination.  It  is  th(>  only 
appro|>nat<^'  and  efHcjicious  remedy,  sanctioned  l)y  .in  ovei-wlielm- 
int'  cui-rent  of  authority  both  in  this  state  and  in  Mntrland.  Higli 
(m  I3.\.  Leg.  Rem.  sees.  49,  5:^.  77;  Kx  ])arte  Dauglitry.  L'S  X.  ('. 
If).');  State  V.  Hardie.  23  N.  V.  4'_'.  Hut  the  original  writ  of  (|\io 
wfirninto.  as  well  as  proeeedings  by  information  in  the  nature  of 
f|Uo  wjirranto.  has  been  .-ilmlisbed.  ('    (\  V   s.  llTi'J  •.  l)ut  il   is  tliecein 


800  KXTUAoiJuiNAivV   ui:mi:i»ii':s.  \('Ii.   10. 

providtMl  tli;it  tlic  I'l'iiicdics  luM"('t(>f(HT  (ihl.-iiiiiiltlc  in  lliosc  ['onus 
UKiv  he  (iltlniui'd  In-  civil  :icti(tiis  uinicr  tlif  provisions  of  clKiplcf  '_', 
tit.' 15. 

\Vlia1  aro  lliosc  piovisions ?  Scclioii  ;?(Ui  provides  "that  an  ac- 
tion may  he  hrouirht  hy  the  atloi-ney  «j:e]ieral  in  llic  name  of  tlie 
pi'oph'  of  tile  slate  upon  his  own  information,  oi-  upon  the  com- 
plaint o\'  any  pri\atc  paiMy  ajrainst  ]>ai'ties  otVendin^  in  the  fol- 
lowing; ca.st's:  l.AVhen  any  ])erson  shall  usur[).  intrude  into  or  un- 
lawfully hold  or  exercise  any  ]nihlie  olTiee.  civil  or  military,  or  any 
franchise  within  this  state,  or  any  oflice  in  a  corporation  created 
by  the  anthority  of  this  state;  or,  2.  "When  any  public  officer,  civil 
or  niilitaiy,  shall  have  done  or  suffered  an  act  which,  by  the  pro- 
vi.sions  of  law.  shall  make  a  forfeiture  of  his  office;  or  3.  "When 
any  association  or  numht-r  of  {persons  shall  act  within  this  state  as 
a  corjioration  without  being  duly  incorporated."  By  section  368, 
amended  by  the  act  of  1874-75.  ch.  76.  it  is  provided  that  wlien  an 
action  shall  be  broupfht  by  the  attorney  jreneral  on  the  relation  or 
information  of  a  j)erson  having;  an  interest  in  the  (piestion.  the 
name  of  sucb  person  shall  be  joined  with  the  state  as  nlaintiflf.  and 
in  every  such  ease  the  attorney  general  shall  require,  as  a  condi- 
tion for  brintrinc:  such  action,  that  satisfactory  security  shall  be 
given  to  indenniify  the  state  against  costs,  etc.  And  section  361> 
provides  how,  at  the  instance  of  the  attorney  general,  the  defend- 
ant may  be  arrested  and  held  to  bail. 

So  that,  although  the  proceeding  by  information  in  nature  of 
the  writ  of  (pio  warranto  has  been  abolished,  it  will  be  seen  from 
these  sections  of  the  Code  that  the  remedy  to  be  pursued,  when- 
ever the  controversy  is  as  to  the  validity  of  an  election  or  the 
right  to  hold  a  public  offiee.  is  by  an  action  in  the  nature  of  a 
writ  of  quo  warranto.  It  is  not  merdij  an  action  to  redress  the 
grievance  of  a  private  person  who  claims  a  right  to  the  office,  hut 
the  public  has  an  interest  in  the  question  which  the  legislature  htj 
these  provisions  of  the  Code  seems  to  have  considered  paramount 
to  that  of  the  private  rights  of  the  person  aggrieved:  Hence,  the 
requirement  that  such  action  must  be  brought  by  the  attorney  gen- 
eral in  the  name  of  the  people  of  the  state,  and  upon  his  own  in- 
formation without  the  relation  of  a  ]u*ivate  person  when  the  per- 
son aggrieved  doe.s  not  see  ])roper  to  assert  his  right;  and  when 
the  claimant  does  seek  redress,  he  must  be  joined  in  the  action, 
but  still  it  must  be  brought  by  the  attorney  general  in  the  name 
of  the  people.  Such  is  the  construction  which  has  been  given  to 
these  sections  of  the  Code  bv  numerous  decisions  of  this  court. 
Patterson  v.  Hubbs.  65  N.  C.  119;  Tuck  v.  Hunt.  73  N.  C.  24; 
People  V.  Hilliard.  72  N.  C.  169;  People  v.  :\rcKee.  68  N.  C.  429; 
Brown  v.  Turner.  70  X.  C.  93.  One  of  the  headnotes  to  this  last 
case  is  calculated  to  mislead.  It  reads.  "Any  person  having  a 
right  to  an  office  can.  in  his  own  name,  bring  an  action  for  the 
]»urpose  of  testing  his  right  a.s  against  one  claiming  adversely;"' 
but  in  looking  into  the  case  it  will  be  found  that  the  court  did  not 
entertain  any  such  y)roposition,  but  just  the  reverse.    That  was  art 


Sec.    4.]  EXTRAORDINARY    REMEDIES.  801 

application  for  a  mundannis.  where  the  parti/  aggrieved  )nay 
bring  the  action  in  Jiis  own  natnc,  and  the  court  held  that  where 
the  right  or  title  to  an  office  is  put  in  issue,  jnandamus  is  not  the 
proper  remedy,  but  the  appropriate  remedy  is  by  an  action  i)t  the 
nature  of  a  ejuo  warranto;  and  ]Mr.  Justice  Bynum.  who  delivered 
the  opinion  in  the  case,  says  that  "no  stress  is  laid  upon  the  fact 
that  the  action  is  not  on  the  relation  of  the  attorney  general,  for 
we  are  of  opinion  that  under  the  liberal  provisions  of  the  Code  of 
Civil  Procedure,  any  party  having  a  right  can  sue  in  his  own 
name  in  all  cases,  except  when  otherwise  expressly  provided.  In 
modem  practice,  mandamus  is  not  a  prerogative  writ,  but  an  or- 
dinary process  in  cases  to  which  it  is  applicable,  and  every  one  is 
entitled  to  it  when  it  is  the  appropriate  process  for  asserting  the 
right  claimed."  In  that  case,  the  action  being  an  application  for 
mandamus,  the  action  w-as  properly  brought,  so  far  as  the  parties 
thereto  were  concerned,  by  the  plaintifT  in  his  own  name;  but  in 
our  case  it  is  otherwise  expressly  provided — it  falls  within  the 
exception  mentioned  by  Mr.  Justice  Bynum,  and  the  provisions  of 
the  Code  in  that  respect  sliould  have  been  followed. 

In  the  view  we  have  taken  of  this  case,  we  deem  it  unnecessary 
to  consider  it  upon  its  merits,  but  dismiss  the  action  and  leave  the 
plaintiff  to  resort  to  his  appropriate  remedy.  The  judgment  of 
the  court  below  is  affirmed. 

See  notes  to  La  Grange  v.  State  Treasurer,  24  Mich.  468,  inserted  in 
sec.  3,  ante.  See  "Quo  Warranto,"  Century  Dig.  §  13;  Decennial  and 
Am.  Dig.  Key  No.  Series  §  11. 


HAXKINS  V.  NEWELL,  7.5  X.  J.  L.   26,  66  Atl.  929.     1907. 
Quo  Warranto  for  Usurping  Office  in  a  Private  Corporation. 

[Proceeding  in  the  name  of  the  state  of  New  Jersey  upon  the  relation 
of  Hankins  et  al.  against  the  defendants  who  held  offices  in  a  cemetery 
association  which  iia.s  a  private  corporation.  The  proceeding  was  a  peti- 
tion for  a  writ  of  quo  warranto.     Writ  granted.] 

Garrison,  J.  A  petition  for  a  writ  of  quo  warranto  was  filed 
and  a  rule  thereon  made  requiring  the  respondents  to  show  cause 
by  what  authority  they  claimed  to  have,  use,  and  enjoy  the  office 
and  privileges  of  trustees  of  the  Bordentown  Cemetery  Associa- 
tion; the  petilionei-s  claiming  1o  have  been  elected  to  such  office 
of  trustees  and  that  the  defendants  have  usur]»ed  the  said  office. 

Tlic  i-(  spoiidcnls  contend  in  liniinc  Ihat  the  writ  of  (jun  war- 
ranto cannot  go  to  inquire  into  an  alleged  usui'pafinn  of  an  office 
in  a  j)rivate  cor|»ora1  ion. 

Such  is  the  English  rule.     Sliortt  on  Qur)  War.  p.  120. 

The    .Xnicrican    ruli-  differs   in   this   respect   from   the   English. 

.Mr.  \\\\:\\.  in  his  work  on  (^uo  AVarranto.  says:  "The  propi-idy  of 

an  informalion  in  the  nature  of  a  qno  wairanio  as  a  remedy  for  an 

unlawful  nsnrpalion  of  an  office  in  a  nui-cly  private  corporation 

Remedies — 51. 


ii,{)'2  i:.\TKAOKl)lNAKV     KKM  KDIKS.  [(' ll .     l(>. 

was  foniiri'ly  iuvolvrd  in  some  tluiilit.  Imt  tlir  <nu'srKui  may  now 
lu"  iviranlccr  as  si'ttU'il  in  this  roimli-y.  This  si^'cics  ol"  ivinody 
hiMiiirmMUTally  t'luphvycd  in  Kiiiihiiul  in  i-asi's  of  public  or  niuuici- 
pal  corporal itms.  tl\c  Kiiixlish  prcrcchMits  are  iiiapplicahlo  to  this 
partii'iUar  (piostioii  and  its  solution  nnisl  he  referred  to  the  inore 
jjeneral  principles  uinhM-iyinj;  the  jurisdiction  in  (pu'stion.  Tested 
by  these  principles,  an  intrusion  into  an  otVice  of  a  merely  i)rivate 
corporation  may  in  this  country  be  corrected  by  information  with 
the  same  propriety  as  in  cases  of  public  or  miniieipal  corporations, 
since  there  is  m  botli  cases  an  inifouncU'd'claim  to  the  exercise  of 
a  cori^orate  franchise  amonntiniJ:  to  ;i  usurpation  of  the  privilege 
granted  by  the  state."'     IliKli  <'ii  Hxtraord.  Leg.  Rem.  §  G5;J. 

As  early  as  the  year  1827  the  writ  of  (pio  warranto  was  so  used 
in  this  court.    State  v.  Crowell.  !>  N.  J.  Law.  •¥.)(). 

The  provisions  of  the  forty-second  section  of  the  corporation 
act  for  a  summary  review  of  corporate  elections  have  no  bearing 
upon  the  present  question  for  the  reason  that  such  provisions  when 
taken  in  connection  with  the  other  re(|uirements  of  the  ai^t  are 
confined  to  elections  in  corjiorations  having  stock.  In  re  Election 
of  Cedar  Grove  Cemetery  Compiiny,  (il  N.  J.  Law,  422,  39  Atl. 
1024. 

The  principal  case  holds  directly  contrary  to  the  ruling  in  Eliason  v. 
Coleman,  86  N.  C.  235.  See  Pell's  Revisal.  sec.  827  et  seq.  and  note  that 
the  statute  construed  in  86  N.  C.  235,  is  the  same  as  the  present  statute 
as  to  quo  warranto  for  offices  held  in  a  private  corporation.  For  man- 
(laDiiis  to  induct  one  into  office  in  a  private  association  or  corporation, 
see  Rex  v.  Barker,  ante,  section  3.  See  "Quo  Warranto,"  Century  Dig. 
§  21;    Decennial  and  Am.  Dig.  Key  No.  Series  §  20. 


THE   STATE   v.   THE   PATERSON   AND   HAMBURG   TURNPIKE   CO., 

21  N.  J.  L.  9.     1847. 
Quo  Warranto  Against  Usurpers  of  Corporate  Franchises.    Private  Cor- 
porations. 

I  Application  by  private  individuals  for  leave  to  file  an  information 
in  the  nature  of  a  quo  warranto  in  the  name  of  the  attorney  general, 
upon  the  relation  of  Sydney  Ford  et  als.,  against  the  defendant  corpora- 
tion, for  an  alleged  violation  of  its  charter  "and  for  the  purpose  of  seiz- 
ing its  privileges  into  the  hands  of  the  state."  The  defendant  was  a 
turnpike  company,  and  the  casus  belli  was  its  inefficiency  in  construct- 
ing and  maintaining  its  turnpike.     Applcation  denied.] 

Carpenter.  J.  This  is  a  private  apj^lication  in  behalf  of  re- 
lators, and  not  a  proceeding  instituted  by  the  attomey  general. 
Private  individuals  ask  the  permission  of  the  court  to  use  the 
name  of  the  state  and  the  process  of  the  law\  If  the  attorney  gen-, 
eral  on  behalf  of  the  state  was  about  to  institute  this  proceeding, 
he  need  not  ask  the  permission  of  this  court  for  that  purpose. 
The  institution  of  proceedings  of  this  character  at  the  instance  of 
relators,  under  the  leave  of  the  court,  is  authorized  by  statute,  and 
only  by  statute.    No  instance,  said  Lord  Mansfield,  in  R.  v.  Mars- 


Sec.    4.]  EXTRAORDINARY   REMEDIES.  803 

den.  1  W.  1)1.  580.  has  been  produced  of  information  in  nature  of 
quo  warranto  before  the  statute  of  9  Anne,  imless  filed  Ijy  the  at- 
torney general.  The  courts  at  common  law  and  in  cases  not  within 
the  statute,  have  no  authority  to  direct  such  information  and 
leave  the  matter  to  the  discretion  of  the  attorney  general.  Ibbot- 
s;on's  Case.  cas.  temp.  Ilardw.  261 :  Sir  "Wm.  Lowther's  Case.  2  Ld. 
Raym.  1400. 

Our  act  {Rex.  L.  206)  is  copied  substantially  from  the  statute 
of  9  Anne.  c.  20.  The  English  statute  provides  for  the  case  when 
any  persons  shall  usurp  etc..  any  corporate  office  or  franchise;  the 
language  of  our  statute  is  more  extensive,  and  applies  to  the  in- 
trusion into,  or  unlawful  holding  of  any  office  or  franchise  within 
this  state.  In  regard  to  the  present  question,  we  apprehend  the 
same  construction  applies  to  both  statutes.  An  information  for 
the  purpose  of  dissolving  a  corporation,  or  seizing  its  franchises, 
cannot  be  prosecuted  in  the  name  of  the  state,  at  the  relation  of 
private  persons,  though  leave  be  asked  of  the  court.  Such  pro- 
ceeding can  be  instituted  only  by  the  attorney  general  on  the  part 
of  the  state,  either  merely  ex  officio,  or  under  special  direction 
from  the  proper  authority  .  The  statute  of  9  Anne  extends  only  to 
individuals  usurping  offices  or  franchises  in  a  corporation,  and 
not  to  the  corporation  as  a  bodv.  Com.  v.  Union  Ins.  Co..  5  INIass. 
230;  Com.  V.  Fowler.  10  Mass.  295:  R.  v.  Carmarthen,  2  Bur.  869, 
1  W.  Bl.  187:  R.  V.  Ogden.  10  B.  &  C.  230:  R.  v.  White,  5  Ad.  & 
VA.  613;  Bac.  Vbi-.  tit.  "Information."  D.  This  distinction  is  well 
settled,  and  is  a  safe  and  proper  rule.  The  state,  said  C.  J.  Par- 
sons in  a  ea.se  cited,  may  waive  any  breaches  of  any  condition  ex- 
press or  implied,  on  which  tlie  corporation  was  created:  and  the 
court  cannot  for  ought  not)  to  give  judgment  for  the  seizing  of  the 
frauchi.se  of  any  corporation  unless  the  state  itself  be  a  party  in 
interest  in  the  suit,  and  thus  assents  to  the  judgment. 

Who  can  bring  quo  warranto  against  private  corporation?  1  L.  R.  A. 
(N.  S.)  826;  for  when  such  proceeding  is  barred  by  laches,  see  14  lb. 
?.?,('>.  and  note.  See  Pell's  Revisal.  sec.  1198,  and  notes,  for  the  practice 
in  .\orth  Carolina  in  such  cases.  See  "Quo  Warranto,"  Century  Dig. 
§  41;    Decennial  and  Am.  Dig.  Key  Xo.  Series  §  34. 


CAIN    V.    BROW.V,    111    .Mich.   fi.'.T,   f.r.S.   CCI,   7    N.    W^   337.     1897. 
Quo   Warranto   to  Dissolve  a  Municipal   Corporation. 

(Attempt  to  dissolve  a  munlcii)al  coriioration  l)y  rpio  warranto.  The 
nature  of  the  proceeding  is  set  out  in  the  bc>,'iiiniiig  of  tlic  opinion.  Tho 
lower  court  gave  judgment  against  the  defendant.     Reversed. 

The  corporation  attacked  was  a  village  duly  chartered  by  the  legisla- 
ture. The  i)laintlffs  ground  of  attack  was  an  alleged  repeal  of  the 
charter  in  18!tl  by  poi)Ular  vote.  An  ad  of  the  legislature  permitted  the 
inhabitants  of  the  village  to  vacate  its  charter  by  popular  vote.  There 
was  a  vote  taken  but  the  respondent.  Brown,  denied  that  the  vote  was 
legally  taken,  because  of  irregularities  set  out  in  his  answer.  Tho  plain- 
tiff failed  to  nhow  a  comiiliance  with  tiie  statute  authorizing  the  dis- 
solution  by   popular  vote.] 


S04  K\'i'KAoi{i>iN  \K•^    1vi:mi:i>ii:s.  [Ch.  JO. 

MoNTtJOAtERY.  J.  This  pnu-iM'tlinir  orifzitwitctl  in  the  circuit 
court  of  LnpoiT  i-oimly.  where  ;in  jipplicjition  was  uiiuU'  hy  tho  re- 
lators Tor  a  writ  of  uiaiKhiimis.  direcled  lo  the  resiXJiuU'iit.  re- 
(piiriiiir  liini  to  file  mx  in  format  ion  in  tlio  nature  of  a  (pio  warranto 
against  l>a\  id  Donaldson  and  other  ofHeers  of  the  village  of  Attica. 
in  Lapeer  county.  The  writ  of  niandannis  was  directed  to  issue 
hy  the  ciriMiit  judire.  and  tliat  orcU'r  is  hi'ouglit  hefore  us  for  re- 
view on  ci-rtiorari.  .  .  .  In  Dill.  ^Mun.  Corp.  §  112,  the  rule  is 
laid  down  that  :  "lidess  otlienvise  specially  provided  by  the  legis- 
lature, the  nature  and  constitution  of  our  nnniicipal  corporations. 
as  well  as  tlie  ])ur|ioses  they  are  created  to  sul)serve.  are  such  that 
they  can  oidy  he  ili.ssolved  hy  the  consent  of  the  legislature.  They 
may  become  inert  or  dormant,  or  their  functions  may  be  sus- 
pended, for  want  of  officers  or  of  inlia])itauts;  but  dissolved,  when 
created  by  an  act  of  the  legislature,  and  once  in  existence,  they 
cannot  be.  by  ri'ason  of  any  default  or  abuse  of  the  powers  con- 
ferred, eithei-  on  the  part  of  the  officers  or  inhabitants  of  the  in- 
corporated place.  As  they  can  exist  only  by  legislative  sanction, 
so  they  cannot  be  dissolved  or  cease  to  exist  except  by  legislative 
consent  or  i)ursuant  to  legislative  provision."  This,  we  think,  is 
a  correct  statement  of  the  law  upon  the  subject,  and  it  follow-s 
frorii  this  that  the  relators,  before  invoking  the  aid  of  the  court, 
.should  be  prejiarcd  to  show  that  the  village  of  Attica  was  dissolved 
in  1891.  by  action  taken,  according  with  the  provisions  of  the 
statute.     .     .     . 

See  28  Cyc.  252;  1  L.  R.  A.  (X.  S.)  826,  21  lb.  685,  and  notes.  For 
the  history  of  the  celebrated  quo  warranto  proceedings  against  the  city 
of  London  during  the  reign  of  Charles  2,  see  Camp.  Lives  C.  J's,  vol.  2, 
pp.  321-326.  For  the  remedy  by  quo  warranto  in  North  Carolina,  as 
regulated  by  statute,  see  Pell's  Revisal,  sees.  826-845.  and  notes.  See 
•Quo  Warranto,"  Century  Dig.  §§  9.  63;  Decennial  and  Am.  Dig.  Key 
Xo.  Series  §§  8,  55. 


Sec.  5.    Injunction, 
the  rogers  locomotive  axd  machine  works  v.  the  erie 

RWY.  CO.,   20  N.   J.   Eq.   379.     1869. 

Xature  of  the  Remedy  hy  Injunction.     In  What  Case.s  Injunction  Will 
Issue.     Different  Kinds  of  Injunction.     Mandatory  Injunction. 

[Motion  in  the  coin-t  of  chancery  for  a  preliminary  injunction.  Cause 
heard  upon  the  bill  and  an  affidavit  on  behalf  of  the  defendants,  replying 
to  the  allegation  in  the  bill  that  the  defendant  corporation  was  insolvent. 
The  preliminary  injunction  was  ordered  in  so  far  as  to  restrain  defend- 
ants from  agreeing  together  or  doing  anything  else  to  prevent  or  hinder 
the  transportation  of  plaintiff's  locomotives;  but  the  court  refused  to 
grant  a  preliminary  mandatory  injunction  requiring  defendants  to  re- 
store certain  chattels  to  the  plaintiff  and  to  transport  plaintiff's  loco- 
motives at  the  rates  prescribed  by  law. 

The  facts  disclosed  by  the  bill  were:  That  the  Erie  Railway  Co.  was  a 
common  carrier;  that  it  refused  to  transport  plaintiff's  locomotives  in 
flagrant  violation  of  law;  that  such  refusal  was  the  outcome  of  a  corrupt 
combination    between    the    directors   of    the    defendant    corporation    and 


Sec.    5.]  EXTRAORDINARY    REMEDIES.  805 

Others;  that  the  plaintiff  had  two  tnicks  used  in  handling  its  locomo- 
tives, which  truclvs  were  put  into  the  possession  of  the  defendant  rail- 
way company  for  the  purpose  of  transporting  plaintiff's  locomotives,  and 
that,  being  so  in  possession,  the  defendant  railway  company  carried  the 
trucks  into  another  state  and  refused  to  return  them  to  plaintiff;  that 
such  conduct  was  also  the  outcome  of  a  fraudulent  combination  among 
the  defendants  with  intent  to  prevent  the  transportation  of  plaintiff's 
locomotives;  that  new  trucks  could  not  be  obtained  by  plaintiff"  'under 
several  months."  There  was  a  charge,  also,  that  the  defendant  railway 
company  was  insolvent,  but  that  charge  was  rebutted — the  court  finds 
as  a  fact  that  the  company  was  not  insolvent  nor  was  it  likely  to  be- 
come so.] 

Z.UJRiSKiE,  Chancellor.  .  .  .  Although  the  injury  is  proved, 
and  the  subject  matter  is  such  that  a  court  of  equity  will  not  re- 
fuse relief  on  the  ground  that  there  is  adequate  relief  at  law.  the 
question  remains,  whether  the  injimction  here  applied  for  can  be 
granted,  or  any  part  of  it.  There  are  injuries  which  this  court 
cannot  redress,  although  there  may  be  no  satisfactory  remedy  at 
law.  and  those  which  this  court  can  redress,  for  which  no  prelim- 
inary injunction  can  issue. 

The  two  chief  objects  for  which  the  injunction  is  asked  are  to 
compel  the  railwaj'  company  to  return  to  the  complainant  its 
trucks,  and  to  compel  it  to  transport  the  locomotives  of  the  com- 
plainant fi-om  Paterson  to  Long  Dock  at  the  legal  rates  of  freight. 
These  are  to  compel  the  company  to  act.  not  to  refrain  from  act- 
ing. And  the  act  commanded  is  the  whole  duty  of  the  company, 
and  its  performance  is  the  whole  right  of  the  complainant.  It  is 
not  the  ca.se  of  a  prohibition  of  keeping  up  a  structure  or  main- 
taining some  material  object,  the  erection  and  continuance  of 
which  is  the  act  that  deprives  the  complainant  of  his  right,  and 
the  destruction  or  removal  of  which  would  restore  the  enjoyment 
of  it. 

Tt  is  contended  by  the  defendants  that  a  mandatory  injunction, 
or  one  which  commands  the  defendant  to  do  some  positive  act.  will 
not  be  ordered,  except  upon  final  hearing,  and  then  only  to  exe- 
I'ute  the  decree  or  judgment  of  the  court,  and  never  on  a  prelim- 
inary or  interlocutory  motion.  Or  that,  if  it  ever  does  so  issue, 
it  is  only  in  cases  of  obstruction  to  easements  or  rights  of  like  na- 
ture, in  whieh  a  strueture  erected  and  kept  as  the  means  of  ])re- 
venting  sueji  enjoyment  will  be  ordered  to  be  removed,  as  pai-t  of 
the  means  of  restraining  the  defendant  from  interrupting  the  en- 
joyment of  the  right.  Although  there  is  some  conflict  in  the  au- 
thorilirs  and  decisions.  T  am  of  opinion,  after  examining  into 
tin  III.  llial  this  position,  with  llie  liinilat ion.  is  \]\o  estai)lislied  doc- 
trine of  the  courts  of  equity,  and  that  it  is  a  proper  and  discreet 
1  imitation  of  the  use  of  the  preliminaiy  injunction,  as  wrll  ;i.s  sus- 
tained by  tlie  weight  f»f  authority. 

Jnstiet'  Story,  in  2  l''<|.  Jiir.  sec.  Sfil.  says:  "A  wiil  of  iiijnne 
tion  )nay  be  descril)rd  lo  )•<•  ;i  judicial  process,  whereliy  a  i)aily 
is  refjiiired  to  do  a  j)arf icnb-ir  thing,  or  to  refrain   froui  doing  :i 
partii-nlar  thing.  aeef»rdinL'  f<»  lln'  cxitrcin-y  of  the  uiil.     Tlie  most 


S(tli  KXTK  \<>KM>I\  \m     IxM'.MKlHKS.  [('//.     /('. 

(.•omiiu)!!  lonii  til'  injiuu'tiun  is  liuil  wliirli  (i|)iT;it('s  ;is  ;i  rcsti'amt 
upon  till'  \y.w\\  111  ilu'  cxctTisc  of  his  i-cal  or  supposed  ri«;hts.  and 
is  sonu'tiiU(>s  callrd  the  riMiiodial  wril  of  iiijunclion.  Tlic  other 
form,  eonmiaiidinir  an  act  to  be  done,  is  soinetinies  eaUed  the  ju- 
dicial writ,  liet-au.se  it  issues  aflei-  a  decree,  and  is  in  llie  nature  of 
an  execution  to  enforce*  the  saiiu'.'"  Mr.  Kden  hep;ins  his  treatise 
on  injiuietions  oy  saying'  ".\n  injuiiclion  is  a  writ  issuin*r  ))y  the 
ordi'r  and  under  the  seal  of  a  court  of  e(|uily.  and  is  of  two  kinds. 
The  one  is  the  irril  rcnudial:  lor.  ni  the  eniUess  variety  of  eases 
in  which  a  plaintiff  is  entitled  to  ecinitable  relief,  if  that  relief 
consists  in  restraining  the  connnission  or  continuance  of  some  act 
of  the  defendant,  a  court  of  equity  administers  it  by  means  of  the 
writ  of  injunction.  The  other  species  of  injunction  is  called  the 
judicioi  tnH,  and  issues  subse(iuent  to  a  decree,  and  is  properly 
described  as  Ixing  in  the  nature  of  an  execution."  In  Drewr>^  on 
Injunctions.  \).  2(50.  it  is  laid  down:  "It  .seems  settled  that  ecpiity 
has  not  jurisdiction  to  compel,  on  motion,  the  pei'formance  of  any 
substantive  act."  In  3  Dan.  Chan.  Prac.  17(i7,  it  is  said:  "It  is 
to  be  observed  that  the  court,  will  not,  by  injunction  granted  upon 
interlocutory  ap]ilication.  direct  the  defendant  to  perform  an  act. 
but  might,  upon  motion,  order  the  defendant  to  ])ull  down  a  build- 
ing wliich  was  clearly  a  nuisance  to  the  plaintiff." 

Lord  Ilardwicke.  in  an  anonymous  ease  in  1  Ves.  Jun.  140.  re- 
strained the  further  digging  of  a  ditch,  but  refused,  on  motion 
before  answer,  to  order  the  part  dug  to  be  filled  up.  Chancellor 
Vroom.  in  the  Atty.  Gen.  v.  The  New  Jersey  Railroad  Co..  2 
Green's  Ch.  141.  says:  "The  injunction  is  a  preventive  remedy. 
It  interposes  between  the  eom])lainant  and  the  injury  he  fears  or 
seeks  to  avoid.  If  the  injury  be  already  done,  the  writ  can  have  no 
operation,  for  it  cannot  be  applied  eorrectively,  so  as  to  remove  it." 
In  that  ease,  the  injury  done  was  driving  piles  for  a  bridge, 
so  iis  to  obstruct  navigation  ;  a  mandatory  injunction  to  remove 
them  would  have  remedied  the  whole  evil.  In  Hooper  v.  Broder- 
iek.  11  Sim.  47.  a  preliminary  injunction  to  restrain  a  tenant  from 
discontinuing  to  keep  an  inn  was  dissolved,  on  the  ground  that  it 
was  mandatory — the  same  as  if  he  was  commanded  to  keep  an 
inn.  In  lilakeman  v.  Glamorganshire  Canal  Nav.  Co..  1  M.yl.  & 
Keene,  154.  Lord  Brougham,  after  a  review  of  the  eases  (p.  183) 
and  quoting  with  approbation  what  Lord  Ilardwicke  said  in  Ry- 
der V.  Bentham.  that  "he  had  never  known  an  order  to  pull  down, 
on  motion,  and  but  rarely  by  decree,"  refused  so  much  of  the  in- 
junction prayed  for  as  directed  the  defendant.  Powell,  to  fill  up 
the  collateral  pond.  The  eases  of  The  East  India  Co.  v.  Vincent. 
2  Atk.  S3;  Spencer  v.  London  and  Birmingham  Railway  Co.. 
8  Sim.  193:  and  of  Durell  v.  Pritchard.  1  Ch.  App.  (E.  L.  R.) 
244.  are  to  the  same  effect.  And  in  the  last  ca.se.  Lord  Romilly. 
]\I.  R..  held  that  the  court,  upon  final  hearing,  could  not  issue  a 
mandatory  injunction,  directing  a  wall  to  be  taken  down,  yet  the 
Lords  Justices,  on  appeal,  held  that  it  had  the  power,  but  that  in 


Sec.    5.]  EXTRAORDINARY    REMEDIES.  807 

the  case  before  them  it  should  not  be  exercised,  and  dismissed  the 
appeal. 

There  are  eases  in  which  mandatory  injunctions  have  been  is- 
sued on  motion,  but  they  are  all.  or  nearly  all,  cases  in  which  some 
erection  placed  and  maintained  by  the  defendant  to  effect  the  in- 
jury complained  of  was  ordered  to  be  removed,  or  its  raainti'nance 
forbidden,  on  the  gromid  that  the  defendant  eifected  the  act  he 
was  restrained  from  doing,  by  continuing  .such  erection.  In  Rob- 
in.son  v.  Lord  Byron,  1  Bro.  C.  C.  588  which  is  referred  to  as  the 
leading  case  for  mandatory  injunction.  Lord  Thurlow  ordered  an 
injunction  to  restrain  defendant  from  using  his  dams  and  other 
erections,  so  as  to  prevent  the  water  from  flowing  to  the  complain- 
ant's mill  in  such  (juantities  as  it  had  ordinarily  done  before  April 
4th,  1785.  The  etfect  of  this  may  have  been  to  compel  the  removal 
of  the  part  erected  after  1785.  But  as  the  case  states  the  injury 
complained  of  to  lie  that  Lord  Byron  so  used  his  dam  and  gates  as 
to  let  the  water  flow  irregularly,  to  the  comi)lainant's  injury,  I 
do  not  see  in  the  report  any  direction,  express  or  implied,  to  take 
do^^■n  anything,  or  to  do  any  act  whatever.  In  Lane  v.  Xewdigate, 
10  Yes.  1!)2.  the  object  of  the  injunction  was  to  compel  the  restor- 
ing of  a  stop-gate  which  was  wrongfully  removed.  Lord  Eldon 
would  not  order  it  to  be  restored,  but  restrained  the  preventing 
the  iLse  of  the  water  by  complainant  by  the  removal  of  a  stop-gate, 
which  was  e(|uival(^nt  to  an  order  to  restore  it,  and  was  so  in- 
tended. Li  Rankeii  v.  IIuskis.son,  4  Sim.  13,  the  court  restrained 
the  defendant  from  permitting  the  erection  to  remain,  this  was 
equivalent  to  an  order  to  remove  it.  But  it  is  like  the  others;  sim- 
ply removing  that  by  which  the  defendant  continued  the  nuisance 
to  be  restrained.  In  ^iexborough  v.  Bower,  1  Beav.  127.  Lord 
Langdale  ordered  an  in.]unction  to  restrain  permitting  the  com- 
nuinicntion  complained  of  (by  which  complainant's  mine  was 
flooded)  to  remain  ojien.  The  iiijiniction  \\as  to  prevent  the  flow- 
ing of  ihe  mine.  b\  restraining  or  niiioviiig  the  means  by  which 
the  defendant  continued  to  do  it. 

In  the  North  of  England  Railway  Co.  v.  The  Clarence  Railway 
Co..  1  Coll.  507.  the  injunction  |»ray(d  for  was  against  maintain- 
ing a  wall,  and  alter  ihe  ri^llt.^  ol  tlie  parties  had  been  referred 
to,  and  settled  in  the  court  of  (he  Exchequer,  V.  C.  Binice  hesit<ited 
to  grant  the  injunction,  although  he  held,  p.  521,  that  mandatory 
injunetioiis  might  l)e  grante(l;  yel  he  referi'ed  the  ca.se  to  Lord 
Chancelh)r  Lyndhursl.  who,  it  is  .stated,  granted  the  injunction  in 
nearly  the  terms  of  the  prayer;  but  whether  it  included  lliis  man- 
datoi'v  part  (,loes  not  dislinclly  a|)pear.  Tlie  ea.se  established  the 
right  of  the  com])|;iinaii1  to  build  ;i  bridge  over  Ihe  railway  of  I  lie 
defendant,  and  1o  rest  the  supports  (A'  the  scatVolding  on  the  soil; 
and  the  mandaloiy  prayer  was  that  defendants  should  remove  a 
wall  placed  on  their  grounds  to  hinder  it.  In  Greatrex  v.  Great- 
rex.  1  De  Gex  (S:  Sm.  002.  the  injunction  was  against  iireventing 
till-   pbiiiitifTs   from   having  access  to  tin'   linoKs;  df   ihe   firm,  and 


SOS  EXTUAOUniN.VKV    UKMEDIES.  [(7(.    JO. 

against  ronioving  tlioin  \'vo\\].  or  kcoping  Humh  ;it  any  oHum'  place 
than  the  place  of  hnsinoss  of  tlir  i)arln("i-sliii).  as  llu'  (l('l\'nilant 
luul  ivniovod  the  books;  this  was  tM|nivaU'nt  (o  an  oi-dci-  to  i-cstoiv. 
them,  yet  it  diil  not  foimnaiul  any  act  to  ho  done.  In  lleracy  v. 
Smith.  1  Kay  l^  J.  .SS!).  the  injury  enjoined  was  coverinir  with  tiles 
the  ehinuieys  ,1rom  the  butler's  pantry  of  the  eomi^Iainant ;  Lor.l 
Ilatlierly  (the  present  liOrd  Chancellor,  then  Vice  Clianeellor,  Sir 
\V.  P.  Wooth.  on  the  authority  of  Hobin.son  v.  Loi'd  liyron,  granted 
an  injunction,  the  ettVet. of  which  was.  and  was  intended  to  be,  to 
compel  the  defendant  to  remove  the  tiles;  but  he  declined  to  adopt 
the  mandatory  foi-ni.  but  restrained  the  dc^'endant  from  doing  any 
act  to  prevent  the  smoke  from  ari.sing.  The  substance  of  the  judg- 
ment is  grounded  on  the  power  of  the  court  to  remove  an  erection 
made  by  the  defendant  to  effect  the  injui*y  to  be  redressed,  wiien 
that  erection  is  the  means  by  which  the  defendant  continues  to  in- 
tliet  the  injuries  from  which  the  couit  intended  to  restrain;  and 
the  form  of  it  is  an  acknowledgment  of  the  general  principle  tliat 
an  interlocutory  injunction  should  not  command  the  doing  of  any 
positive  act. 

A  number  of  authorities  and  cases  were  cited  on  the  argument 
to  show  that  courts  of  equity  will,  in  certain  cases,  decree  the  res- 
titution of  particular  chattels.  But  these  are  all  cases  w^here  it 
was  .so  ordered  upon  final  hearing.  There  is  no  ca.se  of  any  inter- 
locutor^'  iujuuction  being  granted  or  even  applied  for,  for  such 
purpose.  It  would  be  a  simple  and  easy  substitute  for  the  action 
of  replevin.  And  there  is  nothing  in  this  case  to  warrant  such 
order,  even  upon  final  decree.  The  value  of  these  trucks  can  be 
fully  recovered  at  law.  and  as  to  the  use  of  them  in  the  meantime, 
new^  ones  could  be  built  sooner  than  a  suit  in  equity  could  be 
brought  to  final  hearing. 

I  feel,  therefore,  constrained  to  refuse  the  injunction  so  far  as 
these  mandatory  prayers  are  concerned;  as  to  so  much  of  the 
prayer  as  asks  to  restrain  James  Fi.sk.  Jim.,  and  the  other  defend- 
ants named  in  it.  from  entering  into  any  agreement,  or  doing  any- 
thing to  prevent  or  hinder  the  Erie  "Railway  Company  transport- 
ing the  complainant's  locomotives.  I  think  the  injunction  ought  to 
be  granted.  They  are  conspiring  with  the  Erie  Railway  Company 
to  injure  the  complainants  in  a  way  for  which  the  redress  at  law- 
is  not  adequate,  and  therefore  should  be  enjoined  from  doing  any 
acts  to  that  end.  T  do  not  intend  to  intimate  any  opinion  upon 
the  question  whether  this  court  has  power  on  the  final  hearing, 
to  give  the  complainants  the  relief  they  seek,  by  compelling  the 
Erie  Railway  Company  to  transport  their  locomotives  at  the  es- 
tablished fares. 

"It  has  been  said  in  some  American  decisions  that  a  mandatory  in- 
terlorutory  injunction  will  never  be  granted.  This  doctrine  is  not  onl.v 
opposed  to  the  overwhelming  weight  of  authority,  but  is  contrary  to  the 
principle  which  regulates  the  administration  of  preventive  relief,  and  is 
manifestly  absurd."  4  Pom.  Eq.  .Juris.  §  1359,  note  1;  and  see  also  22 
Cvc.  742,  74o.  See  "Injunction."  Century  Dig.  §  302;  Decennial  and  Am. 
Dig.  Key  No.  Series  §  132. 


Sec.    5.]  EXTRAORDINARY    REMEDIES.  809 


HART  v.  LEONARD,  42  X.  J.  Eq.  416,  7  Atl.  865.     1886. 

General   Principles   and   Rules   Governing   Injinictions.     Xine    Cases    in 

Which  Injunctions  Issue. 

[Bill  in  equity  to  restrain  the  obstruction  of  a  private  way.  The  vice 
chancellor  advised  that  a  perpetual  injunction  be  decreed,  and  the  de- 
fendant appealed.  Reversed.  The  facts  appear  in  the  beginning  of  the 
opinion.] 

Dixox.  J.  The  bill  in  this  case  avers  that  the  complainant  is 
the  o^Mier  of  a  wood  and  pasture  lot  containing  3.37  acres  of  land, 
and  that  he  and  his  predecessor  in  title  have,  by  adverse  user 
for  over  twenty  years,  acquired  a  right  of  way  across  the  land  of 
the  defendant  from  a  certain  public  road  to  said  lot;  that  the  de- 
fendant now  obstructs  said  way;  and  the  bill  therefore  prays  a 
decree  that  the  comi)iainant  is  entitled  to  the  way,  and  for  a  man- 
datory injunction  commanding  the  defendant  to  remove  the  ob- 
struction, and  allow  the  complainant  to  pass  through  at  his  pleas- 
ure.    The  answer  denies  the  complainant's  right. 

The  complainant 's  testimony  tends  to  show  user  for  over  twenty 
years.  The  defendant's  testimony  tends  to  show  that  the  user  was 
not  adverse,  but  was  by  his  express  permission,  as  an  act  of  neigh- 
borly accommodation.  The  vice-chancellor  advised  a  decree  and 
injunction  according  to  the  prayer  of  the  bill.  Hence  this  ap- 
peal. 

From  the  foregoing  statement  it  appears  that  the  claim  set  up 
is  to  a  purely  legal  interest  in  land,  resting  upon  a  purely  legal 
basis.  Before  attempting  to  determine  the  validity  of  the  claim, 
it  is  proper  to  consider  whether  the  question  presented  comes 
within  the  cognizance  of  a  court  of  equity.  No  doubt  many  cases 
arise  in  which  courts  of  equity  may,  by  decree  and  injunction, 
protect  and  enforce  legal  rights  in  real  estate.  So  far  as  they  are 
exemplified  in  our  chancers'  practice,  these  cases  can,  I  think,  be 
classified  under  the  following  heads: 

(1)  Cases  whore  the  legal  right  has  been  es^tahliahcd  in  a  suit  at 
law.  and  the  bill  in  equity  is  filed  to  ascertain  the  extent  of  the 
right,  and  enforce  or  protect  it  in  a  manner  not  attainable  bj''  le- 
gal procedure.     Quackcnbnsh  v.  Van  Riper,  3  N.  J.  Eq.  350. 

''2)  Cases  where  the  legal  right  is  ndmiiicfh  and  the  object  of 
the  bill  is  the  same  as  in  the  class  just  m(>ntioned.  Carlisle  v. 
Cooper.  21  N.  J.  Eq.  57fi ;  Shivers  v.  Shivers,  32  N.  J.  Eq.  578.  35 
N.  J.  Eq.  562;  Johnson  v.  TTyde.  33  X.  J.  Eq.  632. 

(3)  Cases  where  th(^  legal  right,  fhnvfih  fonn-alhi  dispKfrd,  is 
yet  clear,  on  facts  which  are  not  denied,  and  legal  rules  whicli  are 
well  settled,  and  the  object  of  the  bill  is  as  before  stated.  Shreve 
V.  Voorhees.  3  X.  J.  Eq.  25;  TTnhiie  v.  Shreve.  4  X.  J.  K(|.  IK!; 
:\rorris  C.  &  B.  Co.  v.  Establishing  Soei.-fv.  etc.  5  X.  ,T.  Eq.  203; 
Karl  v  De  Hart.  12  X.  J.  Eq.  2M1  :  Dodd  v.  Elavell.  17  X.  J.  Eq. 
255;  Johnson  v.  Jaqui.  25  X.  J.  E(|.  410.  27  X.  J.  Eq.  526;  Dem 
arest  v.  Tlnrdham,  34  X.  J  Eq.  460;  TTiggins  v.  Flemington  W. 
Co..  36  X.  J.  Eq.  538. 


SIO  KXI'K'AOUniN  AUV     UKM  KI>1KS.  |  (  7( .     10. 

(A)  Ciisi's  wlu'l'i'  one  ;iltt'iii|ils  lo  ;i|iiiiu|ii  intc  llic  hiiid  of  ;iii- 
othor.  luulrr  tolor  of  st;ilutoi>  iiuthoi-ity.  without  coiiiplyiiifr  witli 
llif  li'i:;il  coiulitioiis  pi'i'i'i'dciit .  Hoss  v.  Mli/ahct Ii,  T.  >.^  S.  R.  Co.. 
•J  N.  ,i.  K(\.  4_'L':  Hit)\vjiinir  v.  ("jiiikIcm  c^  \V..  I'tc,  Co..  4  X.  J.  Va\. 
47:  lii^'lxr  v.  C;im.l.'ti  ^:  .\.  Iv.  Co..  !!»  \.  .1.  Kq.  27(1;  Follcy  v. 
PiLssaii'.  LHi  N.  .1.  1-;<|.  iMii;  .Moi-iis  C.  .J^  li.  Co.  V.  Jersey  (,'ity.  Id. 
2J)4.     [See  eli.  ;5.  ^  1.").  aiite.l 

('•>)  Cases  wliei-e  the  object  of  llic  liill  is  to  stay  waste.  Capiier 
V.  Flemiu^tou  Miu.  Co..  ;>  N.  -1.  ]\i\.  4(i7  ;  Hajdi  of  Chenango  v. 
Cox.  •-!(;  N.  J.  K(i.  4r)L\     I  See  eli.  :{.  5$  !).  ante.] 

(6)  Cas(>s  where  the  ohjeel  ol"  the  bill  is  to  ]>revent  an  injiwy 
whii'li  will  br  destructive  of  tlie  iuhefitauce.  or  which  e<|uity  deems 
iiTeparal)le  ;  i.  e..  one  for  whicli  the  damages  that  may  be  recov- 
ered aoeording  to  U'gal  lul.s  do  uol  afford  ade(|uate  comiiensat  ion. 
Morris  C.  &  B.  Co.  v.  Jersev  City.  11  X.  J.  E<i.  13;  Fraid<linitc  Co. 
V.  Zine  Co..  ^^^  X.  J.  Va\.  215;  Zine  Co.  v.  Franklinite  Co.,  Id.  822; 
Zine  Co.  v.  FranUlimte  Co..  15  X.  J.  K(|.  41S;  Soulhmayd  v.  Me- 
Langhlin.  24  X.  J.  Va\.  181  :  Manko  v.  Chambersburgh.  25  X.  J. 
E(i.  liiS;  Johnson  v.  IIyd(\  Td.  454;  Thomas  Iron  Co.  v.  Allentown 
Mm.  Co..  28  X.  J.  H(i.  77;  Fulton  v.  Greaeen.  :?()  N.  J.  E<|.  2!(i; 
Lord  V.  Carbon  I.  :\1.  Co..  88  N.  J.  Eq.  452.     [See  eh.  8.  §  14.  ante.  1 

(7)  Cases  where  the  object  of  the  bill  is  to  protect  one's  dwell- 
ing from  injuries  which  render  its  oeeui)aney  insecure  or  vnicom- 
foi-table.  Brakelv  v.  Sharp.  10  N.  J.  Eq.  20(i;  llolsman  v.  lioiling 
Spring  B.  Co..  14  X.  J.  Ecj.  885;  Koss  v.  Butler.  19  N.  J.  E(i.  294; 
De  Veney  v.  Gallagher.  20  X.  J.  Eq.  88-,  Cleveland  v.  Citizens' 
Ga.s-light  Co..  Td.  201  ;  l^abeock  v.  New  Jersev  Stoekyard  Co..  Td. 
29G:  Attorney  General  v.  Steward.  Td.  415."  21  X.  J.  Eq.  840; 
:\reigs  V.  Lister.  23  X.  J.  Eq.  199;  De  Luze  v.  T^radbury.  25  X.  J. 
Eq.  79;  Kana  v.  Bolton.  86  N.  J.  Eq.  21 ;  Williams  v.  Osborne.  40 
X.  J.  Eq.  235;  Pennsylvania  R.  Go.  v.  Angel.  41  N.  J.  Eq.  816.  7 
Atl.  Rep.  482;  Lenning  v.  Ocean  City  Ass'n.  41  N.  J.  Eq.  606.  7 
Atl.  Rep.  491.     fSec  eh.  8.  §  11.  ante.l 

(8)  Cases  where  the  right  to  h,»  protected  or  enforced  grows 
out  of  the  expressed  or  implied  terms  of  a  contract,  so  that  the 
court  can  entertain  jurisdiction  by  yirtue  of  its  power  to  compel 
.specific  performance.  Robeson  v.  Pittenger.  2  X.  J.  Eq.  57;  Arm- 
strong V.  Potts.  23  N.  J.  Eq.  92:  Jaqui  v.  Johnson.  26  N.  J.  Eq. 
821  :  Shi7ner  v.  :\rorris  C.  &  B.  Co..  27  X'.  J.  Eq.  364;  Tszard  v. 
^Lnvs'  Landintr  W.  V.  Co..  31  N.  J.  Eq.  511  ;  Pope  v.  T^ell.  85  X.  J. 
Eq."  1  :  Sntphen  v.  Therkelson.  88  X.  J.  Eq.  818;  Gawtrv'  v.  Leland, 
•to  X.  J.  Eq.  823;  Lennig  v.  Ocean  City  Ass'n.  41  X.  J.  Eq.  606,  7 
Atl.  Rep.  491.     [See  ch.^8.  §  9.  ante.] 

(9)  Cases  where  the  ohject  of  the  bill  is  to  prevent  a  multi- 
plicity of  suits,  otherwise  rendered  necessary  by  the  fact  that 
many  persons  are  interesed  in  the  controversy.  Britton's  Adm'rs 
V.  Hill.  27  X.  J.  Eq.  889.     [See  ?  6.  post.] 

Outside  of  these  classes  there  is  no  jurisdiction  in  a  court  of 
equity  over  the  mere  inva.sion  of  mere  private  legal  rights  in  land. 
The  appropriate  remedy  is  hy  suit  at  law. 


Sec.    5.]  EXTRAORDINARY    REMEDIES.  811 

The  oase  in  hand  does  not  come  within  any  of  these  classes.  It 
bears  no  trace  of  resemblance  to  any  except  tliose  of  the  third  or 
those  of  the  sixth  cla.ss.  But  the  third  class  does  not  include  it, 
because  the  evidence  shows  a  substantial  dispute  over  the  facts  of 
adverse  user,  which  the  defendant  is  entitled  to  have  settled  by 
the  verdict  of  a  jury ;  and  the  sixth  class  does  not  cover  it.  because 
the  temporary  obstruction  of  a  way  to  a  small  wood  and  pasture 
lot  can  be  fuily  paid  for  by  the  damages  recoverable  according  to 
legal  ndes. 

The  decree  below  should  be  reversed,  and  the  bill  should  be  dis- 
missed. 

See  "Injunction."  Century  Dig.  §  77;   Decennial  and  Am.  Dig.  Key  No. 
Series  §  35. 


JARMAX  V.  SAUNDERS,  64  N.  C.  367.  369-371.     1870. 
Common   Injunction   and  Special  Injunction  Distinguished.     Hoic   It   Is 

Under  the  Code  Practice. 

I  Motion  to  vacate  an  injunction.  Motion  allowed.  Appeal  by  plain- 
tiff. Reversed.  The  complaint  alleged  that  plaintiff  was  sued  by  the 
defendant  on  a  note;  that  plaintiff  had  a  good  defense  but  failed  to  plead 
it  because  the  defendant  assured  him  that  he  would  not  take  judgment; 
that  defendant  did  take  judgment  against  the  ])laintiff  in  violation  of 
such  agreement;  that  the  defendant  had  sued  out  e.xecution  against  the 
plaintiff.  The  relief  asked  was,  inter  alia,  a  perpetual  injunction  against 
proceeding  on  the  execution.  The  answer  positively  denied  the  alleged 
agreement.  1 

Rodman.  J.     .     .     .     llow  is  this  eciuity  of  the  plaintiff  affected 
In-  the  answer  which  positively  denies  the  agreement  ujion  which 
it  is  founded?     The  distinction  between  what  used  to  be  called  a 
common  injunction,  and  a  special  injunction,  is  stated  in  Ileilig  v. 
Stokes.  63  X.  C.  612,  on  the  authority  of  the  cases  there  referred 
to.     The  former  is  said  to  be  when  a  defendant  sets  up  an  e(i- 
nitable  defense  to  the  action  at  law.  which  l>y  the  constitution  of 
the  l;iw  conrt.  he  could  not  then  avail  himself  of.    If  an  injunction 
was  granted  on  a  liill  setting  up  such  an  e<|iii1y.  n)H)n  tlie  coming 
in  of  an  answer  denying  the  facts  constituting  the  e(|uity.  the  in- 
junction was  dissolved  of  cour.se.  unless  somi^  special  reason  was 
alleged  fftr  a  coiUiiniance  of  it.    A  sjx'cial  injunction  was  founded. 
not  on  Mil  e<|uity  existing  in  the  controversy  at  l.nv  between  the 
])arties.  but  on  something  collateral  to  it;  as.  for  example.  th(^  ne- 
cessity of  protecting  the  property  in  dis|)ute.  pending  the  litiga- 
tion. *  The  injuncti<»n  to  whicli  the  plainlilV  in  this  case  is  entilled. 
is  evidently  of  the  latter  sort,  and  will  not  be  dissolved  inerely  on 
the  defendant's  denial,  if.  in  the  opinion  of  the  court.  i1  appears 
reasonably  necessary  to  protect  the  plaint ifT's  right   mitil  the  con- 
troversy   between    liini    ;mil    the    (lefeiKbuit     cjiii    be    (Ir'leniiined. 
Tfere  it  seems  lo  us  lli.-it   th<Te  ;ii'e  iiialters  in  emit  puversy  betwei'u 
the  parties,  and  that  the  pnsent   plaintitT  is  cut  if  led  to  make  his 
dj'fense  to  the  ()riginal  action,  and  consecpietitly  to  have  the  pres- 


si'j  K.\TR.M>RniN Ain    i;kmi:i>iks.  \('Ii.    10. 

ent  oxirutu)!!  rcslraiiiftl.  It  iiuiy  lu'  said  lliat  iiiidfi-  Mk'  deliiii- 
tion  of  a  iH»Mmioii  iiijuiu'lion  al)ovo  jrivon.  it  is  dil'tii-iilt  to  eoneeive 
how.  now  wlii'ii  lf<j:al  and  r.niitalilf  dfiiiaiids  are  tried  in  the  same 
I'Oiirt  and  in  the  sanif  t'orni  of  action,  and  wlion  ovory  ('(|uilal)K' 
tlptVnso  can  be  made  in  tlie  original  action,  a  ease  for  conniion  in- 
intu'tion  ean  I'ver  ai'ise. 

There  is  another  observation  which  it  may  be  well  eno\itrh  to 
make.  Under  the  former  system  it  was  settl(Ml  doctrine  that  a 
conrt  of  hiw  could  not  set  aside  its  rej^ndar  judiiiiicnt  at  a  subse- 
(juent  term.  If  tlu>  enforcement  of  the  jud^nnent  became  ineq- 
uitable for  any  reason  which  a  court  of  equity  could  take  notice 
of.  it  would  be  enjoined.  Xow  that  the  same  court  exercises  the 
.jurisdiction  both  of  a  court  of  law  and  of  a  court  of  equity,  and 
That  without  any  difference  of  form  founded  on  the  difference  be- 
tween law  and  equity,  it  would  seem  to  follow  that  the  rule  al- 
luded to  no  louf^er  exists,  to  the  extent  of  prohibiting:  a  superior 
court  from  setting;  aside  its  judgment  at  a  subsequent  term,  for 
any  sut^cient  eaiLse  which  could  have  been,  and,  by  accident  or 
fraud,  was  not,  pleaded  in  bar  of  the  judgment,  and  that  the 
proper  way  to  apply  foi-  such  relief  is  by  motion,  supported  by 
at!idavits.  in  the  original  cause.  Such  Ave  consider  this  to  be.  A 
motion  mav  be  put  in  the  form  of  a  petition;  indeed,  such  is  the 
proper  form.  3  Dan.  Ch.  Pr.  1787-1801.  In  fact,  as  is  there 
stated,  the  difference  is  in  form  only,  and  not  in  substance  or 
effect;  the  petition  being  in  writing,  and  the  motion  not.  :^ 
Dan.  Ch.  Pr.  1781.  Of  course  we  have  no  opinion  on  the  mer- 
its of  the  original  controversy  between  the  parties.  The  order 
below  is  reversed.     .     .     . 

[The  court  ordered  the  judgment  in  controversy  to  be  set 
aside  upon  plaintiff's  giving  bond  with  sufficient  sureties  to 
abide  and  perform  the  judgment,  should  another  be  rendered. 
Upon  giving  such  bond,  the  plaintiff  was  to  be  allowed  to  de- 
fend the  action.  The  defendant  in  this  action  was  enjoined 
from  proceeding  further  under  his  execution,  until  allowed  so 
to  do  by  the  superior  court.] 

The  distinction  between  common  and  special  injunctions  was  abolished 
In  England  by  15  and  16  Vict.  c.  86,  sec.  58.  See  Dan.  Ch.  Pr.  p.  164, 
note  1.  Injunctions  are  further  classified  as  provisional  (also  called 
preliminary  or  interlocutory)  and  perpetual  (also  called  final).  Fos- 
ter's Fed.  Pr.  §  226.  For  further  explanation  of  the  distinction  between 
common  and  special  injunctions,  see  lb.  §  227.  See  ".Tudgment,"  Cen- 
tury Dig.  §  825;    Decennial  and  Am.  Dig.  Key  No.  Series  §  436. 


ATTORNEY  GENERAL  ET  AL.  v.  CITY  OF  PATERSON,  9   N.   J.  Eq. 

624,  625,  628.     1854. 
Interlocutory  or  Preliminary  Injunctions. 

(The  attorney  general,  on  the  relation  of  the  board  of  freeholders  of 
Bergen,  the  inhabitants  of  Saddle  River  township,  J.  S.  Van  Riper,  and 
others,  filed  a  bill  against  the  city  of  Paterson,  seeking  to  enjoin  the 
city  f  ffioials  from  erecting  a  poor-house  and  a  work-house  upon  a  certain 
parcel  of  land,  upon  the  ground  that  a  nuisance  would  thereby  be  ere- 


Sec.    5.]  EXTRAORDIXAKV    REMEDIES.  813 

ated.  etc.  The  answer  admitted  the  intent  to  use  the  land  for  the  pur- 
pose alleged,  but  denied  that  a  nuisance  would  be  thereby  created,  and 
claimed  a  charter  right  to  proceed  with  the  acts  complained  of.  The 
chancellor  refused  to  order  an  injunction,  but  gave  leave  to  the  plain- 
tiffs to  renew  their  application  after  an  indictment  for  nuisance,  pend- 
ing against  defendants,  was  tried,  or  at  the  final  hearing  of  this  cause. 
Affirmed.! 

Williamson.  Chancellor.  I  do  not  feel  myself  at  liberty  to- 
grant  a  preliminary  injiinetion  in  this  ease.  There  are  important 
]n-inciples  of  law.  as  well  as  important  facts,  involved  in  the  issue. 
The  object  of  a  preliminary  injunction  is  to  prevent  some  threat- 
ening, irreparable  mischief,  which  should  be  averted  until  oppor- 
tunity is  afforded  for  a  full  and  deliberate  investigation  of  the 
ea.se.'  The  defendants  have  purchased  the  farm,  and  removed  the 
I)aupers.  and  have  nearly  completed  an  expensive  building  on  the 
premises.  To  interrupt  the  progress  of  the  defendants  in  complet- 
ing their  building,  can  be  of  no  advantage  to  the  complainants; 
but  such  interference  might  greatly  injure  the  defendants,  in  a 
pecuniary  point  of  view,  by  interfering  with  their  contract  for 
buildings,  and  in  other  respects.     .     .     . 

Green.  C.  J.  .  .  .  Several  important  questions  of  law  and 
fact  are  involved  in  the  controversy,  and  have  been  ably  discussed 
upon  the  argument,  viz. :  "Whether  a  city  or  town  may  establish  a 
l)Oor-house  without  its  own  territorial  limits:  whether  a  poor- 
house,  established  in  a  populous  neighborhood,  be  in  itself  a  nui- 
sance; whether  this  particular  poor-house  is  so  conducted  as  to  be 
a  nuisance. 

The  chancellor  decides  neither  of  these  questions.  He  simply 
declines  to  interfere  by  a  temporaiy  injunction.  He  intimates, 
indeed,  that  the  questions  of  law  and  of  fact  should  be  settled  in  a 
court  of  law.  bofore  the  allowance  of  an  injunction.  But  his  de- 
rision is  simi)ly  that  he  will  not  grant  a  temjiorary  injunction  bc- 
I'ore  the  final  hearing  of  the  cause.  The  granting  or  refusal  of  the 
t<nnporaiy  injunction,  during  the  pendency  of  the  cause,  was  a 
matter  of  discretion  with  the  chancellor.  It  concluded  no  right  of 
the  i»arti('S.  or  of  either  of  them.  The  order  is  in  no  sense  a  final 
order.  Costs  are  not  adjudged.  Tt  is  not  an  order  from  which  an 
appeal  will  properly  lie.  fiarr  v.  Tlill.  1  TTalst.  Ch.  089;  Trustees 
of  Hnntinglon  v.  Xicoll.  '.\  Jc.hn.  .")(;(;.  ricariy  no  irremediable'  in- 
jury can  result  from  a  denial  of  the  injunction,  nor  can  the  subject 
matter  in  controversy  be  withdrawn  Iroin  Hie  jiu'isdictioii  nt;  the 
ennrt \]ipeal  dismissed. 

See  "Injunction."  Century  Dig.  §§  307-309;  Decennial  and  Am.  Dip. 
Key  No.  Series  5  137. 

COBR  V.  CAAir.G,  137  N.  C.  153.  158.  159.  49  S.  E.  SO.     1904. 
Common  ami  SpcrinI  Injunction  Under  the  Code  Practice.     livles  as  to 
Crntitiun    mnl    IH\sf>Irii){>    Rcntrnininq    Ordcm    nr    Ivtrrlocutory    In- 
iinictions. 

IFMalntiff  sued  to  restrain  ilu'  dcft-ndant  from  usinp  a  room  in  .i  hotel 
as  a  cafp.  in  violation  of  an  alleged  covenant  liv  tie-  (l.'li'ndiuit  nni  to  do 


>14  KXTKAUKDINAKV     KK.M  KDIKS.  [('//.     W. 

SO.  A  restniinini;  order  was  issued  and  upon  its  return  it  was  contin- 
ue<l  to  tlie  liearins.  IVfendant  ai)i)ealed.  Affirmed.  Only  so  much  of 
the  opinion  as  distinguishes  between  ronimon  and  speeial  injunftions, 
is  here  inserted.] 

W.M.KKK.  fl.  .  .  .  We  have  stated  the  foiitciit  ions  of  tlic  rc- 
spcrtivt'  parlies  for  the  purpose  of  sliowiiij,'  the  iiiipractit'ability  of 
(U'cidiiiir  upon  the  tiltimato  niorits  of  llio  controversy  in  this,  the 
preliminary  sta»re  of  tlie  ease.  This  eourt  should,  when  feasible, 
always  avoid  expressinir  an  opinion  which  will  anticipate  the  de- 
eisioii  of  the  cjuse  at  the  final  hearinjj:.  and  when  the  facts  have  not 
heeu  found  l)y  tlie  tribunal  aj^pointetl  by  law  to  pass  u]>on  thoni. 
The  practice  in  this  respect  seems  to  have  been  lon<?  since  well  set- 
tled in  applications  for  injiuu'tions.  It  was  based  at  first  upon 
the  distinction  between  eonnnon  and  special  injunctions.  The 
former  was  irranted  in  aid  of  or  as  secondary  to  another  equity,  as 
in  the  ease  of  an  injunction  to  restrain  proceedings  at  law,  in  order 
to  protect  and  enforce  an  equity  which  could  not  be  pleaded,  and 
it  issued,  of  course,  upon  the  cominc:  in  of  the  bill,  without  n()tiee. 
As  soon  as  the  defendant  answered,  he  could  move  to  dissolve  the 
injunction,  and  it  was  then  for  the  court,  in  the  exercise  of  its 
sound  discretion,  to  say  whether,  on  the  facts  disclosed  by  the  an- 
swer, or,  as  it  is  technically  termed.  ui)on  the  equity  confessed,  the 
injunction  should  be  dissolved  or  continued  to  the  hearin».  Tf  the 
facts  constituting  the  etiuity  were  fully  and  fairly  denied,  the  in- 
junction was  dissolved,  unless  there  was  some  si)ecial  reason  for 
continuing  it.  Not  so  with  a  special  injunction,  which  is  granted 
for  the  prevention  of  irreparable  injury,  when  the  preventive  aid 
of  the  court  of  e(piity  is  the  ultimate  and  only  relief  sought,  and  is 
the  primary  equity  involved  in  the  suit.  In  the  case  of  special  in- 
junctions the  rule  is  not  to  dissolve  upon  the  coming  in  of  the  an- 
swer, even  though  it  may  deny  the  equity,  but  to  contiinie  th<'  in- 
junction to  the  hearing,  if  there  is  probable  cause  for  supposing 
that  the  plaintiff  will  be  able  to  maintain  his  primary  equity,  and 
there  is  a  reasonable  apprehension  of  irreparable  loss  unless  it  re-_ 
main  in  force,  or  if.  in  the  opinion  of  the  court,  it  appears  reason- 
ably necessary  to  protect  the  plaintiff's  right  luitil  the  controverey 
between  him  and  the  defendant  can  be  determined.  It  is  gener- 
ally proper,  when  the  parties  are  at  issue  concerning  the  legal  or 
equitable  right,  to  grant  an  interlocutory  injiuiction  to  preserve 
the  right  in  statu  (|uo  luitil  the  determination  of  the  controverey, 
and  especially  is  this  the  rule  when  the  principal  relief  sought  is 
in  itself  an  injunction,  because  a  dis.solution  of  a  pending  interlo- 
cutory injunction,  or  the  refusal  of  one.  upon  application  therefor 
in  the  first  instance,  will  virtually  decide  the  case  upon  its  meiits. 
and  deprive  the  plaintiff  of  all  remedy  or  relief,  even  though  he 
should  be  afterwards  able  to  .show  ever  so  good  a  case.  The  princi- 
ples we  have  attem|)ted  to  state  are,  we  think,  well  supported  by 
the  authorities  upon  the  subject.  1  High  on  Injiuiction  i'-kl  ed). 
§  6;  Jarman  v.  Saunders.  64  N.  C.  367;  TIeilig  v.  Stokes,  63  N.  C. 
612;  Blackwell  Durham  Tobacco  Co.  v.  McElwee,  94  N.  C.  425; 


Sec.    5.]  EXTRAORDINARY    REMEDIES.  815 

Purnell  v.  Daniel.  43  X.  C.  9;  Bispham's  Eq.  (6tli  ed.)  §  405. 
The  cases  of  ^larshall  v.  Commissioners,  89  N.  C.  103.  Lowe  v. 
Commissioners.  70  X.  C.  532,  and  Capehart  v.  :\Ihoon.  45  X.  C.  30, 
would  seem  to  be  directly  in  point.     .     .     . 

The  injimction  sought  in  this  case  is  special,  and  we  must  be  gov- 
erned by  the  established  rule  applicable  to  that  class  of  injunc- 
tions in  deciding  the  question  now  presented.  The  Code  provides 
expressly  for  such  an  injunction.  Code.  §  338  (2).  Judge  Biyan 
has  merely  granted  a  i)rovisional  injunction  to  the  hearing  so 
that  the  controverted  matters  may  then  be  settled  by  a  jury,  and 
the  plaintiffs'  right  to  a  perpetual  injunction  be  thus  determined 
upon  the  merits.  As  said  by  Justice  Bynum  in  Lowe  v.  Conuuis- 
sioners.  supra.  '"The  novel  and  important  (luestions  rai.sed  by  th.' 
pleadings,  and  ably  discussed  before  us.  do  not  come  up  for  de- 
cision now."  AVe  decide  nothing  upon  the  merits,  but  simply  hold 
that  the  facts  should  be  found  in  the  ordinary  way.  so  that  we 
may  consider  and  decide  the  ease,  if  it  again  comes  before  us,  on 
all  of  the  facts  as  ascertained,  and  not  merely  upon  facts  now  dis- 
puted, which  may  never  be  found  by  the  jury.     .     .     . 

Witliout  passing  upon  the  controverted  facts,  we  are  of  the 
opinion  that,  in  the  present  state  of  the  pleadings  and  proofs, 
there  was  no  error  in  the  ruling  of  the  court  below,  and  the  in- 
junction should  be  continued  to  the  hearing.  This  is  in  accord- 
ance with  the  practice  in  such  cases  as  stated  in  Erwin  v.  ^lorris 
(at  this  term).  4!)  S.  E.  53.    Xo  error. 

See  -Injunction,-  Century  Dig.  §§  5,  374-384;  Decennial  and  Am.  Dig. 
Key  No.  Series  §§  6,  172. 


DIGGS  V.  WOLCOTT,  4  Cranch,  179.     1807. 
Injunction  from  V.  S.  Court  to  Stay  Proceedings  in  State  Court. 

This  was  an  appeal  from  a  decree  of  the  circuit  court  for  the 
distri<-t  of  CnniH-ctii'ut.  in  a  suit  in  chancer>^ 

The  appellants.  Diggs  and  Keith,  had  commenced  a  .suit  at  law 
against  Alexander  AVolcott.  the  appellee,  in  the  eounty  court  for 
the  eounty  of  Middlesex,  in  the  state  of  Connecticut,  upon  two 
jtromissory  notes  given  by  Wolcott  to  one  Kidiai'd  Matthews,  for 
the  pureliase  of  lands  in  Virginia,  and  by  liim  indorsed  to  the  ap- 
pellants; whereupon  Wolcott  filed  a  bill  in  chancery  in  llie  su- 
pr'Hor  court  of  the  state,  against  the  appellanls  Oiggs  and  Keith, 
and  also  against  Kolx-rt  Yoiuig  and  Kidiaid  .Matthews,  praying 
that  Diggs  and  Keith  might  be  compelled  to  give  up  the  t\v()  notes 
to  be  cancelled,  or  be  perpetually  enjoined  from  i>i<M'eeding  at 
law  for  the  recovery  thereof,  etc. 

This  suit  in  chancery  was  removed  by  the  uppcllants  from  the 
state  oourt  into  the  circuit  court  of  the  I'nit.'d  States  for  the  dis- 
trict <.r  Ci.nnieti.Mit.  where  it  was  decreed  that  Diggs  and  Keith 
shouM.  on  or  before  ;i  certain  day.  deliver  tlu-  notes  to  the  clerk  of 
the  court,  and  in  default  thereof  should   forfeit  and  jiay  to  Wol- 


J>Ui  EXTKAOKlMNAin     HKMKDIES.  [CJl.    10. 

I'Ott  $1,500;  aiul  tliat  I  hex'  sliould  lie  |i('i|icl  ii.ill\'  I'lijoiiiod.  etc., 
ami  tlial  Txobcrt  Youuir  shduld  repay  to  llic  ai)i)cll('('  Iho  aiiioutit 
ot'  jiriiifipal  ami  intci-cst  wliicli  tlu-  latlci-  liad  |)ai(l  on  aecount  of 
tho  ]>\iri'hnse  of  tlic  lands ;  and  that  the  appcUt'o  sliould  deliver 
up  to  the  elei-k  Die  sun^eys  of  the  lands,  and  tlie  bond  of  convey- 
anee;  and  in  default  Iheicof  sluuild  pav  to  1\.  Younir  the  sum  of 
$20,000. 

The  ease  was  arijued  upon  its  merits  by  V.  Lee  and  Swann.  for 
the  appellants,  and  by  V.  U.  Key.  for  the  appellee;  but  the  court 
bein<j  of  opinion  that  a  circuit  court  of  the  Ignited  States  had  not 
jurisdiction  to  enjoin  proceedingcs  in  a  state  court,  reversed  the  de- 
cree. 

For  a  full  discussion  of  the  proposition  contained  in  the  i)rincipal  case, 
see  1  Gould  &  Tucker's  Notes,  p.  191.  sec.  720,  and  1  Rose's  Notes,  275. 
See  "Courts,"  Century  Dig.  §§  1418-14^50:  Decennial  and  Am.  Dig.  Key 
No.  Series  §  508;    "Injunction,"  Century  Dig.  §  72. 


TYLER  V.   HAMMERSLEY,  44  Conn.  419,  26  Am.  Rep.  479.     1877. 

Injunction  Against  Proceeding  at  Law:  Against  Judgment  and  Execu- 
tion at  Law ;  to  Stay  Money  in  the  Hands  of  a  Sheriff,  etc. 

FBill  for  an  injunction,  reserved  for  advice  of  the  supreme  court.  In- 
junction denied  and  bill  dismissed. 

The  bill  alleged  that  the  superior  court  had  issued  a  peremptory  man- 
damus, commanding  a  railroad  company  to  stop  its  trains  at  a  certain 
station;  that  a  writ  of  error  was  sued  out  before  the  mandamus  was 
served;  that  the  i)Iaintiffp  were  directors  of  the  railroad  company,  and 
had  not  obeyed  the  mandamus  because  they  considered  its  operation 
superseded  by  the  writ  of  error;  that  thereupon  they  were  adjudged  in 
contempt  and  ordered  to  be  sent  to  jail  for  disobedience  to  such  writ 
unless  they  obeyed  it  within  twenty  days;  that  the  directors  sued  out 
a  writ  of  error  to  reverse  this  order.  The  prayer  was  that  the  execu- 
tion of  the  contempt  order  be  restrained  until  the  writs  of  error  above 
mentioned  were  disposed  of.] 

HovEY.  J.  Courts  of  equity  are  clothed  with  jurisdiction  to  re- 
strain, by  injunction,  proceedings  at  law  in  all  cases  Mhere,  by 
fraud,  accident,  mistake,  or  otherwise,  a  party  has  obtained  an 
advantage  in  a  court  of  law.  which  must  necessarily  make  that 
coui't  an  instniment  of  injustice.  In  cases  of  that  description  the 
restraint  may  be  imposed  to  stay  trial,  and  after  trial  and  verdict 
to  stay  judgment,  and  after  judgment  to  stay  execution,  and  after 
execution  to  stay  money  in  the  hands  of  the  officer.  But  after  a 
judgment  an  injunction  will  not  be  granted  to  stay  its  execution, 
unless  there  has  been  fraud  or  collusion  in  obtaining  it  or  the  ver- 
dict upon  which  it  was  founded,  or  where  the  party  has  been  un- 
able to  defend  himself  effectually  at  law  without  any  fault  or 
negligence  of  his  own.  or"where  the  plaintiff  has  possessed  himself 
of  something  by  means  of  which  he  has  obtained  an  unconscien- 
tious advantage.  "When  an  injunction  is  granted  to  stay  proceed- 
ings in  the  courts  of  law.  it  is  in  nf>  just  sense  a  prohibition  to 


Sec.    -J.]  EXTRAORDINARY    REMEDIES.  817 

those  courts  in  the  exercise  of  their  jurisdiction.  It  is  not  ad- 
dressed to  them  and  does  not  even  aft'ect  to  interfere  with  them. 
The  process  is  directed  only  to  the  parties.  It  neither  assumes 
any  superiority  over  the  court  in  which  the  proceedings  are  had. 
nor  denies  its  jurisdiction.  It  is  granted  on  the  sole  ground  that 
from  certain  equitable  circumstances  of  which  the  court  granting 
the  process  has  cognizance,  it  is  against  conscience  that  the  party 
inhibited  should  proceed  in  the  cause.  The  object,  therefore, 
really  is  to  prevent  an  unfair  use  being  made  of  a  court  of  law.  in 
order  to  deprive  another  party  of  his  just  rights  or  subject  him  to 
some  unjust  vexation  or  iiijurv  which  is  wholly  irremediable  by  a 
court  of  law.  :\ritf.  Eq.  PI.  by  Jeremy,  127.  128.  131  ;  Eden  on 
In  June.  eh.  2.  p.  4;  2  Dan  Ch.  Pr.  1623:  Eart  of  Oxford's  Case. 
1  Ch.  Rep.  1;  3  Lead.  Cas.  in  Eq..  by  Hare  &  Wallace,  3d  Am. 
Ed..  155.  The  case  stated  in  the  bill  before  us  does  not  come 
within  either  of  these  principles.     .     .     .     Bill  dismissed. 

Xo  injunction  will  issue  to  prevent  the  enforcement  of  a  judgment  at 
law  because  of  mere  error:  but  it  will  issue  to  prevent  the  enforcement 
of  such  judgments  if  obtained  by  fraud  and  other  foul  means.  In  such 
cases  the  decree  is.  that  the  party  shall  consent  to  a  new  trial  in  the 
court  of  law  and  that,  until  such  trial  be  had,  the  party  be  restrained 
from  enforcing  his  judgment.  Stockton  v.  Briggs,  58  N.  C.  at  p.  314. 
See  further  as  to  the  ruling  in  the  principal  case,  Chambers  v.  Penland, 
78  N.  C.  53:  Jones  v.  Cameron,  81  X.  C.  154;  Southerland  v.  Harper.  83 
N.  C.  200;  Cunningham  v.  Bell,  lb.  328;  Walker  v.  Gurley,  lb.  429; 
Grant  v.  Moore,  88  X.  C.  77;  Albright  v.  Albright,  lb.  238;  Turner  v. 
Cuthrell.  94  X.  C.  239;  Stout  v.  McXeill,  98  X.  C.  1.  3  S.  E.  915.  For 
when  one  can  be  restrained  from  suing  in  another  state,  see  Wlerse  v. 
Thomas,  145  X.  C.  261,  59  S.  E.  58,  15  L.  R.  A.  (X.  S.)  1008,  and  note. 
See  ■Injunction,"  Century  Dig.  §§  24-65;  Decennial  and  Am.  Dig.  Key 
No.  Series,  §§  25-28. 


HARGETT  v.  BELL,  134  N.  C.  394,  4G  S.  E.  749.     1904. 

Injunction  to  Prevent  Commission  of  a  Crime:  to  Test  Validity  of  Town 

Ordinances. 

fAction  in  the  nature  of  Quo  Warranto  and  foi-  an  Injunction  to  re- 
strain defendant  from  further  selling  liquor  contrary  to  a  statute  pro- 
hibiting such  sale.  A  restraining  order  was  issued  and  dissolved.  From 
the  order  of  dissolution  the  plaintiff  aiipealed.     Whole  cause  dismissed. I 

Cii.\RK.  C.  J.  .  .  .  The  sole  (|ii('sti()n  is  as  to  the  validity  ol' 
this  license  which  the  i-elator  claims  to  be  void.  That  matter  can 
prr)pcrly  be  dctci-iiiiiicd.  as  to  defendant,  only  by  a  criminal  prose- 
cution. Wlicii  Ihc  license  is  set  up  as  a  defense,  the  coiiH  will  pass 
upon  its  validity.  The  defendant,  if  he  is  selling  \\<\\\ny  without  a 
valid  license,  is  entitled  to  a  trial  by  juiy.  and  cainiot  be  deprived 
of  it  by  ;i  proceeding  for  contempt  for  viobition  of  an  injunction 
connnandintr  bini  nol  to  conniiil  llie  crime.  .\n  injunclion  was 
held  invalid  to  test  the  validit\-  of  a  town  ordinance  in  I'.nil  v. 
Wa.shintrton  (-M  this  teriti)  134  X  .C.  3(;3.  47  S.  Iv  7!>3 ;  S<-oll  v. 
Smith.  121  X.  C.  fU.  28  S.  E.  ()\:  Wanlens  v.  AViishington.  10!) 
Remedies — 52. 


818  EXTKAOKDINAKV     UKMKDIKS.  \  (' ll .     10. 

N.  ('.  -I,  i:>  S.  \\.  7(M);  I'uhi'u  V.  ("tuiimissioiit'i's.  77  N.  ('.  2,  in 
which  l\K.\i>K,  '1..  says:  "We  aro  aware  of  no  ix-inciplc  or  i)rece- 
di'iit  for  the  interposition  of  a  eonrt  of  ctiuity  in  sut'li  cases." 

Tliore  is  no  ei|nital»le  jurisdiction  to  enjoin  the  coiiunission  ol" 
crime.  I  lli^jfh.  In.j.  ^od  cd)  J^  20.  The  court  of  eciuity  cannot  en- 
join tlie  judtre  and  solicitor  from  the  enforeeuient  of  the  criminal 
law.  and  an  adjudication  hetween  the  parties  to  this  action  would 
be  a  vain  tliini;.  for  tlie  solicitor  could  iu)t withstandiufr  i>roceed 
in  the  criminal  action,  in  which  the  validity  of  the  alleged  license 
must  still  be  determined.  On  this  grround.  iiijuin'tion  ajrainst  an 
allefjed  illeiral  sale  of  li(iuor  was  denied.  Atty.  (Jen.  v.  Schweick- 
ardt.  10!)  Mo.  olf).  1!)  S.  AV.  47.  Tn  Patterson  v.  Ilubbs,  ()5  N.  C. 
11!),  I'liARsuN,  C.  J.,  says  that  an  injunction  is  "confined  to  eases 
where  some  private  right  is  a  subject  of  controversy."  As  is 
above  said,  if  an  injunction  to  prevent  the  eonunission  of  a  crime 
eould  issue,  the  violation  of  the  order — the  crime — could  be  pun- 
ished by  proceedings  for  eontempt  by  the  judge  without  a  jury, 
but  the  constitution  guarantees  to  one  charged  with  crime  the 
right  of  trial  by  jury.  Article  1.  §  13.  The  method  here  at- 
tempted,  if  sustained,   would   be   "govemment   by    injunction." 

The  court  below  pn^perly  dissolved  the  restraining  order,  and, 
there  being  no  cause  of  action  stated,  the  court  here  will  ex  mero. 
dismiss  the  action.    Action  dismissed. 

See  ch.  5,  sec.  2;  21  L.  R.  A.,  84,  and  note.  Compare  11  L.  R.  A.  (N.  S.) 
1060,  and  note.  See  also  21  lb.  585,  and  note.  See  "Injunction,"  Century 
Dig.  §  102;  Decennial  and  Am.  Dig.  Key  No.  Series  §  176;  "Intoxicating 
Liquors,"  Centurv  Dig.  §  397;  Decennial  and  Am.  Dig.  Key  No.  Series 
§  258. 


GREEN  V.  GRIFFIN,  95  N.  C.  50.     1886. 
Effect  of  Appeal  Upon  an  Order  for  an  Injunction. 

I  Rule  upon  Griffin  to  show  cause  why  he  should  not  be  attached  for 
contempt  for  disobeying  an  Interlocutory  Injunction.  Respondent  ad- 
judged guilty  of  contempt  and  fined  and  imprisoned.  Appeal  by  re- 
spondent.    Affirmed. 

There  was  an  interlocutory  order  made  and  served  on  Griffin,  forbid- 
ding him  to  join  his  wall  to  that  of  the  plaintiff.  From  this  order  Griffin 
appealed  to  the  supreme  court  and  perfected  his  appeal.  Being  of  the 
bona  fide  opinion  that  the  appeal  vacated  the  order  of  injunction,  and  act- 
ing under  the  advice  of  counsel  that  such  was  the  law,  Griffin  proceeded 
to  disobey  the  order.  Only  that  part  of  the  opinion  which  discusses 
the  effect  of  the  appeal,  is  here  inserted.] 

Smith,  C.  J.  The  record  raises  only  two  questions:  1.  The  ef- 
fect of  the  appeal  upon  the  interlocutory  order;  and,  if  still  opera- 
tive, 2.  The  sufficiency  of  the  defense,  that  the  act  of  alleged  con- 
tempt was  done  with  the  advice  of  counsel,  and  in  full  assurance 
that  it  was  not  in  violation  of  the  order.     Both  of  these  proposi- 


Sec.    5.]  EXTRAORDINARY    REMEDIES.  819 

tions,  in  an  affirmative  form,  have  been  strenuously  maiutaiued  in 
the  argument  of  appeHant's  counsel,  and  are  before  us  for  con- 
sideration. 

The  defendant  insists  that  the  appeal,  when  perfected,  annulled 
the  order  for  all  purposes,  and  left  the  parties  against  whom  it 
was  directed  as  free  to  act  as  before  it  was  made.  If  this  were  so, 
it  is  manifest  the  right  to  arrest  the  action  of  one  committing  irre- 
parable damage,  by  a  restraining  order,  could  be  easily  defeated 
by  taking  an  appeal  and  consummating  what  was  intended,  before 
it  could  be  acted  upon  in  the  higher  court.  Shade  trees  could  be 
cut  down,  property  removed  out  of  the  jurisdiction  of  the  court, 
beyond  recovery,  or  any  other  wrong,  intended  to  be  prevented, 
perpetrated,  so  that  when  a  final  judgment  or  perpetual  injunc- 
tion was  rendered,  it  would  be  vain  and  useless.  The  remedy 
sought  by  the  process  might  thus  ])ecome  illusory,  and  success  in 
the  suit  be  followed  by  no  benefit  to  the  aggrieved  party. 

The  cases  cited  in  support  of  so  unreasonable  a  contention, 
Bledsoe  v.  Nixon,  69  N.  C.  81,  and  Isler  v.  Brown.  lb.  125,  fol- 
lowed in  Skinner  v.  Bland.  87  N.  C.  168.  decide  that  the  whole 
cause  is  removed  by  an  appeal  from  a  final  judgment  disposing  of 
the  controversy  and  constituted  in  the  appellate  court,  when  it  has 
been  regularly  and  legally  perfected.  But  while  the  juilgmeiit  is 
vacated  for  the  purpose  of  effectuating  the  transfer  from  one 
court  to  another,  the  cases  do  not  decide  that  the  restraining  order 
becomes  thereby  wholly  inoperative,  and  that  the  mandate  con- 
tained in  it  may  be  avoided.  The  other  cases  cited,  of  appeals 
from  a  siiljsidiary  order,  made  during  the  progress  of  the  cause 
and  necessary  to  secure  the  fruits  of  an  ultimate  recovery,  simply 
declare  that  the  riding  of  the  court  is  withdrawn  from  the  juris- 
diction of  thi?  judge,  and  must  remain  without  addition,  modifica- 
tion, or  other  change,  to  be  passed  on  bv  the  appellate  court.  ]Mc- 
Rae  V.  Conns.  74  N.  C.  415;  Coates  v.  ^Yilson.  94  N.  C.   174. 

The  appeal,  like  a  writ  of  error,  does  not  disturb  the  interlocu- 
tory order,  but  suspends  action  on  it.  intended  to  carry  it  into  ef- 
fect, until  its  legality  is  tested  in  the  court  above,  and  this  being 
decided  and  certified  to  the  superior  court,  then,  if  sustained,  that 
court  is  directed  to  proceed  u|)on  tlie  judgment  as  already  exist- 
ing; or  if  declared  erroneous,  to  revei'se  or  modify  it,  in  conform- 
ity to  the  law  dechired.  The  inj\niction  re(|uires  no  ])ositive  ac- 
tion, but  that  a  party  refrain  frtnii  doiiii:-  what  is  iiie(|uil;iltli'  ;iii<l 
injurious  tri  juiotliei-.  "An  appeal  from  a  decree  dissolving  an  in- 
junction." remarks  a  i-ecent  author,  "does  not  have  the  elVcct  of 
reviving  and  continuing  tin*  injunction  itself,  since  the  ])rocess  of 
the  court,  when  once  discharged,  can  only  Iw  revived  by  a  new- 
exercise  of  judieial  power.  .\ii  appi-al  being  merely  //('  net  nf  iht 
parly,  cainiot  of  it.self  afl"ect  the  validity  of  the  order  of  the  court, 
nor  can  it  give  new  life  and  force  to  an  injunction  whicii  thf>  coiu't 
has  decreed  no  lontrer  exists."    High  on  Inj.  sec.  89^.     As  the  ap- 


S'20  KXTKAOHlUNAin     Ki:.M  IMMKS.  \C]l.     I(>. 

pi';il  (liu's  not  vacjitc  the  (Iccrt't'  (»f  dissolut i<Hi.  hill  IcMVcs  the  ord'T 
\o  which  il  .•ipplics  in  ftiii't'.  so.  Tor  i-cjisoiis  ('(juiilly  stroiiji:,  the  aj)- 
poal  (loos  not   lUMitrali/.f  Ihc  oi-ilcr  for  the  injunt-lion. 

'Pile  fun-t'iit  t»t'  ad.jiulications  is  in  Ihis  diicclion.  In  Sixlh  Ave. 
R.  H.  Co.  V.  (;ilh,Tt 'k.  K.  K.  Co..  71  N.  V.  l:!().  dolcniiincd  in  the 
Court  of  .\i>pt'als.  il  is  said:  "  \'>y  ihc  appeal  with  stay  ol"  pi-o- 
eeedin.ffs  on  the  part  of  tln'  plainlilV.  in  cnfoi-cinur  the  ,ind«j;nii'nt. 
the  judirnuMit  was  not  ainiullcd  or  its  olilijjation  upon  the  defend- 
ant impaii'ed.  Hut  its  execution  was  stayed,  that  is,  the  plaint  ill" 
was  pi-ohiliiled  from  issuin*;  ju'ocess  in  execution  of  it.  .  .  . 
Hut  this  did  not  alT'(>ct  the  validity  (U-  olToct  of  the  judfjinent  pend- 
ing the  a]i|ieal.  so  far  as  it  hoi-e  upon  and  restrained  the  action  of 
the  defenclant.  its  servants  or  agents.  Tt  did  ru)t  ahsolve  tlieia 
from  the  duty  of  olxHlieiU'c.  ami  jx'rmit  them  to  do  that  which 
the  jusment  ahsohitely  proliibited,  and  the  doin<?  of  wliieh  would. 
as  judsred  by  the  court,  cause  irreparable  mischief  to  the  plain- 
tiff, or  an  injury  which  could  not  cei-taiidy  be  compensated  in 
damasfes."  "A  stay  of  ])roceediugs  ])endinfr  an  apiieal,"  in  th(! 
lauiiuaire  of  the  court  in  Mer.  ]\Iiu.  Co.  v.  Fremont.  7  ,Cal.  130, 
"has  the  legitimate  effect  of  keeping  them  in  the  condition  in 
which  they  were  when  the  stay  of  ])rocee(liu.us  was  pranted."' 
Yocum  V.  iMoore.  4  Ky.  221.  So  in  the  Slaughter  House  cases. 
10  Wall.  278-297.  Clifford.  J.,  says,  "it  is  quite  certain  that 
neither  an  injunction,  nor  a  decree  dissolving  an  injunction, 
passed  in  the  circuit  court,  is  reversed  or  nullifiiHl  by  an  appeal 
or  writ  of  error  before  the  cause  is  heard  in  this  court." 

Wliile  an  appeal,  upon  a  final  adjudication,  in  ordinary  cases, 
transfers  the  cause  to  the  appellate  court,  where,  if  not  erroneous, 
it  is  ultimately  rendered  and  becomes,  as  has  been  often  held,  the 
judgment  of  that  court,  yet  pending  the  removal,  it  is  not  for  all 
]iurposes  a  mdlity.  It  remains,  as  decided  in  liledsoe  v.  Nixon. 
sufficiently  in  force  to  w^arrant  an  execution,  to  which  a  judgment 
is  essential,  in  case  no  supersedeas  appeal  undertaking  has  been 
given.  So  wlien  such  undertaking  has  been  executed,  "the  court 
in  which  such  judgment  has  been  recovered."  may  "direct  an  en- 
try to  be  made  by  the  clerk  on  the  docket  of  sucli  judgment,  that 
the  same  is  secured  on  appeal,  aiid  thereujion  it  shall  cease,  pend- 
ing said  appeal,  to  be  a  lien  on  the  real  property  of  the  judgment 
debtor,  as  against  purchasers  and  inortgagees  in  good  faith." 
The  Code.  sec.  435. 

This  is  an  evident  statutory  recognition  of  the  efficacy  of  the 
judgment  appealed  from,  even  when  such  full  security  is  fur- 
nished, for  some  purposes  at  least,  and  that  its  vitality  is  not  ex- 
tinguished altogether  while  the  appeal  is  undetermined.  Surel.v. 
if  for  any  purpose  the  judgment  should  remain  in  force  [it  should 
be],  to  prevent  such  evasions  as  the  present  disregard  of  the  order 
would  sanction,  and  to  secure  the  rights  of  a  litigant.  In  the  ex- 
ceptional ca.ses  of  an  appeal  from  a  collateral  order,  the  rule  is 
more  necessary  in  its  application,  and  the  jiulgment,  fi-om  neces- 
sity and  to  sustain  the  ends  of  justice,  must  so  far  subsist  as  to 


Sec.    6.]  EXTRAORDINARY    REMEDIES.  821 

authorize  the  court  to  preserve  the  status  ante  quein.  and  to  pre- 
vent any  material  change  in  it.  before  the  appeal  is  determined 
Still  more  forcibly  must  the  principle  apply,  when  a  temporary 
restraining  order  is  found  to  be  necessary  in  the  progress  of  the 
cause,  and  its  validity  is  to  be  reviewed.  Hinson  v.  Adrian.  91 
X.  C.  372.     .     .     .     Affirmed. 

See,  also,  In  re  Griffin,  98  N.  C.  225,  3  S.  E.  515;  Fleming  v.  Patterson, 
99  N.  C.  at  p.  41)7,  6  S.  E.  396.  For  the  e.xtent  to  which  one  may  be  pun- 
ished for  disobedience,  see  In  re  Patterson,  99  N.  C.  407,  6  S.  E.  643.  As 
an  appeal  does  not  dissolve  an  Injunction,  so.  if  an  injunction  be  dis- 
solved, an  appeal  does  not  keep  it  in  force.  Reyburn  v.  Sawyer,  128 
.\'.  C.  8,  37  S.  E.  954;  Harrington  v.  Rawls,  131  N.  C.  at  p.  41,  42  S.  E. 
461.  For  what  notice  of  an  injunction  is  sufficient  to  render  one  guilty 
of  contempt  in  disobeying  it,  see  23  L.  R.  A.  (X.  S.)   1295. 

For  Injunctions  against  Waste,  see  eh.  3,  sec.  9;  against  Nuisances, 
ch.  3,  sec.  11;  against  Trespasses,  ch.  3,  sec.  14;  against  Invasion  of  Mari- 
tal Rights,  ch.  5,  sec.  2;  in  matters  of  Libel,  Slander,  Privacy,  etc.,  ch.  5, 
sec.  7.  See  -Appeal  and  Error,"  Century  Dig.  §  2278;  Decennial  and  Am. 
Dig.  Key  No.  Series  §  488. 


Sec.  6.     Bills  of  Peace  and  Qulv  Timet. 

SHARON  V.  TUCKER,  144  U.  S.  533,  541-544,  12  Sup.  Ct.  720.     1891. 
Bills  of  Peace  and  Bills  Quia  Timet  Explained.     Bills  to  Establish  and 
Quiet   Title  to  Realty.     Multiplicity  of  Actions   by  Different   Plain- 
tiffs. 

[Suit  in  equity  to  establish,  as  a  matter  of  record,  the  complainant's 
title  to  certain  real  estate,  and  to  enjoin  the  defendants  from  asserting 
title  thereto  as  heirs  of  the  former  owner.  Decree  against  plaintiff,  dis- 
missing his  bill,  and  he  appealed.     Reversed. 

The  lot  had  once  belonged  to  the  ancestor  of  defendants,  who  died  in- 
testate as  to  such  lot.  The  plaintiff  claimed  by  the  adverse  possession 
of  himself  and  his  assignors  from  1861— a  period  sufficient  to  vest  title 
under  the  statute  of  limitations.  The  defendants  insisted  and  relied 
solely  upon  the  defense  that  a  court  of  equity  could  afford  no  relief  to  the 
complainants,  because  the  defendants  were  not  in  actual  possession  of 
thp  locus  in  quo  when  this  suit  was  commenced.  1 

'Sir.  .Justice  FiKi.D.  .  ,  ,  Tn  the  present  ea.se  the  adverse 
fiossession  of  the  gi-antors  of  the  comi>lainaTits  sufficient  in  bar  the 
right  of  previous  owners,  is  abundantly  established  within  the 
most  strict  definition  of  that  term.  The  objection  of  the  defend- 
ants to  the  jnrisdietion  of  a  court  of  equity  in  this  case  ai-ises  from 
confounding  it  with  a  hill  of  pracr  and  an  ordinary  /*///  quia 
linirl,  to  neitlier  of  which  class  does  it  belong,  nor  is  it  goveriied 
by  the  same  principles.  Bills  of  peace  ai-e  of  two  kinds:  First, 
those  whieli  are  bronirht  to  establisli  a  i-ight  claimed  by  tlu'  i)lain- 
tiff.  h\\\  eontrovt-rtcd  Ity  numerous  parlies  having  distinct  inter- 
ests originating  in  a  eonuiion  source.  A  right  of  fisiiery  asserted 
by  one  paHy  and  eontrovei'ted  l)y  numerous  I'iparian  iiro|)rietors 
<  n  the  river,  is  an  instance  given  by  Story  where  such  a  bill  will 
lie.  In  such  eases  a  court  of  e((uity  will  inti-rfere  and  bring  all 
the  claimants  before  it   in  one  proet'eding  to  avoid  a  nndtiplicity 


S"Ji!  EXTRAORDINAUV    KKMKIMKS.  [Ch.    JO. 

of  suits.  A  si'p;ir;i1t'  action  at  law  with  a  siiii^lo  claiinant  would 
dc'tiTiiiiui'  notliiiiii  hcyoiul  the  respect ivc  i-i^dits  of  the  pai'ties  as 
ajrainst  each  other,  and  such  a  contc'st  with  eacli  claiinant  mijilil 
lead  to  inteiMiiinahle  litiiratiou.  '[\»  put  at  i-est  the  controversy 
and  determine  the  extent  of  tiie  I'ijrhts  of  the  chiiiiiants  of  distinct 
iutorests  in  a  conunon  suhject  tiie  bill  lies.  Avhich  is  thus  essentially 
one  for  peace.  Second,  bills  of  peace  of  tlie  other  kind  lie  where 
the  riglit  of  the  jilaintilT  to  real  property  has  been  unsuccessfully 
assailed  in  dilVert'ut  actions,  and  is  liable  to  furthei-  actions  of  tlui 
same  kind,  ajul  are  bi-oufxht  to  i)ut  an  end  to  the  controvei-sy. 
"The  equity  of  the  plaintiff  in  such  eases  arose,"  as  we  said  in 
Holland  V.  Challen,  110  U.  S.  15,  19,  3  Sup.  Ct.  495,  496,  "from 
the  protracted  litiszation  for  the  possession  of  the  projierty  which 
the  action  of  ejectment  at  conunon  law  permitted.  That  action 
being  founded  upon  a  fictitious  demise,  betw^een  fictitious  partias, 
a  recovery  in  one  action  constituted  no  bar  to  another  similar  ac- 
tion or  to  any  number  of  such  actions.  A  change  in  the  date  of 
the  alleged  demise  was  suflicient  to  support  a  new  action.  'J'hus 
the  party  in  possession,  though  successful  in  every  instance,  might 
be  harassed  and  vexed,  if  not  ruined,  by  a  litigation  constantly  re- 
newed. To  put  an  end  to  such  litigation  and  give  repose  to  the 
successful  party,  courts  of  equity  interfered  and  closed  the  con- 
troversy. To  entitle  the  plaintiff  to  relief  in  such  cases  the  con- 
currence of  three  particulars  was  essential :  He  must  have  been  in 
possession  of  the  property,  he  nnist  have  been  disturbed  in  its  pos- 
session by  repeated  actions  at  law,  and  he  must  have  established 
his  right  by  successive  judgments  in  his  favor.  Upon  these  facts 
appearing,  the  court  would  interpose  and  grant  a  perpetual  in- 
junction to  quiet  the  possession  of  the  plaintiff  against  any  fur- 
ther litigation  from  the  same  source.  It  was  only  in  this  way  that 
adequate  relief  could  be  afforded  against  vexatious  litigation  and 
the  irreparable  mischief  which  it  entailed.  Adams  on  Equity, 
202:  Pomeroy's  Equitv  Jurisprudence,  sec.  248;  Stark  v.  Starrs. 
6  AVall.  402;' Curtis  v."  Sutter,  15  Cal.  259;  Shepley  v.  Rangeley, 
2  Ware,  242;  Devonsher  v.  Newenham.  2  Schoales  &  Lef.  199." 
It  is  only  where  bills  of  peace  of  this  kind — more  commonly  de- 
signated as  bills  to  remove  a  cloud  on  title  and  quiet  the  possession 
to  real  property — are  brought,  that  proof  of  the  complainant's 
actual  possession  is  necessary  to  maintain  the  suit.  Frost  v.  Spit- 
ley,  121  U.  S.  552,  556,  7  Slip.  Ct.  1129. 

There  is  no  controversy  such  as  here  stated  in  the  present  case. 
The  title  of  the  com])laiiuints  is  not  controverted  by  the  defend- 
ants, nor  is  it  assailed  by  any  actions  for  the  possession  of  the 
property,  and  this  is  not  a  suit  to  put  an  end  to  any  litigation  of 
the  kind.  Tt  is  a  suit  to  establish  the  title  of  the  complainants  as 
matter  of  record,  that  is.  by  a  judicial  determination  of  its  valid- 
ity, and  to  enjoin  the  assertion  by  the  defendants  of  a  title  to  the 
same  property  from  the  former  owners,  which  has  been  lost  by  the 
adverse  possession  of  the  parties  through  whom  the  complainants 
claim.     The  title  by  adverse  possession,  of  course,  rests  on  the 


Sec.    6.]  EXTRAORDINARY    REMEDIES.  S23 

recollection  of  witnesses,  and.  by  a  judicial  determination  of  its 
validity  against  any  claim  under  the  former  owners,  record  evi- 
dence will  be  substituted  in  its  place.  Embarrassments  in  the 
use  of  the  jn-operty  by  the  present  ownei-s  will  be  thus  removed. 
Actual  possession  of  the  property  by  the  complainants  is  not  es- 
sential to  maintain  a  suit  to  obtain  in  this  way  record  evidence  of 
their  title  to  which  they  can  refer  in  their  efforts  to  dispose  of 
their  property. 

The  difference  between  this  case  and  an  ordinary  bill  quia  timet 
is  equally  marked.  A  bill  quia  timet  is  generally  brought  to  pre- 
vent future  litigation  as  to  property  by  removing  existing  causes 
of  controversy  as  to  its  title.  There  is  no  controvei-sy  here  as  to 
the  title  of  the  complainants.  The  adverse  possession  of  the  par- 
ties, througli  whom  they  claim,  was  complete,  \nthin  the  most  ex- 
acting judicial  definition  of  the  term.  It  is  now  well  settled  that 
by  advei-se  possession  for  the  period  designated  by  the  statute, 
not  only  is  the  remedy  of  the  former  owner  gone,  but  his  title  has 
passed  to  the  occupant,  so  that  the  latter  can  maintain  ejectment 
for  the  possession  against  such  former  owner  should  he  intrude 
upon  the  premises.  In  several  of  the  .states  this  doctrine  has  be- 
come a  positive  iiile,  by  their  statutes  of  limitations  declaring 
that  uninterrupted  possession  for  the  period  designated  to  bar 
an  action  for  the  recovei-y  of  land  shall,  of  itself.  co2istitut€  a  com- 
plete title.  Leffingwell  v.  AVarren.  2  Black.  599:  Campbell  v. 
Holt.  115  r.  S.  620,  628.  6  Sup.  Ct.  209.     ... 

As  the  complainants  have  the  legal  title  to  the  premises  in  con- 
troversy, and  as  no  jiarties  deriving  til]<*  from  the  former  owners 
can  contest  thai  title  with  them,  there  does  not  seem  to  be  any 
just  rea.son  why  the  relief  prayed  should  not  be  granted.  Such  re- 
lief is  among  the  remedies  often  administered  by  a  court  of  equity. 
It  is  a  part  of  its  ordinaiy  jurisdietiim  to  ])erfect  and  complete 
the  means  by  which  the  right,  estate  or  interest  of  the  parties, 
that  is,  their  title,  may  be  proved  or  secured,  or  to  remove  obsta- 
cles which  hinder  its  enjoyment.  \\)\\\.  E(|.  Jurisp.  vol.  1.  sec.  171. 
The  form  of  the  reujcdy  will  vary  according  to  tlie  i)articular  cir- 
cumstances of  each  case.  "It  is  aljsolutely  inqxtssible, ' '  says 
Pomeroy,  in  his  treatise,  "to  enumerate  all  the  special  kinds  of 
relief  which  may  be  gi-anted.  or  to  |)lace  any  bounds  to  the  power 
of  the  courts  in  shaf)ing  the  relief  in  accordance  with  the  cii'c\nii- 
stances  of  jiarticular  cases.  As  the  nature  and  incidents  of  jtro- 
prietary  rights  and  interests,  and  of  the  circumstances  attending 
them,  and  of  llic  relations  arising  fivtm  them,  ai-c  practically  un- 
limited, so  are  tlic  kinds  anrl  forms  of  .specilic  relief  ;i|i|»lic;ib]i'  lo 
the.se  cjrcumslances  and  relatif)ns. 

Many  authorities  to  the  same  purport  might  be  cited.  They 
are  only  illustrative  «(f  tie'  rinK-dics  a(T(»rded  by  courts  of  e(|uity 
to  rejnove  diffi'-nJt  ies  in  fhe  way  of  owthts  of  propecfy  using  and 
enjoying  it  fully,  when,  from  cjinses  beyond  tliiir  control,  such  use 
and  enjoyment  are  obstructed  The  foT-iii  of  i-rlief  will  always 
be  adapted  to  the  oltstacjes  to  be  removed.     The  flexibility  of  de- 


s;«J4  EXTKAOUniNAKV    REiMliDlES.  \('ll.     10. 

iTi'i'S  of  ;i  I'ourt  ol'  i'i|uit\  will  fiKililr  it  to  iiu'ct  cvt'i-y  (MiuTiiciicy. 
I  lore  the  (.'iiibarrassmi'iits  to  tlu-  i'oiiiplaiiiiint.s  in  the  use  and  I'li- 
joynient  of  their  i)roi)eity  are  obvious  and  insuperable  except  by 
relief  throuirh  that  ••ourl.  N\)  *'xistingr  risjfhts  ol'  the  defendants 
will  be  inipaii-ed  by  j;rautiu<i  what  is  prayed,  and  the  rights  of 
the  eoniplainaiUs  will  ite  plaeed  in  a  eondition  to  be  available. 
The  same  prineiple  whieh  leads  a  eourt  of  equity  upon  proper 
proof  to  establish  b\  its  decree  the  existence  of  a  lost  deed,  and 
thus  make  it  a  matter  of  record,  must  justify  it  upon  like  proof 
to  declare  by  its  decree  the  validity  of  a  title  resting  in  the  recol- 
lection of  witnesses,  and  thus  make  the  evidence  of  the  title  a 
matter  of  record. 

It  is.  therefore,  ordered  that  the  dec-ree  of  the  court  below  be 
revei*sed.  anil  the  cause  renuuided  to  that  court  with  directions 
to  enter  a  decree  declaring  the  title  of  the  complainants  to  the 
premises  described  in  their  complaint,  by  adverse  possession  of 
the  parties  through  whom  they  claim,  to  be  complete,  and  that  the 
defendants  be  enjoined  from  asserting  title  to  the  said  premises 
through  their  former  owner.     Each  party  to  pay  his  own  costs. 

Bill  of  peace  when  a  number  of  people  have  separate  causes  of  action 
growing  out  of  the  same  tort.     20  L.  R.  A.  (N.  S.)  848,  and  note. 

See  White  v.  Cooper,  53  X.  C.  48,  inserted  at  ch.  3,  sec.  2,  and  note  to 
that  case;  ch.  3,  sec.  6.  Removal  of  Cloud  upon  Title  and  Quieting  Title; 
and  ch.  3,  sec.  7,  Confusion  of  Boundaries  and  Processioning.  Compare 
Henderson  v.  Bates,  3  Blackf.  461,  inserted  at  ch.  12,  post.  See  "Quiet- 
ing Title,"  Century  Dig.  §§  8-11;  Decennial  and  Am.  Dig.  Key  No.  Se- 
ries § 


THIRD  AVE.  R.  R.  CO.  v.  THE  MAYOR,  ETC.  OF  NEW  YORK,  54  N.  Y. 

159.     1873. 

Injunction  Against  Multiplicity  of  Actions  by  the  Same  Plaintiff.     Con- 
solidation of  Actions. 

f Action  brought  by  plaintiff  to  restrain  defendants  from  prosecuting 
more  than  one  of  twenty-seven  actions,  which  they  had  commenfcd 
against  the  plaintiff  in  a  justice's  court,  until  one  of  such  actions  could 
be  finally  determined.  Each  of  the  actions  in  question  had  been  brought 
at  the  same  time  to  recover  a  separate  and  distinct  penalty  of  $50  im- 
posed by  law  for  running  street  cars,  within  certain  limits,  without  a  li- 
cense. Demurrer  by  defendants.  Demurrer  overruled,  and  judgment 
against  defendants,  from  which  they  appealed.     Affirmed.] 

LoTT.  Ch.  C.  The  jurisdiction  of  a  court  of  equity  to  prevent, 
by  injunction,  a  multijilicity  rif  suits  is  uiKiuestionable.  and.  ac- 
cording to  my  understanding  of  the  points  of  the  appellants' 
counsel,  is  not  denied  by  him;  but  he  claims  that  "an  injunction 
to  restrain  the  proceedings  in  anotlier  suit,  cithei-  in  tlic  same 
court  or  in  another  court  having  efjual  power  to  grant  the  relief 
sought,  will  no  longer  be  granted."  Conceding  the  general  rule 
to  be  as  claimed  by  him,  it  does  not  apply  to  the  facts  stated  in. 
nor  to  the  ea.se  made  by.  the  phiintiff's  complaint.  To  make  it 
applicable,  it  nuist  appear  that  the  justice's  court,   in   which  the 


S(C.    6.]  EXTRAORDINARY    RKMEDIES.  825 

actions  sought  to  be  restrained  are  pending,  has  power  to  grant 
the  relief  asked  by  the  complaint  in  this  action.  This  is  not 
claimed  by  the  counsel.  That  court  is  also  without  a  very  impor- 
tant power,  possessed  by  courts  of  record,  which  if  it  existed  in 
reference  to  actions  pending  therein,  would  have  rendered  the 
present  action  unnecessary.  Any  court  of  record  has  the  power, 
whenever  several  suits  are  pending  in  it  by  tlu*  same  plaintitT 
against  the  same  defendant  for  causes  of  action  which  may  be 
joined,  to  order  the  several  suits  to  be  consolidated  into  one  action. 
2  Rev.  Stat.  p.  383,  sec.  36.  The  supreme  court  has  also  the  power, 
if  one  or  more  of  such  suits  be  pending  in  tlu-  siipi-cme  court  and 
others  be  pending  in  any  other  court,  to  order  the  suits  in  other 
courts  to  be  consolidated  with  that  in  the  supreme  court.  Ibid, 
sec.  37. 

The  above  provisions,  it  will  be  seen,  do  not  reach  the  suits 
sought  to  be  restrained,  and  the  justice's  court  in  which  they  were 
jiending  had  not.  as  I  have  stated,  the  power  of  consolidating 
them.  The  plaintiff  must,  therefore,  have  been  subjected  to  the 
cost  and  expense  of  the  defense  of  all  of  those  actions,  if  it  had 
not  obtained  relief  under  its  complaint  in  this  suit. 

It  is  material  to  bear  in  mind,  in  consideration  of  the  questions 
raised  by  the  demurrer  to  the  complaint,  that  it  is  not  asked  to  re- 
strain tiie  defendants  from  obtaining  a  decision  by  the  justice's 
court  of  the  f[uestion  involved  in  the  actions  pending  therein;  but 
the  continuance  of  the  prosecution  of  one  of  them  is  suffered  and 
permitted,  and  an  injunction  to  restrain  and  forbid  the  proceed- 
ings in  the  others  of  tliem  is  only  asked  until  that  wliieh  shall  be 
proceeded  in  can  be  finally  heaixl  and  determined,  and  the  injunc- 
tion granted  l)y  the  judgment   ai)iiealed   from   is  to  that  extent 
only.     The  question  to  be  decided  in  all  of  the  suits  is  the  same, 
and  a  single  one.  depending  on  the  same  fact.s.     The  decision  made 
in  the  one  which  is  to  be  prcj.secuted  will,  in  its  effect,  be  a  decision 
of  all  of  them.     TIk'  injunction  a.sked  and  granted  does  not  oper- 
ate as  an  absolute  but  a   icinporary  s1;iy  oiil>-  of  the  actions  to 
which  it  applies,  and  tlic  plaintiff  has  oll'ered  in  llir  ••oinplaint  to 
irive  any  security  reqtiii-ed  for  tlie  payment  to  the  (lel'entlants  of 
the  sum  clainiecl  in  all  of  the  said  actions  if  it  should  be  finally 
decided  that   it   is  liable  for  the  penalty  by  said   ordinance  piv- 
scribed.  and  for  the  expense  of  ju-osecuting  such  action  or  ;ietioiis 
as  might  be  necessary  to  determine  the  same.     The  case  is  dilVei-ent 
fi-om  those  of  West  V.  Th.'  :\rayor.  etc.,  10  Paige.  530,  and  Oakley 
V.  The  Mayo?-,  etc..  cited  and  referred   to  in  that  of  West.     The 
injiuiction  a.sked   in  them  was  to  ri'sti-ain  absolutely  the  prosecu- 
tion of  any  suits  at   law  for  breaches  of  ccrtaiji  coi-poi-at ion  oi-di- 
nances.     They  are  therefore  clearly  distinguishable  from  this.   The 
relief  lierein   was  substantiall\-  to  the  same  elVi-el    as  Ihat    which 
would  have  been  obtained   if  the  actions  had   Ix-eii  all   pending  in 
the  supi'eini'  court    or  any   eonrt    of  i-ecord   by   a   eousolidat  i"n   of 
them. 

It  is  said  bv  .Tu«lge  Story  that  "courts  of  e«|uity  discourage,  in 


SliG  EXTKAOUKIN  \K\     K  KM  KOIKES.  \('ll.     10. 

various  forms,  the  i^romotion  oi  iiiu-casoiuiMt'  lilit:-ati(ui,  and  on 
this  tironml.  for  the  purixtsc  of  piTVi'ntin^'  a  nniilii»litity  of  suits, 
tlicy  will  not  permit  a  parly  to  hrinj;  a  bill  for  a  pari  of  a  matter 
only,  wlici-f  tlio  whole  is  the  |>ro|>t"r  sni),icrt  of  onr  suit.  Thus, 
for"  exam pli\  they  will  not  permit  a  party  lo  hi-ini,^  a  hill  fttr  a 
part  of  one  entire  aeeonnl.  hut  will  compel  hnii  to  unite  the  whole 
in  one  suit,  for  otherwise  lie  miiiht  split  it  up  into  various  suits 
and  promote  the  most  opi)ressivo  litiiration.  I'ikmi  a  «rronnd  some- 
wliat  analo«rous.  if  an  ancestor  has  made  two  mortii:atr»'s,  the  heir 
will  not  he  allowed  to  I'cdeem  one  without  the  other."  Story  s 
Ecp  IM.  see.  liST.  The  same  i)rinciple  is  clearly  applieahle  to  the 
present  ease.  See  also,  in  sui)port  of  the  principle.  Story's  K(i. 
Jurisp..  sec.  457.  85;^.  !)()!  :  Hanson  v.  (lardiner.  7  Ve.s.  Ch.  305; 
Livinjrstou  v.  T.iviuirston.  (i  John.  Ch.  41)!);  New  Haven  R.  R.  v. 
Schuyler.  17  N.  Y.  (iOS.  The  prosecution  of  all  of  the  suits  re- 
ferred to  in  the  comi)laint  at  one  and  the  same  time  would  he  un- 
necessarily oi)pressive.  by  having  costs  incurred  which  it  is  said  in 
the  complaint  would  be  "onerous  and  oppressive;"  and  the  cas.- 
is  one.  under  all  the  facts  disclosed,  where  the  interference  of  a 
court  of  equity  was  properly  invoked  and  exercised.  The  result 
of  the  views  above  expressed  is  that  the  judgment  appealed  from 
should  he  affirmed,  with  costs. 

See  10  L.  R.  A.  (X.  S.)  9S3.     See  "Injunction,"  Century  Dig.  §  31;   De- 
cennial and  Am.  Dig.  Key  No.  Series  §  26. 


FEATHERSTONE  v.  CARR,  132  N.  C.  800,  44  S.  E.  592.     1903. 
Injunction  Against  Multiplicity  of  Actions.     Code  Practice.     Motion  in 

the  Cause. 

[Plaintiff  instituted  summary  proceedings  in  ejectment  before  a  justice 
of  the  peace  for  the  purpose  of  ejecting  defendant  from  certain  demised 
realty,  and  to  recover  rent  claimed  to  be  in  arrears.  Defendant  resisted 
the  proceeding  and  disputed  the  amount  of  rent  claimed.  The  justice 
gave  judgment  against  the  defendant  and  he  appealed  to  the  superior 
court.  After  that  appeal  the  plaintiff  procured  thirteen  other  judgments 
for  rent,  in  the  justice's  court,  from  all  of  which  judgments  the  defend- 
ant appealed.  The  plaintifT  threatened  to  continue  this  method  of  suing 
for  rents  before  the  justice.  All  of  these  judgments  and  threatened  ac- 
tions concerned  the  same  matter  and  could  have  been  settled  in  one  ac- 
tion. The  other  facts  appear  in  the  beginning  of  the  opinion.  TTpon  a 
motion  in  the  original  action,  by  the  defendant,  the  judge  granted  an 
injunction  against  plaintiff's  prosecuting  any  more  actions,  etc.,  and 
plaintiff  appealed.     Affirmed. 1 

Montgomery.  J.  .  .  .  The  defendants,  upon  affidavits. 
made  a  motion  in  the  case  on  appeal  in  summary  e.iectment  for 
an  in.iunction  to  restrain  the  plaintiffs  from  prosecuting  any  fur- 
ther suits  against  the  defendants  for  and  on  account  of  the  rents. 
and  from  issuing  executions  on  the  .iudgments.  or  either  one  of 
them,  for  rent;  and  his  honor  granted  the  injunction.  Tt  appears 
further  in  the  proceedings  that  upon  the  taking  of  the  appeal  in 
the  proceeding  of  .summary  ejectment,  under  section  1772  of  the 


Sec.    6.]  EXTRAORDINARY    REMEDIES.  827 

Code,  the  defeiulaiit  executed  a  bond  in  the  sum  of  $1,350  to  se- 
cure the  plaiutitfs  the  rent  and  damages  during  the  pendency  of 
the  appeal,  and  that  afterwards,  by  an  order  made  in  the  superior 
court,  an  additional  bond  for  the  same  purpose  in  the  sum  of 
$1,200  was  executed  aud  tiled  by  the  defendants.  We  can  see  no 
error  in  the  course  pursued  by  his  honor.  It  was  proper  for  the 
defendant  to  have  made  the  motion  for  the  injunction  in  the  case 
then  pending  in  the  superior  court,  and  a  new  action  for  that  pur- 
pose could  not  have  been  maintained.  Faison  v.  Mcllwaine  72 
X.  C.  312 ;  Lord  v.  Beard.  79  N.  C.  5. 

It  clearly  appeal's  from  the  record  that  in  the  controversy  pend- 
ing between  the  parties  all  matters  in  dispute  between  them  can 
be  settled,  and  the  plan  adopted  by  the  plaintiffs  of  a  multiplicity 
of  suits  for  the  monthly  payment  of  rents  must  be  regarded,  there- 
fore, as  vexatious,  and  equity  will  inten^ene  by  injunctive  process 
to  prevent  such  litigation.     The  spirit  of  our  present  system  of 
practice  favors  the  adjustment  and  settlement  of  all  matters  in 
dispute  between  parties  in  one  action,  as  far  as  possible;  and  it 
discourages  multiplicity  of  suits,  because  of  the  vexatious  delays 
and  costs  attendant  upon  them.     Sparger  v.  ^NFoore.  117  N.  C.  4:f)0. 
23  S.  E.  359.     And  besides  no  harm  could  come  to  the  plaintiff's 
through  the  is.suing  of  the  injunction,  while  the  defendants  would 
be  subjected  to  inconvenience  and  probable  loss  if  it  were  not 
srranted.  and  in  such  cases  it  is  proper  for  the  injunction  to  be  is- 
sued.    McC'orkle  v.  Brem,  76  X.  C.  407;  Railroad  v.  Commi.ssion- 
ers,  108  N.  C.  56.  12  S.  E.  952.    The  plaintiffs  cannot  be  hurt  her.'. 
On  the  trial  they  can  recover  the  rents  due  up  to  the  trial,  and 
any  damages  which  they  have  .sustained  by  the  detention  of  the 
j)roperty;  and  there  are  bonds  on   tile  in  the  court  in  sutKicient 
amount,  and  approved  as  to  security  by  the  proper  officers.    Also, 
if  those  bonds  should  become  impaired,  or  if  the  litigation  should 
become  protracted  to  such  an  extent  as  to  recpiire  additional  .se- 
(Mnity  to  i)rotect  the  ijlaintilVs  in  their  rents,  then,  under  section 
1772  of  the  Code  of  1883,  the  superior  courts  can  require  addi- 
tional security.     Xot  only  is  it  within  the  jurisdiction  and  power 
of  the  superior  cnurts  U>  have  the  bonds  in  such  cases  increased  or 
strengthened,  but   undei-  their  general  i)owers  in  equity.  outsiil»i 
of  that  statute  or  any  other  statute,  they  would  have  the  right  to 
take  such  action.    Or  in  case  of  inability  <m  the  part  of  a  suitor  to 
give,  .strengthen,  or  increase  such  secui-ity.  the  coiu-t   would  have 
the  j)owei-  to  appoint  a  I'cceiver  to  take  i)0.ssession  of  the  ju-operly 
under  tlie  direction  of  the  court.     Kron  v.  Dennis.  90  X.  C.  327; 
T>umber  Co.  v.  AVaMace.  93  N.  C.  22.     We.  in  <leference.  will  add 
that  as  the  courl   docket   is  always  under  I  be  eontrol  of  tlie  pre- 
siding judge,   and.   as  a   general    jMile.   jo   be   regularly   ])roc<'ede(l 
with,  yet  we  have  no  doiibf   tlial.  upon  sueli  a  ea.se  as  this  being 
called  to  Jiis  honor's  attention,  a  speedy  tii;d  would  etisne  if  Iherc^ 
was  dan<.'er  of  lo,s.s  to  [daintifT  liy  rielay.     \o  error. 

Sfe  Rpiiiov.'il  of  f'loiul  iipfin  Title,  c  h.  ?,,  rpc.  C.  aiiti'.  Sec  '  lii.)iiiiitlon." 
Centurv'  Dig.  §§  .31.  180;  Dfefnnlal  and  Am.  Dig.  Key  No.  Series  §§  2f., 
106. 


828  EXTUAOKIMNAICV    UIOMUDIES.  [Ch.    W. 


Sl-X".    7.       Ull.l.S   OK    InTKUI'I-KADEU. 

SPRAtUK   V.   SOrLH  and   Others.   ;',:.    Mich.   3").      1870. 
Drfiiiiliim   anil   Es.sriit ial.s. 

MARSTt>N.  .1  A  lull  of  intorpU'acU'r  is  a  bill  lilcd  for  tlio  pro- 
tiH'tion  o\'  a  i^'i-soii  fi-oiu  whom  sovtM-al  claiiii  IcLi'ally  or  ('(|uital)ly 
the  saiiio  debt,  thiiit,'.  or  <lut\":  but  who  has  iiKMii-n'd  no  iiulrpciul- 
t'lit  liability  to  any  of  tht'in,  and  docs  iiol  hiiiisclf  claiiii  any  in- 
terest in  the  iiiattei-.  Adams'  E(i.  202.  And  it  is  essential  anion;;' 
other  thinszs  that  the  pai't\'  scckinir  rdiei"  has  incurred  no  inde- 
pendent liabilit\-  to  ('ither  claimant,  lb.  204.  In  this  case  the  bill 
alleges  that  complainant  incurred  the  liability  under  an  express 
agreement  with  some  of  the  parties  against  whom  he  now  claims 
relief.  Sucli  being  tht>  case  he  is  not  (Mititled  to  the  i-elief  he  now 
seeks.    The  decree  dismissing  the  bill  miLst  be  al'lirmed,  with  costs. 

See  10  L.  R.  A.  (N.  S.)  748,  and  elal3orate  note.  To  warrant  this  rem- 
edy the  liainis  "threatening  the  complainant  must  be  such  as  antagonize 
and  negative  each  other."  School  Dist.  v.  Weston,  31  Mich.  85;  Wallace 
V.  Sorter.  52  Mich.  159,  17  N.  W.  794.  But  if  several  antagonistic  claims 
be  asserted  to  the  same  fund,  the  remedy  lies.  Ibid.;  Moore  v.  Barn- 
heisel,  45  Mich.  500,  8  N.  W.  531.  See  next  succeeding  case  as  to  privity 
between  adverse  claimants.  See  "Interpleader,"  Century  Dig.  §  12;  De- 
cennial and  Am.  Dig.  Key  No.  Series  §  10. 


CRANE  V.  MCDONALD,  118  N.  Y.  648,  23  N.  E.  991.     1890. 

Essentials  to  thr  Action.     Proceeding  Under  Code  Practice.     Form    of 
Complaint.     Privity  Between  Claimants. 

[Action  of  Interpleader.  A  perpetual  injunction  was  ordered,  re- 
straining defendant  from  further  prosecution  of  an  action  commenced 
against  the  plaintiff.     Defendant  appealed.     Affirmed. 

Plaintiff  owed  .lennie  L.  Graves  $808.  The  defendant  claimed  the 
money  upon  an  alleged  assignment  from  .Jennie  L.  Graves,  and  brought 
an  action  against  the  plaintiff  to  recover  the  same.  George  E.  Goodrich 
also  claimed  the  money  under  an  alleged  attorney's  lien  for  services  to 
.Jennie  L.  Graves,  and  under  an  attachment  duly  levied  thereon.  The 
plaintiff  sued  both  the  claimants  and  offered  to  pay  the  money  into 
court  or  to  which  ever  claimant  would  indemnify  him.  Plaintiff  alleged 
the  above  facts  and  further  stated  that  he  was  not  in'  collusion  with 
either  defendant.  Before  this  action  was  brought,  plaintiff  paid  the 
money  into  court  to  abide  the  decision  therein.  The  lower  court  ruled 
that  this  was  a  proper  case  for  an  interpleader  and  granted  the  injunc- 
tion as  above  stated.! 

Yaxx.  J.  The  material  allegations  in  a  bill  of  interpleader,  ac- 
cording to  an  early  decision  by  the  court  of  errors,  are:  (1)  That 
two  or  more  persons  have  preferred  a  eiaim  against  the  complain- 
ant: (2)  that  they  claim  the  same  thing;  ("?>)  that  the  complainant 
has  no  beneficial  interest  in  the  thing  claimed;  and  (4)  that  he 
cannot  determine,  without  hazard  to  himself,  to  which  of  thejl^- 
fendants  the  thing  belongs.     Atkinson  v.  ^Manks.  1  Cow.  601.  70:^. 


StC.    7.]  EXTRAORDIXARY  REMEDIES.  829 

It  was  also  held  in  that  case  that  liie  t-omplainant  should  annex 
to  his  bill  an  affidavit  that  there  is  no  collusion  between  him  and 
any  of  the  parties,  and  that  he  .should  brins:  the  money  or  thing 
claimed  into  court,  so  that  he  could  not  be  bcnetitcd  by  the  delay 
of  payment  which  might  result  from  the  filing  of  his  bill.     This 
method  of  procedure  still  prevails.     Dorn  v.  Fox.  61  X.  Y.  268. 
The  plaintitf  insists  that  he  has  conformed  to  the  practice  thus 
laid  down  in  every  particular,  vvhile  the  appellant  contends  that 
the  complaint   is   not   sufficiently  specific   with   reference   to   the 
claims  of  the  defendants,  and  that  no  privity  is  shown  between 
them  in  relation  to  their  respective  demands.     The  complaint  de- 
scribes the  claim  of  the  defendant  ^IcDonald  more  fully  than  that 
of  the  defendant  Goodrich,  because  the  former  had  sued  him.  anJ 
had  thus  furnished  him  with  a  definite  description.     While  the 
claim  of  the  latter  wa.s  not  clearly  nor  fully  described,  enough  was 
set  forth  to  show  that  it  was  not  a  mere  pretext,  but  that  it  ap- 
parently  rested   upon   a   reasonable   and   substantial   foundation. 
If  the  appellant  desired  that  it  should  be  made  more  definite  and 
certain,  his  remedy  was  by  motion,  under  section  546.  Code  Civil 
Proc.     Neftel  v.  Lightstone.  77  X.  Y.  96.     Upon  the  trial,  accord- 
ing to  the  old  chancery  practice,  as  it  appeared  by  the  answers  of 
the  defendants  that  each  claimed  the  fund  in  dispute,  no  other 
evidence  of  that  fact  was  required  to  entitle  the  plaintilf  to  a  de- 
cree.    Balchen  v.  Crawford.  1  Sandf.  Ch.  380.     Tn  this  case,  how- 
ever, the  point  was  not  left  to  be  determined  by  the  pleadings,  but 
evidence  was  introduced  upon  the  subject,  and  it  appeared  that  at 
least  a  fair  doubt  existed  as  to  the  rights  of  the  contacting  elaim- 
ants.    It  was  not  necessary  for  the  plaintiH"  to  decide,  at  his  peril, 
either  close  questions  of  fact  or  nice  questions  of  law.  but  it  was 
sufficient  if  there  was  a  rea.sonable  doubt  as  to  which  claimant  the 
debt  l)elonged.     When  a  person,  without  collusion,  is  subjected  to 
a  double  demand  to  pay  an  acknowledged  debt,  it  is  the  object  of 
a  bill  of  interi)leader  to  relieve  him  of  the  risk  of  dcM'iding  who  is 
entitled  to  the  money.     If  the  doubt  rests  upon  a  question  of  fact 
that  is  at  all  serious,  it   is  obvious  that  the  debtor  cannot  safely 
decide  it  for  himselF.  because  it  might   be  decided  the  other  way 
upon  an  actual  trial;  while  if  it  rests  upon  a  question  of  law.  :i> 
was  said  in  Doni  v.  Fo.\.  61  X.  Y.  264.  "so  long  a.s  a  principle  is 
still  under  discussion      ...     it    wouhl   seem   fair  to  hold   that 
there   was  sufficient   doubt    and   iiazard   to  justify  the   protection 
which  is  afforded  by  the  beneficent  action  of  interpleader."     Al- 
though the  claim  of  Mr.  Goodrich  has  since  been  held  luitenable 
bv  tliis  court    (Goodrich  v.  McDonald.   112  X.  Y.   157.  1!)   N.   F. 
Kej).  64!n.  it  does  not  follow  that  no  donbt  existed  when  this  nc- 
tif»n  was  commenced,  because  the  supreme  court,  both  al   speci.d 
and   general   l.-rin.   lield   thai    il    was  valid,   and  at1emi>ted  to  en- 
force'it.     This  contlict   in  the  decisions  of  the  eoin-ts  slutws  that 
the   adverse   claims   of    llu-   defendants    involved    a    difficult    and 
doubtful  question,  and  is  a  conclusive  answer  to  tli«'  contention  (>f 
flir  apf.ellant   that  the  plaintifT  did  no|    iicd  Hie  aid  of  an  action 


830  KXTKAOHniXAHV    RKMKDIES.  \  (' ll .     10. 

of  tliis  L'liar;n'UT.     Was  it  possililc  for  him  to  safely  tlcciilc  a  |)(tiiil 
so  intrioate  as  to  i-aiisi'  those  loanicd  in  the  law  to  dilTcM-  so  wich'ly? 

Tlio  law  did  not  place  so  «ri-«'at  a  it's|)oiisil)ility  upon  liiiii.  hut 
l«rovid('d  hiiii  with  a  riMiunly  to  protect  himself  ai^^ainsf  the  douhlc 
liability.  i>r,  to  speak  moiv  acciii-ati'ly,  aj;aiiist  a  ilouhlc  vexation 
<"n  account  of  one  liability.  J)orn  v.  Fox,  supra;  Caulkins  v.  liol- 
ti>n.  :n  llun.  4r)8.  !)8  N.  Y.  511;  Johnston  v.  Stimmol.  S!)  N.  Y. 
117:  Schuyler  v.  Pelissier.  :?  Kdw.  (Mi.  191;  liedell  v.  IlolVman. 
L»  Paige.  ISM);  Kailroad  ("o.  v.  <'lutc.  4  Paijre,  384;  Jiell  v.  Hunt. 
3  Harb.  Ch.  3J)1  ;  Badeai:  v.  Tylee,  1  Sandf.  Ch.  270;  German 
Exch.  liank  v.  (Commissioners.  G  Abb.  N.  C.  394;  Railroad  Co.  v. 
Arthur.  10  Abb.  X.  ('.  147;  3  Pom.  E(|.  Jur.  §§  1320-1327;  2 
Story,  Eq.  Jur.  5$^;  800  824.  It  recpiircd.  however,  that  lie  should 
act  in  good  faith,  and  he  insists  that  he  furnished  ample  evidence 
upon  that  question.  He  oifei-ed  to  i)ay  the  money  to  Mrs.  McDon- 
ald if  she  Avould  indenuiify  him  a<iainst  the  claim  of  jMr.  Good- 
rich, but  she  refused  to  do  so.  and  commenced  an  action  to  re- 
cover the  amount  involved.  A  like  offer  to  Mr.  Goodrich,  upon 
the  condition  that  he  should  furnish  indemnity,  was  declined,  and 
legal  pi'oceedings  wei-c  tlireatened.  Neither  (h^fendant  would  re- 
cede from  the  i)osition  thus  taken.  l)ut  both  persisted  in  their  re- 
spective demands.  The  plaintiff  thereupon  paid  the  money  into 
court  pursuant  to  its  order,  and  then  commenced  this  suit,  annex- 
ing to  his  complaint,  in  addition  to  the  usual  verification,  an  affi- 
davit stating  that  the  action  was  brought  in  good  faith,  and  with- 
out collusion  with  either  defendant,  or  with  any  person  "in  their 
behalf."  It  did  not  appear  tliat  he  had  attempted  to  favor  the 
position  of  either  claimant.  These  facts,  with  others  appearing 
in  the  record,  furnished  ade(|uate  support  to  the  conclusion  of  the 
trial  judge  that  the  plaintiff  acted  in  good  faith. 

The  appellant  contends  that  no  such  privity  was  shown  to  exist 
between  the  defi^idants  as  to  authoi-ize  the  plaintiff  to  bring  an 
action  to  cause  them  to  interplead.  While  the  early  authorities 
were  exacting  upon  this  subject,  many  of  the  later  cases  have  been 
less  rigid,  and  some  have  ignored  it  altogether.  The  doctrine 
seems  to  have  been  abrogated  in  England,  partly  l)y  statute  and 
partly  by  judicial  decisions.  ^Ir.  Pomeroy.  referring  to  the  rule, 
says  that  "it  is  a  manifest  imperfection  of  the  equity  jurisdiction 
that  it  should  be  so  limited.  A  person  may  be  and  is  exposed  to 
danger,  vexation,  and  loss  from  conflicting  independent  claims  to 
the  same  thing,  as  well  as  from  claims  which  are  dependent;  and 
there  is  certainly  nothing  in  the  nature  of  the  remedy  which  need 
prevent  it  from  being  extended  to  both  classes  of  demands."' 
3  Pom.  Eq.  Jur.  §  1324.  note.  Our  statutory  interpleader  by 
order  apparently  does  not  recognize  the  doctrine.  Code  Civil 
Proc.  §  820.  A  somewhat  similar  .statute  in  England  led  the 
courts  of  that  country  to  declare  that  they  no  longer  felt  bound, 
even  in  an  equity  action,  by  the  narrow  principle  previously  laid 
down.  Attenborough  v.  Dock  Co..  3  C.  P.  Div.  450.  It  is  not 
necessary,  however,  for  us  to  decide  whether  the  rule  still  exists, 


Sec.    7.]  EXTRAORDINARY    REMEDIES.  831 

or  to  what  extent  it  exists,  in  this  state ;  because,  according  to  the 
most  exacting  authorities,  where  the  adverse  titles  of  the  claim- 
ants are  both  derived  from  a  common  source,  it  is  sufficient  to  au- 
thorize an  interpleader.     Such  is  the  case  under  consideration. 
^Irs.  Graves,  as  the  owner  of  the  contract  in  question  and  of  the 
money  that  was  invested  therein,  was  the  common  source  of  title 
to  both  defendants.    The  title  of  ^Nlrs.  :\IcDonald,  as  claimed.— for 
it  is  the  claim  only  that  is  here  material. — was  by  assignment  of 
the  legal  title  from  ]Mrs.  Graves,  while  the  claim  of  ]\Ir.  Goodrich 
Avas  by  an  equitable  assignment  from  the  same  pereon.     Each  de- 
fendant, acknowledging  the  original  title  of  ^Nlrs.  Graves,  claimed 
the  same  del.)t  under  her,  and  the  title  of  each  was  therefore  ' '  de- 
rivative." as  that   word  is  used  with  reference  to  this  subject. 
3  Pom.  Eq.  Jur.   ^   1327.     The  i)laintiff  held  the  money  to  dis- 
charge the  debt  substantially  as  a  stakeholder,  having  no  bene- 
ficial interest  therein,  and  being  under  no  independent  liability  to 
either  claimant.     He  does  not  deny  the  title  of  Mrs.  Graves,  but. 
affirming  it.  places  himself  upon  the  uncertainty  as  to  which  of 
the  two  persons  claiming  from  her  is  entitled  to  receive  the  fimd. 
Whether  the  claim  of  Ur.  Goodrich  was  based  on  a  lien  by  con- 
tract, or  a  lien  by  attachment,  or  both,  it  originated  with  ]\Irs. 
Graves,  who  at  one  time  owned  all  that  was  claimed  by  either  de- 
fendant.   His  lien  had  been  .sanctioned  by  a  decree  of  the  supreme 
court  nearly  a  year  before  the  trial  of  this  action,  and,  although 
that  judgment  was  subsequently  reversed,  it  was  still  in  force  when 
the  judgment  now  under  review  was  rendered.    Tlic  lien  of  the  at- 
tachment, as  it  was  chiimed  to  exist,  arose  after  the  covenant  to  pay 
the  sum  in  question  was  entered  into  by  the  plaintiff,  and.  althougli 
Ihat  lien  also  was  subsequently  held  invalid,  it  was  sufficient  to 
support  an  action  of  interpleatler.  and  is  a  complete  answer  to  the 
contention  of  the  appellant    that    this    suit    was    not    regularly 
brought,  owing  to  tlie  contractual  relation  between  herself  and 
the  plaintiff.    If  the  actual  truth  was  a  defense  to  a  bill  of  inter- 
]. leader,  the  argument  of  the  appellant  would  be  conclusive;  but, 
necessarily,  the  plaintiff  in  such  an  action  has  the  right  to  rely 
ui)on  what  is  claimed  to  be  true,  as  otherwise  the  remedy  would 
be  of  no  value.     After  carefully  examining  all  of  the  exceptions 
involving  questions  f»f  law.  we  think  that  none  of  them  were  well 
taken,  and  that  the  judgment  appealed  from  should  be  affirmed, 
with  costs. 

See,  for  further  information  on  the  subject,  66  L.  R.  A.  srt;  Pell's  Re- 
visal,  sec.  414  and  notes.  Mr.  Pell's  notes  cover  every  essential  under  the 
fode  practice  in  .\orth  Carolina.  See  "Interpleader,"  Centiuy  Dis.  §§  0. 
10;   Decennial  and  Am.  Dig.  Key  No.  Series  §§  S.  9. 


832  KXTHAOUniNAU'V    IJKMKDIKS.  \('ll.     10. 


Sec.  8.     C'kktidkaki. 

DOrC.AN  V.  ARXOLD,   1.'.   X.  C.  0!>.      lS:?n. 
Saliiir  and  DitJcrcnt   Uses  of  the  Rrintilji.     l)istin<jitishcd   From    Wills 
of  Error  and   False  Jiidumcnt.      What   the  Petition   Must   Show. 

I  Arnold  attached  tlu>  proiuMty  of  Dougan,  and  obtained  a  judgment 
against  him  in  a  jnstitr's  ('ourt  for  the  sale  of  his  proiierty.  Dougan 
was  a  non-resident  at  the  time  and  the  serviee  was  by  publication. 
Clark,  as  agent  for  Dougan,  applied  to  the  superior  court  for  a  certiorari 
and  supersedeas  to  bring  the  judgment  against  Dougan  before  the  court 
uiuni  the  ground  that  Dougan  knew  nothing  of  the  lu-oceedings  against 
him  until  the  order  of  sale  was  entered,  and  that  he  owed  Arnold  noth- 
ing. The  judge  ordered  the  certiorari  and  su])ersedeas  and,  ui)on  the 
return  thereof,  set  aside  the  order  of  sale  and  directed  a  new  trial  of  the 
case  before  a  jury  in  the  superior  court.  To  that  end  he  ordered  the 
case  docketed.     Arnold  appealed.     Affirmed.] 

RiFFiN.  C.  J.  The  ars:tiiiieiit  in  favor  of  the  motion  to  dismiss 
the  eertioVari  as  haviii<i-  l)fen  impi'ovidciitly  issued,  is  founded 
upon  the  use  of  that  wiit  in  the  En^dish  law.  It  is  there  used  to 
brinf;  an  indiettnent  from  an  inferior  eourl  into  the  King's  Bencii 
for  trial:  or  to  have  a  judgment  of  an  inferior  magistrate,  not 
proceeding  according  to  the  course  of  the  common  law,  reviewed. 
In  neither  instance  does  a  second  trial  of  the  facts  take  place.  In 
the  latter,  the  judgment,  if  irregular  or  unsupported  by  the  facts 
found  by  the  magistrate  and  stated  in  the  conviction  to  be  fotmd, 
is  quashed  and  the  parties  have  to  begin  again.  In  this  state  the 
writ  may  also  be.  and  has  been  used  as  a  writ  of  false  judgment, 
merely  to  have  the  matter  of  law  reviewed.  But  it  has  also  in  our 
laws  another  important  property — that  of  affording  the  means  of 
rc-injing  the  facts,  irhieh  is  unknown  in  England. 

Here  an  appeal  is  matter  of  right,  and  on  it  there  is  a  trial  de 
novo.  The  certiorari  is,  in  proper  cases,  suhstitufed  for  it,  and 
if  the  party  has  been  improperly  deprived  of  his  appeal,  upon 
affidavit  of  the  facts,  it  is  granted,  if  not  of  right,  as  of  course. 
So  also  if  he  has  lost  his  appeal  by  accident,  and  makes  prima 
facie  a  case  on  the  merits.  If  the  merits  in  such  case  be  not  an- 
swered by  the  affidavits  on  the  other  side,  the  jurisdiction  is  ex- 
ercised by  .setting  aside  the  first  judgment,  and  of  ordering  a  new 
trial  in  the  superior  court  on  the  former  issues,  if  the  first  trial 
was  on  issues;  or.  if  the  first  judgment  was  by  default  and  with- 
out laches,  the  jiarty  is  permitted  to  plead  in  such  manner  as  the 
court  may  allow,  so  as  to  obtain  a  trial  on  the  merits.  Such  has 
been  the  long  established  course  in  our  courts ;  and  it  seems  to  be 
a  necessary  consequence  of  the  provision,  that  one  trial  shall  not 
conclude  the  parties,  but  that  each  by  appeal  may  have  a  new 
trial.  The  right  of  appeal  is  favored  and  is  not  to  be  defeated  by 
accident.  This  application  of  the  ^^Tit  is  necessarily  limited  to 
the  period  during  which  the  judgment  remains  unsatisfied.  After 
execution  and  the  levy  of  money  by  a  sale,  the  interests  of  third 
persons  forbid   further  interference,  merely  for  the  sake  of  an- 


Sec.    8.]  EXTRAORDINARY    REMEDIES.  833 

other  trial.  The  remedy  then  must  be  by  writ  of  error,  or  of  false 
judgment  for  the  error  in  hiw  alone.  But  before  satisfaction 
none  but  the  parties  can  be  affected,  and  there  is  no  inconvenience 
to  prevent  a  new  trial  by  certiorari,  upon  a  proper  case,  that  is, 
one  in  which  the  applicant  has  merits,  and  accounts  first  for  not 
pleading  or  not  appealing,  and  secondly  for  the  delay  in  apply- 
ing for  the  writ,  if  delay  there  has  been. 

Here  the  merits  are  palpable.  The  demand  of  the  original 
plaintiff  has.  upon  his  own  affidavits,  no  foundation  in  conscience 
or  law.  The  .iudgment  is  against  a  resident  in  Indiana,  upon  at- 
tachment before  a  justice  of  the  peace  out  of  court,  advertised  for 
thirty  days  in  Randolph  county,  which  conveyed  no  actual  notice 
to  the  party,  and  of  which  he  had.  in  fact,  no  knowledge  until 
after  the  order  for  the  sale  of  the  land  levied  on  had  been  made 
in  the  coimty  court,  and  the  land  advertised  for  sale  under  execu- 
tion. His  application  immediately  followed  the  notice  to  him. 
.     .     .     No  error. 

See  also  Gridley  v.  Halsey,  9  N.  C.  550.  See  "Certiorari,"  Century  Dig. 
§§  1-11,  20;  Decennial  and  Am.  Dig.  Key  No.  Series  §§  1-6,  13. 


STATE,  ELDER,  PROS.  v.  DISTRICT  MEDICAL  SOC,  35  N.  J.  L.  200. 

1871. 

AU  About  the  Remedy  by  Certiorari.  Distinguished  From  Writ  of  Er- 
ror. When  and  to  What  Tribunals  it  Issues.  What  Courts  Can 
Issue. 

[Proceedings  were  pending  before  the  defendant  Medical  Society, 
which  was  a  body  authorized  by  statute.  The  object  of  the  proceedings 
was  to  deal  with  Elder  for  alleged  misconduct  in  his  profession.  While 
the  proceedings  were  still  pending  and  before  any  decision  had  been 
rendered  by  the  Medical  Society,  Elder  commenced  this  proceeding  for  a 
certiorari  to  remove  the  investigation  into  the  supreme  court.  The  writ 
was  ordered,  but  ui)on  the  return  thereof  the  defendant  moved  to  dis- 
miss the  writ  because  it  had  been  issued  before  the  final  action  had  been 
taken  by  the  Medical  Society.     The  writ  was  quashed. 1 

Van  Syckel.  J.  The  prosecutor,  who  is  a  member  of  the  Hud- 
son County  Medical  Society,  having  been  tried  before  the  society 
for  a  violation  of  professional  ethics,  caused  the  proceedings 
against  him  to  be  removed  to  this  court  by  certiorari.  wIkm'c  mo- 
tion is  now  made  to  dismiss  the  writ  hecaiu^e  no  judgment  had 
hn  II  rrndered  hy  the  inferior  trihunal,  and  that,  therefore,  the 
writ  will  not  lie. 

A  writ  of  certiorari  is  in  Ihc  nature  of  a  wril  of  iiTor.  aiid  is 
rr'Sdrled  to  in  Ihose  cases  where  a  ivrit  of  error  doe.f  not  lie.  When 
courts  acl  in  a  summary  way.  or  in  n  new  course  different  from 
the  cduuiion  law.  a  certiorari,  and  not  n  writ  of  error,  is  the 
proper  remedy.  Tlicre  is  no  doiibt  (if  the  jx.wer  of  the  snprem'3 
court,  by  virtue  of  the  common  law  writ  of  certiorari,  to  review 
the  final  adjudications  of  special  statutory  tril)unals.  which  act  in 
a  sumniary  way.  diffefcut  froni  IIk-  course  of  tlie  r'ottuiinn  law. 
Remedies — 5P.. 


834  Kxi'n  \itia>i.\  \in    1vi:mi;i)|i;s.  |(7/.    10. 

1  ArrhliuUl's  I'r.  L'l'lt;  (li'i.ciiu.'ll  \.  I'.iirwcll.  1  Sjilkdd.  2(i;) ; 
l'liillii>s  V.  riiillips.  ;i  llalsl.  \'2'2.  'Plicrc  is  no  powcf  in  this  court 
to  rontimu'  or  foiuplotc  tlic  proi'ociHiij;  wliicli  lias  Ixth  institutt'tl 
in  tho  sp(>('ial  trilnnuil  erratcd  by  positive  law.  Tlu'  ([ucstion  to 
1)1'  trit'il  (.'aiuiot  lu'  \villi(lra\vn  I'l'oni  that  roiauii,  iioi-  can  it  l)o  do- 
niod  tlio  ri»;ht  to  liiiiiiiiatr  I  he  i)r(i('('cdin^s  which  have  been  in- 
itiatt'il  before  it. 

The  only  Icijitiinate  use  of  a  certiorari  is.  to  snbject  to  i-evicw 
in  this  court  the  linal  di'cision  of  the  infeiMor  Jurisdiction.  If 
parties  are  iierinilied  to  invoke  its  aid  at  any  time  duiin<i'  tin' 
proixress  of  their  cause,  it  would  lead  to  conse(|uences  which  are 
inadmissible.  If  the  writ  may  issue  before  juduiTient,  it  may  go 
at  an;\-  and  every  stage  of  the  case.  At  every  single  stop  in  the 
cause  it  might  be  certitied  into  this  court,  and  when  a  linal  deter- 
mination was  reached  in  the  tribunal  below,  after  this  court  had 
adjudicated  the  various  quc^stions  which  might  be  started,  and 
aftt'r  delay  almost  intermiiud)le.  the  case  woidtl  be  subject  again 
to  review  after  linal  judgment. 

The  authorities  an-  against  the  use  of  the  conmion-law  writ  of 
certiorari  before  judgment,  in  cases  which  cannot  be  continued  or 
terminated  in  the  court  above.  In  Rex  v.  Xicolls.  2  Sti'ange,  1227, 
the  certiorari  was  quashed,  because  it  issued  before  judgment. 
In  the  case  of  Grocnwelt  v.  Burwell.  2  Salkeld.  144.  the  proceed- 
ings of  tlie  censors  of  the  College  of  Physicians  were  not  removed 
until  after  they  had  condemned  Dr.  Grocnwelt,  and  passed  judg- 
ment upon  him;  and  in  an  action  of  trespass  between  the  same 
parties,  growing  out  of  the  case  last  cited,  reported  in  1  Comyn, 
80.  Chief  Justice  Holt,  in  speaking  of  the  way  in  which  the  action 
of  the  censors  might  have  been  reviewed,  says  that  the  doctor 
might  have  had  a  certiorari  to  remove  the  record  of  conviction, 
and  then  it  might  be  examined  and  reviewed;  but  it  was  not  even 
suggested  that  a  review  could  have  been  had  before  judgment. 
In  New  York  it  is  well  settled  that  certiorari  never  lies  to  remove 
a  civil  proceeding  before  an  inferior  magistrate,  who  has  jurisdic- 
tion, by  statute,  until  after  judgment  final.  Lynde  v.  Noble.  20 
Johns.  83;  People  v.  Supervisors.  43  Barb.  23?! 

The  only  authorities  cited  to  justify  the  granting  of  the  writ  in 
this  case  are  those  cases  in  this  state  which  have  settled  the  prac- 
tice that  certiorari  to  remove  proceedings  before  a  justice  of  the 
peace,  under  th(^  act  of  ]\farch  4th.  1847.  may  be  allowed  before 
the  trial  below.  In  flairs  v.  Sparks.  Southard,  oGJ).  which  was  an 
action  of  forcible  entry  and  detainer,  Justice  Southard  said  he 
was  not  satisfied  with  this  practice,  but  yielded  to  it,  because  it 
had  theretofore  received  the  sanction  of  the  court.  These  cases 
are  undoubtedly  exceptional,  and  a  dei)arture  from  the  general 
rule,  but  even  then  the  w^it  is  not  used  until  the  final  determina- 
tion below. 

I  find  no  authority  for  certifying  into  this  court,  for  review,  the 
proceedings  now  in  question,  before  judgnunl,  and  therefore  the 
writ  should  be  quashed. 


Sec.    8.]  EXTRAORDIXARY    REMEDIES.  835 

That  a  certiorari  will  issue  to  a  board  of  county  commissioners  or 
other  tribunal  from  whose  decisions  and  proceedings  no  appeal  is  pro- 
vided, see  Hillsboro  v.  Smith,  110  N.  C.  417,  14  S.  E.  972.  and  other  cases 
cited  in  Pells  Revisal,  sec.  364.  See  "Certiorari,"  Century  Dig.  §  31; 
Decennial  and  Am.  Dig.  Key  No.  Series  §  16. 


HARTSFIELD  v.  JONES,  49  N.  C.  309.     1857. 
Certiorari   and   Recordari   Distinguished.     How    Used   Respectively. 

[Hartsfield  sued  Jones  before  a  justice  of  the  peace  and  obtained  a 
judgment,  and  Jones  appealed  to  the  county  court,  where  Judgment  was 
again  rendered  against  him.  Having  failed  to  appeal  from  this  judg- 
ment, Jones  applied  to  the  superior  court  for  a  certiorari,  alleging,  as 
grounds  therefor,  various  excuses  for  his  failure  to  appeal,  and  setting 
out  merits.  The  certiorari  was  issued  and  upon  the  return  thereof 
Jones  insisted  that  he  was  entitled  to  have  the  whole  case  tried  de  novo. 
The  judge  ruled  against  him  and,  upon  investigation  of  the  cause,  dis- 
missed the  certiorari,  and  Jones  appealed.  The  judgment  was  reversed 
because  a  final  judgment  instead  of  an  interlocutory  judgment  had  been 
entered  in  the  county  court,  the  order  for  the  writ  of  certiorari  was  af- 
firmed. Only  that  portion  of  the  opinion  which  discusses  the  writs  of 
certiorari  and  recordari  is  here  inserted.] 

Battle.  J.  The  -writs  of  recordari  and  certiorari  are  used  in 
this  state,  most  commonly,  a.s  substitutes  for  appeals,  where  the 
appellants  had.  without  default,  lost,  or  been  improperly  de- 
prived of.  their  right  of  appeal;  and  in  such  cases  they  have  been 
allowed  a  trial  de  novo  upon  the  merits  in  the  superior  court. 
They  may  be  used  also,  the  recordari.  as  a  writ  of  false  judjrment, 
and  the  certiorari,  as  a  writ  of  error;  in  which  case,  all  that  can 
be  discussed  and  decided  in  the  superior  court  is  the  form  and 
sufficiency  of  the  proceedings  in  the  inferior  triV)unals.  as  tluy 
appear  upon  the  face  of  them.  Parker  v.  Gilreath.  28  X.  C.  221  ; 
Webb  V.  Durham.  29  N.  C.  130;  Brooks  v.  INIorgan.  27  X.  C.  481; 
Comrs.  of  Raleigh  v.  Kane.  47  N.  C.  288.  The  ivrit  of  recordari 
lies  to  an  inferior  tribuneit,  i('ho.<!e  proceeelinefs  are  not  recoreled, 
and  it  is  necessarily  used  as  a  writ  of  fals(>  judgment,  i)ecause  no 
writ  of  error  can  be  brought  U[)on  the  order,  sentence  or  judg- 
ment of  .such  tribunals.    2  Sellou's  Prac.  544. 

The  writ  of  errliorari  lies  to  a  court  of  record,  and  may  be  used 
for  the  same  purp(»se  as  a  writ  of  error  in  the  regular  form.  Il  is 
true  that,  in  the  case  of  Brooks  v.  Morgan,  above  referred  to.  it 
is  said  by  the  court  that  this  writ  has  been  used  by  necessity  for 
the  correction  of  errors  in  law.  in  those  cases  where  the  right  of 
jippeal  has  not  been  given.  We  cannot  perceive  any  sufTieient  rea- 
son why  it  may  not  be  so  applied  in  nil  eases,  as  it  will  he  Inil  an- 
other form  of  the  writ  of  erroi-.  That  writ,  in  Kngland,  i.ssues  out 
of  the  court  of  chanceiy.  but  lici'e  we  have  no  otTiee  in  our  court 
of  chancery  out  (»f  which  to  issue  a  writ.  It  must,  therefore.  l)e 
issued  fniiii  tlic  su[)eri<ir  to  tlic  inferior  court  of  record,  and 
whether  it  be  in  the  well  known  form  of  the  cci-tiorari,  or  in  any 
other   form,  i-an   make  no  difTerence   in   tlie  rights  of  the  partii-s 


836  EXTRAORDINAHV    KKMKDIES.  [T//.     10. 

litigTflnt.  Tlu'  writ  ot"  I'ortioi'ari.  in  the  cjisc  now  Itd'oi-c  us,  was 
troatt'il  ill  the  superior  court  soli'ly  as  a  writ  of  error,  ami  liis 
lionor  diH'iilod  upon  the  errors  assiijiieil  against  the  j)hiiiitit1'  in 
error.  Tlie  appeal  from  tliat  decision  liriiiLTs  liefore  us  tlie  wiioh' 
record,  and  it  is  macU'  our  ihity  to  remh-r  sueh  .indyment.  as  upon 
inspection  of  it.  it  sliall  appear  to  us  oufjht,  in  huv,  to  be  rendered 
thereon.     ... 

See  Ck)llins  v.  Nail,  14  N.  C.  224;  Pell's  Revisal,  sec.  584.  and  notes. 
The  practice  in  api)lications  for  a  Recordarl  is  shown  on  pp.  306,  307  of 
Pell's  Revisal;  and  the  notes  on  i)p.  303-306.  Tb.  give  all  essential  points 
of  practice  in  api)lications  for  a  certiorari.  See.  also,  Clark's  Code,  sec. 
545,  and  notes.  See  "Certiorari,"  Century  Dig.  §§  1,  145;  Decennial  and 
Am.  Dig.  Ke.v  No.  Series  §§  1,  57. 


BIGGS,  EX  PARTE,  64  N.  C.  202.     1S70. 

Certiorari  to  Superior  Court  From  Supreme  Court  in  Cases  in  Which  No 

Appeal  is  Provided  for  by  Law. 

\A  petition  under  oath  was  filed  in  the  supreme  court  by  William 
Biggs,  late  an  attorney  of  the  courts  of  the  state,  alleging  that  at  Fall 
Term,  1869,  of  Edgecombe  court,  an  order  had  been  made  by  his  Honor 
Judge  Jones,  then  and  there  presiding,  by  which,  for  an  alleged  con- 
tempt of  court,  he  had  been  disbarred;  setting  forth  a  transcript  of  the 
record  in  the  case,  and  praying  for  a  mandamus,  that  the  said  judge 
allow  him  to  practice  law  as  heretofore.] 

Pe.\rson,  C.  J.  This  is  a  petition  for  an  alternative  mandamus, 
commandinfr  his  honor.  E.  "W.  Jones,  judge  of  the  superior  court 
for  the  second  judicial  district  of  the  .state,  "to  allow  the  peti- 
tioner to  practice  law  in  said  court  in  like  manner  as  theretofore 
he  had  been  licensed  and  used  to  do,  or  show  cause  to  the  con- 
trary." In  presentinjr  the  petition,  Mr.  Graham,  one  of  the  coun- 
sel for  the  petitioner,  informed  the  court  that  their  purpose  was  to 
adopt  the  proceeding  most  fit  and  proper  to  accomplish  the  end ; 
and  that  they  had  concluded  to  move  that  notice  issue  to  his  honor. 
Judge  Jones,  to  show  cause  why  an  alternative  mandamus  should 
not  issue. 

The  court  desired  to  hear  an  argument  on  the  questions: 
1.  Had  the  petitioner  a  right  to  appeal  from  the  order  of  his 
honor,  by  which  the  petitioner  was  disabled  from  practicing  as  an 
attorney  in  said  superior  court?  and  2.  Is  the  appropriate  mode 
of  proceeding,  by  -writ  of  mandamus,  or  by  writ  of  certiorari  ? 
After  hearing  a  full  argument  by  INIr.  Graham  and  Mr.  INIoore. 
attorneys  in  behalf  of  the  petitioner,  we  are  of  opinion:  1.  That 
the  petitioner  did  not  have  the  right  of  appeal ;  and  2.  That  the 
proper  remedy  is  by  writ  of  certiorari,  in  the  nature  of  a  writ  of 
error,  to  bring  up  the  record  now  remaining  in  the  superior  court 
for  the  county  of  Edgecombe,  so  that  it  may  be  reviewed,  and  such 
proceedings  be  had  thereon  as  are  agreeable  to  law. 


Sec.    8.]  EXTRAORDINARY    REMEDIES.-  837 

The  matter  involves  the  power  of  a  court,  and  also  the  right  of 
an  attorney  of  the  court  to  be  protected  against  error  in  the  ex- 
ercise of  power  on  the  part  of  the  judge.  It  is  ordained  by  the 
constitution.  Art.  tt.  sec.  10:  "The  supreme  court  shall  have  power 
to  issue  any  remedial  Avrits  necessary  to  give  it  a  general  super- 
vision and  control  of  the  inferior  courts."  The  question  is:  Does 
the  case  made  by  the  petition  call  for  the  remedial  writ  of  manda- 
mus, or  can  the  purpose  be  met  by  the  remedial  writ  of  certiorari 
in  the  nature  of  a  writ  of  error? 

The  writ  of  mandamus  is  a  high  prerogative  writ,  and  is  never 
resorted  to  except  in  cases  where  there  is  no  other  mode  of  attain- 
ing the  ends  of  justice.     If  there  be  any  other  remedial  writ  that 
will  answer  the  purpose,  this  court  is  not  allowed  to  grant  the  writ 
of  mandamus ;  and  we  should  be  reluctant  to  resort  to  it  in  this  in- 
stance, for  surely  it  would  not  be  seemly,  unless  there  be  positive 
necessity,  to  conniiand  a  judge  of  the  superior  court  to  appear  at 
the  bar  of  this  court,  and  confront  in  an  adversary  suit  one  who 
has  been  an  attorney  of  his  court,  and  now  demands  to  be  re- 
stored to  that  privilege.     Tliere  is  this  further  objection  to  the 
writ  of  mandamus :  the  court  in  granting  it  assumes  that,  prima 
facie,  his  honor  is  in  the  wrong.    If  upon  the  notice,  he  appears, 
and  relies  upon  the  order  still  remaining  of  record  and  in  full 
force,  then  this  court  would  be  forced  to  review  that  order  in  a 
collateral  way,  and  the  order  restoring  the  petitioner  to  his  rights 
as  an  attorney  could  not  have  the  legal  effect  of  reversing  the  or- 
der in  the  superior  court,  but  would  simplj'-  be  in  disregard  of  it. 
The  writ  of  certiorari  is  used  for  two  purposes:  One,  as  a  sub- 
stitute for  an  appeal,  where  the  opportunity  for  bringing  up  the 
matter  by  appeal,  is  lost  without  laches.    It  is  to  this  that  the  re- 
marks so  forcibly  made  by  Mr.  i\Ioore  on  the  argument,  as  to  the 
difficulty  of  making  up  the  case,  or  the  postea  in  the  record,  on 
bill  of  exceptions,  or  from  the  notes  of  the  judge,  or  on  affidavits, 
would  fully  apply.     Such  was  the  case  of  Bradley  v.  Fisher.  7 
Wall.  370.  "and  the  ca.se  of  People  v.  Justices  of  Delaware,  1  Johns. 
Tases,  181.  cited  on  the  argument.     In  these  and  like  eas<'s.  the 
court  is  obliged  to  resort  to  the  writ  of  mandamus,  as  the  only 
remedy  to  meet  the  ends  of  justice.    But  this  kind  of  certiorari  is 
not  now  in  question.     The  other  is  where  the  writ  of  certiorari  is 
in  the  nature  of  a  writ  of  ei-ror.  and  it  is  used  where  the  writ  of 
errf)r  proper  does  not  lie.    Brooks  v.  Moi-gan.  27  N.  C.  481  ;  Comrs. 
of  Raleigh  V.  Kane.  47  X.  C.  288.     By  this  writ,  only  the  re<;ord 
proper  is  brought    up   Hn-  review,  and  no  jmstea  or  case  is  to  be 
made  up.     Such  is  oui-  case,  for  the  whoh'  matter  rests  on  error 
alleged   by   Hit*  petitioner  in  the  proceedings  on   the  record,   and 
nothing  can  be  brought  before  tliis  court  except  what  appears  on 
the  face  of  the  record.     TUr  action  of  this  eo\irt  will  I>r  eillicr  to 
aftirni  or  to  n-verse  thi-  ord.-r  in  the  court  below. 

Per  f.'uriam.      Motion   for  notice  to  show  cause  why  an  alterna 
live  mandannis  shall  not   issn<-.  refusi'd.     Motion.  lia\  in-r  the  alle- 


838  KXTKADKDIN  \l{\     KKM  I^DIKS.  \('ll.     10. 

Eratunis  sot  out  in  tlu>  potition  as  its  t'oiuulatioii.  for  ;i  writ  of  cer- 
tiorari in  tht'  naturi'  of  a  writ  of  error,  to  liriiii:  u|)  the  ret-ord  for 
review,  alloweil.     The  writ   will  l»e  returiinlilc   forihwith. 

Se<»  Squier  v.  Gale,  C  N".  >1.  L.  l.'.T,  inserted  at  rli.  Hi.  sec.  3,  and  notes 
thereto.  See  "Attorney  and  Client,"  Centuiy  Dig.  §  81;  Decennial  and 
Am.  Dig.  Key  No.  Series  §  oT. 


BROWN  V.  OSBORN,  1  Blackford,  32.     1818. 
Certiorari   Upon   Suggestion  of  a  Diminution  of  the  Record. 

[Appeal  from  the  Gibson  Circuit  Court.! 

" Scott.  J.  In  tliis  ea.se  the  record  does  not  sliow  the  names  of 
the  .indues  who  rencU'red  the  judgment  eom])lained  of;  nor  does  it 
appear  from  the  transcript  l)efore  \is  tliat  thi-re  were  any  judges, 
except  what  may  be  conjectured  from  the  statement  that  a  judg- 
ment has  been  rendered.  Tliis  is  evidently  a  neglect  of  the  clerk, 
but  it  is  a  defect,  for  which  the  court  will  not  now  reversi'  the  i)ro- 
ceedings. 

Per  Curiam. — A  certiorari  is  awarded  to  the  Gibson  Circuit 
Court,  directing  them  to  send  up  a  full  and  complete  transcript 
of  the  record  in  this  case. 

That  a  certiorrai  always  issues  as  a  matter  of  course,  "upon  a  sug- 
gestion of  a  diminution  of  the  record,"  see  Clark's  Code,  p.  725;  Pell's 
Revisal,  at  bot.  p.  304.  The  supreme  court  will  order  the  writ  ex  mero 
motu  where  there  is  an  apparent  diminution  of  the  record  in  a  state 
case.  State  v.  Beat,  119  N.  C.  at  p.  811,  25  S.  E.  815.  See  "Appeal  and 
Error,"  Century  Dig.  §§  2834-2843;  Decennial  and  Am.  Dig.  Key  No. 
Series  §  659. 


-WARE  V.  NISBET,  92   N.  C.   202.     1885. 
'       Certiorari  to  a  Judge  to  Correct  or  Certify  a  Case  on  Appeal. 

[After  the  record  was  docketed  in  the  supreme  court  the  appellant, 
after  notice  served  on  the  appellee,  moved  for  a  certiorari  to  correct  an 
alleged  error  in  the  case  on  appeal.  Motion  denied.  The  facts  appear  in 
the  opinion.] 

]Merrimon.  J.  The  appellant  suggests  upon  aiifidavit.  that  the 
judge  states  in  the  case  settled  upon  appeal  by  him,  that  certain 
special  instructions  to  the  jury  were  witlidrawn.  whereas  in  fact 
they  were  not  withdrawn,  and  he  desires  that  the  judge  .shall  state 
the  facts  from  w  hich  he  inferred  such  withdrawal,  and  to  that  end, 
he  moves  that  the  writ  of  certiorari  be  granted  to  bring  up  a  more 
perfect  statement  of  the  case.  The  motion  cannot  be  sustained. 
It  does  not  appear  from  the  affidavit  offered  to  support  it,  or  other. 
w^ise.  that,  "by  inadvertence,  mistake,  or  accidental  misapprehen- 
sion, the  presiding  judge  misstated,  or  failed  to  state,  something 
that  ought  to  appear  in  the  case  settled  upon  appeal."  nor  does 
it  appear  that  the  judge  "rrould  prohahly  malxc  the  correction'* 
the  appellant  desires  to  have  made.     To  entitle  him  to  have  his 


Sec.    9.]  EXTRAORDIXARV    REMEDIES.  839 

motion  allowed,  such  facts  ought  to  appear.     Ciirrie  v.  Clark,  90 
N.  C.  17.     ^Motion  denied. 

It  is  only  when  the  judge  writes  a  letter  stating  that  he  will  correct 
the  case  on  appeal  as  settled  by  him,  and  that  letter,  with  an  affidavit 
that  there  is  error  in  the  case  on  appeal,  is  filed  in  the  supreme  court, 
that  a  certiorari  will  issue  to  correct  such  case  on  appeal.  Barber  v. 
Justice,  138  X.  C.  20,  50  S.  E.  445.  See  also  Clark's  Code,  (3rd  ed.)  p. 
936;  Pell's  Revisal,  p.  304.  See  "Appeal  and  Error,"  Century  Dig. 
§§  2834-2843;   Decennial  and  Am.  Dig.  Key  No.  Series  §  659. 


Sec.  9.     Recordari. 

KING  V.  RAILROAD,  112  N.  C.  318,  16  S.  E.  929.     1893. 

Recordari  Explained.      The   Writ   Before   and   After  the   Code  Practice. 
When  the  Appropriate  Remedy.     Practice.     Supersedeas. 

(Petition  for  a  writ  of  Recordari,  Supersedeas  and  Restraining  order. 
Judgment  against  the  petitioner,  the  defendant,  and  it  appealed.  Re- 
versed. 

King  obtained  a  judgment  against  the  defendant  railroad  company 
before  a  justice  of  the  peace,  and  caused  execution  to  issue.  Thereupon 
the  defendant  filed  a  petition  for  a  recordari,  etc.,  ut  supra.  The  petition 
alleged  that  the  defendant  had  not  been  served  with  the  summons  in  the 
action  before  the  justice:  that  there  was  fraud  and  collusion  between  the 
plaintiff  and  the  justice;  and  that  the  justice  had  no  jurisdiction.  King 
moved  to  dismiss  the  petition  on  the  ground  that  relief  should  have 
been  sought  by  a  motion  in  the  cause.     Motion  sustained.! 

Clark,  J.  The  amended  petition  for  reeoi-dari  avers  that  there 
was  no  service  of  snimiKnis  upon  the  defendant  or  its  agent.  If 
so,  the  judgment  could  he  set  aside  at  any  time  upon  motion  hefore 
the  justice  of  the  peace  who  tried  the  cause,  or  his  successor  in 
office.  Whitehursl  v.  Transportation  Co..  109  N.  C.  344.  13  S.  E. 
Rr-p.  937.  His  honor,  being  of  opinion  that  this  was  the  only 
icmedy.  dismissed  the  petition.  Tlie  defendant  contends  that,  at 
its  election,  it  was  entitled  tn  have  the  writ  of  recordari.  in  the 
nature  of  a  wi-it  of  false  judgment.  Tliis  is  the  principal  <|uestion 
in  the  case. 

At  conunon  hiw.  and  uj)  t(i  Ihc  ado])tion  of  the  Code  of  Civil 
Procedure,  the  writ  of  recordan  served  a  double  purpose,  either 
as  a  substitute  for  aji  appeal  lost  wilhout  default  of  th<'  ]ietition<^r. 
or  as  a  writ  of  false  judgment,  whei'e  the  justice  did  not  have 
jurisdiction,  or  wbcn  judgment  \\  as  taken  without  service  of 
process.  Tlie  original  Code  of  Civil  rrocedure  of  1868.  by  section 
L'9f»  (now  Code.  ;;  544).  abolished  writs  of  error  and  substituted 
ap[)eals,  but  did  Tutt  provide  for  writs  of  eertioi'ari  and  recordari. 
as  was  pointed  out  by  the  couit  in  .Marsh  v.  Williams.  03  N.  C. 
371.  .\nd  tliei-.iipon'tbe  a«-ts  of  1874- 75  (jiow  Code,  ij  545)  were 
enacted,  as  follows:  "Writs  of  certiorari,  recordari.  and  superse- 
deas are  liereby  antborized  as  heretofore  \u  use.  The  writs  of 
certiorari  an<l  reeorrlari.  wlnii  usi-d  as  substitutes  for  ;in  :ippeal. 
etc.    From  this  it  wonld  seem  tbat  tbe  writ  of  recordari  was  author- 


840  EXTRAORDINARY    REMliDlES.  [Cll.    10. 

ized  to  tlie  oxtont  it  h;ul  boon  "  iKTotororo  in  nso,"  and  cxti'iuUMl 
to  casos  othor  than  ■"wlion  iisod  as  snl)stituti's  for  an  a{){)oal."' 
But  we  are  nut  without  express  deeisious  upon  the  poiut.  In 
Weaver  v.  MiniuiX  Co..  8!)  X.  C.  IDS.  SMrni.  C.  J.,  says:  "The 
writ  of  reeordari.  under  the  former  practiee,  an(i  retained  in  the 
new.  as  has  beon  often  ih'olai'i'il.  is  used  for  two  purposes:  thi>  one, 
in  order  to  have  a  new  trial  of  tho  case  upon  its  merits, — and  this 
is  a  substitute  for  an  appeal  from  a  judijinent  rendered  before  a 
justieo;  tlie  other,  for  a  reversal  of  an  eri-oneous  judgement,  per- 
forming in  tliis  respeet  the  otHiee  of  a  writ  of  false  judgment." 
In  McKee  v.  Angel,  90  N.  C.  60,  where  there  was  a  motion  made 
before  the  justiee  to  set  aside  the  judgiiu'iit  for  want  of  proper 
serviee,  and  aii  appeal  from  sueh  ruling.  Iho  court  held  that  such 
eourse  was  correct,  or  the  defendant  could  have  had  his  remedy 
by  a  writ  of  reeordari  in  the  nature  of  a  writ  of  false  judgment. 
Ashe.  J.,  says,  in  that  case:  "There  is  no  doubt  that,  as  soon  as 
he  discovered  that  sueh  judgment  had  been  rendered  against  him 
[i.  e.  without  ser\'ice  of  process]  he  might  have  availed  himself 
of  the  remedy  of  a  reeordari  in  the  nature  of  a  writ  of  false  judg- 
ment. But  he  has  failed  to  resort  to  that  remedy,  and  has  had 
recourse  to  a  motion  before  the  justice  who  made  the  judgment  to 
vacate  it.  Was  it  in  the  power  of  the  justice  to  do  that  ?  If  it  was. 
it  was  clearly  his  duty  to  do  so."  The  court  then  go  on  to  cite 
Hooks  V.  IMoses.  8  Ired.  88.  as  authority  for  the  latter  course.  In 
the  following  cases  since  the  Code  of  Civil  Procedure,  the  use  of 
the  writ  of  reeordari  as  a  writ  of  false  judgment  has  been  recog- 
nized and  approved.  Caldwell  v.  Beatty,  67  N.  C.  142,  69  N.  C. 
365;  ]\Iorton  v.  Rippy.  84  N.  C.  611;  and  there  are  others.  Nor  is 
there  anything  in  Whitehurst  v.  Transportation  Co..  .supra,  which 
militates  against  these  authorities.  In  that  case,  the  justice's 
judgment  having  been  docketed  in  the  superior  court,  the  de- 
fendant brought*-  an  action  in  that  court  to  have  the  judgment  set 
aside  on  the  ground  that  process  had  not  been  served  in  the  case 
in  which  judgment  had  been  rendered.  This  court  held  that  the 
court  below  properly  dismis.sed  the  action,  since  relief  could  have 
been  had  by  a  motion  in  the  cause  before  the  justiee  to  set  aside 
the  judgment.  But  it  was  not  held  that  the  defendant  might  not 
also  have  had  relief  by  another  proceeding  in  the  cause,  i.  e.  by  an 
application  for  a  reeordari. 

As  to  the  other  allegation  in  this  application,  of  fraud  and  col- 
liLsion  between  the  justice  and  others:  Inasmuch  as  final  judgment 
had  been  rendered,  relief  could  only  havo  been  had  on  that  ground 
by  an  independent  action.  Guano  Co.  v.  Bridgers.  93  N.  C.  439. 
The  general  rule  is  also  repeated  in  Carter  v.  Rountree.  109  N.  C. 
29.  13  S.  E.  Rep.  716.  citing  many  authorities.  The  defendant 
had  its  election.  Had  it  proceeded  by  a  motion  in  the  cause  be- 
fore the  justice,  and  appealed  from  the  refusal,  the  finding  of  fact 
by  the  justice  would  not  have  been  conclusive,  as  would  be  the 
findings  upon  a  similar  motion  in  the  superior  court.  Pinlavson 
V.  Accident  Co..  109  X.  C.  196,  13  S.  E.  Rep.  739.  But  probably 


Sec.    9.]  EXTRAORDINARY    REMEDIES.  841 

the  defendant  preferred  the  application  for  a  recordari  because, 
if  granted,  a  .supersedeas  might  issue.  See  Super.  Ct.  Rule  14, 
104  X.  C.  939,  12  S.  E.  Rep.  xiii..  and  Weaver  v.  Mining  Co., 
supra,  which  settle  the  procedure  in  applications  for  recordari. 
Whether  there  could  be  a  supersedeas  upon  an  appeal  from  a  re- 
fusal by  the  justice  to  set  aside  a  judgment  may  admit  of  some 
doubt.     .     .     . 

The  court  below  should  have  found  the  facts  (Collins  v.  Gil- 
bert. 65  X.  C.  135;  Cardwell  v.  Cardwoll,  64  X.  C.  621),  and  dis- 
missed or  have  set  aside  the  judgment  (McKee  v.  Angel  90  X.  C. 
60),  in  accordance  with  the  law  applicable  to  such  state  of  facts. 
In  dismissing  the  petition  without  imiuiry  into  the  facts  upon  the 
ground  that  the  defendant  had  mistaken  his  remedy,  and  could 
only  proceed  by  a  motion  in  the  cause  before  the  justice  to  vacate 
the  judgment,  there  was  error. 

See  Hartsfield  v.  Jones,  49  N.  C.  309,  inserted  at  sec.  8,  of  this  chapter; 
and  Leatherwood  v.  Moody,  25  N.  C.  at  p.  131  et  seq.;  Pell's  Revisal,  pp. 
306-307;  Clark's  Code,  pp.  730-732.  For  when  the  writ  of  recordari  is 
used  as  a  writ  of  false  judgment,  see  Parker  v.  Gilreath,  28  N.  C.  221; 
for  when  it  is  used  as  a  writ  of  error,  see  Webb  v.  Durham.  29  N.  C. 
130;  that  the  writ  was  left  as  at  common  law,  in  North  Carolina,  prior 
to  the  statutes  referred  to  in  the  principal  case,  see  Marsh  v.  Williams, 
63  X.  C.  371.  See  notes  of  the  reporter  in  an  anonymous  case,  2  N.  C. 
(469)  607,  for  some  valuable  information  on  the  ancient  practice  with 
reference  to  recordari.  See  "Justices  of  the  Peace."  Century  Dig.  §§  768- 
771;  Decennial  and  Am.  Dig.  Ky.  No.  Series  §  197. 


Sec.  10.    Scire  Facias— Sci.  Fa. 

ANDRESS  V.  THE  STATE,  3  Blackford.  109.     1832. 
Set.  Fa.  Explained.     Practice. 

Stevens.  J.     Proceedings  had  by  scire  facias  upon  a  recogniz- 
ance.    The  allegations   contained    in    the  .scire    facias   are   these: 
That  on  the  3nl  day  of  .Liiinary.  1S31.  a  recognizance  was  filed  in 
the  office  of  the  clerk  of  the  Shelby  circuit  court,  stating,  that  on 
the  19th  day  of  October.  1830.  Thomas  A.  Andress  and  John  An- 
dress  personally  appeared  before  one  A.  'M.  Smith,  who  signs  him- 
self a  justice  of  the  jK'ace  of  said  county  of  Sliejby.  and  severally 
acknowledged  themselves  to  owe  to  the  state  oi"  Indiana  the  sum  of 
$250  each,  to  be  levied,  etc..  conditioned  that  if  Thomas  A.  .\n- 
dress  should  personally  a{)f)ear  at   the  next  circuit  court,  to  be 
holden  for  the  said  county  on  the  first  day  of  the  term,  then  and 
there  to  answer  a  certain  charge  of  larceny,  etc..  and  abide  th^ 
judgment  of  the  court,   etc..   and   that,   afterwards,   at   a    circuit 
court  of  the  cotinty.  held   in   March.  1831.  the  said  Thomas  and 
John  were  severally  <'a]le(l  ami  defaulted  for  nnn-aftendance.  and 
the  recognizance  forfeited  and  made  iibsolute.     These  are  all   the 
substantial  allegations  the  scire  facias  contains.     The  defendants 
filed  two  special  pleas  in   b;ir.  which  were  denuirred  to  and  the 


842  EXTKA(,)KPlNAm     KKMKDIES.  |  ( 7^     10. 

iloimiriTis  sustiiiiicd.  and  linal  jiulijinciit  rrndfiTd  in  favor  of  the 
stall',  that  slu'  liavc  rxcculion.  etc 

'riiri't*  points  ai'c  made  for  our  roiisidci-at  ion  :  1.  'I'liat  tlic  roc- 
offiiizaiu'i'  is  not  a  judi^nii'iit  on  wliicli  an  execution  can  issue,  and 
that  wlien  the  reco^ni/ance  was  forfeited,  a  judirincnt  sliould  have 
been  tir.st  rt'udered  in  favor  of  the  state,  etc..  tliat  slic  recover  the 
amount  named  in  the  recomii/.ance.  etc..  whicli  was  not  (h)nc.  and 
therefore  the  judj^mcnt  and  i>i dcecdini^'s  ai-c  ci'i'oneous.  Thetc  is 
no  error  in  this  hrancli  of  the  i)roceedin<!;s.  A  i'eco<,Miizance,  wlu'ii 
forfeited  and  ma(K'  absolute,  lias  all  the  force  and  etVect  of  a  judp:- 
nient.  and  is  lU'lined  by  BlacUstone  to  be  an  oitli^'ation  of  record, 
which  a  man  enters  into  liefore  some  couit  of  record  or  ina«;istrate 
duly  authorized,  willi  condition  to  do  some  particidar  act.  It  is 
witnessi'd  oidy  by  the  record,  and  not  by  the  party's  seal.  It  is  al- 
lowed a  priority  in  jioint  of  itaynicnt.  and  binds  the  lands  of  the 
eognizor.  4  lilk.  Com.  2s2.  lii  »i  Bac.  Abr.  104  and  108.  it  is 
.said  that  a  scire  facias  is  a  judicial  writ  founded  on  some  matter 
of  record,  as  a  recogiiizjuice.  etc.;  and  that  a  ncogHizaiice  is  con- 
sidtrnJ  as  a  judyttuHl.  lieing  an  oblifration  solennily  acknowledfjed 
and  entered  of  record.  In  2  Tidd's  Prae.  982,  988,  984.  a  recog- 
nizance is  classed  among  judgments.  If  these  authorities  are  cor- 
rect, no  judgment  is  entered  on  a  recognizance :  it  stands  for  a 
judgment  itself,  and  when  default  is  made,  a  scire  facias  at  once 
goes  requiring  the  cognizor  to  sliow  cause  why  execution  shall  not 
issue. 

2.  The  second  point  is.  that  there  is  no  averment  in  the  scire 
facias,  showing  who  tiled  the  recognizance  in  the  circuit  court, 
nor  that  it  was  taken  by  a  person  legally  authorized  to  take  recog- 
nizances. A  recognizance  not  taken  by  a  court  of  record,  is  not 
strictly  a  record  until  it  is  filed  and  entered  in  a  court  of  record. 
2  Tidd's  Prac.  984.  985.  10:^5.  Hence  it  is  a  matter  of  substance, 
and  is  material,  that  a  scire  facias,  on  a  recognizance  not  taken  in 
a  court  of  record,  should  aver  by  whom  it  was  taken  and  filed,  and 
that  the  person  who  took  it  was  legally  authorized  so  to  do.  and 
that  it  thereby  became  a  matter  of  record  of  said  court,  and  still 
so  remains,  un.satisfied  and  in  full  force.  This  scire  facias,  in  this 
particular,  is  wholly  defective.  It  nowhere  informs  us  who  took, 
or  who  filed  the  recognizance,  or  that  it  was  taken  and  filed  by  a 
person  legally  authorized  so  to  do.    2  iMarsh,  1:^2.  Lilly's  Entries. 

3.  The  third  and  last  point  is.  that  the  court  erred  in  sustaining 
the  demurrers  to  the  defendant's  pleas  in  bar.  These  pleas  are 
clearly  defective,  but  the  demurrers  go  back  to  the  first  error. 
They  search  the  scire  facias,  and  whole  record,  and  locate  them- 
selves at  the  first  substantial  defect.  A  scire  facias,  although  a 
judicial  writ,  must  be  considered  as  an  original  action,  to  which 
the  defendant  mav  plead,  and  therefore  must  contain  a  legal  cause 
of  action  on  its  face.  6  Bac.  Abr.  103;  2  Tidd's  Prac.  982.  This 
scire  facias,  certainly,  does  not  contain  any  legal  cause  of  action. 
Although  every  word  on  its  face  may  be  true,  yet  the  state  is  not. 
bv  such  a  statement  of  facts  as  it  contains,  legally  entitled  to  ex- 


Sec.    9.]  EXTRAORDINARY    REMEDIES.  8-43 

ecution.      It   lacks   several   material   averments   other   thau   those 
above  pointed  out. 

It  is  not  necessary,  further,  to  pursue  the  subject.  The  record 
is  defective.  It  contains  none  of  the  form,  and  but  little  of  the 
substance,  of  a  record  on  scire  facias.  A  considerable  portion  of 
it  is  a  heterogeneous  mass  of  papers  and  things  transcribed,  which 
is  not  legally  any  part  of  the  record.    Judgment  reversed. 

See  5  L.  R.  A.  (N.  S.)  402,  and  note.  See  State  v.  Mills,  19  N.  C.  552, 
Mcintosh's  Cases  on  Cont.  67.  See  "Bail,"  Century  Dig.  §§  386-393;  De- 
cennial and  Am.  Dig.  Key  No.  Series  §  89. 


Mcdowell  v.  asbury,  66  n.  c.  444,  448.    1872. 

Sci.  Fa.  Under  the  Code  Practice. 
[In  the  course  of  the  opinion  it  is  said:] 

Dick,  J.  .  .  .  The  Code  has  abolished  the  writ  of  scire 
facias.  C.  C.  P.  sec.  362.  but  this  section  does  not  require  a  civil 
action  to  be  brought  to  obtain  a  remedy  in  cases  like  the  one  we 
are  now  considering. 

There  were  two  forms  and  purposes  of  writs  of  scire  facias  at 
coiiinion  law:  (1)  A  writ  which  was  iLsed  to  remedy  defects,  or  as 
a  continuation  of  some  former  suit;  (2)  A  writ  in  the  nature  of 
an  original  writ,  used  to  commence  some  jn-oceeding.  The  Code 
does  not  apply  to  the  former,  but  only  to  the  latter  kind.  This 
distinction  is  showni  in  many  provisions  of  the  Code. 

Under  the  old  system  writs  of  sci.  fa.  of  tile  tirst  class  were  used 
to  prevent  abatements  of  suits,  and  remedy  defects  arising  by  a 
change  of  j)arties,  etc.  Under  the  Code,  the  objects  are  accom- 
plished by  a  motion  in  the  case.  C.  C.  P.  54.  After  a  lapse  of 
three  years  from  the  entry  of  judgment  an  execution  can  be  issued 
only  on  motion,  with  notice  to  the  adverse  party.  C.  C.  P.  256. 
Formerly  a  sci.  fa.  was  used  to  ol)tain  an  execution  on  a  dormant 
judgnient.  In  the  case  of  the  death  of  a  judgment  debtor,  his  per- 
sonal r('[)n'.sentative  nnist  be  summoned  to  sIkiw  cause  why  the 
judgment  shall  not  be  enforced.  C.  C.  P.  310.  Other  instances  of 
a  similar  character  might  be  given  to  show  that  it  was  not  the  pur- 
pose of  the  T'ode  to  require  a  civil  action  to  be  bi-ought  to  obtain 
relief  in  ca.ses  where  it  was  formerly  furnished  by  a  writ  (if  sci- 
fa.  of  the  'nrst  class  above  mentioned. 

We  will  now  refer  to  some  of  the  writs  of  the  second  class.  At 
common  law  :i  writ  of  scire  facias  to  I'epeal  Iettei*s  pat(Mit  is  an 
original  writ  i.sswing  out  of  chaneei-y.  (nder  the  Code,  a  civil 
action  Miust  now  be  bronght  for  that  purpose,  sec.  367.  .\  wiit  of 
sci.  fa.  to  subject  bail  was  an  original  proceeding,  and  in  such  (-ase 
the  Code  reqnires  a  civil  action  to  be  brought,  see.  1('>().  A  sci,  fa. 
to  enforce  ;ui  ;i Miereeiiienf  against  ;i  slierilV  w;is  in  the  nature  of  an 
original  writ,  and  now  a  civil  action  is  re(|iiired.  Jones  v.  (Jiiptoo 
65  N.  C.  48. 


Si4  EXTRAORDINAKV    UEMEDIES.  [Ch.    10. 

Proeeodinijs  in  the  Uiiliirc  ol"  writs  of  scire  facias  oi  the  tirst 
ehuss  are  almost  iiidispciisahle  in  the  adininist ration  of  justice. 
The  Code  ouW  inteiuled  \o  al)olish  the  name  aud  form,  and  sim- 
plify the  process  into  a  ii(»lii'e  or  simimoiis  to  show  cause  wliy  fur- 
ther proceedin<jrs  should  not  be  had.  aud  to  furnish  further  relief 
in  matters  wlui-e  the  parlies  iiad  had  a.  day  in  court.  If  tliese  ob- 
jects could  only  l)e  obtained  by  civil  actions,  the  cost  of  legal  pro- 
ceedings would  become  burdensome  and  the  conseiiuent  delay 
would  almost  amount  to  a  denial  of  justice. 

There  was  error  in  the  ruling  of  his  honor.  Let  this  be  certi- 
fied to  the  end  that  proper  proceedings  may  be  had  in  the  cause. 

See  Mordecai's  L.  L.  940-943;  Bouv.  Law  Die.  "Sci.  Fa."  See  "Scire 
Facias,"  Century  Dig.  §  2;   Decennial  and  Am.  Dig.  Key  No.  Series  §  2. 


Sec.    1.]  ANCILLARY    REMEDIES.  845 


CHAPTER  XL 

ANCILLARY  REMEDIES. 

Introclnetory. 

"Under  our  constitution,  art.  4.  sec  1.  there  is  but  one  form  of 
action  in  civil  eases.  In  that,  many  anciUary  remedies  may  be 
asked,  i.  e..  Arrest  and  Bail.  Claim  and  Delivery.  Injunction.  At- 
tachment, and  Appointment  of  Receivers.  These  need  not  be 
asked,  even  if  the  party  is  entitled  to  them.  Wilson  v.  Hughes.  04 
X.  C.  182.  and  if  Ihey  are  improperly  asked  they  are  simply  de- 
nied or  dismissed,  but  that  does  not  affect  the  action  itself,  which 
goes  on  if  the  plaintiff  is  entitled  to  any  other  remedy."  Har- 
grove V.  Plarris.  116  X.  C.  at  p.  419.  21  S.  E.  at  p.  916.' 


JUDD  V.  MINING  CO.,  120  N.  C.  397,  27  S.  E.  81.     1897. 
Requisites  of  the  Affidavit  in  all  AnciUary  Proceedings. 

[The  plaintiff  had  sued  out  an  attachment.  The  defendant  moved  to 
vacate  the  attachment  upon  the  ground,  inter  alia,  that  the  affidavit 
upon  which  it  was  based  was  insufficient,  in  that  it  merely  stated  that 
defendants  were  "about  to  assign  or  dispose  of  their  property  with  in- 
tent to  defraud  plaintiffs,"  and  failed  to  state  any  reason  or  grounds  for 
such  assertion.  The  judge  refused  to  vacate  the  attachment,  and  the 
defendant  appealed.     Reversed.] 

Cl.\rk.  J.  .  .  .  The  affidavit  for  attachment  was  insuffi- 
cient. 071  the  second  ground  assigned  in  the  motion  to  vacate. 
AVhen  the  affidavit  is  that  the  defendants  are  "about  to  assign  or 
dispo.se  of  their  property  with  intent  to  defraud  the  plaintiffs." 
that  being  not  the  assertion  of  a  fact,  bnl  necessarily  of  a  belief 
merely,  the  grounds  upon  Avhich  snch  belief  is  founded  must  be 
set  out.  that  the  court  mav  adjudge  if  thev  are  snffi<'ient.  Hughes 
v.  Person.  63  X.  C.  548 ;  Ga.shine  v.  Baer,  64  X.  C.  108;  Clark  v. 
Clark.  Id.  loO-.  Penniman  v.  Daniel.  90  X.  C.  154.  In  an  aftidavit 
for  arrest,  where  the  ref|uii-ement.s  are  very  similar  to  those  for  an 
attachment,  there  is  Ihe  same  distinction  between  alleging  things 
done  and  those  abont  to  ])e  done.  Wood  v.  Harrell.  74  N.  C.  338; 
Wilson  V.  Harnhill.  64  X.  C.  121  :  Peebles  v.  F<.(.to.  83  X.  C.  102. 
The  .same  distinction  obtains  in  api»li<'ations  Uw  the  appointmetit 
of  receivers.  Hanna  v.  Hainia.  Sfl  .\.  C.  68.  .\ii  ;i|>peal  lies  from 
the  refusal  to  dismiss  an  attachment  or  arrest.  Sheldon  v.  Kivetl. 
110  X.  C.  408.  14  S.  E.  970:  Fertilizer  Co.  v.  Cnibbs.  114  X.  C. 
470.  19  S.  E.  597.     Ermr 

See  "Aftachment."  Centiny  Dig.  §5  245-2r)7;  Decennial  nn<l  Am  Dig. 
Kcv  No.  Series  5S8  90  inn. 


84(5  ANCll.l.VKV     KKMKDIES.  |  (  7( .    Jl. 


SliC.     1.       AlCKKSl'    AM)    li.Ml,. 

LONG  V.  McLEAN.  88  X.  C.  3.     1883. 
In   What  Cases  Arnst  and   I niprisonimul   AUoircd   in   Ciril  Actions. 

(Aftion  for  damages  for  tho  tonveisiou  of  cotton.  Tlu'  i)laintiff  made 
affldavit  to  rertain  farts  which  showed  a  tonversioii  of  the  cotton  by  the 
defendant,  and  thereupon  an  order  of  arrest  was  issued  and  executed. 
The  defendant  moved  to  vacate  the  order  of  arrest.  Motion  refused. 
Defendant  appealed.     Aflirmed.l 

HiFKiN,  J.  'Pile  suiimions  in  this  ea.sc  was  served  upon  the  dt>- 
I'endaiit,  Leaeh.  alone.  The  aeti(ni  is  Fof  the  wi-onj^ful  conversion 
of  pei"sonal  pfojxM'ty.  Aeeonipanyinj;  the  suimnons  was  an  ofder 
of  arrest,  nndei-  wliieh  the  (h'fendant  was  held  to  hail.  At  the 
retni'n  term,  he  moved  to  vacate  the  order  upon  the  <iroimd  tliat 
the  affidavit  on  whicli  it  was  hased,  failed  to  aih-fje  fraud  on  the 
part  of  the  defendant  in  taking  the  goods;  and,  upon  his  motion 
being  overruled,  he  appealed  to  this  court. 

The  fallaey  of  the  defendant's  argument  is  in  snpj^osing  that 
the  provision  of  the  constitution,  which  prohibits  "  impi-isonment 
for  debt,  except  in  eases  of  fraud,"  has  any  application  to  actions 
for  tort.  In  Moore  v.  Green,  73  N.  C.  394,  the  whole  ground  was 
gone  over  and  thoroughly  discussed,  and  it  was  solemnly  resolved 
that  the  prohibition — and  indeed  the  provisions  of  the  entire  sec- 
tion— was  intended  to  apply  only  to  causes  of  action  arising  ex 
contractu.  To  give  it  any  other  construction,  it  was  said,  woukl 
be  to  withdraw  a  wholesome  check  on  violence  and  wrong,  and 
would  tend  to  license  disorders  and  law-breaking  incompatible 
with  the  peace  and  welfare  of  society.  We  can  add  nothing  to 
what  is  there  said,  except  to  call  attention  to  the  fact,  that  similar 
provisions  in  the  constitutions  of  other  states  have  received  a  like 
construction  .  Harris  v.  Bridgers.  57  Ga.  407 ;  ]\IcCook  v.  State. 
23  Ind.  127;  Lathrop  v.  Singer,  39  Barb.  (N.  Y.)  396;  People  v. 
Gotten,  14  III.  414.    Affirmed. 

See  Ex  parte  Hollman,  79  S.  C.  9,  and  note,  inserted  at  ch.  6,  sec.  3; 
and  Lewis  v.  Bracl<enridge,  1  Blaclvf.  112,  inserted  at  ch.  13,  sec.  4.  See 
17  L.  R.  A.  (X.  S.)  1140,  and  note  (arrest  in  proceedings  for  alimony); 
20  lb.  844,  and  note  (arrest  in  actions  for  deceit  and  false  warranty). 
See  "Arrest,"  Cent.  Dig.  §  9;  "Constitutional  Law,"  Cent.  Dig.  §  151; 
Decennial  and  Am.  Dig.  Key  Xo.  Series  §  83. 


HARRISS  V.  SXEEDEX.  101  N.  C.  273,  7  S.  E.  801.    1888. 

Sufficiency  of  the  Affidavit.  Duty  of  the  Court  as  to  Finding  the  Facts, 
etc.  Assertions  Upon  Information  and  Belief.  Motion  to  Vacate. 
Poxoers  of  Appellate  Court. 

[Action  for  slander  of  title  to  real  estate.  Defendant  was  arrested 
under  an  order  issued  in  the  cause,  and  discharged  upon  a  motion  to  va- 
cate the  order  of  arrest.     Plaintiff  appealed.     Affirmed.] 


Sec.    1.]  ANCILLARY    REMEDIES.  847 

^NIerrimox.  J.  In  his  applicatioii  iu  the  action  for  the  pro- 
visional remedy  of  arrest  and  bail,  the  plaintitt'  should  state  in 
the  affidavit  such  facts  as  clearly  disclose  a  cause  of  action  as  to 
which  the  defendant  may  be  arrested,  as  allowed  by  the  statute 
Code.  §  29].  These  facts  should  be  set  forth  with  such  fullness 
and  legal  precision  as  that  the  court  can  certainly  discern  the  par- 
ticular cause  of  action  intended  to  be  alleged.  It  should  tind  the 
facts  from  the  evidence  produced  by  the  plaintitT.  and  be  able  to 
see  and  determine  that  the  cause  of  action  exists  as  alleged.  It  is 
not  sufficient  that  it  may  exist.  This  iiuist  not  be  left  to  conjecture 
or  bare  proliability.  The  court  must  be  .satisfied  from  the  evidence 
before  it  that  it  does  so  exist ;  because  the  statute  allows  the  order 
of  arrest  to  be  granted  only  "when  it  shall  appear  to  the  court,  or 
judge  thereof,  by  the  affidavit  of  the  plaintitf.  or  any  other  per- 
son, that  a  sufficient  cause  of  action  exists,  and  that  the  case  is 
one  of  those  provided  for"  by  the  statute.  Moreover,  a  party 
shall  not  be  arrested  upon  conjecture,  or  facts  which  leave  the 
mind  of  the  court  in  doubt  and  uncertainty.  The  affidavit  should 
state  the  facts  positively,  when  this  can  be  done;  but  if  it  is 
founded  upon  information  and  belief  of  the  affiant,  the  grounds 
of  such  belief  must  be  set  forth,  so  that  the  court  can  see  and  judge 
of  their  character  and  sufficiency.  Peebles  v.  Foote.  83  X.  C.  102. 
and  cases  there  cited.  The  defendant  may  at  any  time  before 
judgment  move  to  vacate  the  order  of  arrest,  upon  the  ground  that 
it  was  irregularly  granted,  or  that  the  evidence  and  the  facts 
found  wert'  insuffi<'ient  to  justify  it.  In  such  case  the  ])lnintifl' 
cannot  be  allowed  to  offer  additional  evidence  to  support  his  mo- 
tion improperly  granted.  Code.  §  317;  Bear  v.  Cohen.  65  N.  C. 
511  ;  Devries  v.  Summit.  86  X.  C.  126.  Hut  the  defendant  may 
also  .support  his  motion  by  producing  counlei'-affidavits  and  other 
appropriate  evidence  to  prove  that  the  plaintiff's  motion  for  the 
order  of  arrest  was  not  well  or  sufficiently  founded.  In  this  cavSe, 
the  plaintiff'  may  produce  additional  affidavits  and  other  perti- 
nent evidence  to  cure  defects  and  strtMigthen  his  case.  Clark  v. 
Clark.  64  X.  C.  150;  Devries  v.  Summit,  supra.  The  court,  hav- 
ing the  order  of  arrest  and  the  motion  to  %acate  it  before  it.  will 
determine  whi'tlier  or  not.  for  any  cause,  the  order  was  improvi- 
dently  granted;  and.  if  need  l)e.  finding  the  facts  from  the  whole 
evidenee.  and  considering  and  applying  the  same,  it  will  dii-eet 
that  the  order  remain  undisturlx'd.  that  it  be  modified  in  .some 
particular,  or  vacated,  accordingly  as  it  may  be  of  opinion  one 
way  f>r  the  other.  .\  motion  to  vacate  the  oi-der  of  ai-resl  should 
be  allowed,  if.  u[»on  all  the  facts  fomid.  and  the  law  arising  lliere- 
ui)on.  the  court  slionld  be  satisfied  that  tlie  order  oU'_dit  t(t  be  va- 
cated. P.ut  when  the  order  wiis  properly  granti'(l.  ;is  the  facts  at 
first  a|)|>eared.  a  mere  denial  hy  the  defendant  of  the  |)laintitT  s 
allegations  siifficiently  nia<le  would  not  be  sufficient  to  prompt  the 
court  to  allow  a  motion  to  vacate  the  order.  .\'or.  ordinarily, 
wouhl  the  admi.ssion  of  the  material  facts  upon  whi<-h  the  order 
was  granted,  and  facts  made  to  appear  in  avoidance  of  the  ca.se 
made  by  thr-  plaintilf.  he  .siiHicienf.  ludcss  such   fact^  in  :iv(.id;ince 


84S  ANCILLARY    RKMEOIES.  \Ch.    11. 

shouKl  have  siu-h  point  and  wciirlit  as  In  satisly  tlic  (-(Hirt  that  tilt' 
plaintitV's  irromuls  for  the  ordci-  ol'  aiTcst  wcro  not  well  founded. 
Till'  onK'r.  rt'irularly  anil  |iiii|>itI\  Lii'anlcd  that  is.  ^M'antcd  npon 
suflicitMit  ])roof  to  warrant  it  upon  the  applicat  ion— should  not 
bo  vai-att'd  but  upon  fonvincin^  proof  that  it  shi»uld  be.  Hale  v. 
R.ieliardson.  8!)  X.  ('.  {VI:  1  Wbitt.  PI.  (4th  ed.)  421,  422;  3  Estee, 
IM.  &  Pr.  !;  4041  .'t  se(|.;  I  Cray.  \.  Y.  Pr.  !)1  et  seq. 

N\>\v.  if  it  be  ^'ranted  that  the  cause  of  action  (that  of  "slander 
of  title'"!,  which  the  plaiutitV  alleiicd  very  vaguely  and  unsatis- 
factorily in  the  complaint,  which  was  used  as  an  affidavit  in  sup- 
port of  the  motion  for  the  order  of  arrest,  was  embraced  by  the 
statute  (Code.  5$  2i)l).  and  as  to  which  the  defendants  inifrht  be 
ariTsteil  (and  this  is  (piestionable),  the  court  had  before  it  the 
complaint  and  answei-  used  as  affidavits  upon  the  motion  to  vacate 
the  order  of  arrest,  and  informally  found  the  facts  from  the  whole 
evidence,  and  that  the  facts  as  stated  by  the  defendants  were  true, 
and  "rebutted."  or  overthi-ew,  the  case  made  by  the  plaint ifi'  for 
the  purpose  of  the  motion  for  the  order  of  arrest.  We  are  not  at 
libertv  to  review  the  findings  of  facts  bv  the  court,  this  being  a 
case  at  law  (Jones  v.  Bovd,  80  N.  C.  260;  Hale  v.  Richardson,  80 
N.  C.  62;  AVorthy  v.  Shields,  90  N.  C.  192)  ;  and,  accepting  the 
facts  as  found,  we  cannot  hesitate  to  decide  that  the  court  prop- 
erly vacated  the  order  of  arrest  The  facts  alleged  by  the  plaintiff 
are  indefinite,  vaguely  and  loosely  stated,  and,  therefore,  to  be 
taken  with  the  more  caution.  The  defendants,  on  the  other  hand, 
expressly  and  positively  deny  all  the  material  allegations  of  the 
plaintiffs,  and  allege,  affirmatively,  facts  found  to  be  true,  which 
go  strongly  to  show  that  they  claimed  the  title  to  the  land  referred 
to  in  good  faith,  and  did  not  impertinently  and  officiously  inter- 
fere with  their  claims  but  in  order  to  assert  their  own  claim  and 
title.  This,  they  had  the  right  to  do  in  good  faith,  in  an  action  of 
this  character,  even  though,  upon  scrutiny,  it  should  turn  out  that 
their  claim  of  title  was  not  well  founded.     .     .     . 

In  equity,  arrest  and  bail  proceedings  were  not  nsed.  but  a  writ  of  Ne 
Exeat  was  issued  as  an  ancillary  remedy  to  keep  the  defendant  within 
the  reach  of  the  process  of  the  court.  See  Bouv.  Law  Diet.  "Ne  Exeat." 
For  ne  exeat  in  North  Carolina,  see  Howell  v.  Howell.  38  N.  C.  522;  Leh- 
man V.  Logan,  42  N.  C.  296.  See  also  Coble  v.  Alvord,  27  Ohio  St.  654, 
and  note  thereto,  inserted  at  sec.  5,  post.  For  the  writ  of  ne  exeat  as 
used  in  the  Federal  courts,  see  Rev.  Stat.  V.  S.  sec.  717,  U.  S.  Comp.  St. 
1901,  p.  .580.  and  Gould  and  Tucker's  notes  thereto;  Griswold  v.  Hazard, 
141  U.  S.  260,  11  Sup.  Ct.  972;  Shiras  Eq.  Pr.  42,  212.  The  form  in  use 
in  the  Federal  courts  is  given  at  p.  212  of  Shiras  Eq.  Pr.  See  "Arrest," 
Centurv  Dig.  §§  54,  55,  106;  Decennial  and  Am.  Dig.  Key  No.  Series 
§§  27,  44. 


HUNTLEY  v.  HASTY,  132  N.  C.  279,  43  S.  E.  844.     1903. 

Arreat  Under  Execution  Against  the  Person.    Arrest  Where  Proceedings 

in  Arrest  and  Boil  Have  Not  Been  Instituted  as  an  Ancillary  Remedy. 

FAction  for  assault  and  battery.  No  order  of  arrest  was  issued  before 
judgment.  After  judgment  the  plaintiff  applied  to  the  clerk  of  the  su- 
perior court  for  an  execution  against  the  person  of  the  defendant,  an 
execution  againsf  his  properly  having  been  returned  unsatisfied.     From 


Sec.    1.]  ANCILLARY    REMEDIES.  849 

the  clerk's  refusal  to  issue  such  execution,  the  plaintiff  appealed  to  the 
judge.  The  judge  reversed  the  ruling  oi  the  clerk,  and  defendant  ap- 
pealed.    Affirmed.     The  facts  appear  in  the  beginning  of  the  opinion.] 

Montgomery.  J.  This  action  \vas  brought  to  recover  damages 
against  the  clofeudaiit  for  an  alleged  assault  and  battery  with  a 
deadly  weapon — a  pistol  or  metallic  knuckles.  The  details  of  the 
battery  are  set  forth  in  the  complaint.  There  was  a  verdict  for  the 
plaintiff,  and  a  judgment  thereon  was  duly  entered.  An  execu- 
tion in  the  ordinary  form  was  issued  against  the  property  of  the 
defendant,  the  homestead  exemption  laid  oft'  by  the  sheriff,  and 
no  excess  found  lial)le  to  execution.  I^pon  the  retuni  of  the  execu- 
tion unsatisfied,  the  plaintiff'  applied  to  the  clerk  for  an  execution 
against  the  person  of  the  defendant,  under  section  447  of  the 
Code.  The  clerk  refused  the  motion  upon  the  grounds,  first,  that 
judgment  was  taken  and  docketed  before  any  demand  for  an  or- 
der of  arrest;  second,  that  the  complaint  made  no  demand  for  an 
order  of  arrest ;  third,  the  plaintiff'  accepted  the  judgment  without 
an  order  of  arrest ;  and.  fourth,  that  no  affidavit  accom])anied  the 
motion  for  the  order  of  arrest.  Ilis  honor  revei-sed  the  action  of 
the  clerk,  who  had  refused  to  grant  the  motion. 

The  ease  of  Peebles  v.  Foote.  83  X.  C.  102.  is  decisive  of  this 
case.  The  question  is  whether  in  such  case  execution  can  be  is- 
sued against  the  person  of  a  defendant  without  an  order  of  ar- 
rest having  been  served  before  the  judgment.  The  section  of  the 
Code  under  which  the  order  of  arrest  was  granted  reads:  "If  the 
action  be  one  in  which  the  defendant  might  have  been  ai-rested.  an 
execution  against  the  person  of  the  judgment  delitor  may  be  is- 
sued to  any  county  within  the  state  after  the  return  of  an  execu- 
tion against  his  property  unsatisfied  in  whole  or  in  ])art.  But  no 
execution  shall  is.sue  against  the  person  of  a  judgment  debtor  un- 
less an  order  of  arrest  has  been  served  as  provided  in  title  nine, 
sub-chapter  1,  of  this  chapter,  or  unless  the  complaint  contains  a 
statement  of  facts  showing  one  oi-  more  of  the  causes  of  arrest 
required  by  section  201."  That  section  was  amended  by  eliapter 
541.  p.  505.  of  the  Acts  of  1801  by  the  adding  to  the  end  of  it  these 
words:  "Whether  such  statement  of  facts  be  necessaiy  to  the 
cause  of  action  or  not."  In  Peebles  v.  Foote.  supra.  Ashe.  J., 
for  the  court,  said:  "The  secti(m  2fiO  [Code  Civ.  1^-oc.l.  under 
which    the   defendant    was    arrested.    contemi)lates    three   chi.sses: 

(1)  Where  the  cause  of  arrest  is  not  set  forth  in  the  complaint; 

(2)  where  the  cause  of  arrest  is  set  forth  in  the  complaint,  biit  is 
only  colhiteral  and  extrinsic  to  the  ])lMintiff's  cause  (tf  action; 
f3)  where  the  cause  r.f  arrest  set  forth  in  the  complaint  is  essen- 
tial to  the  [.laintiff's  adion,"  Our  ea.se  falls  inider  the  third 
class,  and.  as  was  said  in  I'cililes  v.  Foote.  supra,  no  :inidavil  for 
the  order  of  arrest  was  needed;  and  no  (.rder  of  arrest  is  n'<|uire<l 
before  an  execution  jiiay  be  issued  against  the  person  of  tlic  de- 
fendant, pr-ovided  the  complaint  has  been  properly  and  sulTieiently 
verified.  The  complaint  was  pn.perly  verified  in  the  ca.se  before 
us.    A  cau.se  of  arrest  was  set  forth  in  the  c(.m|»laint.     Code.  §  201, 

RcnicdieH — .">t. 


S50  Wni.l.AKV    KKMKDIES.  \C]l.     II. 

subsoo.  1;  Cjinoll  V.  M(>iiti,'(. lurry.   iL'S  N.  C.  27S.  38  S.   Iv  S74 ; 
Kiiuu'v  V.  Liiuirlit'iiour.  !>7  N.  ('.  325,  L*  S.  K.  VA. 

'Vho  jiulirr  who  iiiiul«'  llic  ordtM-  i'oi-  \hv  fxt'cut  ion  Wiis  llu"  judj^e 
n'sidinir  in  tlu'  ilisli-ict.  hut  was  not  the  .)iulj;i'  who  was  at  that 
tinu'  lu>Uliii^'  tilt'  couits  of  the  district,  and  lor  that  reason  the  de- 
t'l'iidant  conti'iids  that  Ihr  oi'dci-  was  void;  the  judiic  not  having' 
jurisdiction.  The  (incstion  for  ih'cision  hcl'orc  the  clerk  was  a, 
men'  matter  of  law.  and  the  appeal  was  projx'rly  si'iit  up  to  the 
judire  residing  in  the  disti'ict.     Code,  }5^j  "I^A,  2.");').     No  error. 

See  ■Execution.'  Ccnlurv  Dig.  §§  1222;  Decenninl  ami  Am.  Dig  Key 
No.  Series  §  424. 


Sec.  2.     Ol.mm  .\nd  Demvery. 

JARMAN  V.   WARD,   67  N.  C.  32.     1872. 
Whethei-  or  Not  the  Ancillary  Remedy  of  Claim  and  Delivery  May  Be 

Dispensed  With.     Detinue. 

[Action  to  recover  possession  of  cliattels.  No  affidavit  or  undertalilng 
in  Claim  and  Delivery  proceedings  was  filed.  Demurrer  by  defendant. 
Demurrer  sustained,  and  i)laintiff  appealed.  Reversed.  The  facts  ap- 
pear in  the  beginning  of  the  opinion.] 

Pearson,  C.  J.  This  is  an  action  to  recovei-  the  possession  of 
personal  property,  and  damages  for  the  detention. 

The  complaint  alleges  an  executed  contract  .for  the  sale  of  two 
steers,  and  a  cow  and  calf,  by  force  of  which  the  ownership  was 
vested  in  the  plaintiff.  The  plaintiff  does  not  make  the  affidavit 
nor  give  the  undertaking  as  required  by  C.  C,  P.  sees.  177,  179. 
To  this  the  defendant  demurs,  and  for  ground  of  demurrer  speci- 
fies: "The  action  is  for  claim  and  delivery  of  personal  property, 
and  the  phiintiff  has  not  complied  with  C.  C.  P.  sees.  177,  178, 
179  (eh.  11.  p.  63)."  This  presents  the  question:  Is  the  affidavit 
and  undertaking  required  to  be  filed  in  all  actions  to  recover  the 
possession  of  personal  property;  or  may  the  plaintiff,  if  he  chooses, 
ailow  the  property  to  remain  in  the  possession  of  the  defendant, 
pending  the  action,  and  thus  avoid  the  necessity  of  making  affida- 
vit or  of  giving  the  nndertaking.  which  latter  reqnisite  plaintiffs 
may  not  in  all  cases  be  able  to  comply  with? 

We  think  it  clear,  by  the  examination  of  C.  C.  P.,  that,  in  this 
action,  if  the  plaintiff  is  content  to  let  the  property  continue  in 
the  possession  of  the  defendant  pending  the  action,  he  is  not  re- 
quired to  make  the  affidavit  or  give  the  luidcrtaking  required  by 
sections  177.  178.  179.  It  is  then,  in  effect,  the  old  action  of  de- 
tinue, and  the  .iudgment  is  as  set  out  in  sec.  251,  C.  C.  P.:  "In  an 
action  to  recover  the  possession  of  personal  property,  .judgment 
for  the  plaintiff'  may  be  i'oi-  the  possession,  or  for  the  value  of  the 
property  (in  case  a  deliverv  cannot  be  had)  and  damages  for  the 
detention."  etc.  It  is  only  in  cases  when  the  plaintiff  seeks  to 
have  the  property  delivered  to  him  instanter  and  to  have  the 
possession  pending  the  action,  as  in   the  old  action  of  replevin, 


Sec.    3.]  ANCILLARY    KEMKDIES.  851 

that  the  affidavit  and  undertaking  are  required.  This  is  obvious 
by  looking  at  C.  C.  P.,  title  IX,  "Of  provisional  remedies  in  civil 
actions,"  ch.  1,  Arrest  and  Bail,  ch.  2.  Claim  and  Delivery  of 
Personal  Property.  This  provisional  remedy  presupposes  an  orig- 
inal remedy,  in  which  the  provisional  remedy  may  or  may  not  be 
applied  for.  This  general  view  of  the  subject  does  not  seem  to 
have  suggested  itself  to  his  honor,  or  to  the  counsel,  nor  was  C.  C. 
P..  sec.  251.  adverted  to. 

The  demurrer  is  overruled,  and  there  should  l)e  judgment  that 
the  plaintiff  recover  the  two  steers  and  the  cow  and  calf  (which 
are  described  with  great  certainty  in  the  complaint),  together 
with  damages  for  the  detention  and  costs,  and  in  case  the  property, 
or  any  part  of  it,  cannot  be  had,  then  that  he  recover  damages  by 
way  of  valuation  in  addition  to  damages  for  the  detention.  The 
case  is  remanded,  to  the  end  that  the  amount  of  damages  may  be 
enquired  of.  and  final  judgment  may  be  entered  in  the  superior 
court — unless  the  defendant  be  allowed  to  amend  his  pleadings. 
by  withdrawing  the  demurrer  and  putting  in  an  answer.  Love 
V.  Comrs.,  6-4  X.  C.  706;  Mervin  v.  Ballard.  66  N.  C.  398.  Defend- 
ant to  pay  the  costs  in  this  court,  and  judgment  on  the  undertak- 
ing for  the  appeal.     Judgment  reversed. 

For  a  further  discussion  of  the  ancillary  remedy  of  Claim  and  Deliv- 
ery, see  ch.  7,  sec.  1.  See  '•Replevin,"  Century  Dig.  §§  128,  139;  Decen- 
nial and  Am.  Dig.  Key  No.  Series  §§  27,  33. 


Sec.  3.    Injunction, 
frink  v.  stewart,  94  n.  c.  484.    1886. 

Injunction  When  Granted  as  an  Ancillary  Remedy. 

:\1errimon,  J.     .     .     .     The  court  will  not  grant  relief  ))y  in- 
junction in  a  case  of  simple  trespass,  and  when  it  appears  that 
the  plaintiff  can  have  adequate  remedy  and  compensation  in  dam- 
ages for  the  injury  s\istained.     To  entitle  him  to  such  relief  in 
the  first  instaiu-e.  lie  nnist  allege,  and  it  nuist  appear,  that  he  will, 
or  may,  probably  suft'er  irreparable  injury  in  some  way  if  it  shall 
not  be  granted.     And  it  is  not  sufficient  to  allege  such  injury  in 
general  terms — it  must  be  done  by  such  specific  allegations  of  facts 
as  will  enablf-  the  c(iiu-t  to  see  that  such  injui'v  will,  or  may.  hap- 
pen.    It  is  a   mistaken  notion   that  seems  to   |)rcvail   extensively. 
that  relief  by  injuii<t  inn  iiiny  be  had  In  ahnost  nun  '""•"»■''•  "'"'  "'■  " 
mafler  of  cnnvfuuncc,  inider  the  ("ode  method  of  proc(>dure.     On 
the  contrary,  it  is  only  to  be  granted  when  and   where  ade<inate 
relief  cannot   bo  had    without   it.      It    is  ext  i-aordinary   mid    iiro- 
visional    in    its   natuie  ;in<l    |>urposc.     Tbomitson   v.   ^VilllMnlS,  54 
\    C.    17(1;  Cause  v.   I'erkins.  5(1  \    C   177:   liell   v.  f'hadwiek.  71 
N.  ('.  32!);  (Jerman   v.  Clark.   lb    117.   Dunkait   v.  T{4-inhardt.  87 
N.  r.  224.     .... 

Injunction  as  an  ancillary  remedy  1h  further  tre^ited  of  under  Injunc- 
tion as  an  Extraordinary  Remedy,  ch.  10.  hoc  r..  ante.     See  '{"Ji''"'^'""- 
Centurv  DIk    §S  ::.  W;    Dcrennial  and  Am.  DIk.  Key  No.  Series  §8  3.  40. 


852  ANCILLAKV    KE.MEDIES.  [C/t.    11. 


Sec.  4.     Attach MENT. 

SCHENCK  V.  GRIFFIN.   38   N.  J.   L.   462.     1875. 

Origin  and  Xaturc  of  the  lionedy  by  Att(u  hmciil.     Estoppel.     Voluntary 

Appearance  by  Defendant. 

[Sclienok  sued  Griffin  for  an  alleged  indobtodness,  and  <'aused  a  writ  of 
uttai'hnienl  to  be  levied  on  certain  chattel  ]iroi)ert.v  which  Schenek 
claimed  to  belong  to  Gritlin.  (Jrillin  was  a  non-resident  and  no  process 
was  personally  served  upon  him.  nor  did  he  appear  voluntarily  and  de- 
fend the  action,  .liidgment  was  rendered  against  GrifRn  and  certain 
money  derived  from  the  attached  prop(>rty  was  paid  over  to  Schenek 
by  the  sheriff.  Griflin  then  brought  this  action  to  recover  from  Schenek 
the  money  so  received  by  him.  Schenek  contended  that  the  judgment 
in  the  former  action  was  an  estoppel — was  res  judicata.  The  judge 
ruled  that  it  was  not,  and.  the  jury  having  rendered  a  verdict  against 
Schenek,  judgment  was  given  against  him.  Schenek  carried  the  case 
to  the  supreme  court  by  writ  of  error.     AflBrmed.] 

Dkpi'E.  J.  The  ease  wns  nrc:iipd  liero  on  nbjoftions  to  the  deo- 
hirution  and  exceptions  taken  at  the  trial.  'J'he  exception  mainly 
relied  on  is,  that  jndjjnient  liaving  been  recovered  in  the  attach- 
ment suit,  the  rights  of  the  parties  were  conclusively  settled,  and 
the  liability  of  the  defendant  for  the  debt  was  res  adjndieata. 

Foreig;n  attachment  is  a  peculiar  i)roeeeding  to  comi)el  the  ap- 
pearance of  a  debtor  by  seizing  his  property,  and,  in  default  of 
appearance,  appropriating  it  to  the  payment  of  the  debt.  It  is 
stricthf  a  procrrdinq  in  rem.  AVith  respect  to  the  propertii  at- 
tached, whether  it  be  real  or  personal,  or  a  debt  due  the  defendant 
from  the  garnishee,  the  judgment  and  proceedings  are  conclusive. 
Neither  in  a  subsequent  action  by  the  defendant  in  attachment 
against  the  garnishee  for  the  recovery  of  the  debt  attached,  nor 
in  an  action  to  recover  the  lands  or  chattels  levied  on.  can  the 
defendant  in  attachment  defeat  the  recovery  in  the  attachment 
suit  by  disproving  the  debt  for  which  the  attachment  was  issued. 
If  the  court  had  jurisdiction,  the  judgment  is  conclusive,  and  can- 
not be  called  in  ((uestion  for  mere  irregularities,  when  offered  col- 
laterally. Thus  far,  and  for  these  purposes,  a  judgment  in  at- 
tachment has  the  quality  of  conclusiveness  which  pertains  to  an 
ordinarv  comnusn  law  iudsment.  Voorhees  v.  Bank  of  U.  S..  10 
Peters.  449 ;  Cooper  v.'  Revnolds,  10  AVall.  309 ;  McDaniel  v. 
Hughes,  3  Ea,st,  367;  Turbill's  Case.  1  Saund.  67.  n.  1 ;  Welsh  v. 
Blackwell.  2  Green.  349;  Lomerson  v.  Hoffman.  4  Zab.  674;  Drake 
on  Attachments,  sec.  703.  But  except  with  respect  to  the  property 
attached,  ihe  proceeding  has  no  effect.  No  action  can  be  brought 
on  the  judgment  recovered,  and  in  an  action  on  the  original  de- 
mand a  judgment  in  attachment  is  not  competent  as  prima  facie 
evidence  of  the  indebtedness.  INTiller  v.  Dungan,  7  Vroom,  21  ; 
Rubber  Co.  v.  Goodyear  9  Wall.  807-KlO. 

The  proceeding  in  attachment  had  its  origin  in  the  custom  of 
London,  and  has  been  adopted  and  modified  by  statutor^^  pro- 
visions.    By  the  custom  of  London,  after  judgment  entered,  but 


Sec.    4.]  ANCILLABY    REMEDIES.  853 

before  execution  is  awarded,  the  plaintiff  is  required  to  find  sure- 
ties to  undertake  that  if  the  defendant  in  the  attachment  shall, 
within  a  year  and  a  day.  come  into  court  and  disprove  or  avoid  the 
debt  demanded,  the  plaintitf  shall  restore  the  money  condemned, 
or  so  much  thereof  as  shall  be  disproved,  or  else  his  sureties  will 
do  it  for  him;  and  after  the  satisfaction  of  the  judgment  on  the 
record,  the  defendant  may.  within  a  year  and  a  day.  sue  out  a 
writ  of  scire  facias  ad  disprobandum  debitum.  wliich  puts  the 
plaintiff  to  the  proof  of  the  debt,  and  in  case  of  his  failure  to 
prove  his  debt,  judgment  will  pass  against  him  for  the  restitu- 
tion of  the  money,  with  execution  thereon ;  and  if  he  be  unable 
or  unwilling  to  restore  the  money,  his  sureties  will  be  com- 
pelled to  pay  it  for  him.  Locke  on  Attachment,  19-58;  Appendix 
to  Drake  on  Attach.  709-732;  Serg.  on  For.  Attach.  48-50;  Com. 
Dig.  Attachment. 

But  it  was  contended  in  behalf  of  the  plaintiff  in  error,  that  this 
provision  [a  section  of  the  statute  requiring  the  plaintiff  in  at- 
tachment to  give  bond  to  answer  any  suit  against  him  by  tlie  de- 
fendant within  a  year]  was  entirely  nugatory,  inasmuch  as  tlie 
act  did  not  expressly  provide  for  the  bringing  of  .such  action.  It 
is  not  necessary  that  it  should.  The  proceedings  by  foreign  at- 
tachment, under  the  custom  of  London,  were  recognized  by  the 
common  law.  and  adopted  as  part  of  the  local  law  of  the  city  of 
London,  and  administered  as  such  in  the  common  law  courts.  The 
conmion  law  courts  had.  furthermore,  long  before  the  Revolution, 
adopted  the  principle,  that  the  judgment  in  such  proceedings  did 
not  conclude  the  defendant  as  to  the  existence  of  the  debt  for 
which  the  attachment  was  issued,  and  that  he  had  a  remedy  to  re-- 
cover back  from  his  advei*sary  the  moneys  realized  thereunder  if 
they  were  not  due  and  owing.  And  the  section  referred  to  plainly 
recognizes  the  existence  of  a  remedy  by  a  snit.  in  which,  by  the 
judgment  or  decree  of  a  court,  it  shall  be  adjudged,  that  moneys 
received  under  the  attachment  were  not  due  and  owing  to  the  at- 
taching creditors.  That  remedy  can  only  be  obtained  by  ;in  action 
such  as  the  plaintiff  in  this  case  is  prosecuting.     ... 

Exception  was  also  taken  to  the  refusal  of  the  judge  to  nonsuit, 
on  tlie  ground  that  Griftin  having  knowledge  of  the  attachment 
.suit  before  judgment  cnterorl.  and  having  neglected  to  enter  an 
appearance  and  litigate  therein  the  demand  of  Schenck.  wa.s  es- 
topped from  bringing  this  acticm.  One  of  the  peculiarities  of  tlic 
proceeding  by  attaclmient  is,  that  the  defendant  may  api)ear  dur- 
ing the  pendency  of  the  suit  and  contest  the  plaintiff's  dcMnand. 
or.  within  the  time  limited  after  Judgiiieiil.  may  dispute  the  debt 
for  wliich  the  attachment  issiK'd.  I'.oth  these  remedies  are  given 
in  the  alternative.  The  defeiKlaiit  has  his  election  to  pursue 
either.  If  he  appears  to  the  suit,  he  /nakes  the  judgment,  if  any 
be  recovered,  a  judgment  in  pei-sonam.  He  is  under  no  obligaliou 
to  give  the  j)laintiff  that  advantage.  lie  in.i.\  leave  llie  phiiuliff 
to  y)rosecute  his  proceedings  in  rem.  and  avail  himself  of  the  right 
wlijeh  the  law  gives  him  (if  recdveriuL'  liaei<  the  proceeds  realized 


S54  ANCILLARY    REMEDIES.  [Ch.    11. 

it'  tlu'  iK'ht  bo  lutl  ihu'.  Any  oflu'i-  cxposilioii  of  tlic  law  would  ho 
MianitVst ly  unjust.  Tlif  (Icniaiid  in  ('(niti-ovci'sy  may  he  lai'j::i'.  aiul 
the  propiTly  atlarhcd  ol'  (■(uniiarat  i\  I'ly  litllc  value.  Tlir  dcfeiul- 
ant  wa.s  under  no  I'ctnipulsion  to  suhniit  himself  to  the  hazard  of  .i 
judirmiMit  aj;ainst  him  personally,  in  a  forum  whicli  had  no  juris- 
dietion  over  his  piM'son.  oi"  else  he  esto|)|)ed  fi-om  pursuing'  a  I'em- 
ed\  which  he  is  legally  eutillfd  lo  in  ease  the  proceeding  he  un- 
lawfullN-   proseeuted.     .      .      .     Jud^'ment   al'tirmed. 

See  "Altaclniient."  Century  Dig.  §  1327;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  3li4;  ".Iiulpniont,"  Century  Dig.  §§  1164,  1238;  Decennial  and 
Am.  Dig.  Key  No.  Series,  §§  G32,  713. 


PENOYAR  V.  KELSEY,  150  N.  Y.  77,  44  N.  E.  788.     1896. 
Explanation  of  Attachment  as  a  Common  Law  and  as  a  Code  Remedy. 

Vann,  J.  The  (piestion  certified  to  us  for  determination  de- 
pends upon  the  construction  of  section  636  of  the  Code  of  Civil 
Procedure,  whicli  prescribes  "wliat  must  be  shown  to  procure"  a 
warrant  of  attachment  against  property.  The  learned  counsel  for 
the  respective  parties  differ  as  to  the  rule  of  construction  that 
should  be  applied ;  the  one  contending  that  it  should  be  strict,  be- 
cause tlie  provision  is  in  derogation  of  the  common  law,  while  the 
other  insists  that  it  should  be  libei'al,  because  the  statute  does  not 
derogate  from  the  common  law.  but  merely  amplifies  a  well-known 
common-law  remedy.  The  process  of  attachment,  as  it  existed 
under  the  conunon  law,  differed  in  its  nature  and  object  from  the 
provisional  remedy  now  known  by  that  name.  Its  original  pur- 
pose was  to  acquire  jurisdiction  of  the  defendant  by  comj)elling 
him  to  appear  in  court  through  the  seizure  of  his  property,  which 
he  forfeited  if  he  did  not  appear  or  furnish  sureties  for  his  ap- 
pearance. 3  Bl.  Comm.  280;  1  Rolle,  Abr.  "Customs  of  London.'' 
K.  13;  Kneel.  Attachm.  6;  Drake,  Attachm.  §  5;  Ashley,  Attachm. 
11 ;  Locke,  Attachm.  12.  It  was  part  of  the  service  of  process  in  a 
civil  action  through  a  species  of  distress,  in  which  the  goods  at- 
tached were  the  ancient  vadii  or  pledges.  Bond  v.  Ward,  7  Mass. 
123,  128;  Gilb.  Dist.  24.  As  said  in  the  case  last  cited:  "The 
practice  of  attaching  the  effects  of  a  defendant  and  holding  them 
to  satisfy  a  judgment,  wliieh  tlie  plaintiff  may  recover,  when,  per- 
haps, judgment  may  be  for  tlie  defendant,  is  unknown  to  the 
common  law,  and  is  founded  on  our  statute  law."  Its  present 
purpose  is  not  to  compel  appearance  by  tlie  debtor,  but  to  secure 
the  debt  or  claim  of  the  creditor.  It  is  a  proceeding  in  rem,  and 
the  process  may  issue,  in  certain  cases,  whether  the  defendant  has 
been  served  with  a  summons  or  not,  although  inability  to  serve 
through  the  fault  of  the  defendant,  is  a  ground  upon  whicli  the 
warrant  may  be  granted.  It  exists,  as  a  provisional  remedy,  only 
when  authorized  by  statute,  and,  as  such,  is  comparatively  recent 
in   its  origin.     While   attachments  were  permitted   in   justices' 


Sec.    4.]  ANCILLARY    REMEDIES.  855 

courts  by  the  R<?vised  Statutes,  and  were  extended  somewhat  by 
the  non-imprisonnient  a^^-t.  they  were  proeeedincrs  in  the  nature  of 
original  proeess.  by  which  the  action  was  eoinnienced.  2  Rev.  St. 
p.  274;  Laws  1831.  c.  300;  Bradner.  Attachm.  2.  See,  also.  1 
Webst.  &  S.  Attaehm.  236;  2  Rev.  Laws  1813.  p.  157.  Attach- 
ment, as  a  provisional  remedy,  with  the  object  of  securing  a  debt 
by  ])reliminary  levy  upon  property  to  conserve  it  for  eventual  ex- 
ecution, was  created  by  the  Code  of  Procedure,  and  has  been  con- 
tinued and  extended  by  the  Code  of  Civil  Procedure.  Code  Proc. 
§  227;  Code  Civ.  Proc.  $  635.  Tnlike  the  attachment  against  ab- 
sent or  absconding  debtors  imder  the  Revi.scd  Statutes  or  the  Stil- 
well  act.  which  sequestered  the  property  of  the  debtor  for  the  ben- 
efit of  all  the  creditors  alike,  this  proceeding  is  for  the  benefit  of 
the  attaching  creditor  alone.  It  is  not  only  created  by  statute,  but 
has  substantially  none  of  the  features  peculiar  to  the  common-law 
remedy.  As  said  by  a  recent  writer :  "It  amounts  to  the  involun- 
tary dispossession  of  the  owner  prior  to  any  adjudication  to  deter- 
mine the  rights  of  the  parties.  It  violates  every  principle  of  pro- 
prietary right  held  sacred  by  the  connnon  law.  It  is.  to  some  ex- 
tent, equivalent  to  execution  in  advance  of  trial  and  judgment. 
Property  is  taken,  under  legal  process,  at  the  instance  of  one  with- 
out even  a  claim  of  title,  from  teh  possession  of  another  whose  title 
is  unquestioned;  and.  though  the  mere  taking  does  not  work  any 
change  in  the  ownership  of  the  property,  it  seriously  afi'ects  some 
of  the  most  important  incidents  of  that  ownership,  and  may  even 
be  the  means  of  thwarting  the  owner  in  his  endeavors  to  meet  ibe 
just  demands  against  him.''    AVade.  Attachm.  §  2. 

Owing  to  the  statutory  origin  and  harsh  nature  of  this  remedy, 
the  section  in  (|uestion  should  be  construed,  in  accordance  with 
the  general  rule  applicable  to  statutes  in  derogation  of  the  com- 
mon law.  strictly  in  favor  of  those  against  whom  it  may  be  em- 
ploved.  Id.;  Sharpe  v.  Speir.  4  Hill.  76.  86;  Waples.  Attachm. 
§  23. 

See  3  L.  R.  A.  (N.  S.)  608.  20  lb.  264,  and  notes;  attachment  (of  a 
debt  payable  outside  of  the  jurisdiction);  11  lb.  706,  and  note  (of  funds 
in  hands  of  a  guardian);  .',  lb.  1iiT2,  and  note  (of  funds  in  the  hands  of 
an  executor  or  administrator);  13  lb.  I'u,  and  note  (of  funds  in  custod.v 
of  court  officers);  14  lb.  1221,  and  note  (of  funds  in  hands  of  assignee 
in  bankrui)tcv);  16  lb.  1026,  and  note  (foreign  railroad  car);  18  lb.  1158. 
and  note  (stockholder's  interest  in  a  cori)oralion ) ;  20  lb.  912,  and  note 
(unearned  salarv);  6  Tb.  4fn,  10  lb.  !)S3.  and  notes  (injunction  against 
vexatious  attachment  l ;  6  lb.  598,  and  note  (liability  of  i)laintiff  for 
wrongful  lew);  Moore  v.  Rank.  140  N.  C.  293.  52  S.  E.  944  (llaldlity  of 
plaintiff  for  malicious  attachment);  1  L.  R.  A.  (N.  S.)  778.  and  note 
(when  does  a  resident  who  intends  to  move  become  a  nonresident?). 
See  "Attachment,"  Century  Dig.  §§  .'  7;  Decennial  and  Am.  Dig.  Key 
N'o.  Series  5  2. 


S56  ANCILLARY    REMEDIES.  [Cli.    J 1. 


•MARSH  V.  WILLIAMS.  G3  N.  C.  371,  373.     18G9. 
-Original  Attachnunf   Lndir  Anciritt  I'l active,  and  Attachment   Under 

the  Code  Practice. 

Dick,  J.  .  .  .  The  (K'iViulant  Marsh  siu'd  out  au  original 
attachiiu'iit  lu'lun'  a  juslici'  of  the  peaci'.  against  tlie  i)roi)t'rty  ol" 
the  phiintilV  in  tliis  i-asi'.  Tliis  kind  of  proeoss  has  been  abolished 
by  the  Code,  and  no^v  the  original  proeess  in  every  civil  case  is  the 
summons.  The  warrant  of  atlaehment  can  be  used  {is  au  auxiliary 
remeily  to  seeiire  the  satisfaction  of  a  judgment  wliieh  may  be 
obtained  by  the  sunnnous  and  complaint,  but  it  can  only  be  issued 
upon  affidavit  for  causes  specified  in  sections  197  and  201.     .     .     . 

"Attachment,  other  than  the  common  law  writ  which  issued  out  of  the 
common  pleas  upon  tlie  non-appearance  of  the  defendant  at  the  return 
of  the  original  writ,  had  its  origin  in  the  civil  law,  and  afterwards  was 
adopted  in  England  in  the  form  of  a  custom  of  the  London  merchants, 
and  out  of  this,  as  modified  and  extended  by  statute,  has  grown  the 
modern  law  in  respect  to  this  remedy.  4  Cyc.  39G,  397;  1  Shinn  on  At- 
tachment, sees.  1  and  2.  It  was  resorted  to  in  order  to  compel  the  at- 
tendance of  the  debtor  as  well  as  to  afford  a  security  to  the  creditor. 
Under  our  former  statutes,  when  the  defendant  was  a  non-resident,  it 
issued  either  in  the  form  of  an  original  or  a  judicial  attachment  and 
without  any  notice  until  there  had  been  a  levy  or  caption  of  the  goods 
of  the  debtor,  when  advertisement  was  required  if  the  defendant  resided 
without  the  jurisdiction.  Rev.  Code,  ch.  7,  sees.  12  and  13.  By  sec.  12 
it  was  provided  that  'No  judicial  process  shall  be  issued  against  the 
estate  of  any  person  residing  without  the  limits  of  the  state,  unless  the 
same  be  grounded  on  an  original  attachment,  or  unless  the  leading 
process  of  the  suit  has  been  executed  on  the  person  of  the  defendant 
within  the  state.'  This  was  the  method  of  proceeding  against  non-resi- 
dents until  the  adoption  of  the  Code  system.  The  remedy  then  became 
ancillary  to  the  principal  suit  for  the  recovery  of  the  debt.  But  there 
was  no  essential  change  in  the  procedure  by  which  the  defendant  was 
brought  before  the  court  and  compelled  to  appear  and  submit  his  person 
to  its  jurisdiction,  or  lose  his  property  as  the  penalty  for  his  default,  or 
so  much  thereof  as  was  necessary  to  satisfy  the  plaintiff's  demand.  The 
very  nature  of  the  case,  as  shown  by  the  fact  of  non-residence,  made  it 
clearly  futile  to  attempt  to  serve  him  personally.  As  he  was  presumed 
to  have  a  constant  regard  for  his  property  and  always  to  keep  a  watch- 
ful eye  upon  it,  the  law-makers  at  once  concluded  that  the  most  effective 
and  the  speediest  way  of  compelling  his  appearance  was  by  seizing  it; 
and  at  the  same  time  this  method  had  the  further  advantage  of  pro- 
tecting his  creditor.  But  in  order  that  the  cardinal  principle  of  our 
judicial  system  should  not  be  even  seemingly  violated,  it  was  required 
that  in  the  original  action,  instead  of  the  idle  and  useless  ceremony  of 
issuing  a  summons  for  a  man  who  it  was  well  known  could  not  be  found, 
publication,  in  such  manner  as  would  be  likely  to  give  notice  of  the  ac- 
tion, should  be  made:  and  such  is  the  meaning  and  clear  intent  of  the 
statute  as  plainly  manifested  by  its  words.  It  is  true  that  civil  actions 
are  commenced  by  issuing  a  summons,  but  this  refers  to  cases  where  the 
defendant,  being  within  the  jurisdiction  of  the  court,  can  be  served  per- 
sonally, and  the  method  of  making  such  service  is  specially  provided  for 
in  Rev.  §§  429_442."  Grocery  Co.  v.  Bag.  Co.,  142  N.  C.  at  p.  177,  55  S.  E. 
at  p.  91.  This  case  holds  that  attachment  proceedings  against  persons  out 
of  reach  of  the  process  of  the  court,  need  not  be  commenced  by  the  issue 
of  a  summons,  but  may  be  commenced  by  filing  the  affidavit  and  proceed- 
ing to  publish  the  requisite  notice.  See  "Attachment,"  Century  Dig. 
§§  398,  664;  Decennial  and  Am.  Dig.  Key  No.  Series  §§  143,  206. 


Sec.    4.]  ANCILLARY    REMEDIES.  857 


TOMS  V.  WARSON,  66  X.  C.  417.     1879. 

Xatute  of  Attachment  Under  Code  Practice.    Ancillary  Remedy.    Motion 
in  the  Cause.    Motion  to  Vacate.    Who  May  Be  Let  in  as  Parties. 

Rodman.  J.  In  January,  1869,  the  plaintiff  commenced  an  ac- 
tion in  Bimcombe  superior  court  against  the  defendant  upon  two 
notes.  Aftenvards,  while  the  action  was  pending  and  undeter- 
mined, the  phiintiff  applied  to  the  clerk  of  that  court  upon  aifida- 
vit  for  an  attachment,  which  was  issued,  and  returned  levied  on 
certain  lauds  in  Henderson  county,  and  also  on  certain  lands  in 
Buncombe  county.  On  the  return  of  the  attachment,  the  defend- 
ant put  in  an  answer,  denying  that  he  was  the  owner  of  the  prop- 
erty attached,  etc.,  and  the  clerk  thereupon  returned  all  the  papers 
connected  with  the  attachment  to  the  superior  court  in  term 
time  for  the  trial  of  the  issues  thus  irregularly  joined  between  the 
plaintiff  and  the  defendant.  Crawford  and  ^lurray  appeared 
before  the  judge,  the  former  claiming  the  lands  in  Henderson,  and 
the  latter  those  in  Buncombe,  and  they  moved  the  judge  to  allow 
them  to  become  parties  to  the  original  action  on  the  note.  This  he 
refused,  but  allowed  them  to  become  parties  to  the  collateral  is- 
sues respecting  the  title  to  the  property  levied  on.  From  this  re- 
fusal they  appealed. 

1.  The  summons  and  complaint  by  the  plaintiff'  as  a  ground  for 
his  motion  for  the  attachment  were  unnecessary.  The  motion  for 
an  attachment  is  a  motion  in  the  original  action.  It  must  be 
founded  on  a  proper  affidavit,  and  should  be  in  writing.  The  de- 
fendant may  oppose  the  granting  of  the  attachment  in  the  first 
instance,  if  he  has  notice  of  the  application,  or  he  may  come  ni 
afterwards  and  move  to  vacate  it,  either  for  defects  in  the  plain- 
tiff*'s  ease,  or  on  counter  affidavits,  as  the  nature  of  the  case  may 
require.  But  he  cannot  plead  to  th»'  attachment  in  a  technical 
sense.  To  do  so  was  irregular.  Crawford  and  .Murray  might  have 
appeared  before  the  clerk  and  moved  tliere  to  be  allowed  to  Ix' 
made  parties,  when  they  could  have  set  up  their  title  to  the  prop- 
erty. When  issues  of  fact  were  thus  joined,  the  clerk  should  iiave 
sent  them  up  to  the  judge  of  the  superior  court  to  be  tried  tliere. 

2.  As  this  was  not  done,  and  the  clerk  had  sent  up  the  issues 
between  the  plaintiff  and  the  defendant,  arising  out  of  the  attach- 
iiieut.  and  they  were  tben  pejidiug  befoi-e  the  judge,  Crawford  and 
Murray  might  well  ai)ply  to  him  to  ])ecoiiie  parties  to  lliat  collat- 
eral issue  for  the  purj)ose  of  }LS.serting  their  respective  claims  !o 
the  property.     This  the  judge  offered  to  allow  them  to  do. 

3.  They  bad  no  right  to  become  parties  to  the  origiiuil  action  on 
the  note.  In  the  matters  at  issue  in  that  action,  tliey  had  no  in- 
terest to  be  affected  by  any  judgmi'iit  which  iniglit  be  given. 
There  was  no  rea.son  for  their  intervening.  They  were  strangers 
to  that  controversy,  and  could  neither  be  benefited  nor  prejudiced 
by  its  result.  Tlie  jud(.'c  projterly  n-fused  to  allow  tlieni  to  be- 
come parties.  If  tbey  ba<l  so  moved,  the  judge  niiglil  li.ive  made 
an  order  suspending  the  sale  of  the  property  attadied  until  after 


858  A\(M1.I.\KV    Iv'KMKDlKS.  \('ll.     It. 

tlu'  iK'ti'i-iiiiiKit  uui  (tf  the  (•(ill;itcr:il  issues  n's]>cct  iui:  llu'  title.  mikI 
iu>  (.loulil  lie  wtuild  lijivc  (Idiic  so.  lull  w  lict  lici-  he  did  or  imt  all 
piMvhasers  of  tlu-  laud  iii  huuctiuiht'  wnuld  have  hccu  allVetetl  by 
uotu'O  i)t"  the  flaiui  to  liiat.  aud  (raw  ford.  h\  tiliiifx  a  uotice  of  lis 
l»i'udt'iis  \\\  llcudt'isou  fouuly.  as  pi-ovidcd  t)y  soc.  !U).  C.  C.  P., 
I'Oidd  lia\i'  alVcctcd  with  notice  all  llii'  iMirrliascrs  of  tju'  pi'opniy 
ill  tiiat  rouiity.     'riirrf  is  no  cn'oi-. 

See  -':'.  L.  U.  A.  (N.  S.)  536,  1081,  and  notes  (rights  and  remedies  of 
an  intervonort.  See  ■Atlacliiiient."  Centur.v  Dig.  S§  214.  216,  808,  816, 
;•;•!•;    Decennial  and  Am.  Di^.  Ko.v  No.  Series  g§  119,  121,  225,  237,  287. 


BRANCH  V.  FRANK.  SI   X.  C.  180.     1879. 
tSuffiiiciuy  of  Affidavit. 

AsiiK,  J.  Tills  was  a  motiou  to  vacate  an  attafhiucut.  The  mo- 
tion Avas  based  upon  two  grounds:  First,  that  the  at'lidavil  t"oi'  the 
attaeliinent  did  not  state  "that  the  court  has  jurisdiction  of  the 
subject  matter  of  the  action  ;"  Second,  "that  it  did  not  state  posi- 
tively that  the  d(>fendants  had  property  in  the  state,  but  stated 
that  the  defendants  had  ]iroperty  therein,  as  plaintiffs  are  in- 
formed and  l)elieve.  consist incr  of  a  debt  due,  or  shortly  to  be  du(>, 
them  by  L.  A.  Farinholt.  of  Weldon." 

It  seems  that  the  court  below  fell  into  the  error  of  confoundin*,' 
the  requisites  of  the  at'tidavit  for  s(  rvice  of  sumni())is  by  publica- 
tion with  those  for  obtaining  a  warrant  of  uUucfunent,  the  tirst 
is  prescribed  in  section  83  of  the  Code  of  Civil  Procedure,  and  the 
latter  in  section  201.  and  they  are  quite  different.  By  section  201 
it  is  provided  that  the  warrant  of  attachment  may  be  issued  when- 
ever it  shall  appear  by  affidavit  that  a  cause  of  action  exists 
against  the  defendant,  specifying  the  amount  of  the  claim  ami 
the  grounds  thereof,  and  that  the  defendant  is  a  foreign  corpora- 
tion, or  not  a  resident  of  this  state.  The  affidavit  in  this  case,  so 
far  as  relates  to  obtaining  the  warrant  of  attachment,  comes  fully 
up  to  the  re(piirements  of  the  law — the  second,  third  and  fourth 
l)aragraphs  set  forth  the  fact  that  a  cause  of  action  exists  against 
the  defendants,  and  state  with  sufficient  precision  the  amount  and 
grounds  thereof:  and  the  sixth  states  that  the  defendants  are  non- 
residents of  the  state.  This  is  all  thai  is  needful  lo  obtain  the 
warrant.  There  is  no  provision  in  this  section  that  requires  the 
statement  "that  the  court  has  jurisdiction  of  the  suliject-matter 
of  tlie  action,  nor  that  the  defendant  has  i)roperty  in  this  state." 
The  affidavit  to  obtain  the  warrant  was  sufficient.  It  wa.s 
error  to  vacate  the  attachment  before  judgment,  however  defective 
the  aflfidavit  may  be  for  the  purpose  of  having  service  of  the  sum- 
mons by  publication,  for  it  is  possible  that  may  be  amended. 
There  is  error.     Reversed. 

See  introduction  to  this  chapter  for  requirements  of  the  affidavit.  See 
"Attachment."  Century  Dig.  §§  242-244;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  116. 


I^ec.    4-]  ANCILLARY    REMEDIES.  859 


MANUFACTURING  CO.  v.  NATIONAL  BANK,  130  N.  C.   609,  41   S.   E. 

S70.     190:i. 

Attachment  Against  a  National  Bank. 

FiRCHES,   C.   J.     The   plaintiff   commeuced   an   action   against 
Geo.  H.  Tierney  &  Co.  in  \vhieh  plaint itt'  alleges  that  said  Tierney 
&  Co.  is  liable  to  plaintiff  in  the  sum  of  $285.92  on  account  of  a 
breach  of  contract.    Upon  this  allegation,  said  Tierney  &  Co.  be- 
ing nonresidents  of  this  state,  but  owning  a  lot  of  cotton  in  this 
state  (as  plaintiff'  alleged),  plaintiff'  sued  out  an  attachment,  and 
caused  it  to  be  levied  on  said  hfty  bales  of  cotton.     In  that  action 
the   defendant   bank   inter^-ened.    and   claimed   the   cotton.      The 
plaintiff  then  commenced  this  action  against  the  defendant  bank, 
and  attached  the  same  cotton  as  the  property  of  the  defendant 
bank.     In  this  way  both  cases  stood  upon  the  docket  of  Durham 
superior  court  at  the  same  time,  and  the  defendant  bank  moved  to 
dismiss  the  action  against  it  and  to  discharge  the  attachment  as 
against  it.  while,  on  the  other  hand,  the  plaintiff'  moved  to  con- 
solidate this  action  with  the  action  of  plaintiff'  against  Tierney  & 
Co.    The  court  refused  the  motion  of  defendant  to  dismiss  the  ac- 
tion and  discharge  the  attachment  against  it.  but  allowed  the  mo- 
tion of  plaintiff',  and  consolidated  the  two  actions,  and  defendant 
appealed. 

We  do  not  see  at  present  how  it  is  the  plaintiff  has  a  cause  of 
action  against  the  defendant  bank  for  a  breach  of  contract  witli 
the  defendant  Tierney  &  Co.,  as  alleged  by  it.     But  this  would  be 
more  j)roperly  a  (piestion  to  be  considered  on  a  trial  of  the  case, 
and  not  on  a  motion  to  dismiss.    But  the  inolion  to  dismiss  the  ac- 
tion and  discharge  the  attachment  is  not  made  upon  that  gi-ound. 
but  for  the  rea.son  that  it  is  commenced  by  attachment,  and  a  lev\ 
upon  fifty  bules  of  cotton  alleged  lo  be  the  jiroperty  of  the  defend- 
ant bank.      Il    is  alleged  by  the  plaintiff  and   admitted  that    the 
defendant  is  a  "national  bank."  and  in  our  oi)inion  the  defend- 
;mt 's  motion  should   have  been  allowed.     Act  Cong.  1873.   incor- 
porated into  section  5242.  Rev.  St.  T^.  S.   (U.  S.  Comp.  St.  VM)]. 
p.  3517).  provides  that  no  attachment  shall  be  bi-ought  against  a 
national  bank  in  any  state  court,  and  this  has  been  lieid  to  !)<•  the 
law.  not  oiilv  as  to  state  courts.  Imt  also  as  to  Tnited  States  courts, 
iiank  v.  Mi.xter.  124  T.  S.  721.  S  Sup.  Ct.  71 S.  31  L.  Ed.  507.     .\n<l 
the  same  is  held  lo  l)e  the  law  in  the  state  of  Vermont.     SalVord 
V.  Bank,  (il  Vt.  373,  17  Atl.  748. 

Ther'-fore  the  defendant's  motion  to  dismi.ss  and   to  discliiirge 
the  ;itt;irliiiirnt    sliould    li;ive   been   ;dlowed.      I^M-or. 

See     HaiiUs  and   HaiiUiiiB."  Century   DIr.   §§   KmIT    UMlit;    Drcciuiii.l   and 
Am    ni^    Kcv   No.   Series  S   27S. 


5G0  ANCll.l.AUV     KKMKIMKS.  1(7/.     //. 


PENNIMAN    V.   DAMKL.  HI   N.  C.    i;:i.     1SS4, 
The  Doctrine  of  Fcnnoyvr  v.  Ncff. 

Smith.  C.  J.  .  .  .  hi  riMiiioycr  v.  NVlV.  !);">  l'.  S.  714,  de- 
cided ill  1S77.  witii  1)111  ,1  siiii^le  dissciitiii.c:  voice,  the  conclusion 
reached  ;md  announced  is.  lliat  a  judiiiiieiit  recovered  in  a  suit 
tiy  allacliiiirMi  Icn  icd  ii|miii  llic  (lelViidaiit 's  land  when  no  |)cr- 
soual  service  lias  been  made,  is  exhausted  by  a  sale  of  the  i)roperty 
attached  and  the  appi'opriation  of  tlie  proceeds  to  the  ci-editoi-'s 
debt,  and  iiossesses  no  other  Icijal  force.  The  sale  of  other  land 
of  the  debtor  undi'r  such  judiiiiient  was  held  to  |)ass  no  title  to 
the  piaintitV.  If  this  b(>  accepted  as  the  law  in  this  st.ite.  it  shows 
that  the  {>]-t>servation  of  the  lii'u  of  the  attachment  was  the  funda- 
mental condition  of  suiH'Css.  and  miiiht  well  excuse  the  waiting*' 
until  the  validity  of  the  warrant  was  determined.  We  do  not  un- 
dertake to  say  that  such  is  the  huv  in  this  state,  and  certainly  this 
decision  is  at  variance  with  the  adjudications  under  the  former 
law.  It  has  been  held  that  a  proceeding  commenced  by  original 
attachment  and  prosecuted  on  due  notice  by  publication  of  tlu' 
seizure  of  the  debtor's  property  to  final  judcrment.  was  not  a  pro- 
ceeding in  rem,  hut  (he  judgment  is  personal.  Skinner  v.  Moore. 
19  N.  C.  138.  The  attachment  Avas.  in  its  nature  and  operated  a.s, 
a  distress  to  compel  appearance;  and  if  it  did  not,  the  judgment 
was  as  absolute  and  conclusive  a.s  if  rendered  after  pers(mal 
service. 

The  attachment  under  the  Code  is  of  quite  a  different  nature, 
and  subsidiary  only  tow^ards  obtaining  the  relief  which  is  the  ob- 
ject of  the  action,  and  seems  under  the  statute  to  be  intended  to 
be  more  comprehensive  and  more  fully  remedial  within  the  state 
than  is  admitted  in  the  opinion  in  Pennnyer  v.  Neff.  As  to  the 
extra-territorial  effect  of  such  a  judgment,  it  can  be  only  recog- 
nized as  effectual  so  far  as  it  appropriates  the  debtor's  property 
to  the  creditor's  demand,  and  wholly  inoperative  beyond  that 
limit,  and  so  it  is  held  in    Peebles   v.    Patapsco,    77    N.  C.  233. 


Pennoj'er  v.  Neff  seems  to  be  fully  sustained  in  Vick  v.  Flournoy,  147 
N.  C.  209,  60  S.  E.  978;  May  v.  Getty,  140  N.  C.  310,  53  S.  E.  75;  Lemly 
V.  Ellis,  143  N.  C.  200,  55  S.  E.  629;  Bernhardt  v.  Brown,  118  N.  C.  701, 
24  S.  E.  527;  Long  v.  Ins.  Co.,  114  N.  C.  465,  19  S.  E.  347;  Winfree  v. 
Bagley.  102  N.  C.  515,  9  S.  E.  198.  The  doctrine  of  Pennoyer  v.  Neff  has 
been  extended  to  actions  for  divorce.  Haddock  v.  Haddock,  201  U.  S. 
562,  26  Sup.  Ct.  525,  inserted  at  ch.  12,  post.  See  Long  v.  Ins.  Co.,  114 
N.  C  465,  inserted  at  ch.  13,  §  6,  post.  Due  process  of  law  requires  serv- 
ice of  process.  There  are  three  ways  in  which  such  service  may  be  made 
so  as  to  satisfy  such  requirement:  ft)  Actual  personal  service  by  an 
officer,  acceptance  of  service,  or  voluntary  appearance.  The  legislative 
department  may  prescribe  whether  the  service  shall  be  by  reading  the 
process  to  the  person  to  be  served,  or  by  leaving  a  copy  with  him  per- 
sonally or  at  his  abode;  (2)  Publication  of  the  process  when  the  proceed- 
ing is  in  rem  as  distinguished  from  a  proceeding  in  personam, 
(3)  Publication  where  the  proceedings  are  quasi  in  rem — such  as  attach- 


Sec.    J.]  ANCILLARY    REMEDIES.  861 

ment.  Bernhardt  v.  Brown,  118  N.  C.  at  p.  705,  24  S.  E.  527,  approved  in 
Vick  V.  Flournoy,  147  X.  C.  at  p.  212.  60  S.  E.  978.  See  •Attachment," 
Century  Dig.  §  749;   Decennial  and  Am.  Dig.  Key  No.  Series  §  217. 


Sec.  5.     Receivers  and  Sequestration.     Ne  Exisat. 

BOOTH  V.  CLARK,  17  Howard   (U.  S.)   322,  331-333.     1854. 

Xature  and  History  of  the  Remedy  of  Appointing  Receivers.     Uses  of 

the  Remedy.     Powers  of  the  Receiver.     Limits  of  Power,  etc. 

[Booth  was  appointed  receiver  of  the  estate  of  Clark.  The  appointment 
was  by  an  order  entered  in  a  creditors'  bill  pending  in  a  state  court  in 
the  state  of  New  York.  Booth,  as  receiver,  brought  this  suit  in  equity  in 
the  circuit  court  of  the  District  of  Columbia,  against  Clark,  and  seelts  to 
have  placed  in  his,  Booth's,  hands,  as  receiver,  a  certain  claim  which 
Clark  had  against  Mexico.  The  foundation  upon  which  this  suit  was 
supposed  to  stand  was,  that  the  receivership  under  the  decree  of  the 
New  York  court  created  a  lien  upon  Clark's  assets  and,  consequently. 
Booth,  as  receiver,  could  maintain  this  suit  in  the  District  of  Columbia 
to  reach  such  assets.  It  was  contended  by  Clark  that  Booth,  as  receiver, 
could  maintain  no  action  except  in  the  courts  of  the  state  of  New  York. 
Decree  against  Booth  dismissing  his  suit.  Affirmed.  Only  a  portion  of 
the  opinion  is  here  inserted.] 

Wayne.  J.  .  .  .  AYhatever  may  be  the  operation  of  the 
decree  in  respect  to  the  receiver's  poM'ers  over  the  property  of  th<^ 
debtor  witliin  the  state  of  New  York,  and  his  right  to  sue  for  them 
there,  we  do  not  find  anything  in  the  eases  in  the  New  York  re- 
ports showing  the  receiver's  right  to  represent  the  creditor  or 
creditors  of  the  debtor  in  a  foreign  juri.<idictian.  It  is  true  that 
the  receiver  in  this  case  is  appointed  under  a  statute  of  the  state 
of  New  York,  but  that  only  makes  him  an  dfticcr  of  the  court  for 
that  state.  He  is  a  representative  of  tlie  court,  and  tnay.  by  its 
direction  take  into  his  po.ssession  eveiy  kind  of  lu'ojtcrty  wliidi 
may  be  taken  in  execution,  and  also  that  which  is  e(|uitab]('.  if  of  a 
nature  to  be  reduced  to  possession.  But  it  is  not  considered  in  ev- 
ery case  that  the  right  to  the  posse.s.sion  is  transferred  by  his  ap- 
pointment; for.  where  the  property  is  real,  and  there  are  tenants, 
the  eourt  is  virtually  the  landlord,  though  the  tenants  may  be  com- 
pelled to  attorn  to  the  receiver.  Jeremy's  Eq.  Juris.  240.  AVlim 
appointed,  very  little  discretion  is  allowed  to  him.  for  be  must  ai>- 
ply  to  the  court  for  liberty  to  bring  or  defend  actions,  to  let  the  es- 
tate, and  in  most  cases  to  lay  out  money  on  repairs,  atid  he  may 
without  leave  distrain  ordv  for  rent  in  arrear  short  of  a  v«'ar. 
fl  Vesey.  ^02;  IT,  I  hid.  26;  3  Hro.  ('.  (\  S8  :  0  Yes.  33;');  1  Jae.  ^^-  \V 
ITS;  Morris  and  FJme.  1  Y(  s.  Jr  13*»;  1  Tbid.  16.");  Blunt  and 
Clithero.  6  Ves.  7f>!l :  Tlnirbes  and  Ihi<rbes.  3  Hro.  C.  ('.  ST: 
f)  Madd.  473. 

A  receiver  is  an  indilTerent  j)erson  between  parties,  appointed 
by  the  ef)nrt  to  receive  rents,  issues.  (»r  pntfits  of  land,  or  other 
thing  in  question  in  the  eourt.  pending  the  suit,  where  it  <lo<'s  not 
.seem   reasonable   to    tlif    iinirt     tliat     eitlnT     p.irty    should    dn     it. 


Sb'L*  ANCIU.AKV    UK.MKniES.  \  (' h .     I  J, 

\V>att  's  I'lai'.  Kc^.  ;?")').  Ho  is  an  otliccr  of  the  court  ;  his  ai>|)()iii1- 
iiiciit  is  piHuisioiial.  lie  is  apitoiutcd  in  hi'lialf  of  all  parties,  and 
not  ot'  the  coinplainanl  oi'  the  (lereiidaiit  (udy.  lie  is  ai»point('d 
for  the  benelit  of  all  parlii-s  who  may  estai)lis|j  i-ifjhts  in  liie  cause. 
The  money  in  his  hands  is  in  eustodia  lei^is  for  whoever  can  iiuik(» 
out  a  title  to  it.  l)elan\  v.  Mauslield.  1  llo-,'an.  'J;U.  It  is  the 
oourt  itself  which  has  the  care  of  the  jtropertx  in  dis|)ule.  The 
receiver  is  hut  the  cr-ealure  of  the  court  ;  he  has  no  powers  except 
sueh  as  are  eonferred  n\Hm  him  hy  the  order  of  Ids  appointment 
and  tile  course  and  practice  of  the  court.  N'erplanck  v.  Mei'caidile 
Ins.  Co..  2  I'aijre  Ch.  4'y2\  unless  whei'c  he  is  appointed  under  the 
statute  of  New  YorU.  directinj;  proceediuj^s  ajjainst  corporations 
(2  I{.  S.  438).  and  then  he  is  a  standinji'  assijxnee.  vested  with 
nearly  all  the  power's  and  authority  of  the  assijinee  of  an  insolvent 
debtor.  Attorney  (!cn.  v.  Life  and  Fiiv  Ins.  Co..  4  Paij^e  Ch.  224. 
In  the  ease  just  cited.  Chancellor  Walworth  says,  that  the  re- 
ceiver has  "no  powei-s  except  such  as  ar(>  conferred  upon  him  hy 
the  order  of  his  appointment  and  the  course  and  i)ractice  of  the 
court."  In  the  statement  which  has  been  made  of  the  restraints 
upon  a  receiver,  we  are  aware  that  they  have  been  measurably 
qnalified  by  rules,  and  by  the  practice  of  the  courts  in  the  state  of 
New  York,  as  inay  be  seen  in  Tloflt'man's  Practice;  but  none  of 
them  alter  his  olTicial  relation  to  the  court,  and,  so  far  as  we  have 
investigated  the  subject,  we  have  not  found  another  instance  of 
an  order  in  the  courts  of  the  state  of  New  York,  or  in  the  courts 
of  any  other  state,  empowering  a  receiver  to  sue  in  his  own  name 
oilficially  in  another  jurisdiction  for  the  propeny  or  choses  in 
action  of  a  judgment  debtor.  Indeed,  whatever  may  be  the  re- 
ceiver's rights  under  a  creditor's  bill,  to  the  possession  of  the 
property  of  the  debtor  in  the  state  of  New  York,  or  the  permission 
which  may  be  given  to  him  to  sue  for  such  property,  we  under- 
stand the  decisions  of  that  state  as  confining  his  action  to  the 
state  of  New  York. 

Such  an  inference  may  be  made  from  several  decisions.  It  may 
be  inferred  from  what  was  said  by  Chancellor  Walworth,  in 
IMitchell  V.  P>unch.  2  Paige,  Ch.  615.  Speaking  of  the  property 
which  might  be  put  into  the  possession  of  a  receiver,  and  of  the 
power  of  a  court  of  chancery  to  reach  property  out  of  the  state, 
he  declares  the  manner  in  which  it  may  be  done,  thus:  "The  orig- 
inal and  primary  jurisdiction  of  that  court  was  in  personam 
merely.  The  writ  of  assistance  to  deliver  possession,  and  even  the 
sequestration  of  property  to  compel  performance  of  a  decree,  are 
comparatively  of  recent  origin.  The  jurisdiction  of  the  court  was 
exercised  for  several  centuries  by  the  simple  proceeding  of  an  at- 
tachment against  the  bodies  of  the  parties  to  compel  obedience  to 
its  orders  and  decrees.  Although  the  property  of  a  defendant  is 
beyond  the  reach  of  the  court,  so  that  it  can  neither  be  sequestered 
nor  taken  in  execution,  the  court  does  not  lose  its  jurisdiction  in 
relation  to  that  property,  pi'ovided  the  person  of  the  defendant 
is  within  the  jurisdiction.     By  the  ordinary  course  of  proceeding, 


Sec.    5.]  ANCILLARY    REMEDIES.  863 

the  defendant  may  be  compelled  either  to  bring  the  property  in  dis- 
pute, or  to  which  the  defendant  claims  an  equitable  title,  within  the 
jurisdiction  of  the  court,  or  to  execute  such  a  conveyance  or  trans- 
fer thereof  as  will  be  sufficient  to  vests  the  legal  title,  as  well  as  tiie 
possession  of  the  property,  according  to  the  lex  loci  rei  sitae."  It 
is  very  obvious,  from  the  foregoing  extract,  that  up  to  the  time 
Avhen  Mitchell  v.  Bunch  was  decided,  in  the  year  1831,  it  had  not 
been  thought  that  a  court  of  chancery  in  the  state  of  New  York 
could  act  upon  the  property  of  a  judgment  debtor  in  a  creditor's 
bill  which  was  not  within  the  state  of  Xew  York,  but  by  the  coei- 
cion  of  his  person  when  he  was  within  the  jurisdiction  of  the  state; 
and  that  it  had  not  been  contemplated  then  to  add  to  the  means 
used  by  chancery  to  enforce  its  sentences,  in  respect  to  property 
out  of  the  state  of  New  York,  the  power  to  a  receiver  to  sue  in  a 
foreign  jurisdiction  for  the  same.  It  is  true  that  the  jurisdiction 
of  a  court  of  chancery  in  England  and  the  United  States,  to  en- 
force equitable  rights,  is  not  confined  to  cases  where  the  properly 
is  claimed  in  either  eountry.  but  tlie  primary  movement  in  the 
chancery  courts  of  both  countries  to  enforce  an  injunction,  is  the 
attachment  of  the  person  of  the  debtor,  where  he  is  amenable  to 
the  jurisdiction  of  the  court.     . 

Foreign  receivers  may  sue  in  the  state  courts  of  North  Carolina  by 
comity.  Person  v.  Leary,  127  N.  C.  114,  37  S.  E.  149,  but  the  general  rule 
is  as  stated  in  the  principle  case,  23  Am.  &  Eng.  Enc.  L.  1107  et  seq.  See 
"Receivers,"  Century  Dig.  §  417;   Decennial  and  Am.  Dig.  Key  No.  Series 

§  210. 


BATTLE  V.  DAVIS,  66  N.  C.  252.     1872. 
Actions  WJiich  a  Receiver  May  Mainiain.     Genctal  Rules  Governing  Re- 
ceiverships.    Chancery   Practice.      Code    Practice. 

[Action  by  the  plaintiff  as  the  receiver  of  a  corporation,  to  recover  a 
debt  owing  to  the  corporation  by  the  defendant.  The  plaintiff  was  ap- 
pointed receiver  by  the  United  States  circuit  court  for  the  district  of 
North  Carolina.  The  defendant  insisted  that  in  the  absence  of  express 
authority  by  the  court  which  ai)pointed  him,  the  receiver  could  not  bring 
this  action.  As  there  was  no  express  authority  conferred,  the  action  was 
dismissed,  and  plaintiff  appealed.     Affirmed.] 

Dick.  J.  A  court  of  equity  lias  the  power  of  appointing  a  re- 
ceiver for  the  purpose  of  protecting  and  securing  ])ropcrty  whicli 
IS  the  subject  of  litigation.  A  receiver  is  an  officer  ol"  the  coinl. 
and  hi.s'  possession  of  property  is  the  possession  of  the  court.  'Plic 
court  has  control  over  the  parties  to  a  suit  and  can  onh-r  tliem  to 
deliver  |)n>|ierty  in  controversy  1o  its  (tflieer.  and  if  tliey  fail  or 
reftise  to  obey  such  order,  they  may  be  proceeded  againsi  by  proc- 
ess of  contem[)t.  If  the  j)roperfy  in  controversy  is  in  the  posses- 
sion f)f  a  third  piTson  who  claims  the  right  of  pctssession.  Ihe 
plaintiff  nia\  niaki-  him  a  parly  to  the  suit  and  llnis  render  hini 
subject  to  an  onh-r  r»f  the  court  in  regard  to  delivering  such  prop 
frtv   to  the   receiver.     Parker   v.    I'.rowning.   .*^   Paige.   3SS.      TIk* 


8G4  AXCll.I.AKV    KKMEDIES.  \Ch.    ]]. 

oriK'T  appoiiitiiii;  a  i-ccfivcr  aiul  i;iviiij:  liiiii  pusscssioii  docs  not  iu 
any  niaiuier  jilVei-t  the  title  o[  tlic  property,  but  lu>  holds  it  as  a 
mere  eiistodiaii  until  tlir  riiilittul  claimaut  is  ascertained  by  Ibe 
eourt.  auil  then  lir  liolds  t'oi-  such  cjaiiiiant.  4  ^bl,  SO;  'A  Mel.  Ch. 
280. 

A  reeeiver  eaiuiot  coniiiicncc  an  action  for  the  recovery  of  out- 
standingr  proi>erty  without  an  ordci-  of  tl'.e  eourt.  and  when  sueli 
order  is  nuuK'  the  action  must  ])e  brou<;hl  in  the  name  ol'  the  Icfral 
owner  and  he  will  be  compi'lled  to  allow  the  use  oi"  his  na/iic  upon 
being:  properly  indemnified  onf  of  the  estate  and  elTeets,  vauler  the 
control  of  the  eourt.  ;3  Dan.  Ch.  Pr.  1977.  19!)!.  The  practice  of 
tlie  court  of  cliane(>ry  in  Kntxhnid  on  this  subject  is  well  s(^'ttfcd  by 
)n.^ny  authorities,  has  lon^  been  the  course  and  ])ractiee  oh'  our 
courts,  and  has  not  l)een  materially  dumped  by  the  Code.  Our 
attention  has  been  called  to  the  practice  in  New  York,  in  matters 
of  this  kind,  and  wc  find  upon  investitration  that  the  common  law 
powers  of  receivers  have  b(>en  "greatly  enlarged  by  statute,  antl 
they  may  brinpr  an  action  in  their  own  name  for  the  recovery  of 
property  which  they  have  been  directed  by  an  order  of  the  court 
to  reduce  into  possession.  Dan.  Ch.  Pr.  1988,  note  2;  2  Paige. 
452 ;  4  Paige.  224  :  1  Tif.  &  Smi.  Pr.  IGO ;  Vorhies'  Code,  432.  The 
ease  of  Hoyt  v.  Thompson.  1  Selden.  320,  commented  upon  by 
plaintiff's  counsel,  does  not  sustain  their  position.  The  plaintiff 
in  that  case  was  the  assignee  of  a  receiver  appointed  by  a  court 
of  chancery  in  New  Jersey,  under  a  statute  of  that  state  authoriz- 
ing such  court  in  certain  cases  to  appoint  receivers,  "wnth  full 
power  and  authority  to  demand,  sue  for,  collect  and  recover,  etc., 
and  sell,  convev  and  assign  all  the  said  real  and  personal  estate, 
etc." 

The  power  of  a  receiver  in  this  state  to  bring  an  action  is  regu- 
lated by  the  rules  in  a  court  of  chancerv%  and  if  the  order  under 
which  the  plaintiff  has  acted,  had  been  made  by  one  of  our  courts, 
he  could  not  maintain  this  action ;  and  certainly  an  order  made  by 
the  U.  S.  circuit  court  cannot  confer  greater  powers  and  privileges 
npon  a  suitor  in  our  courts.  It  is  therefore  unnecessary  for  ns  to 
consider  the  question  of  comity  between  the  state  and  federal 
courts  which  was  urged  on  the  argument.  We  take  pleasure,  how- 
ever, in  saying  that  upon  all  proper  occasions  such  comity  will  be 
extended,  as  in  accordance  with  judicial  usage  and  the  laws  of  the 
land.  "We  concur  in  the  opinion  of  his  honor,  and  the  judgment 
mast  be  affirmed. 

See  further,  in  affirmation  of  the  prinoijial  case,  5  Pom.  Eq.  .Tiir.  §  180. 

The  granting  or  refusing  the  appointment  of  a  receiver,  is  appealable. 
Upon  such  api)eal  the  supreme  court,  under  the  North  Carolina  practice, 
will  review  both  law  and  facts,  following  the  practice  in  equity.  Coates 
V.  Wilkes,  92  N.  C.  376;  Pearce  v.  Elwell,  116  N.  C.  595,  21  S.  E.  305. 
Generally  such  orders  are  considered  merely  interlocutory  and  not  ap- 
pealable in  the  absence  of  express  statutory  provision.  2  Cyc.  611.  See 
"Receivers,"  Century  Dig.  §§  327,  346;  Decennial  and  Am.  Dig.  Key  No. 
Series  §§  173,  178. 


Sec.    5.]  ANCILLARY    REMEDIES.  865 


MILLER  V.  WASHBURN.  38  X.  C.  161,  166.     1844. 
Sequestration   in   Equity  Explained. 

[Bill  in  equity  by  an  administrator  and  some  of  the  next  of  kin  and 
legatees  against  other  next  of  kin  and  legatees  for  a  settlement  of  an 
estate.  The  bill  alleged  that  a  portion  of  the  assets — consisting  of  cer- 
tain slaves — was  in  the  possession  of  the  defendants,  and  plaintiffs  feared 
the  defendants  would  take  the  slaves  beyond  the  jurisdiction  of  the  court; 
that  the  defendants  were  persons  of  slender  means;  and  prayed  for  a 
writ  of  sequestration.  Upon  filing  the  bill,  the  court  ordered  a  writ  of 
sequestration,  which  was  issued  to  the  sheriff  and  duly  executed.  The 
defendants  answered,  setting  up  title  to  the  slaves,  denying  the  material 
allegations  of  the  bill,  and  denying  any  intention  to  remove  the  slaves 
beyond  the  jurisdiction  of  the  court.  Thereupon  the  court  removed  the 
sequestration  from  the  slaves  of  one  of  Lhe  defendants,  but  refused  to 
remove  it  as  to  those  of  another  defendant,  .losiah  Washburn.  The 
plaintiff  and  Josiah  appealed.  Affirmed  as  to  Josiah's  appeal,  and  re- 
versed as  to  plaintiff's  appeal.  Only  that  portion  of  the  opinion  that  ex- 
plains the  wrii  of  sequestration  as  a  remedy,  is  here  inserted.) 

Xasii.  J.     .     .     .     "When  money  is  alone  the  demand,  the  com- 
mon law  security  is  the  person  of  the  debtor,  nor  will  equity  go 
farther;  but  when  property  is  in  contest,  chancery  will  in  special 
cases  exerci.se  its  preservative  power  and  look  further  than  to  the 
personal  liability  of  the  defendant.     It  will,  in  cases  where  the 
circumstances  authorize  its  interference,  and  where  its  aid  is  in- 
voked, secure  the  property  itself  during  the  exi.stence  of  the  con- 
troversy.    Thus,  in  cases  of  waste,  the  connnon  law  gave  the  writ 
of  waste,  and  to  aid  and  secure  to  the  plaintiff  the  full  benefit  of 
the  process,  the  writ  of  estrepement  to  stay  the  furtlier  injuring 
of  the  property,  during  the  contest,  was  awarded.     The  writ  of 
waste,  both  in  England  and  in  this  country,  from  its  peculiar  fea- 
tures, has  become  obsolete,  and  has  been  succeeded  by  tlie  more 
convenient  and  less  cumbrous  action  on  the  case  in  the  nature  of 
waste.     With  the  old  writ  fell  that  of  the  estrepement.  and  the 
power  of  the  court  of  equity  was  called  in  to  supply  its  place,  in 
aid  of  the  more  modern  action  on  the  case,  and  in  analogy  to  llie 
writ  of  estrepement.     Ivpiity.  when  it  interferes,  will  secure  the 
property  in  contest  during  the  litigation.     AVitb   us.   we  have  a 
species  of  property  peculiarly  requiring  the  exercise  of  this  power 
in  a  court  f»f  chancery.     AVitiiout  il.  the  fruits  of  a  judgment  at 
law  would  often  prove  illusory.     Thus  Jiidge  Henderson,  in  the 
ca.se  of  Edwards  v.  :\Iassey,  8  N.  C.  364.  says,  "the  same  i>rinciple 
which  induced  tli.-  chancery  in  England  to  interfere  in  the  ease  of 
waste  applies  in  all   its  force  in  ca.ses  of  j)roperty   in  slaves;  tor 
the  nature  of  the  property  is  such,  that  possession  may  be  lost  by 
the  njost  vigilant  owner,  without  there  being  an  actual  taking,  or 
the  connnissirm  of  a  trespa.ss."     Tn  ca.ses.  then,  of  this  species  of 
pntperty.  in  which  it  is  proper  for  a  eotirt  of  equity  to  uiterf-re. 
having  taken   pos.session  of  tli.-  property,  the  court,  in  analogy  (o 
the  princiiile  and   ..bjei-t    of  estrepement.   retains  lliat    pos-session 
until  the  cause  is  linally  disposed  of. 

It   is  the  oi)inion  of  tlie  court,  that   the  interlocutory  (b'cre.-  m 


S66  ANCII.l.AKV     KKMK.niES.  \C'll.    11. 

this  rase.  iTiiiovinji  tho  sfiiiu-st  fat  ion  I'foiii  the  ncgrtn's  nL'  Abra- 
ham Waslihiini.  was  I'lToiioous.  and  that  the  si'iiuostnition  ouj;ht 
to  have  hi'Oii  ictaiued  until  the  linal  lioarin*?.  The  eourt  is  further 
of  opinion,  that  tliere  was  \\(>  eri'or  in  the  interU)eutorv  decree,  re- 
taininir  the  setpu'stration  on  the  negroes  of  Josiah  ^Vashhurn. 
Thei-e  nuist  be  judgment  against  the  defendants  for  l)oth  appeals. 

See  •Sequestration."  Centin-y  Dig.  §§  2-6;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  3-7. 


PARKER  V.  GRAMMER,  62  N.  C.   28.     1866. 

Sequestration    and   Injunction.     Principles    Which   Guide    the    Court    in 
Gratitino  and  Removing  S!uch   Process. 

I  Bill  in  equity  for  an  aeoount  of  a  co-partnership.  The  bill  charged 
that  the  defendant,  a  member  ol  the  firm,  had  refused  to  turn  over  to  the 
plaintiff  certain  cotton  belonging  to  the  firm,  although  such  refusal  was 
in  violation  of  express  stipulations  in  the  articles  of  co-partnershij),  that 
the  defendant  should  turn  over  to  the  plaintiff  all  i)ro])erty  bought  for 
the  firm;  that  the  defendant  had  sold  part  of  such  |)roi)erty  and  used  the 
money,  and  threatened  to  sell  the  residue  and  turn  over  the  proceeds  to 
his  wife;  prayer  for  an  account  and  for  writs  of  sequestration  and  in- 
junction. The  answer  denied  that  plaintiff  was  entitled  to  the  possesson 
of  the  property  and  asserted  the  right  of  defendant  to  sell  it,  admitted 
some  of  the  allegations  of  the  bill  and  denied  others.  Ui)on  the  filing  of 
the  answer,  the  defendant  moved  to  dissolve  an  injunction  which  had 
been  issued  as  prayed  for  by  the  plaintiff.  Motion  overruled,  and  de- 
fendant appealed.     Affirmed.] 

Pe.vrson,  C.  J.  Where  there  is  reason  to  apprehend  that  the 
subject  of  a  controversy  in  equity  will  be  destroyed,  removed,  or 
otherwise  disposed  of  })y  the  defendant,  pending  the  suit,  so  that 
the  complainant  may  lose  the  fruit  of  his  recovery,  or  be  hindered 
and  delayed  in  obtaining  it,  the  court,  in  aid  of  the  primary 
equity,  will  secure  the  fund  by  the  writ  of  .sequestration,  or  the 
vnritfi  of  sequestration  and  injunction,  until  the  main  equity  is  ad- 
judicated at  the  hearing  of  the  cause.  These  writs  are  extraor- 
dinar;v  process,  and  to  sustain  them,  on  a  motion  to  dissolve  the 
injiuiction  and  remove  the  sequestration,  the  court  must  be  satis- 
fied :  1.  That  the  complainant  does  not  sue  in  a  mere  spirit  of  liti- 
gation, and  seek  to  set  up  an  unfounded  claim,  but  has  "probable 
cau.se."  and  may  at  the  hearing  be  able  to  establish  his  primary- 
equity;  2.  that  its  extraordinary  process  is  not  asked  for  simply 
to  vex  and  embarrass  the  defendant,  but  because  there  is  reason- 
able ground  for  apprehension  in  regard  to  the  security  of  the  fund 
pending  the  litigation. 

At  this  stage  of  the  proceeding  there  is  nothing  before  the 
court  but  the  bill,  answer  and  exhibits;  and  treating  the  bill  as  an 
affidavit  in  support  of  the  complainant's  allegations,  the  court, 
upon  that,  in  connection  with  the  an.swer  and  exhibits,  is  taking 
the  whole  matter  together  to  decide  the  question  of  probable 
cause  in  regard  to  the  primary  equity,  and  the  question  of  a  rea- 
sonable apprehension  as  to  the  security  of  the  fund.    INIcDaniel  v. 


Sec.    5.]  ANCILLARY    REMEDIES.  867 

Stokes.  40  X.  C.  274.  These  principles  are  settled,  and  so  fully 
sustain  the  order  appealed  from  that  we  can  account  for  the  ap- 
peal only  by  supposing  that  the  distinction  between  cases  of 
special  injunction  and  sequestration,  like  the  one  before  us,  and 
cases  of  the  common  injunction  to  prevent  a  party  who  has  ob- 
tained a  judgment  at  law  from  suing  out  execution  (where  the 
rule  is.  the  injimction  will  be  dissolved  on  the  coming  in  of  the 
answer,  unless  the  equity  be  confessed  or  the  answer  be  insufficient 
or  evasive,  see  Capehart  v.  ]\rhoon.  45  X.  C.  30),  was  not  ad- 
verted to. 

IIow  the  facts  may  be  declared  to  be  at  the  hearing  of  the  cause 
will  depend  on  the  proofs.  It  is  sufficient  to  say  that,  as  they 
now  appear  to  be  upon  the  bill  and  answer,  we  are  satisfied  that 
the  complainant  has  probable  cause  in  support  of  liis  equity,  and 
that  there  is  reasonable  ground  to  apprehend  that  the  clefendant. 
unless  restrained,  inasmuch  as  he  sets  up  an  exclusive  claim  to  the 
cotton,  would  remove  and  dispose  of  it  in  violation  of  the  agree- 
ment alleged  by  the  complainant,  whereby  the  latter  would  be 
hindered  and  delayed  in  having  the  decree  enforced  should  the 
ease  be  decided  in  his  favor.  We  refrain  from  entering  into  any 
discussion  of  the  facts,  in  order  to  leave  the  matter  oj^mi  until  tlie 
cause  is  brought  on  for  hearing.  In  the  meantime  the  parties  may 
enter  into  such  an  arrangement  as  tlieir  common  interests  suggest, 
in  order  to  have  the  cotton  sold  at  the  present  high  prices,  niul  the 
proceeds  of  sale  held  subject  to  the  final  decree.    Affirmed. 

See  2  Dan.  Ch.  Prac.  1050  et  seq.,  and  Bacon's  Abr.  628.  For  regula- 
tions governing  (he  writ  of  sequestration  in  the  federal  courts  and  the 
form  of  the  writ  used  in  those  courts,  see  Shiras'  Eq.  Prac.  140,  212; 
Foster's  Fed.  Prac.  (3rd  ed.)  348,  772,  960.  For  other  uses  of  the  writ 
of  sequestration,  see  Bouv.  L.  D.  982.  See  further,  for  the  practice  in 
equity  in  granting  and  enforcing  the  writ,  1  L.  R.  A.  7S8,  and  note.  Un- 
der the  Code  practice  an  order  for  an  injunction  and  receiver  is  substi- 
tuted for  the  writ  of  sequestration,  Ellett  v.  Newman,  92  N.  C.  at 
p.  523;  and  in  proper  cases  an  order  will  issue  for  the  payment  of  money 
into  court.  Rev.  §§  850-852.  See  "Sequestration."  Century  Dig.  §§  3-6; 
Decennial  and  Am.  Dig.  Key  No.  Series  §§  3-7. 


SKINNER   V.   MAXWELL,   68   N.   C.   400,   404.      1873. 

Property  in  the  Hands  of  a  Receiver  to  What  Extent  In  Ciistodia  T.ffjis, 

and  the  Effect  of  Such   Custody  on   Third  Persons. 

Rodman.  J.  .  .  .  To  the  liability  of  these  [gcKids]  to  sale 
under  a  fieri  facias,  severjil  objections  may  be  made. 
That  being  in  the  hands  of  a  receiver.  Ihey  wore  in  cu.stodia  legis. 
and  hence  not  subject  to  execution  sale.  This  last  position  we 
Itiink  is  correct.  The  authorities  on  t!ie  general  doetrin<'  will  be 
found  rei'i'rred  to  in  Drake  on  Attachment,  sees.  4f)2"r)00.  As  to 
the  ea.se  of  a  receiver  in  pai-fieular.  the  rcdlowing  autiioritics  sup- 
port the  profiosition:  2  Story  Kq.  Juris,  sec.  8M:{  ;  j-'icld  v  .lones. 
11    C;;i     II:!:   M;irtiti   v.   Davis.  L'l    Iowa.  :>:?');  rileiui   v,  (iill.  '2  Mti. 


8()8  ANClI.l.AKV     in.MKDlKS.  [('/(.    II. 

1.  15;");  Knssoll  v.  East  Aiiizlian  H.  W.  Co..  Nau^hten  &  Gordon, 
KM.  ami  I'asos  t'itod  in  iioti".  The  reason  of  it  is  tliis:  Wlicn  a 
(.'onrt  of  C(|uity  has  undertaken  to  adjudicate  upon  and  distribute 
a.  fund  anionjr  the  parlies  entitled  to  it.  it  would  he  ineonvenient 
if  a  court  of  hiw  (oi-  any  other  court)  coidd  l>y  its  process  in- 
terrupt the  adjudication  and  ci-eate  new  ri}j:lits  in  \\\o  property 
it.solf.  This  ruh'  is  not  unch'rstood  as  alisoiutely  pi-eventintr  the 
iiC(iuisition  of  new  riijhts  to  the  funil  in  controversy  after  tlie 
connnencenient  nf  the  pi-oceedin^s.  Any  person  chnininj;  to  have 
actiuired  such  an  inlei-(>st  i>cndente  lite,  while  he  cannot  interfere 
undei"  the  piocess  of  another  court,  may  apply  to  the  court  wliich 
has  jurisiliction  of  the  fund,  pro  interesse  suo.  and  his  claim  will 
be  heard."  Story  Eq.  Juris,  sec.  801.  The  limits  of  this  principle 
are  somewhat  uncertain,  hut  it  is  suflicient  for  the  present  case  to 
say.  tliat  while  ]>roiiei'ty  is  in  the  liands  of  a  iveeiver  no  rij^ht  to 
it  can  be  acipiired  by  sale  inider  execution.  And  it  makes  no  tlif- 
ference  tliat  tiie  receiver  appointed  declined  to  act;  the  property 
was  nevertheless  in  the  custody  of  the  law.     .     .     . 

Taxes  on  property  in  custodla  legis,  how  collected.  17  L.  R.  A.  (N.  S.) 
465.  See  "Receivers,"  Century  Dig.  §§  145-147;  Decennial  and  Am.  Dig. 
Key  Ko.  Series  §  78. 


WHITEHEAD  v.  HALE,  118  N.  C.  601,  24  S.  E.  360.     1896. 

Principles  Governing  Courts  in  Applications  for  Appointment  of  a  Re- 
ceiver. 

f Action  to  recover  a  personal  judgment  on  a  note  and  to  foreclose  a 
mortgage  securing  the  same.  Plaintiff  moved  for  the  appointment  of  a 
receiver.  The  motion  was  based  upon  the  complaint,  answer  and  reply, 
supplemented  by  affidavits.     Motion  refused,  and  plaintiff  appealed. 

The  mortgage  covered  a  newspaper,  its  presses,  etc.  The  defendant 
admitted  the  execution  of  the  mortgage  but  claimed  that  there  was  noth- 
ing due  on  the  debt  secured  thereby.  He  also  stated  in  his  affidavit,  that 
to  appoint  a  receiver  would  absolutely  destroy  the  value  of  the  news- 
paper and  render  it  worthless.  This  was  denied  by  the  plaintiff.  The 
judge  did  not  find  the  facts  nor  did  either  party  request  him  to  do  so.l 

Clark.  J.  This  action  is  broufrht  for  the  foreclosure  of  a  mort- 
gage upon  a  newspaper,  together  with  its  press,  type,  subscripticm 
list,  etc.,  including  its  good  will.  The  defendant,  while  admitting 
that  the  mortgage  had  been  executed,  denies  that  there  is  any  bal- 
ance dne  on  the  same,  and  alleges,  on  the  contrary,  that  the  plain- 
tiff is  indebt(-d  to  him,  and  asks  for  an  accoiuit  and  a  cancellation 
of  the  mortgage.  Under  these  circumstances,  the  court  not  only 
would  not  decree  a  foreclosure  till  the  balance  due.  if  any.  was 
ascertained,  but  would  enjoin  any  attempt  to  sell  under  a  power 
of  sale  in  the  mortgage  until  the  account  had  been  stated.  Purnell 
V.  Vaughan,  77  N.  C.  268;  Pritchard  v.  Sanderson,  84  N.  C.  299; 
Pender  v.  Pittman.  Id.  .372.  But  the  plaintiff  goes  further,  and 
a.sks  that  the  properly  be  taken  out  of  the  control  of  the  defend- 
ant, pending  the  litigation,  by  placing  it  in  the  hands  of  a  re- 
ceiver.    Inasmuch  as  the  answer  of  the  defendant,  if  true,  nega- 


Sec.    5.]  ANCILLARY    REMEDIES.  869 

lives  any  lien  or  interest  of  the  plaintiff  as  to  the  property,  this 
would  be  a  strong  measure  to  grant  the  plaintiff,  as  he  offers  no 
indemnity  (as  he  would  have  done  had  he  proceeded  by  claim 
and  delivery)  for  the  damage  which  might  be  done  the  defendant 
if  the  plaintiff's  claim  should  prove  unfounded.  To  grant  such 
motion  without  due  caution  might  put  it  in  the  power  of  an  irre- 
sponsible or  reckless  mortgagee  to  ruin  a  mortgagor's  business, 
though  no  balance  is  due  on  the  mortgage.  AVhether  a  receiver 
shall  be  appointed  in  any  case  is  left,  therefore,  largely  to  the 
sound  judgment  of  the  presiding  judge,  who  will  take  into  con- 
sideration all  the  circumstances,  including  the  nature  of  the  prop- 
erty, and  its  likelihood  to  be  destroyed  or  spirited  away  during  tlu' 
litigation,  and  the  probability,  on  the  other  hand,  of  its  value  be- 
ing .seriously  impaired  by  its  being  placed  in  the  hands  of  a  re- 
ceiver, as  would  be  particularly  the  case  Mith  a  newspaper,  whose 
value  so  largely  depends  up(m  its  good  will  and  the  personal  char- 
acteristics of  the  editor  and  the  policy  he  pursues,  as  is  well 
pointed  out  bv  Aver}-,  J.,  in  Cowan  v.  Fairbrother,  118  N.  C.  406. 
24  8.  E.  212. '  .     .    '. 

In  the  present  case  there  was  no  retiuest  by  the  appellant  that 
the  judge  should  lind  the  facts,  and  we  must  take  them  to  be  as 
set  out  in  the  affidavits  filed  by  the  appellee.  On  turning  to  the 
affidavits,  we  find  it  testified  by  the  defendant,  and  not  denied  by 
the  plaintiff",  that  to  appoint  a  receiver  "would  be  positively  to  de- 
stroy absolutely  its  value,  and  render  the  proix-rty  in  controversy 
in  this  action  worthless  as  a  newspaper."  Owing  to  the  peculiar 
nature  of  this  species  of  property,  and  the  important  part  its  good 
will  and  the  capacity  and  ])(>licy  of  the  editor.  cs|)ecinlly  if  a  man 
of  talent  and  popularity  and  of  strong  indiviiluality.  have  in  giv- 
ing it  value,  it  can  be  readily  seen  that  apitoinling  a  receiver  to 
take  charge  of  the  paper,  with  power  to  change  the  editor  or  con- 
trol its  policy,  might,  and  in  iiianx'  cases  would,  destroy  all  its 
value  l)eyond  tiie  slight  value  attached  to  the  possibly  well-woi-ii 
type  and  press.  To  api)oint  a  receiver  even  of  realty,  or  of  a  rail 
road,  or  the  like,  is  to  be  done  with  caution  (Lumber  Co.  v.  W.il 
lace.  03  X.  C.  22).  th(»ugh  in  such  cases  the  value  docs  not.  as  is 
the  ca.se  with  a  newspajx-r.  (lc|)end  upon  the  |)<)pularity  of  the 
owner  or  manager  and  the  good  will,  which  is  so  largely  ])ersonal 
to  him. 

It  is  true  that    the  ])laintift'  allege<l   that    the  (lei'eiid.inl    was   iii- 
.solvent.  and  this  the  defendant  admitted:  but   there  is  no  allega 
tion  that  the  defendant   intends  to  run  oH*  with  or  i-onccal  or  de 
atroy    the    [»ro|)erty.    and    tin-    only    possible    bearing    wliieli    the 
allei^ation  of  insfthcney    could    have    is    in    connection    willi    llie 
other  allegation    fwliich   is  found  against   the  plaintitri.  thai    llic 
y>rof)erty  is  def)re«'ialirig.  an<l  thus  the  security  is  being  impaired 
The  allegation  of  the  defendant's  insolvency  and   poverty,  taken 
alone,  is  not  snlTicient  L'roun<l  to  take  the  property'  out  of  his  hands, 
which  he  avers  is  his  own.  free  from  any  leyal  claim  of  the  plain- 
tiff; especially  when  the  effect  of  the  judge's  ruling  is.  as  we  have 


870  ANCILLARY    REMKDIES.  [Ch.     II. 

seen,  that  the  security  is  not  hiMnjjf  impaired,  but  in  truth  has 
douhli'il  in  vahie.  ami  is  stt'adily  inereasin<;  in  \v(u-th.  ami  that,  in 
laet.  to  appoint  the  I'eceivi'r  would  be  really  to  destroy  the  eliiel" 
vahu'  of  the  property.  I'pon  a  proper  state  of  facts,  a  receiver 
eau  be  appointed  ol"  a  newspaper  as  wi'll  as  of  other  property;  but. 
upon  the  peculiar  state  ot"  facts  found  in  this  casi-.  to  appoint  a  re- 
ceiver would  he  a  j,'real  injui'y  [o  the  di'l'i-ndant,  and  no  benetit  to 
the  plaint itf;  and  the  judge  below  properly  left  the  property  in 
the  hands  of  the  defendant  until  a  jury  could  pass  upon  the  cou- 
trovertcd  issue  of  fact  whether  the  jtlaintitl^'  has  any  sum  due  him 
for  w  hieh  he  can  ask  a  decree  of  foreclosure.    No  error. 

See  .">  Pom.  Eq.  .Turis.  §§  G2-262;  23  Am.  &  Eng.  Enc.  L.  1000-1132; 
Jones  on  Chat.  Mort.  §§  439,  451,  787;  2  Jones  on  Mort.  §§  1516-1534.  See 
"Mortgages,"  Century  Dig.  §§  1374,  1375;  Decennial  and  Am.  Dig.  Ke.v 
No.  Series  §  468. 


CABLE  V.  ALVORD,  27  Ohio  State,   654,   664-669.     1875. 

The  Writ  of  A'e  Exeat — Its  History.  Uses.  Practice  in  Issuing,  etc.    How 
Its  Place  is  Supplied  Under  the  Code  Practice. 

I  Action  upon  a  bond  given  to  secure  the  release  of  the  obligors  from 
arrest  under  a  writ  of  Ne  Exeat.  Alvord  was  a  surety  to  such  bond. 
The  defendants  insisted  that  no  recovery  could  be  had  because  the  court 
had  no  power  to  issue  the  writ  of  ne  exeat  under  the  Code  and,  that  be- 
ing so,  the  bond  was  void.  What  was  done  in  the  court  below  is  not 
stated  in  the  report,  but  it  would  seem  that  the  bond  was  held  to  be 
valid  and  judgment  was  rendered  against  the  obligors  and  their  sureties, 
and  that  they  took  the  case  to  the  supreme  court  by  writ  of  error.  What 
was  the  judgment  of  the  supreme  court  is  also  left  to  conjecture,  but  it 
seems  that  the  judgment  below  was  reversed.  For  what  is  to  be  learned 
of  the  disposition  of  the  case  reliance  must  be  had  upon  the  briefs  of 
counsel  at  page  657.  After  CLUoting  a  section  of  the  statutes  of  Ohio,  the 
opinion  proceeds:] 

Johnson.  J.  ...  A  majority  of  the  court  are  of  the  opin- 
ion that  this  section  is  not  broad  enough  to  embrace  a  ne  exeat, 
which,  by  the  same  amendatory  act,  was  omitted,  in  view  of  the 
provisions  of  the  code,  and  the  express  repeal  of  the  chancery  prac- 
tice act  by  the  code. 

This  view^  is  made  clear  by  an  examination  of  the  nature  and 
office  of  the  ne  exeat  as  a  process  in  chancery  prior  to  the  code.  In 
Rhodes  v.  Cousins.  6  Ran.  (Va.)  191.  it  is  said:  "The  ne  exeat, 
as  now  understood  and  practiced  upon,  is  a  proceeding  in  equity  to 
obtain  bail  in  a  case  where  there  is  a  debt  due  in  equity,  though 
not  at  law.  except  in  cases  of  account  and  perhaps  a  few^  other 
cases  of  concurrent  jurisdiction.  The  general  rule  is.  that  where 
you  can  get  bail  at  law.  equity  will  not  grant  the  writ.  In  the  ex- 
ercise of  this  power,  courts  of  equity  will  be  very  cautious,  as  it  is 
a  strong  step,  tending  to  abridge  the  liberty  of  the  citizen.  To  in- 
duce that  court  to  issue  a  ne  exeat,  it  must  appear:  (1)  That  there 
is  a  precise  amount  of  debt  positively  due;  (2)  That  it  is  an 
equitable  demand,  upon  which  the  plaintiff  cannot  sue  at  law,  ex- 


Sec.    J.]  ANCILLARY    REMEDIES.  871 

cept  as  before,  on  account  and  some  other  cases  of  concurrent  juris- 
diction ;  (3)  That  the  defendant  is  about  quitting  the  country 
to  avoid  payment."* 

Lord  Elden  says:  "The  affidavit  to  authorize  the  writ  must  be 
as  positive  as  to  the  equitable  debt  as  an  affidavit  of  a  legal  debt  to 
hold  to  bail."  Jackson  v.  Petrie,  10  Vesey,  163.  Blaydes  v.  Cal- 
vert. 2  Jacobs  &  Walk.  211.  was  a  bill  to  enforce  an  agreement  to 
give  a  bill  of  exchange  to  secure  the  debt  of  a  third  pei-son.  and 
prayed  for  a  ne  exeat  regno.  Lord  Eldon  says:  "After  looking 
into  the  books,  my  present  opinion  is  that  the  party  cannot  be 
held  to  equitable  bail;  in  other  words.  I  do  not  find  authority  to 
warrant  granting  the  writ  in  such  a  ease  as  this."  The  reason  was 
it  was  not  a  money  demand.  Cowdin  v.  Cram.  3  Edw.  Ch.  232, 
was  a  demand  for  a  ne  exeat.  It  is  there  said  that  whenever,  in  a 
bill  for  specific  performance,  the  writ  is  allowed,  it  has  been  against 
the  vendee,  where  there  is  a  money  demand  which  is  sought  to  be 
enforced.  In  such  cases,  if  the  vendor  can  give  a  good  title,  he  may 
have  the  writ,  provided  the  defeiulaiit  is  about  to  leave  the  juris- 
diction ;  "because  there  is  an  equitable  money  demand  or  indebted- 
ness, the  amount  of  which  governs  the  court  in  making  the  writ 
for  bail." 

This  was  a  ])roct'ss  unknown  to  the  ancient  common  hnv.  wliicli. 
in  the  freedom  of  its  spii'it.  allowed  every  man  to  depart  the  realm 
at  his  pleasure.  From  an  early  period  it  was  used  as  an  auxiliary 
jurisdiction  of  courts  of  equity,  and  at  one  time  it  issued  at  the 
instance  of  the  king  a.s  a  prerogative  writ.  As  a  writ  of  right  in 
cases  of  private  rights.  Judge  Story  says:  "In  general,  it  will  not 
be  granted  unless  in  cases  of  equitable  debts;  for,  in  regard  to  civil 
rights,  it  is  treated  as  in  the  nature  of  equitable  bail."  2  Story  Eq. 
Juris,  sec.  1470.  Only  two  exccqitions  are  rtM-ognized ;  one  is  the 
ca.se  of  alimony  decreed  to  the  wife,  which  will  be  enforced  against 
the  husband  by  ne  exeat,  and  [the  other]  in  cases  of  account,  on 
which  a  balance  is  admitted  by  the  defendant,  but  a  hirger  chwrn 
is  insisted  on  by  the  ocditoi*.  2  Stoiy  E^i.  sec.  1470.  In  Adams  on 
Equity.  360.  the  same  limitations  arc  used  in  describing  this  w  rit. 
It  is  said:  "It  is  granted  wherever  a  present  equitable  debt  is  ow- 
ing, which,  if  due  at  law.  would  warrant  an  an'est.  and  also  to  en- 
force arrears  of  alimony  in  aid  of  the  spij-itual  court  in  respect  of 
the  inability  of  that  court  to  require  bail." 

In  Brown  v.  Ilaff.  5  Page.  230.  the  chancellor  says,  "that  to  en- 
title the  complainant  to  a  writ  of  ne  exeat,  he  must  .sliow  a  demand 
actually  due  ;it  the  time  tlie  writ  issued."  So  the  writ  was  refused 
in  CfM'k  V.  Kavie.  6  Ve.sey.  283.  "upon  an  undertaking  for  an  in 
demnity;  tf)  obtain  it  there  must  be  an  equitable  dejiiand  in  the 
nature  of  a  debt  jictnally  due."  Lord  Eldon  a.sks :  "Has  it  not. 
always  l)een  a  money  deinand?"  In  Oilbert  v.  T'olt.  1  Hopkins. 
Ch.  oOO.  it  is  said  by  the  court  :  "According  to  the  ndjndgcd  cases. 
a  positive  alTidavit  of  an  existing  debt  is  refpiired  as  a  f«»nndation 
for  file  writ  of  ne  exeat ;  and  this  rule  has  ber-n  obsen'ed  witli  great 
.strictness."     T)r-  Carrier  v.  T)e  Callone.  4   Vesev.  .'■)77.  and   notes; 


S7'2  ANCILLARY    REMEDIES.  [(7(.     //. 

J)a\\>iou  V.  Dawson.  7  \\'si'\ .  ITi).  It  i.s  mcvit  usi'd  to  riiloivo  spc- 
i-iiic  pcrfonuiUK'o  of  an  {i^ivtMiu-nl,  oxocpt  wIuto  tluTo  is  a  money 
(It'iiuuul  to  lu'  cnfoived  in  ('((uily.  Kaynes  v.  Wysc,  12  iMerivale, 
473;  JUayiK'.s  v.  Calvert,  L*  flae.  t.^  \Va.li<.  'JIS;  nor  to  eonipel  the 
defendant  to  ahiiK'  the  I'vent  of  an  aetion.  (Jardner's  Ca.se,  IT) 
Vosey.  445.  It  is  a  writ  [o  ol)tain  e(iwital)h'  l)ail.  Mitehel  v.  liuueh, 
2  Page.,  G17;  Sniedharfje  v.  Mark's  Ex'r,  (i  John.  Ch.  188;  Diei<  v. 
Swinlon.  1  \'esey  »S:  lii'arnes.  372;  Stewart  v.  Ciraluuu,  10  Ves.  '.i]2; 
tiootlnian  v.  layers,  f)  Madil.  Ch.  471  ;  (jrant  v.  Grant,  3  Unssell 
Ch.  o96;  Cox  V.  Seott,  ")  Harris  &  John.  3!)8 ;  Shearman  v.  Shear- 
nijui.  3  lii-ouii  Ch.  370.  It  is  said  l»y  Story,  that  Ihei'e  are  two. 
anil  only  twH».  exei'ptions  to  the  rule  that  there  iiuist  be  an  ecpiita- 
ble  money  ilemantl.  ami  the  allidavit  must  he  as  certain  as  for  a 
capias;  they  are  eases  of  alimony,  and  the  aetion  in  eipiity  foi-  an 
aeeount,  when  that  court  has  concurrent  jurisdiction.  Hoth  of 
tliese  exei'ptions  ai"e  money  demands,  however.  Denton  v.  Denton, 
1  John.  Ch.  3t)4.  is  an  instance  in  alimony,  and  Forrest  v.  Forrest, 
10  Barb.  46,  is  another.  Russell  v.  Ashby,  5  Vesey,  96,  is  an  in- 
stance of  an  equitable  action  for  an  account. 

In  the  liiiht  of  these  authorities,  as  to  the  office  of  the  writ  of  ne 
exeat  under  the  former  chaneeiy  |)ractice,  showing  that  it  was  to 
a  court  of  equity  what  a  capias  for  the  body  was  in  legal  actions — 
a  process  to  hold  the  custody  of  the  body,  until  he  should  give  bad 
to  abide  the  decree  of  the  court — we  arc  ])repared  to  aj>i)r(H'iate 
the  force  of  section  145  of  the  code.  It  provides,  that  "A  defend- 
ant in  a  civil  action  can  be  arrested  before  and  after  judgment,  in 
the  manner  prescribed  by  this  code,  and  not  otherwise;  but  this 
provision  does  not  apply  to  proceedings  for  contempt ;  nor  does  it 
apply  to  actions  or  judgments  i)rosecuted  in  the  name  of  the  state 
of  Ohio,  to  recover  fines  or  penalties  for  crimes,  misdemeanors,  or 
otfenses. "  The  writ  of  arrest  under  this  section  may  issue  in  any 
civil  action,  legal  or  equitable,  when  there  is  an  affidavit  "stating 
the  nature  of  the  plaintiff's  claim;  that  it  is  just,  and  the  amount 
thereof,  as  nearly  as  may  be,  and  establishing  one  or  more  of  the" 
grounds  for  arrest  specified  in  section  146.  This  language  is  broad 
enough  to  embrace  equitable  money  demands. 

Under  the  analogous  section,  authorizing  attaclunent  in  a  civil 
action,  it  has  been  held  "that  the  code  has  extended  the  remedy, 
not  only  by  embracing  legal  cases,  in  which  the  remedy  had  not 
before  been  allowed,  but  also  equitable  actions  brought  to  recover 
money,  and  actions  for  the  recoverv  of  monev  onlv."  Per  Gholson. 
J..  Goble  V.  Howard.  12  Ohio  St.  l'67. 

It  thus  appears  that  a  remedy  under  the  safeguards  provided 
by  the  code,  the  affidavit,  and  the  plaintiff's  undertaking  to  pay 
the  defendant  all  damages  which  he  may  sustain  by  reason  of  the 
arrest,  if  the  order  be  wrongfully  ol)tained.  has  been  provided  by 
the  code,  applicable  to  all  equitable  money  demands.  Hence  the 
603  .section  of  the  code  has  no  application.  Py  that  section,  "if  a 
ca.se  ever  arise,  in  which  an  action  for  the  enforcement  and  pro- 
tection  of  a  right     .     .     .     cannot  be  had   under  the  code,  the 


Sec.    5.]  ANCILLARY    REMEDIES.  873 

former  practice  heretofore  in  use  may  be  adopted,  so  far  as  may 
be  necessary  to  prevent  a  failure  of  justice."     It  was  not  the  in- 
tention of  the  code  to  create  new  causes  of  action,  but  to  provide 
a  mode  of  procedure  to  "all  rights  of  civil  action,  given  or  secured 
by  existing  laws"  (except  as  excepted  in  section  604).     The  writ 
of  ne  exeat  was  a  remedial  process  in  chancery,  and  not  an  "action 
for  the  enforcement  and  protection  of  a  right."     Neither  is  it 
saved  by  section  ti  of  the  act  of  ISoS.     That  only  saves  "process 
and  remedies"  not  inconsistent  with  the  constitution  of  1851,  nor 
laws  passed  since  its  adoption,  nor  with  the  provisions  of  the  code 
of  civil  procedure.    We  conclude,  therefore,  that  the  code  provides 
as  full  and  ample  remedy  for  all  cases  in  equity  wlierein  formerly 
this  writ  was  allowable   (in  some  respects  broader  than  the  old 
remedy),  under  the  safeguards  with  which  the  liberty  of  the  citi- 
zen should  always  be  surrounded. 

We  have  examined  a  number  of  decisions  of  the  supreme  court 
and  superior  courts  of  New  York,  cited  by  counsel.  In  some  of 
these  it  is  held  that  under  a  similar  provision  in  the  New  York 
Code  (section  468).  the  ne  exeat  is  n^^\  abolished.  See  Forrest  v. 
Forrest.  5  How.  125;  liushnell  v.  Bushnell.  7  How.  393;  while  other 
cases  hold  that  it  was  abolished.  Johnson  v.  Johnson,  16  Abb.  43. 
These  New  York  cases  cited  are  cases  of  alimony.  As  our  code, 
section  604.  excepts  from  its  operatioii  proceedings  relating  to 
alimony,  the  cases  are  not  analogous.  Wht'ther  this  writ  was  ever 
applied  in  Ohio  to  cases  of  alimony,  and  if  so,  whether  the  power 
to  issue  it  in  such  eases  still  exists,  we  are  not  called  on  to  deter- 
mine. 

The  action  in  this  t-a.se  was  for  both  legal  and  ciiuitaltli'  i-eliel". 
As  to  the  legal  demand,  it  is  not  claimed  but  that  the  plaintilV  iia<l 
ample  remedy  under  the  code  to  prevent  the  dejiarture  of  the  de- 
fendants from  tbc  slate  until  they  bad  given  l)ail.     As  to  the  eciui- 
tablt-  demand,  which  was  to  compt-l  n  vendor  to  convey  llie  title  lo 
lands,  we  have  .shown,  that  under  the  former  jirartirt'  the  plain 
tiff  iiad  no  right  tosu<li  a  wtil.  ;iii<l  licnce  it  is  not  saved  by  section 
603  of  tlie  code,  nor  hy  the  61  h  section  of  tlie  act  of  1S53.  before 
cited.     We  hold,  therefore,  that  as  to  all  ci\il  actions  covered  by 
the  provisions  of  the  code  of  civil  procedure,  the  writ  ne  exeat  is 
aboli.shed  in  Ohio.    This  conchision  comports  with  the  spirit  of  our 
constitution  and  laws  relating  to  imprisonment  for  debt.  an<l  I  hi' 
ancient  ma.xims  of  the  law.  that  process  which  abridges  the  liberty 
of  the  citizen  should  be  resorted  to  with  great  caution. 

Sep  Harriss  v.  Snrrdcn.  101  N.  ('.  27:?.  7  S.  K.  SDl.  and  note  tlicrcto.  In 
sppted  at  sec.  1.  antp.  of  this  cliaptor.  Thr  writ  of  no  exeat  is  in  (lio 
nntiup  of  pniiila»)lo  l)ail  — it  is  iise<I  to  1<<t|.  ilic  prrson  of  the  (Icfendant 
within  thp  jurisdiction  of  the  court.  Houv.  I.aw  Diet  p.  •»71:  Hunter 
V.  Nelson.  5  niackf.  263.  SeqiiPStralion.  of  the  liinrj  discusHod  in  the 
casps  supra,  was  for  the  purjiose  of  keppinR  the  dcfendanfR  prnprrty 
within  tlic  control  of  thp  court  in  order  to  coerce  obedience  to  the  dorreo. 
Anonvnious.  2  N,  C.  ?A1.  See  2'.^  C\i\  3K3.  For  what  constllutcH  a  l)rearli 
of  a  np  pxoal  bond,  hpo  20  I..  R.  A.  (N.  S.)  70.  Spp  "Ne  Kxei.t."  Ccntiir.v 
Dig.  §§   1-fi;    Decpnnlal   and   Am.   PIk  Key   No.  SorteH  58   13. 


874  JURISDICTION.  [Ch.  1:2. 


CIIAPTEK  XI 1. 

JURISDICTION. 


BRYAN   V.   BLYTHE.  4   Blacklord,  249,  251.     1836. 
Jurisdiction    of   the    Huhject-Matter.      M^ant   of   Such   Jurisdiction,   How 
Taken  Advantage  of.    Effect  of  the  Waiit  of  Such  Jurisdiction  on  the 
Judgment  of  the  Court. 

(Bill  iu  equity  against  the  heirs  of  John  Blythe  praying  for  a  decree 
that  they  pay  certain  judgments  at  law  rendered  against  their  ancestor. 
The  cause  was  transferred  to  the  supreme  court  for  tiial.  Bill  dismissed. 
After  disposing  of  some  minor  points,  the  opinion  proceeds:] 

Blackford,  J.  .  .  .  Another  objection  to  this  part  of  the 
bill  is,  that  it  shows  ])lainiy  on  its  face,  that  the  complainant's 
remedy  on  the  bond  is  (.'xchisively  at  law.  A  court  of  chancery 
has  DO  jurisdiction  in  the  case  of  a  contract  for  the  mere  payment 
of  money.  Brough  v.  Oddy,  1  Tamlyn,  215.  The  assignee  of  a 
bond  has  the  same  right,  by  our  law,  to  sue  on  it  in  a  court  of  law 
that  the  obligee  ha« ;  and  his  remedy  is  confined  to  that  court.  The 
complainant  may  suppose,  that,  as  this  objection  was  not  made  by 
demurrer,  it  is  too  late  to  make  it  now.  We  think,  however,  that 
if  a  court,  ivhether  of  law  or  of  chancery,  have  no  jurisdiction  of 
the  subject-matter  in  controversij,  it  can  render  no  valid,  judgment 
or  decree  upon  the  merits  of  the  cause.  The  following  language 
on  the  subject  is  used  in  a  modern  work  on  ])leading:  "It  is  a  fatal 
objection  to  the  jurisdiction  of  any  court,  that  it  has  not  cognizance 
of  the  subject-matter  of  the  suit;  that  is,  that  the  nature  of  the 
action  is  such  as  the  court  is,  under  no  circumstances,  competent  to 
try':  as  if  a  real  action  were  brought  in  the  King's  Bench,  or  a 
cause,  exclusively  of  adtniralty  jurisdiction,  in  any  court  of  com- 
mon law.  In  any  such  case,  neither  a  plea  to  the  jurisdiction,  nor 
any  other  plea,  would  be  necessary  to  oust  the  jurisdiction  of  the 
court.  The  cause  might  be  dismi.ssed  on  motion ;  and  even  without 
motion,  it  would  be  the  duty  of  the  court  to  dismiss  it  ex  officio; 
for  the  whole  proceeding  would  be  coram  non  judice  and  utterly 
void."  Gould  on  Plead.  236.  And,  in  a  suit  in  chancers\  Lord 
ITardwicke  says — "that  a  court  of  equity,  which  can  exercise  a 
more  liberal  discretion  than  common  law  courts,  if  a  plain  defect 
of  jurisdiction  appears  at  the  hearing,  will  no  more  make  a  decree 
than  where  a  plain  want  of  equity  appears."  Penn  v.  Lord  Balti- 
more. 1  Ves.  Sen.  444.  Fiom  this  view  of  that  part  of  the  cause 
which  respects  the  claim  on    he  bond,  it  is  evident  that,  as  a  court 


JURISDICTION.  875 

of  chancery,  we  could  not  render  a  decree  for  the  eoniphiinant, 
thougli  the  defense  relied  on  were  not  proved.  .  .  .  Bill  dis- 
missed. 

See  "Judgment,"  Century  Dig.  §  24;    Decennial  and  Am.  Dig.  Key  No. 
Series  §  16. 


RHODE  ISLAND  v.  MASSACHUSETTS,  12  Peters,  657,  718-720.     1838. 

Jurisdiction  Defined.  Jurisdiction  of  the  English  Courts.  General  and 
Special  Jurisdiction.  Jurisdiction  of  the  Subjevt-Matter.  Objection 
to  the  Jurisdiction,  How  and  Wheji  Taken.  Waiving  Waiit  of  Juris- 
diction.    Jurisdiction   of  the  Federal  Courts. 

[Bill  in  equity  tiled  by  tliP  state  of  Rhode  Island  against  the  state  of 
Massachusetts,  in  the  Supreme  Court  of  the  United  States,  to  settle  the 
boundaries  between  the  two  states.  The  state  of  Massachusetts  filed  a 
plea  to  the  effect  that  matters  set  up  in  the  bill  had  been  theretofore  set- 
tled between  the  two  states.  Thereafter  the  state  of  Massachusetts  moved 
to  dismiss  the  bill  for  want  of  jurisdiction  of  the  court.  Motion  over- 
ruled.    Only  a  portion  of  the  opinion  is  here  inserted.] 

]5.\LDwix.  J.  .  .  .  However  late  this  objection  has  been 
made,  or  may  be  made  in  any  cause,  in  an  inferior  or  appellate 
court  of  the  United  States,  it  must  be  considered  as  decided  before 
any  court  can  move  one  further  step  in  the  cause;  as  any  move- 
ment is  necessarily  the  exercise  of  jurisdiction.  Jurisdiction  is  the 
jniwer  to  hear  and  determine  the  subject-matter  in  conti'oversy 
between  parties  to  a  suit,  to  adjudicate  or  exercise  any  judicial 
power  over  them;  the  question  is.  whether  on  the  case  before  a 
court,  their  action  is  judicial  or  extrajudicial;  with  or  witliont  the 
authority  of  law  to  render  a  judjrment  or  decree  upon  the  i-ights 
of  the  litigant  parties.  If  the  law  confers  the  power  to  render  a 
judgment  or  decree,  then  the  court  has  jurisdiction ;  what  shall 
be  adjudged  or  decreed  between  the  parties,  and  witli  wliieli  is  the 
right  of  the  case,  is  judicial  action,  by  hearing  and  detei-inining  it. 
6  Pet.  709 ;  4  Russ.  415 ;  3  Pet.  203. 

A  motion  to  dismiss  a  cause  pending  in  the  courts  of  the  United 
States,  is  not  analogous  to  a  plea  to  the  jurisdiction  of  a  court  of 
common  law  or  ecjuity  in  England;  there  llie  suiu'rior  courts  have 
a  general  jurisdiction  over  all  persons  within  the  realm,  and  all 
causes  of  action  between  them.  It  depends  on  the  subject-matter, 
whetlier  the  jurisdiction  shall  be  exercised  by  a  couH  of  law  or 
e(|uity:  but  tliat  court,  to  which  it  appropriately  belongs,  can  act 
judi<-ially  upon  the  party  and  the  subject  of  the  suit;  unless  it 
shall  l)e  made  aj)parcnt  to  the  court  that  the  judicial  determiualiou 
of  the  ca.se  has  been  withdrawn  from  the  court  of  general  juri.sdic 
tion.  to  an  inferior  and  iiiiiited  one.  It  is  a  tiecessary  presump- 
tion that  the  court  of  general  jurisdiction  can  act  upon  the  given 
ca,se.  where  nothing  appears  to  the  contrary,  hence  lias  arisen  the 
rule  that  the  party  claimimr  exemption  from  its  process,  must  set 
out  the  rea.sons  by  a  special  ph-a  in  abatement  :  and  sli«»\v  that 
.some  inferior  court  of  law  or  equity  has  the  exclusive  cognizanc- 


87li  .iiKisDicTioN.  [Ch.  12. 

i)t'  the  casi' ;  otluTwist'  the  siipciior  ciuii!  iiiiisl  prm-rfd,  in  \irtin'  of 
its  i^oMi'ral  .jurisdiction.  This  i-ulc  prevails  both  al  law  and  in 
('(luity.  1  \'i's.  Si'ii.  1*04  ;  ■_*  \'«'s.  Sen.  :>(I7;  Mit.  1S;{.  A  motion  to 
dismiss,  tluTcfori'.  cannot  l)r  cntci'tainrd.  as  it  docs  not  anil  cannot 
ilisdosc  a  case  of  exception;  and  if  a  i>lea  in  ahatcniont  is  put  in, 
it  nnist  not  only  inaUc  out  the  excei)lion.  hut  point  to  th(>  j^articu- 
hir  court  to  which  the  case  helonus.  A  |)laintirr  in  law  or  equity 
is  not  to  he  dri\en  I'loni  court  to  conii  hy  such  pleas;  if  a  defend- 
ant sei'ks  to  ([uasli  a  writ,  or  dismiss  a  hill  for  such  cause,  he  nuist 
fxive  thi'  plaintilV  a  hetter  one.  and  shall  never  |)ut  in  a  second  ph'a 
to  the  jurisdiction  of  that  court  to  which  lie  has  ili-iven  the  phiin- 
titf  hy  his  plea.  1  Ves.  Sen.  20;^  Thei-e  ai'c  other  classes  of  cases 
where  the  ohjeetion  to  the  jurisdiction  is  of  a  ditlferent  nature,  as 
on  a  bill  in  i-hancery  ;  that  tln'  suhject-iuattei-  is  cop:nizal)le  only 
by  the  kiu^  in  council,  and  not  l)y  any  judicial  i)ower,  1  \'es.  Sen. 
445;  or  that  the  parties  defendant  eannot  be  bronght  before  any 
mnnieipal  court,  on  account  of  their  sovereign  character,  and  the 
nature  of  the  controvi-rsy.  as  in  1  Ves.  Jr.  liTl,  ;^87 ;  2  Ves.  Jr.  .")(>. 
(iO;  or  in  the  very  conunon  cases  which  present  the  (piestion, 
whether  the  cause  ])i'operly  belongs  to  a  court  of  law  or  eciuity.  To 
such  eases,  a  plea  in  abatement  would  not  be  applicable,  because 
the  plaintiff  could  not  s\ie  in  an  inferior  court;  the  objection  goes 
to  a  denial  of  any  jurisdiction  of  a  municipal  court  in  one  class 
of  eases;  and  to  the  jurisdiction  of  any  court  of  equity  or  of  law 
in  the  other;  on  wliich  last,  the  court  decides  according  to  their  le- 
gal discretion.  An  objection  to  jiirisdiction.  on  the  ground  of  ex- 
emption from  the  i)rocess  of  the  court  in  which  the  suit  is  brought, 
or  the  manner  in  which  the  defendant  is  brought  into  it,  is  waived 
by  appearance  and  pleading  to  the  issue.  10  Pet.  478;  Toland  v. 
Sprague.  12  Pet.  800;  but  when  the  objection  goes  to  the  power  of 
the  court  over  the  parties,  or  the  subject-matter,  the  defendant 
need  not.  for  he  cannot,  give  the  plaintiff  a  better  writ  or  bill. 
Where  no  inferior  court  can  have  jurisdiction  of  a  case  in  law  or 
equity,  the  ground  of  objection  is  not  taken  by  plea  in  abatement, 
as  an  exception  of  the  given  case,  from  the  otherwise  general  juris- 
diction of  the  court ;  appearance  does  not  cure  the  defect  of  judi- 
cial power,  and  it  may  be  relied  on  by  plea,  answer,  demurrer,  or 
at  the  trial  or  hearing,  unless  it  goes  to  the  manner  of  bringing  the 
defendant  into  court,  which  is  waived  by  submission  to  the  process. 
As  a  denial  of  jurisdiction  over  the  subject-matter  of  a  suit  be- 
tween parties  within  the  realm,  over  which  and  whom  the  court  has 
power  to  act,  cannot  be  successful  in  an  English  court  of  general 
jurisdiction,  a  motion  like  the  present  could  not  l)e  sustained  con- 
sistently with  the  principles  of  its  con.stitution.  Rut  as  this  court 
is  one  of  limited  and  special  original  jurisdiction,  its  action  must 
be  confined  to  the  particular  cases,  controversies,  and  parties  over 
which  the  constitution  and  laws  have  authorized  it  to  act;  any 
proceeding  without  the  limits  prescribed,  is  coram  non  judice.  and 
its  action  a  nullity.  Id  Pet.  474;  4  Russ.  415.  And  whether  the 
want  or  excess  of  f)ow('r'  is  objected  by  a  party,  or  is  apparent  to 


JURISDICTION.  877 

the  court,  it  must  surcease  its  action,  or  proceed  extrajudicially. 
Before  we  can  proceed  in  this  cause,  we  nuist.  therefore,  inquire, 
whether  we  can  hear  and  determine  the  mattei-s  in  controversy  be- 
tween the  parties  who  are  two  states  of  this  Union,  sovereign 
within  their  respective  boundaries,  save  that  portion  of  power 
which  they  have  granted  to  the  federal  government,  and  foreign  to 
each  other  ft)r  all  but  federal  purposes.  So  they  have  been  con- 
sidered by  this  court  through  a  long  series  of  years  and  cases  to  the 
present  term,  during  which,  in  the  case  of  the  Bank  of  the  United 
States  V.  Daniels.  12  Pet.  32,  this  court  has  declared  this  to  be  a 
fundamental  princii)le  of  the  constitution;  and  so  we  .shall  con- 
sider it  in  deciding  on  the  present  motion.  2  Pet.  596.  .  .  . 
[The  case  ciecides  that,  under  the  constitution  and  judiciary  act. 
the  court  has  jurisdicti(m  of  the  cause.  1 

See  "Courts,"  Century  Dig.  §§  140-143;  Decennial  and  Am.  Dig.  Key 
No.  Series  §§  34-36;  "Appearance,"  Century  Dig.  §  62;  Decennial  and 
Am.  Dig.  Key  No.  Series  §  12. 


SCOTT  V.  McNEAL,  154  U.  S.  34,  14  Sup.  Ct.  1108.     1893. 

Want  of  Jurisdiction  of  the  Subject-Matter.  Grant  of  Letters  Upon  the 
Estate  of  a  Living  Person.  Want  of  Jurisdiction  of  the  Person. 
Fourteenth  Amendment. 

[Action  of  Ejectment  by  Scott  against  MrNeal,  in  a  state  court.  .ludg- 
ment  against  the  plaintiff,  and  he  api)ealed  to  the  supreme  court  of  the 
state,  where  the  judgment  was  affirmed.  The  i)laintiff  then  carried  the 
case  to  the  supreme  court  of  the  United  States  by  writ  of  error.  Re- 
versed. 

Scott  owned  the  locus  in  quo.  In  1881  Scott  disapi)eared  and  was  not 
heard  of  until  1891,  when  he  re-api)eared.  In  the  interim  his  former  as- 
sociates supposed  he  was  dead.  In  18SS  administration  was  granted  on 
Scott's  estate,  he  not  having  been  heard  from  for  seven  years,  although 
duly  inquired  after.  Notice  of  the  application  for  letters  of  administra- 
tion was  duly  published,  as  required  by  the  statutes  of  the  state,  before 
letters  were  issued.  The  ])robate  court  adjudged  that  Scott  was  dead 
and  granted  administration.  In  .Inly.  1888,  in  a  petition  for  the  sale  of 
land  for  assets — to  which  those  who  would  have  been  Scott's  heirs  If  he 
had  been  dead,  were  made  parties — Scott's  land  was  ordered  to  be  sold. 
I'nder  such  order  the  land  was  sold  and  |)ur(hased  by  "Ward,  who  after- 
wards conveyed  to  .McVeal.  The  state  (otuts  ruled  that  Scott  was  iioiind 
by  the  above  orders  of  the  probate  court  and  that  he  was  divested  of  his 
title.] 

.Mk.  Ji'STifK  Orav.  Tile  fiuidaincntal  (piestion   in  Ihc 

cii.sr  is  whether  letters  of  ;idii)iiiis1  cat  ion  upon  the  estate  of  a  per- 
son who  is  in  t'ai-l  alive  Ii;i\c  ;iti.\-  validity  or  elTeet  as  against  liiin. 

By  the  l;iw  of  Kngland  ;mi<I  .\iiiirie;i.  before  I  lie  Declaratioti  of 
Indr'pendence.  and  for  almost  a  eeiitiiry  afterwards,  tin'  .ibsobile 
nullity  of  siu-h  Ie11ci-s  was  treated  as  lieyond  disjuite. 

In  Allen  v.  Diindas.  .'?  Term  R,  12r>.  in  17S!t.  in  wlii.-li  tlie  court 
of  king's  bench  held  that  payment  of  a  debt  due  to  ;i  dcccn.sed 
person  to  an  exectjtor  who  bad  obtairie<l  probate  of  a  fortreil  will 
discharged  Ibc  debtor,  not witlistandiii!/  llie  prob;ite  was  afterwards 


87S  .U'KISDICTION.  [Cli.    12. 

iloclaivil  mill  ami  nouI.  ami  admiiiLstraliou  j^rautcd  to  Ihe  next  oi' 
kin,  the  doeisiou  went  upon  the  ground  that  the  probate,  being  a 
judicial  act  of  the  ecclesiastical  court  within  its  jurisdiction,  could 
not,  so  long  as  it  nMiiaincd  uni-cpoalcd.  h(>  inipcachtMl  in  the  tem- 
poral courts,  it  was  ai'gucd  for  the  plaiiitill'  that  the  case  stood 
as  if  the  creditor  had  not  been  dead,  and  had  himself  brought  the 
action,  in  wliich  case  it  was  assumed,  on  all  hands,  that  payment 
to  an  executor  windd  be  no  defense.  Hut  the  court  clearly  stated 
the  essential  ilistinctii»n  between  the  two  casi's.  ^Ir.  Justice  Ash- 
uret  said:  "The  ease  of  a  probate  of  a  supposed  will  during  the 
life  of  the  party  may  be  distinguished  from  the  present,  because 
during  his  life  the  tM'clesiastical  court  has  no  jurisdiction,  nor  can 
they  inquire  who  is  his  representative;  but,  when  the  i)arty  is  dead, 
it  is  within  their  jurisdiction.'"  And  ]\Ir.  Justice  Huller  said: 
"Then  this  ease  was  compared  to  a  probate  of  a  supposed  will  of 
a  living  person  ;  but  in  such  a  case  the  ecclesiastical  court  have  no 
jurisdiction,  and  the  j)robate  can  have  no  ett'ect :  their  jurisdictior' 
is  only  to  grant  probates  of  the  wills  of  dead  persons.  The  distinc- 
tion in  this  respect  is  this:  if  they  have  jurisdiction,  their  sen- 
tence, as  long  as  it  stands  unrepealed,  shall  avail  in  all  other 
places;  but  where  they  have  no  jurisdiction,  their  whole  proceed- 
ings are  a  nullitv. "  Id.  130.  And  such  is  the  law  of  England  to 
this  day.  Williams.  Ex'rs  (9th  ed.).  478,  1705;  Taylor,  Ev. 
(8th  ed.),  §§  1677,  1714. 

In  Griffith  v.  Frazier,  8  Craneh.  9.  23.  in  1814,  this  court,  speak- 
ing by  Chief  Justice  ^Marshall,  said:  "To  give  the  ordinary  juris- 
diction, a  case  in  which,  by  law,  letters  of  administration  may  is- 
sue, must  be  brought  before  him.  In  the  common  case  of  intestacy, 
it  is  clear  that  letters  of  administration  imist  be  granted  to  some 
person  by  the  ordinary ;  and  though  they  should  be  granted  to  one 
not  entitled  by  law,  still  the  act  is  binding  until  annulled  by  the 
competent  authority,  because  he  had  power  to  grant  letters  of  ad- 
ministration in  the  ease.  But  suppose  administration  to  be  granted 
on  the  estate  of  a  person  not  really  dead.  The  act,  all  will  admit, 
is  totally  void.  Yet  the  ordinarv^  must  always  inquire  and  decide 
whether  the  yierson.  whose  estate  is  to  be  committed  to  the  care  of 
others,  be  dead  or  in  life.  It  is  a  branch  of  every  cause  in  which 
letters  of  administration  issue.  Yet  the  decision  of  the  ordinary 
that  the  person  on  whose  estate  he  acts  is  dead,  if  the  fact  be  other- 
wise, does  not  invest  tho  person  he  may  appoint  with  the  character 
or  powers  of  an  administrator.  The  case,  in  truth,  Avas  not  one 
within  his  jurisdiction.  It  was  not  one  in  which  he  had  a  right  to 
deliberate.  It  was  not  committed  to  him  by  the  law.  And  al- 
though one  of  the  points  occurs  in  all  casps  proper  for  his  tribunal, 
yet  that  point  cannot  bring  the  subject  within  his  jurisdiction." 
See  also  Insurance  Co.  v.  Tisdale.  91  IJ.  S.  238,  243 ;  Ilegler  v. 
Faulkner.  153  T'.  S.  109.  118.  14  Sup.  Ct.  779.     .     .     . 

The  fourteenth  article  of  amendment  of  the  constitution  of  the 
Fnited  States,  after  other  provisions  which  do  not  touch  this  case, 
ordains:  "Nor  shall  any  state  deprive  any  person  of  life,  liberty  or 


JURISDICTION.  879 

property  without  due  process  of  law,  nor  deny  to  auy  person 
within  its  jurisdiction  the  equal  protection  of  the  laws.""  These 
prohibitions  extend  to  all  acts  of  the  state,  whether  through  its 
legislative,  its  executive,  or  its  judicial  authorities.  Virginia  v. 
Kives,  100  U.  S.  313.  318,  319;  Ex  parte  Virginia,  Id.  339.  346 1 
Xeal  V.  Delaware.  103  U.  S.  370,  397.  And  the  fii-st  one,  as  said 
by  Chief  Justice  AVaite  in  U.  S.  v.  Cruikshank,  92  U.  S.  5-i2,  554, 
repeating  the  words  of  ^Nlr.  Justice  Johnson  in  Bank  v.  Okely,  4 
AY  heat.  235,  244,  was  intended  "to  secure  the  individual  from' the 
arbitrary  exercise  of  the  powers  of  government,  unrestrained  by 
the  established  principles  of  private  rights  and  distributive  jus- 
tice." 

Upon  a  writ  of  error  to  review  the  judgment  of  the  highest 
court  of  a  state  upon  the  groimd  that  the  judgment  was  against  a 
right  claimed  under  the  constitution  of  the  L'nited  States,  this 
court  is  no  more  l)ound  by  that  court 's  construction  of  a  statute  of 
the  territory  or  of  the  state,  when  the  question  is  whether  the 
statute  pi-ovided  for  the  notice  required  to  constitute  due  process 
of  law,  than  when  the  question  is  whether  the  statute  created  a  con- 
tract which  has  been  impaired  by  a  subsequent  law  of  the  state,  or 
whether  the  original  liability  created  by  the  statute  was  such  that 
a  judgment  upon  it  has  not  been  given  due  faith  and  credit  in  the 
courts  of  another  state.  In  every  such  case,  this  court  must  de- 
cide for  itself  the  true  construction  of  the  statute.  Huntington  v. 
Attrill.  146  U.  S.  657.  683,  684,  13  Sup.  Ct.  224:  Mobih^  &  0.  R. 
Co.  V.  Tennessee.  153  U.  S.  486,  492-495,  14  Sup.  Ct.  968. 

No  judgment  of  a  court  is  due  process  of  law,  if  rendered  with- 
out jurisdiction  in  the  court,  or  without  notice  to  the  party. 

The  words  "due  process  of  law,"  when  applied  to  judicial  pro- 
ceedings, as  was  said  by  ]\Ir.  Justice  Field,  speaking  for  this  court, 
"mean  a  course  of  legal  proceedings  according  to  tliose  ruU's  and 
principles  which  have  been  established  in  our  systems  of  juris- 
l)rudenee  for  the  protection  and  enforcement  of  private  rights. 
To  give  such  pi-ncet^dings  any  validity,  there  nuist  be  a  tril)unal 
competent  by  its  constitution — that  is,  by  the  law  of  its  creation — 
to  pass  upon  the  subject-matter  of  the  suit;  and,  if  that  involves 
merely  a  determination  of  the  personal  lial)ility  of  the  defendant, 
he  must  be  brought  within  its  jurisdiction  by  service  of  process 
within  the  state,  or  his  voluntarv  api)earance. "  Pennovcr  v.  XcfT. 
05  U.  S.  714.  733. 

Even  a  judgment  in  proceedings  strictly  in  rem  binds  only  thase 
who  could  have  made  themselves  parlies  to  the  proceedings,  and 
who  had  notice,  either  actually  or  by  the  thing  coiidciiincd  IxMiig 
first  seized  into  the  cu.stody  of  the  court.  Tbe  Mary.  0  Cranch. 
126.  144:  ITnllingsworth  v.  Barbour.  4  Pet.  466.  475; "Pcnnoyer  v. 
Xeff.  95  r.  S.  714.  727.  And  such  a  judtrment  is  wholly  void  if  a 
fact  essential  to  the  jurisdiction  of  tlic  c(tuii  did  not  exist.  The 
jurisdiction  of  a  foreign  court  of  admiralty,  for  instnnco,  in  .some 
cases,  as  observed  by  Chief  Justice  Marshall.  "  unr|uestionabIy  de- 
pends as  well  oTi  the  state  of  the  thing  as  on  llie  eoustilution  of  the 


880  .H'RISDICTION.  \Clt.    12. 

I'ourt.  It'  l)y  miy  iiu'aus  \vli;itrvci-  a  |iiizr  ((Hirt  slioukl  be  iiuliK't'd 
to  coiuh'iiui.  as  pri/(>  of  war.  a  vt'sscl  w  liicli  was  never  eapturetl,  it 
ooiiKl  net  be  i-enlended  tliat  tliis  fondciiiiiat  ion  operated  a  ehange 
of  property."  l\ose  v.  lliniely,  4  (rauch,  241,  2(i!).  Upon  tlie 
same  prineiple.  a  deeri'e  eoiuleninin«r  a  vessel  for  unlawfully  tak- 
ing elanis.  in  violation  of  a  statute  which  authorized  proceedings 
for  her  forfeituic  in  the  eounty  in  which  the  seizure  was  made,  was 
held  by  this  eoiul  to  be  void,  and  not  to  piotecl  the  oitieer  making 
the  seizin-e  from  a  .suU  by  the  owner  of  the  vessel,  in  which  it  was 
proved  that  the  seizure  was  not  made  in  the  same  county,  although 
the  decree  of  condenuiatiou  recited  tliat  it  was.  Thompson  v. 
Whitman.  18  AVall.  457. 

The  estate  of  a  person  supposed  to  he  dead  is  not  .seized  or  taken 
into  the  custody  of  the  court  of  probate  upon  the  filing  of  a  peti- 
tion for  administration,  but  only  after  and  under  the  order  grant- 
ing that  petition;  and  the  adjudication  of  that  court  is  not  upon 
the  question  whether  he  is  living  or  dead,  but  only  upon  the  cpics- 
tion  whether  and  to  whom  letters  of  administration  shall  issue. 
Insurance  Co.  v.  Tisdale.  91  U.  S.  238,  243. 

A  court  of  probate  must,  indeed.  in(|uire  into  and  be  satisfied  of 
the  fact  of  the  death  of  the  person  whose  will  is  sought  to  be  proved 
or  whose  estate  is  sought  to  be  administered,  because,  without  that 
fact,  the  court  has  no  jurisdiction  over  his  estate;  and  not  because 
its  decision  upon  the  (piestion.  whether  he  is  living  or  dead,  can  in 
any  wise  bind  or  estop  him,  or  deprive  him,  while  alive,  of  the 
title  or  control  of  his  property. 

As  the  jurisdiction  to  issue  letters  of  administration  upon  his  es- 
tate rest  upon  the  fact  of  his  death,  so  the  notice  given  before  is- 
suing such  letters  assumes  that  fact,  and  is  addressed,  not  to  him, 
but  to  those  who  after  his  death  may  be  interested  in  his  estate,  as 
next  of  kin,  legatees,  creditors,  or  otherwise.  Notice  to  them  can- 
not be  notice  to  him.  because  all  their  interests  are  adverse  to  his. 
The  whole  thing,  so  far  as  he  is  concerned,  is  res  inter  alios  acta. 

Next  of  kin  or  legatees  have  no  rights  in  the  estate  of  a  living 
person.  His  creditors  indeed,  may,  upon  proper  proceedings,  and 
due  notice  to  him.  in  a  court  of  law  or  of  equity,  have  specific  por- 
tions of  his  property  applied  in  satisfaction  of  their  debts.  But 
neither  creditors  nor  purchasers  can  acquire  any  rights  in  his 
property  through  the  action  of  a  court  of  probate,  or  of  an  admin- 
istrator appointed  by  that  court,  dealing,  without  any  notice  to 
him.  with  his  whole  estate  as  if  he  were  dead. 

The  appointment  by  the  probate  court  of  an  administrator  of 
the  estate  of  a  living  person,  without  notice  to  him.  being  without 
jurisdiction,  and  wholly  void  as  against  him.  all  acts  of  the  admin- 
istrator, whether  approved  by  that  court  or  not.  are  equally  void. 
The  receipt  of  money  by  the  administrator  is  no  discharge  of  a 
debt,  and  a  conveyance  of  property  by  the  adminstrator  passes  no 
title. 

The  fact  that  a  person  has  been  absent  and  not  heard  from  for 
seven  years  may  create  such  a  presumption  of  his  death  as,  if  not 


JURISDICTION.  881 

overcome  by  other  proof,  is  such  prima  facie  evidence  of  his  death 
that  the  probate  court  may  assume  him  to  be  dead,  and  appoint  an 
administrator  of  his  estate,  and  that  such  administrator  may  sue 
upon  a  debt  due  to  him.  But  proof,  luider  proper  pleadings,  even 
in  a  collateral  suit,  that  he  was  alive  at  the  time  of  the  appoint- 
ment of  the  administrator,  controls  and  overthrows  the  prima 
facie  evidence  of  his  death,  and  establishes  that  the  court  had  no 
jurisdiction  and  the  administrator  no  authority ;  and  he  is  not 
bound,  either  by  the  order  api)ointing  the  administrator  or  by  a 
.judgment  in  any  suit  brought  by  the  administrator  against  a  third 
person,  because  he  was  not  a  party  to  and  had  no  notice  of  either. 

In  a  case  decided  in  the  circuit  court  of  the  United  States  for  the 
southern  district  of  New  York  in  1880.  substantially  like  Roder- 
igas  V.  Institution,  as  reported  in  63  N.  Y.  460,  above  cited.  Judge 
Choate.  in  a  learned  and  able  opinion,  held  that  letters  of  admin- 
istration upon  the  estate  of  a  living  man,  issued  by  the  surrogate 
after  judicially  determining  that  he  was  dead,  were  null  and  void 
as  against  him :  that  payment  of  a  debt  to  an  administrator  so  ap- 
pointed was  no  defense  to  an  action  by  him  against  the  debtor  -.  and 
that  to  hold  such  administration  to  be  valid  against  him  would  de- 
prive him  of  his  property  without  due  process  of  law,  within  the 
meaning  of  the  fourteenth  amendment  of  the  constitution  of  the 
United  States.  This  court  concurs  in  the  proposition  there  an- 
noimced  "that  it  is  not  competent  for  a  state,  by  a  law  declaring  a 
judicial  determination  that  a  man  is  dead,  made  in  his  absence,  and 
without  any  notice  to  or  process  issued  against  him,  conclusive  for 
the  purpose  of  divesting  him  of  his  property  and  of  vesting  it  in  an 
administrator,  for  the  benefit  of  his  creditors  and  next  of  kin, 
either  absolutely  or  in  favor  of  those  only  who  innocently  deal 
with  such  administrator.  The  immediate  and  necessary  effect  of 
such  a  law  is  to  deprive  him  of  his  property  without  any  process  of 
law  whatever,  as  against  liim,  although  it  is  done  by  process  of 
law  against  other  people,  his  next  of  kin,  to  whom  notice  is  given. 
Such  a  statutory  tleclaration  of  estoppel  by  a  judgment  to  which 
he  is  neither  party  nor  privy,  which  has  the  immediate  effect  of 
divesting  him  of  his  property,  is  a  direct  violation  of  tliis  con- 
stitutional guaranlv."  Lavin  v.  Bank.  18  Blatclif.  1.  24.  1  Fed. 
641. 

The  defendants  did  not  rely  upon  any  statute  of  liiiiit.it  ions,  nor 
upon  any  statut<'  allowing  them  for  improvements  madi'  in  goo<l 
faith;  but  their  sole  reliance  was  upon  a  deed  from  an  adminis- 
trator, acting  mider  the  orders  of  a  court  which  lunl  n<»  jurisdiction 
to  apj)oint  him  or  to  confer  any  authority  npon  liiin.  as  against 
the  plaintitV. 

.Tiidgiiient  reversed,  and  i-ase  remanded  to  the  supreme  court  of 
the  state  <if  AVashingtoii  for  fiirtlicr-  proceedings  not  inconsistent 
with  this  o|tinion. 

See  also  Woerner.s  Am.  Law  of  Adrnr.  pp.  447  et  seq.;  Morderal'h  1.    I- 
1131;   SprlTiKer  v.  Shavenrter.  116  N.  C.  12.  21  S.  K.  397;  S.  C.  118  N.  C. 
RenifdlPH — .OG. 


882  .nuisDiCTioN.  \('li-   l'-- 

33,  23  S.  E.  ;»T6.  See  ■Descent  and  Distrihulion,"  Century  Dig.  §  10;  De- 
eeunial  and  Am.  Dig.  Key  No.  Series  §  18;  "Executors  and  Administra- 
tors." Century  l")ig.  §  IT.;   Decennial  and  Am.  Dip.  Key  No.  Series  §  4. 


SANTOM  V.  BALLARD,  133  Mass.  464.     1882. 

When  Can  Consent  Confer  Jurisdictionf  General  Appearance.  Waiver 
of  Want  of  Jurisdirlion.  Jurisdiction  of  Sliibiecl-Matter.  Jurisdic- 
tion of  the  Person. 

[Action  of  contract,  brought  upon  an  account,  in  the  Central  District 
Court  of  Worcester.  Judgment  against  the  plaintiff  for  costs.  Plaintiff 
appealed  to  the  superior  court  but  did  not  give  the  appeal  bond  required 
by  a  statute.  The  defendant  entered  a  general  appearance  in  the  superior 
court  and  moved  to  dismiss  the  action  on  the  ground  that  the  superior 
court  had  no  jurisdiction  because  the  appeal  bond  had  not  been  given. 
Motion  sustained  and  judgment  against  the  plaintiff  dismissing  his  ac- 
tion. Plaintff  then  appealed  to  the  supreme  court.  Affirmed.  Under  the 
statute,  the  superior  court  could  acquire  no  jurisdiction  in  such  cases 
unless  the  appellant  gave  the  bond.] 

jNIorton.  C.  J.  .  .  .  The  ease  before  us  was  brought  in  the 
Central  District  Court  of  Worcester,  which  rendered  judgment 
against  the  i)laiiitiff.  He  claimed  an  ai)i)('al.  but  did  not  file  the 
bond  as  retjuired  by  law.  The  superior  court,  therefore,  had  no 
jurisdiction  of  the  case,  and  might  dismiss  it  on  its  own  motion,  or 
on  the  motion  of  the  ai)pellee,  at  any  time  before  judgment. 

Tn  many  cases,  where  there  has  been  an  objection  to  the  juris- 
diction, because  of  some  irregularity  or  defect  in  the  service,  or 
some  merely  technical  defect  in  the  process,  it  has  been  held  that 
a  general  appearance  by  the  defendant  is  a  waiver  of  such  objec- 
tion. But  this  rule  applies  only  in  cases  where  the  court  has  juris- 
diction of  the  subject-matter.  Consent  of  parties  may  in  a  cer- 
tain sense  give  jurisdiction  of  the  person,  but  it  cannot  create  a 
jurisdiction  over  the  cau.'ie  and  subject-matter,  which  is  not  vested 
in  the  court,  bv  law.  Brown  v.  Webber.  6  Cush.  560;  Ashuelot 
Bank  v.  Pearson,  14  Gray.  521  ;  McQuade  v.  O'Neil,  15  Gray.  52; 
Riley  v.  Lowell.  117  Mass.  76. 

The  provisions  of  law  requiring  a  bond  are  not  wholly  for  the 
benefit  of  the  apj)ellee.  but  partly,  upon  considerations  of  public 
policy,  to  discourage  frivolous  and  vexatious  litigation.  Parties 
cannot  by  their  consent  dispense  with  the  bond,  and  thus,  without 
complying  with  the  law,  divest  the  inferior  court  of  its  jurisdic- 
tion and  transfer  the  case  to  the  higher  court.  It  follows  that  the 
superior  court  rightly  dismissed  the  action.    Judgment  affirmed. 

See  also  Crabtree  v.  Scheelky,  119  N.  C.  56,  25  S.  E.  707;  Leach  v.  Rail- 
road. 65  X.  C.  486;  Branch  v.  Houston,  44  N.  C.  85.  "It  is  elementary  that 
a  judgment  in  personam  against  a  person  who  is  sui  juris,  when  no 
process  has  been  served  or  service  accepted  and  no  voluntary  fgenerall 
appearance  is  made,  and  these  facts  apiiear  on  the  record,  is  void,  and 
may  be  attacked  collaterally."  And  so  it  is  if  the  court  issuing  the  sum- 
mons had  no  authority  so  to  do,  even  though  the  service  of  the  process 
be,  in  other  respects,  regular.  Rutherford  v.  Ray,  147  N.  C.  at  p.  258,  61 
S.  E.  57.    A  want  of  jurisdiction  of  the  subject-matter  cannot  be  waived. 


JURISDICTION.  883 

and  such  want  of  jurisdiction  can  be  taken  advantage  of  for  the  first 
time  after  the  cause  has  reached  the  appellate  court.  Realty  Co.  v.  Cor- 
pening,  147  N.  C.  613,  61  S.  E.  528.  See  -Appeal  and  Error,"  Century  Dig 
§§  88-97,  2185;  Ibid.  "Courts,"  §§  75-81;  Decennial  and  Am.  Dig.  Kev  No. 
Series,  "Appeal  and  Error,"  §  21;   "Courts,"  §§  22-25. 


McMINX  V.   HAMILTON,   77   N.   C.   300.     1877. 

When  the  Court  Ex  Mero  Motu  Will  Dismiss  for  Want  of  Jurisdiction. 
Subject-Matter.    Venue.    Waiver. 

[Plaintiff  sued  the  defendant  in  the  wrong  county  before  a  justice  of 
the  peace.  The  justice  had  jurisdiction  of  the  cause  of  action — the  sub- 
ject matter — but  the  defendant  could  not  have  been  sued  in  the  county 
in  which  the  justice  resided  if  the  defendant  had  seen  fit  to  object.  The 
defendant  made  no  point  about  the  venue,  but  appeared  before  the  jus- 
tice and  pleaded  payment  and  the  statute  of  limitations.  The  justice 
rendered  judgment  against  the  defendant  who  thereupon  appealed  to 
the  superior  court.  In  the  superior  court  the  defendant  insisted  that  the 
justice  had  no  jurisdiction  and  moved  to  dismiss  the  action.  Motion  al- 
lowed and  judgment  against  the  plaintiff  dismissing  the  action.  Plain- 
tiff appealed  to  the  supreme  court.     Reversed.] 

Faircloth,  J.  AVhere  a  court  has  iio  jurisdiction  of  the  subject- 
matter,  the  objection  can  be  taken  at  anj^  time,  and  indeed  as  soon 
as  this  fact  is  discovered,  the  court  ex  mero  motu  will  take  notice 
of  it  and  dismiss  the  action.  Rut  if  it  has  jurisdiction  of  the  sub- 
ject matter  and  the  venue  is  wrontr.  the  objection  must  be  taken  in 
apt  time ;  and  if  the  defendant  pleads  to  the  merits  of  the  action, 
he  will  be  taken  to  have  waived  the  objection.  Tie  cannot  have  two 
chances.  Applying  this  principle  to  the  case  before  us.  we  think 
the  defendant  waived  the  ()l)jcction  by  pleading  [to  the  mei-its] 
before  the  justice  and  tliat  it  wa.s  then  too  late  to  raise  it.  Judg- 
ment reversed. 

See  "Appearance."  Century  Dig.  §  111;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  23;  "Venue,"  Century  Dig.  §  49;  Decennial  and  Am.  Dig. 
Key  No.  Series  §  32. 


CHILDS  V.  MARTIN,  69  N.  C.  126.     1873. 
Concurrent  Jurisdiction  and  Exclusive  Jurisdiction. 

[Action  brought  in  the  superior  court  of  Mecklenburg  county  to  set 
aside  a  judgment  rendered  by  the  sui)erior  court  of  Now  Hanover  against 
the  plaintiff  and  in  favor  of  the  defendant.  The  complaint  alleged  that 
the  judgment  in  question  was  obtained  l)y  fraud,  and  tin'  plaint  ifT  inayiMl 
for  an  injunction  against  the  defendant's  enforcing  such  judgment 
Judgment  against  defendant  granting  the  injunction  prayed  for  by  plain- 
tiff.    Defendant  ai)pealed.     Reversed,  and  action  dismissed! 

]'e.\rsok.  C.  J.  "Tbe  rule  is,  where  llii'ic  are  courts  of  equal 
and  coiieurreiit  jurisdiefioii.  tlic  court  ptisscsscs  llic  ciise  in  wliieh 
jurisdiction  first  ;ittacli('s."  Merrill  v.  Lake.  Ki  Ohio  M'l  Tliis 
nile  is  .so  consonant  willi  reason,  iind  the  necessity  for  nxwh  a  rule 


88-4  jruiSDiCTJON.  [Ch.  12. 

in  oriK'T  to  j^iH'vriil  <'(nirusion  aiul  I'oiillict  ol"  jurisdiction  is  so  ob- 
vious, tliJit  fnitluM-  (•(iimiuMit  is  unni'i'ossary,  and  we  will  simply 
refer,  as  a  matlci-  wiiliin  llic  knowledge  of  every  incinher  of  the 
profession,  to  the  deplorable  eonilition  of  things  in  the  state  of 
New  York,  result ing  i'l'oni  a  violation  of  this  I'ule  exhibited  in  the 
newsjvijxM-s  under  the  title  oi'  I  he  "  Krie  lu)\v." 

Tlu'  judge  of  the  superior  eouii  of  the  county  of  New  Hanover 
was  possessed  of  the  ease.  Snpj>ose  the  judgment  before  him  was 
obtained  by  frandident  eombination  and  eonti-ivanee  b(>tween  the 
bondholders  and  the  president  and  direetoi's  of  the  Wilmington, 
Charlotte  and  Rutherford  Kailroad  Company,  the  ])laintift's  in 
this  action  were  at  liberty  to  make  themselves  parties  to  the  action 
in  New  Hanover,  and  to  ask  as  "a  motion  in  the  cause"  to  liave 
tlie  judgment  reheard,  and  in  the  imantime  for  a  supersedeas  of 
the  order  of  sale.  Instead  of  i)ursuing  this  regular  and  orderly 
mode  of  proceeding,  the  plaintitfs  in  this  action  adopt  the  erratic 
and  unprecedented  coui'se  (exce])t  that  (exhibited  in  the  "Erie 
Row")  of  bringing  another  action  before  the  judge  of  the  superior 
court  of  the  county  of  Mecklenburg,  and  actually  obtain  an  in- 
junction not  only  against  the  parties  to  the  action  in  the  superior 
court  of  New  Hanover  but  against  the  connnissioners  appointed 
by  that  court  and  oi'dered  to  make  sale,  and  the  result  is  this,  if 
the  commissioners  obey  the  order  of  the  superior  court  of  New^ 
Hanover  they  are  in  contempt  of  the  superior  court  of  Mecklen- 
burg, and  if  they  obey  the  order  of  the  latter  court,  there  is  a  con- 
tempt in  regard  to  the  former.  "Reductio  ad  adsurdum."  The 
order  appealed  from  is  reversed,  as  improvidently  granted,  and 
the  action  is  dismissed  for  want  of  jurisdiction. 

For  attack  upon  a  Judgment  obtained  by  perjury,  see  10  L.  R.  A. 
(N.  S.)  216,  23  lb.  134,  564,  and  notes,  144  N.  C.  81. 

See  also  Smith  v.  Mclver,  9  Wheat.  529,  at  p.  535;  Riggs  v.  Johnson  Co., 
6  Wall.  166;  N.  W.  Iron  Co.  v.  L.  &  R.  Imp.  Co.,  92  Wis.  487,  66  N.  W. 
515.  As  to  the  ruling  in  the  principal  case  that  a  judgment  must  be  at- 
tacked for  fraud  by  a  motion  in  the  cause,  see  and  compare  Mock  v. 
Coggin,  101  N.  C.  366,  7  S.  E.  899;  Moore  v.  Gulley,  144  N.  C.  81;  Houser 
V.  Bonsai,  149  N.  C.  at  p.  56,  62  S.  E.  776.  See  "Courts,"  Century  Dig. 
§§  1229-1239;  Decennial  and  Am.  Dig.  Key  No.  Series  §  475;  "Injunc- 
tion," Cent.  Dig.  §  69. 


HADDOCK  V.  HADDOCK,  201  U.  S.  563,  26  Sup.  Ct.  525.     1905. 

Extra-territorial  Effect  of  Judgments.  Jurisdiction  of  the  Subject-matter 
and  of  the  Person.  The  Doctrine  of  Pennoyer  v.  Neff  How  Far  Appli- 
cable to  Divorce.     ''Full  Faith  and  CrediV  Clause. 

[Action  by  the  wife  against  the  husband  seeking  a  separation  from 
bed  and  board  and  for  alimony.  .Judgment  against  the  husband  as  prayed 
for.  The  husband  carried  the  case  to  the  supreme  court  of  the  United 
States  by  writ  of  error.     Affirmed. 

In  1868  the  parties  were  lawfully  married  in  the  state  of  ISIew  York, 
where  both  parties  resided  at  the  time.  Immediately  after  the  marriage, 
the  husband  abandoned  the  wife  and  ever  after  refused  to  support  her. 
The  husband  went  to  Connecticut  and  in  ISSl  obtained  an  absolute  di- 


JURISDICTION.  885 

vorce  from  his  wife  in  the  courts  of  that  state.  The  mfe  remained  a 
resident  of  Neic  York.  There  was  no  personal  service  of  the  process  on 
the  wife  in  the  Connecticut  divorce  suit,  nor  did  she  voluntarily  appear  in 
such  action,  but  there  was  service  by  jjubUcation  pursuant  to  the  laws 
of  Connecticut.  By  the  laws  of  Connecticut  the  divorce  was  valid;  but 
the  courts  of  New  York  refused  to  acknowledge  its  validity.  This  action 
was  brought  by  the  wife  in  1899  in  the  supreme  court  of  the  state  of 
New  York,  which  court  rejected  the  Connecticut  judgment  as  a  defense, 
and  gave  judgment  against  the  husband,  who  thereupon  appealed  to  the 
New  York  Court  of  Appeals.  That  court  affirmed  the  rulings  of  the  su- 
preme court,  and  the  supreme  court  of  the  United  States  does  likewise. 
The  husband  was  personally  served,  in  the  state  of  New  York,  with  the 
summons  in  this  action.] 

^1r.  Justice  White.  .  .  .  With  the  object  of  confiniug  ouf 
attention  to  the  real  question  arising  from  this  condition  of  the 
Connecticut  record,  we  state  at  the  outset  certain  legal  proposi- 
tions irrevocably  concluded  by  previous  decisions  of  this  court, 
and  which  are  required  to  be  borne  in  mind  in  analyzing  the  ulti- 
mate issue  to  be  decided. 

First.  The  requirement  of  the  constitution  is  not  that  some,  but 
that  full,  faith  and  credit  shall  be  given  by  states  to  the  judicial 
decrees  of  other  states.  That  is  to  say,  where  a  decree  rendered  in 
one  state  is  embraced  by  the  full  faith  and  credit  clause,  that  con- 
stitutional provision  commands  that  the  other  states  shall  give  to 
the  decree  the  force  and  effect  to  which  it  was  entitled  in  the 
state  where  rendered.  Harding  v.  Harding,  198  U.  S.  317,  4!)  L. 
ed.  1066.  25  Sup.  Ct.  Rep.  679. 

Second.  Where  a  pereonal  judgment  has  been  rendered  in  the 
courts  of  a  state  against  a  non-resident  merely  upon  constructive 
service,   and.  therefore,   without   nc(|uiring   jurisdiction   over  the 
person  of  the  defendant,  such  judgment  may  not  be  enforced  in 
another  state  in  virtue  of  the  full  faith  and  credit  clause.    Indeed, 
a  personal  judgment  so  rendered  is,  by  operation  of  the  due  proc- 
ess clause  of  the  14th  Amendment,  void  as  against  the  non-resident, 
even  in  the  state  where  rendered;  and,  therefore,  such  non-resi- 
dent, in  virtue  of  rights  granted  by  the  Constitution  of  the  United 
States.  iiiM>   successfully  resist,  even  in  the  state  where  rendered, 
the  enforcement  of  such  a  judgment.     Pennoyer  v.  Netf.  .■)5  U.  S. 
714,  24  L.  ed.  565.     The  facts  in  that  case  were  the.se:  Neff.  who 
was  a  resident  of  a  state  other  than  Oregon,  owned  a  tract  of  bind 
in  Oregon.    Mitchell,  resident  of  Oregon,  brouglit  a  suit  in  a  court 
of  that  stati'  upon   a  money  demand  against   Neff.     Tlic  Oregon 
statutes  required,  in  the  ca.se  of  jxTsonal   action   against  a  non- 
resident, a  p)iblication  of  notice,  calling  upon  the  defendant  to  ap- 
pear and  defend,  and  also  required  the  mailing  to  stieh  defendant 
at  his  last  known  i)laee  of  n'sidenee  of  a  <'opy  "f  Ibe  siMnnuwis  and 
complaint.     l'i)on  aClidavit  of  the  absence  ..f  Nefl",  and  that  h.-  re- 
sided in  the  state  of  California,  the  exact  i)la('e  benig  unknown, 
the   publication    re(|uired    by   the  statute   was  ordeivd    aiul    made. 
and    judgment  bv  default    was  entered   against    N'elT,      Cpon   this 
judtriiient  execution   was  issued  and   re:d  .'state  of  Xeff  was  sold 
and  was  ultimatelv  acquired  by  Pennoyer.    Ne(T  sued  m  the  euvuit 


^86  .11  msDiCTioN.  [Ch.  1:2. 

I'ourt  (tf  tho  I'liitt'cl  Stalos  for  llu'  distrifl  of  Oreiioii  lo  i-ccovcr  the 
proptM-ly,  and  tlu>  (iiu'stiou  i>rt'si'nti'il  was  the  valiility  iu  Orej^on  of 
tlio  jiulirnu'Mt  tluM-c  i-i'ii(K'r('(l  airaiiist  Nelf.  Aftci-  the  most  elab- 
orate consideration  it  was  ('Xi)ressly  decided  tlial  Ihe  judjiinent 
rendered  in  C^re^on,  undei-  tiie  circumstances  stated  was  void  for 
want  of  jurisdiction  and  was  ri'pufiiiant  to  tlie  due  process  chiuse 
of  the  Constitution  of  the  United  States.  The  ruling  was  based 
ou  the  proposition  that  a  court  of  one  state  could  not  acijuire  juris- 
diction  to  render  personal  judixment  against  a  non-resident  who 
did  not  appear  by  the  mere  pulilication  of  a  sunuuons,  and  that 
the  want  of  power  to  actiuire  such  jurisdiction  by  publication 
could  not  be  aided  by  the  fact  that  under  the  statutes  of  the  state 
in  which  the  suit  a^'ainst  the  non-resident  was  brouglit.  the  send- 
ing of  a  copy  of  the  sunnnons  and  complaint  to  the  postoffice  ad- 
dress in  another  state  of  the  defendant  was  required  and  complied 
with.     The  court  said  (p.  727,  L.  ed.  p.  570)  : 

"Process  from  the  trilnnials  of  one  state  cannot  run  into  an- 
other state,  and  sunnnon  i)arties  there  domiciled  to  leave  its  terri- 
tory and  respond  to  i)r()ceedings  against  them.  Publication  of 
process  or  notice  within  the  state  where  the  tribunal  sits  cannot 
create  any  greater  obligation  upon  the  non-resident  to  appear. 
Process  sent  to  him  out  of  the  state  and  process  published  within  it 
are  equally  unavailing  in  ])r(K*eedings  to  establi.sh  his  personal 
liability." 

And  the  doctrine  thiLs  stated  but  expressed  a  general  principle 
expounded  in  previous  decisions.  Bischofif  v.  Wethered.  0  Wall. 
812.  19  L.  ed.  829.  In  that  case,  speaking  of  a  money  judgment 
recovered  in  the  common  pleas  of  Westminster  hall,  England,  upon 
personal  notice  served  in  the  city  of  Paltimore,  Mr.  Justice  Brad- 
ley, J.,  speaking  for  the  court,  said  (p.  814.  L.  ed.  p.  830)  : 

"It  is  enough  to  say  |of  this  proceeding]  that  it  was  wholly 
without  jurisdiction  of  the  person,  and  whatever  validity  it  may 
have  in  England,  by  virtue  of  statute  law,  against  property  of  the 
defendant  there  situate,  it  can  have  no  validity  here,  even  of  a 
prima  facie  character.    It  is  simply  null." 

Third.  The  principles,  however,  stated  in  the  previous  proposi- 
tion, are  controlling  only  as  to  judgments  in  personam,  and  do 
not  relate  to  proceedings  in  rem.  That  is  to  say,  in  consequence  of 
the  authority  which  goveuiment  possesses  over  things  within  its 
borders,  there  is  jurisdiction  in  a  court  of  a  state  by  a  proceeding 
in  rem.  after  the  giving  of  reasonable  opportunity  to  the  owner  to 
defend,  to  affect  things  within  the  jurisdiction  of  the  court,  even 
although  jurisdiction  is  not  directly  acquired  over  the  person  of 
the  owner  of  the  thing.     Pennoyer  v.  Neff,  supra. 

Fourth.  The  general  rule  stated  in  the  second  proposition  is, 
moreover,  limited  by  the  inherent  power  which  all  governments 
nnist  po.ssess  over  the  marriage  relation,  its  forination  and  dissolu- 
tion, as  regards  their  own  citizens.  From  this  exception  it  results 
that  where  a  court  of  one  state,  conformably  to  the  laws  of  such 
state,  or  the  stat€,  through  its  legislative  department,  has  acted 


JURI.SDICTION.  887 

concerning  the  dissolution  of  the  marriage  tie.  as  to  a  citizen  of 
that  state,  such  action  is  binding  in  that  state  as  to  snch  citizen, 
and  the  validity  of  the  judgment  may  not  therein  be  questioned  on 
the  ground  that  the  action  of  the  state  in  dealing  with  its  own 
citizen  concerning  the  marriage  relation  was  repugnant  to  the  due 
process  clause  of  the  constitution.     Maynard  v.  Hill.  125  I'.  S. 
190.  31  L.  ed.  654.  8  Sup.  Ct.  Rep.  723.    In  that  case  the  facts  were 
these:  IMaynard  was  married  in  Vermont,  and  the  husband  and 
wife  removed  to  Ohio,  from  whence  I\Iaynard  left  his  wife  and 
family  and  went  to  California.    Subsequently  he  acquired  a  domi- 
cil  in  the  territory  of  "Washington.     lacing  there  so  domiciled,  an 
act  of  the  legislature  of  the  territory  was  passed  granting  a  divorce 
to  the  husband.    Mavniard  continued  to  reside  in  Washington,  and 
there  remarried  and  died.    The  children  of  the  former  wife,  claim- 
ing in  right  of  their  mother,  sued  in  a  court  of  the  territory  of 
Washington  to  recover  real  estate  situated  in  the  territory,  and  one 
of  the  issues  for  decision  was  the  validity  of  the  legislative  divorce 
granted  to  the  father.     The  statute  was  ajssailed  as  invalid,  on  the 
groimd  that  ^Mrs.  ]\Iaynard  had  no  notice,  and  that  she  was  not  a 
resident  of  the  territory  when  the  act  was  passed.    From  a  decree 
of  the  supreme  court  of  the  territory  adverse  to  their  claim  the 
children  bi'ought  the  ease  to  this  court.     The  power  of  the  terri- 
torial legislature,  in  the  absence  of  restrictions  in  the  organic  act, 
to  grant  a  divorce  to  a  citizen  of  the  territory,  was.  however,  up- 
held, in  view  of  the  nature  and  extent  of  the  authority  which  gov- 
ernment possessed  over  the  marriage  relation.     It  was  therefore 
decided  that  the  courts  of  the  territory  connnitted  no  error  in  giv- 
ing effect  within  the  territory  to  the  divorce  in  question.    And  as 
a  corollary  of  the  recognized  power  of  a  government  thus  to  deal 
with  its  own  citizen  by  a  decree  which  would  be  operative  within 
its  own  borders,  in-espective  of  any  extraterntorial  eflficacy.  it  fol- 
lows that  the  right  of  another  sovereignty  exists,  imder  principles 
of  comity,  to  give  to  a  decree  so  rendered  such  efficacy  as  to  that 
government  mny  seem  to  be  justified  by  i1s  conceptions  of  duty 
and  j)ublic  policy. 

Fifth.  It  is  no  longer  open  to  question  thai  where  husband  and 
wife  are  domiciled  in  a  state  there  exists  jurisdiction  in  such 
state,  for  good  cause,  to  enter  a  decree  of  divorce  which  will  b(» 
enfitled  to  enforcement  in  another  slate  by  virtue  of  the  full  faith 
and  credit  clause.  Tt  has.  moreover,  been  decided  that  where  a 
bona  fide  domicil  has  been  acquired  in  a  state  by  either  of  the  par- 
ties to  a  marriacre.  and  a  suit  is  brought  by  the  domiciled  parly  in 
such  state  for  divorce,  the  courts  of  that  s1at<>.  if  they  actjiiin'  per- 
sonal jurisdiction  also  of  the  other  party,  have  authority  to  I'liti-r 
a  decree  of  divftrce.  entitled  to  be  enforced  in  every  state  by  the 
full  fnitb  and  civ<lit  clause,  rhecver  v  Wilson.  0  AYall  10^^,  10 
L.  ed.  r,04. 

Sixth.  Where  the  (ioinicil  of  matrimony  was  in  a  particnbir 
state,  and  the  hnsband  abandons  his  wife  and  goes  into  an<»tber 
state  in  order  to  ;ivfM<l  his  marital  obli«r.'i1io?is.  such  other  state  to 


S8S  .TiHisnirTiON.  [('//.   1:3. 

which  tlu"  hushaiul  h;is  wron^rully  Ih-il  does  not.  in  I  lie  iialuic  oL' 
tliinofs,  btH'omc  a  new  doniii'il  of  mat  liiiHuiN ,  and.  tlieiH'fore,  is  not 
to  be  tivatt'd  as  tho  actual  or  constructive  (hmiicil  of  the  wile; 
heueo.  the  phicc  where  the  wife  was  doniicih-d  wlien  so  al)andoned 
constitutes  her  h>u:al  (h)iiiieil  until  a  new  actual  iloniicil  l»e  by  her 
elsewhere  acquired.  This  was  clearly  expressed  in  Barber  v.'  Mar- 
ber.  21  How.  582.  l(i  L.  ed.  22().  where  it  was  said  (n  595  L  ed 
p.  2;?0)  : 

"The  general  rule  is.  that  a  voluntaiy  separation  will  not  j>;ive 
to  the  wife  a  different  domiciliation  in  law  Irom  that  of  her  hus- 
band. But  if  the  husband,  as  is  the  fact  in  this  case,  abandons 
their  domieil  and  his  wife,  to  j?et  rid  of  all  those  eonjupral  oblij^a- 
tions  which  the  mari-iaj?e  relation  imposes  upon  him.  neither  ix'w- 
ing  to  her  the  necessaries  nor  the  comforts  suitable  to  their  condi- 
tion and  his  fortune,  and  relinquishes  altoi?ether  his  marital  con- 
trol and  protection,  he  yields  up  that  power  and  autliority  over 
her  which  alone  makes  his  domieil  hers." 

And  the  same  doctrine  was  expressly  upheld  in  Cheever  v.  Wil- 
son, supra,  where  the  court  said  (0  Wall.  123.  19  L.  ed.  608)  : 

"It  is  insisted  that  Cheever  never  resided  in  Indiana;  that  the 
domieil  of  the  husband  is  the  wife's,  and  that  she  cannot  have  a 
diiTerent  one  from  his.  The  converse  of  the  latter  proposition  is 
so  well  settled  that  it  would  be  idle  to  discuss  it.  The  rule  is  that 
she  may  acquire  a  separate  domieil  whenever  it  is  necessary  or 
proper  that  she  should  do  so.  The  right  si)rings  from  the  neces- 
sity for  its  exercise,  and  endures  as  long  as  the  necessity  con- 
tinues." *   . 

Seventh.  So  also  it  is  settled  that  where  the  domieil  of  a  hus- 
band is  in  a  particular  state,  and  that  state  is  also  the  domieil  of 
matrimony,  the  courts  of  such  state  having  jurisdiction  over  the 
husband  may.  in  virtue  of  the  duty  of  the  wife  to  be  at  the  matri- 
monial domieil,  disregard  an  unjustifiable  absence  therefrom,  and 
treat  the  wife  as  having  her  domieil  in  the  state  of  the  matri- 
monial domieil  for  the  purpose  of  the  dissolution  of  the  marriage, 
and  as  a  result  have  power  to  render  a  judgment  dissolving  the 
marriage  which  will  be  binding  ujion  both  parties,  and  will  be  en- 
entitled  to  recognition  in  all  other  states  by  virtue  of  the  full  faith 
and  credit  clause.  Atherton  v.  Atherton,  181  U.  S.  155.  45  L.  ed. 
794,  21  Sup.  Ct.  Rep.  544. 

Coming  to  apply  these  .settled  propositions  to  the  case  before 
us.  three  things  are  beyond  dispute:  a.  In  view  of  the  authority 
which  government  possesses  over  the  marriage  relation,  no  ques- 
tion can  arise  on  this  record  concerning  the  right  of  the  state  of 
Connecticut  within  its  ])orders  to  irive  effect  to  the  decree  of  di- 
vorce rendered  in  favor  of  the  hu.sband  by  the  courts  of  Connec;- 
ticut,  he  being  at  the  time  when  the  decree  w^as  rendered  domiciled 
in  that  state,  b.  As  New  York  was  the  domieil  of  the  wife  and  the 
domieil  of  matrimony,  from  whir-h  the  husband  fled  in  disregard 
of  his  duty,  it  clearly  n-sults  from  the  sixth  pronosition  that  the 
domieil  of  the  wife  continued  in  New  York.    c.  As  then  there  can 


JURISDICTION.  889 

be  no  question  that  the  wife  was  not  constructively  present  in 
Connecticut  by  virtue  of  a  matrimonial  domii-il  in  that  state,  and 
was  not  there  individually  domiciled,  and  did  not  appear  in  the 
divorce  cause,  and  was  only  constructively  served  with  notice  of 
the  pendency  of  that  action,  it  is  apparent  that  the  Connecticut 
court  did  not  acquire  jurisdiction  over  the  wife  within  the  fifth 
and  seventh  propositions;  that  is,  did  not  acquire  such  jurisdic- 
tion by  virtue  of  the  domicil  of  the  wife  within  the  state  or  as  the 
result  of  personal  service  upon  her  within  its  borders. 

These  subjects  being  thus  eliminated,  the  ca.se  reduces  itsL-it  to 
this:  "Whether  the  Connecticut  court,  in  virtue  alone  of  the  dom- 
icil of  the  husband  in  that  state,  had  jurisdiction  to  render  a  de- 
cree against  the  wife  under  the  circumstances  stated,  which  was 
entitled  to  be  enforced  in  other  states  in  and  by  virtue  of  the  full 
faith  and  credit  clause  of  the  constitution.  In  other  words,  thi> 
final  question  is  whether,  to  enforce  in  another  jurisdiction  the 
Connecticut  decree,  would  not  be  to  enforce  in  one  state  a  pereonal 
judgment  rendered  in  another  state  against  a  defendant  over 
whom  the  court  of  the  state  rendering  the  judgment  had  not  ac- 
quired jurisdiction?  Otherwise  stated,  the  question  is  this:  Is  a 
proceeding  for  divorce  of  such  an  exceptional  character  as  not  to 
come  within  the  rule  limiting  the  authority  of  a  state  to  persons 
within  its  jurisdiction,  but,  on  the  contraiy,  because  of  the  jiower 
wliich  government  may  exercise  over  the  marriage  relation,  con- 
stitutes an  exception  to  that  rule,  and  is  therefore  embraced  either 
within  the  letter  or  spirit  of  the  doctrine  stated  in  the  tliird  or 
fourth  propositions? 

Before  reviewing  the  authorities  relied  on  to  establish  that  a 
divorce  proceeding  is  of  the  exceptional  nature  indicated,  we  pro- 
pose first  to  consider  the  reasons  advanced  to  sustain  tlie  conten- 
tion. In  doing  so.  however,  it  must  always  be  borne  in  mind  that 
it  is  elementary  that  where  the  full  faith  and  credit  clause  of  the 
constitution  is  invoked  to  compel  the  enforcement  in  one  state  of 
a  decree  rendered  in  another,  the  question  of  the  jiirisdiction  of 
the  court  by  which  the  decree  was  renderi'd  is  open  to  in(|uiry. 
And  if  there  was  no  jurisdiction,  either  of  the  subject-matter  «>r 
of  the  person  of  the  defendant,  the  courts  of  another  state  are  not 
required,  by  virtue  of  the  full  fnith  nnd  credit  cinuse  of  i he  con- 
stitution, to  enforce  such  decree.  National  Kxcli.  Bank  v.  Wiley. 
105  T'.  S.  250.  200.  40  L.  ed.  184.  100.  25  Ru|>.  Ct.  Hep.  70.  and 

cases  cited.     ... 

Without  questioning  the  jiower  of  the  slate  of  (  oiiii.mI  imt  i-. 
enforce  wifliin  its  own  l)o!-ders  tlie  decree  of  divorce  which  is  here 
in  issu<'.  and  without  intimating  a  doubt  as  to  the  power  of  the 
state  of  New  York  to  give  to  a  decree  of  that  character  rendered 
in  Conneetieut.  within  the  borders  of  the  state  of  New  York  nnd 
as  to  its  own  citi/en.s.  sncli  .•mcacy  as  it  may  be  entilli'd  to  in 
view  of  the  pnl)lic  jM.licv  of  thai  state,  we  hold  that  the  iWm^t^  of 
the  court  of  Connecticut  rendered  under  the  eireumstances  stated 
was  not   entitled   t<.  obligatory  enforcement   in   the  sliite  of  New 


890  .n'RisiMciiox.  1(7(.  ]:2. 

York  by  virtiu'  ol"  llu'  I'lill  t";iitli  ;iiul  credit  clause.  It  t  licrd'oi-c 
follows  that,  the  court  below  did  not  violate  the  lull  faith  and 
ereilit  clause  of  the  const  it  \ilioii  in  refusint;  to  admit  the  Connec- 
ticut deci'ce  in  e\ideuce;  and  its  jud'i'inent  is,  IheiH'fore.  alliniied. 
lirowii.   Harlan,   Brewer  aiul   llolnus,  JJ..  dissentiid. 

See  IViuiiiiian  v.  naniiM,  Stl  N.  C.  at  p.  liM,  inserted  at.  eh.  11,  sec.  4, 
ante,  and  the  note  to  that  ease.  See  also  Long  v.  Ins.  Co.,  114  N.  C.  465, 
19  S.  E.  347,  inserted  at  eh.  13,  §  6,  post;  also  Beard  v.  Beard,  21  Indiana, 
at  p.  :V2:V.  Mart  v.  Sanson.  110  l^  S.  at  p.  ir)4,  3  Sup.  Ct.  .^)9fi;  Carpenter 
V.  Strange,  141  V.  S.  ST,  11  Sup.  Ct.  !KU);  Andrews  v.  Andrews.  188  U.  S. 
14.  L'3  Sup.  Ct.  237:  note  in  2S  L.  R.  A.  59;  note  in  19  Ibid.  775;  Barnes 
V.  Ciibbs,  31  N.  .1.  L.  ;'.17.  The  principal  case  reviews  all  the  rulings  of 
the  different  state  courts  on  the  point  in  question.  The  following  ex- 
tract from  "Case  and  Comment,"  vol.  16,  No.  1  (.lune,  1909),  which  is 
inserted  by  permission  ol"  Mr.  Hurdett  A.  Hicli.  tiie  editor,  is  a  valual)le 
explanation  of  some  rather  intricate  questions  of  extra-territorial  juris- 
diction, and  (ontlicting  and  concurrent  jurisdiction:  "A  peculiar  question 
as  to  the  right  of  one  state  to  punish  an  act  in  violation  of  its  laws, 
committed  on  a  boundary  river  over  which  the  adjoining  states  have  con- 
cunent  jurisdiction  under  an  act  of  Congress,  when  the  act  was  actually 
committed  within  the  limits  of  the  other  state  and  under  its  authority 
and  license,  was  decided  in  the  case  of  Nielsen  v.  Oregon,  212  U.  S.  315, 
53  L.  ed.  528,  29  Sup.  Ct.  383.  What  constitutes  concurrent  jurisdiction 
in  such  cases  has  been  in  previous  cases  held  to  mean  the  jurisdiction  of 
two  powers  over  one  and  the  same  place,  and  not  to  be  limited  to  legisla- 
tive jurisdiction,  but  to  include  the  right  to  administer  the  law  below 
low-water  mark  on  the  river,  and.  as  a  part  of  that  right,  the  right  to 
serve  process  there  with  effect,  both  in  civil  and  criminal  cases.  In  the 
present  case  the  court  says  that  one  purpose  of  the  law  undoubtedly,  and 
perhaps  the  primary  purpose,  was  to  avoid  any  nice  question  as  to 
whether  a  criminal  act  was  committed  on  one  side  or  the  other  of  the 
exact  boundary,  which  sometimes  changed  by  reason  of  the  shifting  of 
the  channel.  In  the  case  of  an  act  malum  in  se,  prohibited  and  punished 
by  the  laws  of  both  states,  the  one  first  acquiring  jurisdiction  of  the 
person  may  prosecute  the  offense,  and  its  judgment  will  be  a  finality  in 
both  states,  so  that  one  cannot  be  prosecuted  thereafter  in  the  other 
state.  In  the  Nielsen  Case  the  offense  was  against  the  fishing  laws  of 
Oregon,  consisting  of  operating  a  purse  net  on  the  Columbia  river.  But, 
while  this  was  contrary  to  the  laws  of  Oregon,  it  was  expressly  author- 
ized by  the  laws  of  Washington.  Under  these  circumstances,  it  was 
held  by  the  Supreme  Court  of  the  United  States  that  the  state  of  Oregon 
could  not,  by  virtue  of  precedence  in  taking  jurisdiction,  enforce  the 
fishing  laws  of  that  state  against  a  person  who  was  fishing  within  the 
limits  of  the  state  of  Washington  under  a  license  from  that  state,  though 
the  act  was  on  the  river  over  which  both  states  had  concurrent  jurisdic- 
tion. The  court  says  there  is  little  authority  upon  this  precise  question, 
but,  among  the  authorities  on  the  general  subject,  refers  to  Roberts  v. 
Fullerton.  117  Wis.  222.  93  N.  W.  1111,  6.'.  L.  R.  A.  953.  And  the  decision 
of  the  Wisconsin  court  held  that  the  enforcement  by  the  state  of  Minne- 
sota of  its  fish  and  game  laws  on  the  Wisconsin  side  of  the  main  channel 
of  the  Mississippi  river  was  not  justifiable  on  the  theory  of  common  own- 
ership of  the  river  or  things  in.  or  on,  or  under  the  same,  on  the  Wiscon- 
sin side  of  the  main  channel;  and  that  no  authority  to  do  this  is  conferred 
by  the  grant  of  concurrent  jurisdiction  over  the  river  by  the  act  of 
Congress.  The  whole  subject  of  jurisdiction  over  boundary  rivers  is 
treated  at  length  in  a  note  to  that  case  in  65  L.  R.  A.  953  et  seq.  This 
deals  not  only  with  the  grant  of  concurrent  jurisdiction,  l)ut  with  such 
questions  as  to  what  rights  are  exclusive  in  the  river,  and  the  effect  of 
change  of  channel,  or  the  effect  of  treaties  and  compacts  respecting 
rivers,  and  all   the  other  questions  that  have  come  up  on   this  general 


JURISDICTION.  891 

topic.  There  is  a  surprising  number  of  questions  and  decisions  on  this 
general  topic."  For  when  a  decree  of  divorce  may  be  attacked  because 
plaintiff  not  domiciled  in  the  state  in  which  the  decree  was  rendered,  see 
23  L.  R.  A.  (X.  S.)  1254  and  note. 

See  "Divorce,"  Century  Dig.  §§  827-844:   Decennial  and  Am.  Dig.  Key 
No.  Series  §§  325-330. 


LEVIN   V.   GLADSTEIN,  142   N.  C.   482,   55   S.   E.   371.     1906. 

••Full  Faith  and  Credit"  Clause.  Attackitig  a  Judgment  for  Fraud. 
Matters  Xot  Within  the  Jurisdietion  of  a  Court  Sometimes  AUoxced 
as  Defenses. 

[Levin  sued  Gladstein  in  the  superior  court  of  the  city  of  Baltimore 
and  obtained  a  judgment  against  him.  Levin  then  sued  on  that  judg- 
ment in  a  justice's  court  in  North  Carolina.  The  defendant  admitted  the 
rendition  of  the  judgment  in  Baltimore  and  set  up  no  defense  thereto 
except  he  alleged  that  such  judgment  was  obtained  against  him  by 
means  of  fraudulent  practices  of  Levin,  the  plaintiff.  The  justice  ren- 
dered judgment  against  the  defendant,  and  that  judgment  was  affirmed 
in  the  superior  court.  The  defendant  then  appealed  to  the  supreme 
court.  Reversed.  In  the  superior  court  the  plaintiff  moved  for  judg- 
ment upon  defendant's  admissions — insisting  that  the  judgment  could 
not  be  attacked,  in  this  action,  for  fraud.  The  judge  overruled  the 
motion  and  submitted  the  issue  as  to  fraud  to  the  jury,  who  found  a 
verdict  that  the  judgment  was  obtained  by  the  fraud  of  the  plainitff.l 

Connor.  J.     Tavo  qtiestions  are  prpsonted  upon  the  plaiiitifls' 
appeal:  First.  Can  the  defendant,  in  tlie  manner  pro])ose(l  herein, 
resist  a  recovery  upon  the  .iudgnient  rendered  against  him  hy  the 
Man-land  court  ?    Second.  If  so.  has  the  justice  of  the  pt^aee  juris- 
diction to  hear  and  determine  such  defense?     The  plaintiffs,  rely- 
ing upon  the  provision  of  the  Constitution  of  the  I'niteil  States, 
art.  4.  §  1.  that  "fttll  faith  and  credit  shall  be  given  in  eavh  stat.- 
to  the  public  acts,  records  and  judicial  proceedings  of  every  other 
state."  earnestly  contends  that  the   defense   is  not   open   to  the 
c(inrt,s  of  this  state;  that  the  remedy  for  the  frand  in  procuring  the 
judgment,  if  any.  must  be  sought  in  the  courts  of  ^laryland.    Th< 
well  considered  brief  of  ]»lainliffs'  counsel  thns  states  the  (lueslion 
irixolved    in  the  appeal:  "The  case  presents  th^  qncstion  of  the 
right  of  a  defendant  to  avail  himself  of  the  plea  ol"  fratid  as  a 
defense  to  an  action  in  one  state  based  upon  a  judgment  ol)1aine(i 
in  a  sister  state."     AVhen  a  judgment  rendered  by  the  court  of 
one  state  becomes  the  caiLse  of  action  in  the  court  of  another  stat^^. 
and  the  transcript,  as  made  in  such  state,  duly  certilied.  as  pre- 
s<-ribed  by  the  act  of  Congress,  is  produced,  it  imports  verily,  and 
can  be  attacked  for  only  one  purpose.     The  defendant  may  <leny 
that  the  court    had   jurisdiction  of  his  person  or  of  tin-  subject- 
inatt^-r   and  for  this  purpose  mav  attack  tlw  n-eilals  in  the  record. 
P.ailev   on    Jurisdiction.    5§    lf>H.    100.     Jurisdiction    will    b-    pre- 
sumed until  the  crmtrarv  is  shown.      It  not  d.-nied.  or  when  estab^ 
lisbe.l    after  denial,   defendant   cmnot    interpose   the   ])l.-a   of  nil 
deb.t       This  was  hrid  in  .Mills  v.   Diiryer.  7  ('rand.     «^'>-  "^  "'    K'^^ 
HI     ;.n<l    ha-s  been   uniformlv   followed  by  both  state  an.!   fedenil 
courts.     2   Am.   Lead.   Cases,   538.  H    -s   tlu.s   apparent 


892  .iiKisniCTioN.  [('//.  12. 

tliiit  Ihf  .iuilniiii'iit  ohiaiiu'cl  l)y  tlio  fraud  of  plaint  ill's,  as  foiiiKl 
l»y  the  jur.x .  wouKl  lu'  open  to  attai'U  in  tlu'  coia-ls  of  Mary- 
laiul  upon  the  univtM-sally  acrt>ptod  principles  of  ('cpiity  juris- 
|)l'iul('nc('  invoked  in  the  eourts  of  this  state,  and  in  ^ivin^'  the 
defenilant  nlirf  we  are  tjivini::  tlie  judgment  the  same  "faith 
and  credit"  whieli  it  has  in  that  state.  Mr.  Bailey,  in  his 
work  on  Jui'isdietion.  'JO'J,  'J();i.  notes  the  lan^uaiic  of  flud^e  (Iray 
m  Clu-istnias  v.  Kussell.  sui)i-a,  and  Fuller.  ('.  ,]..  in  Cole  v.  Cun- 
iiiny;hain,  supi'a.  saying:  "However  it  should  he  eoneeded  tliai 
whatever  may  have  Ixmmi  the  ride  in  the  court  prioi'  to  the  decision 
iu  Cole  V.  Cuiuiinghaiii,  that  tlu*  ruli>  there  stated  must  be  taken 
as  the  present  doctrine  of  that  court."  lie  notes  the  diversity  in 
the  several  states,  saying  that  in  Mai-yland  the  co\n't  has  not  fol- 
lowed the  rule  in  Cunniniiham 's  Case,  citing  Ilamhii'ton  v.  Glenn, 
72  Md.  351.  20  At  I.  121.  In  that  ease  the  (piestion  was  whether  in 
that  state  the  judgment  rendered  in  Virginia  could  he  collaterall\ 
attacked  for  fraud.  That  is  not  the  (piestion  here,  hut  whether  in 
Maryland  the  judgment  of  its  own  courts  could  he  enjoined  in 
equity  for  fraud,  and.  as  we  have  seen,  it  may  be.  AVe  are  not 
seeking  to  know  what  the  courts  of  iNIaryland  would  permit  to  be 
done  if  a  North  Carolina  judgment  was  sued  upon  there,  but 
what  they  will  permit  to  be  done  when  one  of  their  own  judgmenls 
is  sued  upon  or  attacked  for  fraud.  The  plaintiff  says,  however 
this  may  be,  the  defendant  can  have  this  relief  only  in  Maryland; 
that  he  must  go  into  that  state,  and  attack  the  judgment  or  enjoin 
the  plaintiff.  Air.  Freeman  says:  "If  the  judgment  was  procure<l 
imder  circumstances  requiring  its  enforcement  to  be  enjoined  iu 
equity,  the  question  will  arise  whether  these  circumstances  may 
be  interposed  as  a  defense  to  an  action  on  the  judgment  in  an- 
other state.  Notwithstanding  expressions  to  the  contrary,  we 
apprehend  that,  in  bringing  an  action  in  another  state,  the  judg- 
ment creditor  nuist  submit  to  the  law  of  the  forum,  and  must 
meet  the  charge  of  fraud  in  its  procurement,  when  presented  in 
any  form  in  which  fraud  might  be  urged  in  an  action  on  a  do- 
mestic judgment.  If,  in  the  state  in  which  the  action  is  pending, 
fraud  can"  be  pleaded  to  an  action  on  a  domestic  judgment,  it  is 
equally  available  and  ec(ually  efficient  in  actions  on  judgments  of 
other  states.  .  .  .  It  is  true  that  two  of  the  decisions  of  the 
Supreme  Coui-t  of  the  I'nitecl  States  contain  the  general  state- 
ment that  the  plea  of  fraud  is  not  available  as  an  answer  to  an 
action  on  a  judgment — citing  Christmas  v.  Kussell  and  Maxwell 
V.  Stewart,  supi-a.  We  a])prehend.  however,  that  these  decisions 
are  inapplicable  in  those  states  in  which  the  distinctions  between 
law  and  equity  are  attempted  to  be  abolished,  and  equitable  as 
well  as  legal  defenses  are.  when  properl.v  pleaded,  admissible  in 
actions  at  law."  Freeman  on  Judgments,  §  570.  If  those  states, 
in  which  equitable  remedies  were  administered  only  by  courts  of 
equity,  enjoined  proceeding  at  law  upon  a  judgment  obtained  by 
fraud,  why  should  not,  in  those  courts  administering  legal  and 
equitable  rights  and  remedies  iu  one  court  and  one  fonri  of  action. 


JURISDICTION.  893 

the  clefeudant  be  permitted  to  set  up  his  equitable  defense  to  the 
action  on  the  judgment  ?     The  question  is  answered  by  the  ease 
of  Gray  v.  liieycle  Co..  167  X.  Y.  348.  60  X.  E.  663.  82  Am.  St. 
Rep.  720.     The  action  was  brought  on  a  note  which  the  court  hehl 
was  merged  into  a  judgment  rendered  in  Indiana.    It  was  alleged 
that  the  judgment  was  procured  by  fraud.    Vann.  J.,  said  that  it 
was  admitted  that  "even  a  foreign  judgment  may  be  successfully 
assailed  for  fraud  in  its  procurement.     ...     It  was  not  neces- 
sary to  go  into  the  state  of  Indiana  to  obtain  relief  from  the 
judgment  through  its  court,  for,  as  we  have  held,  a  court  from  one 
state  may.  when  it  has  jurisdiction  of  the  parties,  determine  the 
question  whether  a  judgment  between  them,  rendered  in  another 
state,  was  obtained  by  fraud,  and.  if  so.  may  enjoin  the  enforce- 
ment of  it.  although  its  subject-matter  is  situated  in  such  other 
state.     The  assertion   of  the  foreign   judgment  as  a  bar  in  this 
action  was  an  attempt  to  enforce  it  indirectly  aud  it  was  the  duty 
of  the  trial  court  to  send  the  case  to  the  jury  with  the  instruction 
that,  if  they  found  the  judgment  wa.s  procured  by  fraud,  it  could 
not  be  asserted  as  a  bar  in  this  state."    Davis  v.  Cornue.  151  X.  Y. 
172,  179.  45  X.  E.  449.     The  same  rule  is  laid  down  by  Rhu-U. 

In  some  of  the  states,  when  the  formal  distinction  between  law 
and  equity  is  abrogated,  the  law  allows  equitable  defenses  to  be 
set  up  in  an  action  at  law.     Hence,  in  those  states,  when  the  suit 
is  brought  upon  a  domestic  judgment,  the  defendant  is  allowed  to 
I)lead  any  circumstances  of  fraud  which  would  have  justified  a 
eourt  of  equity  in  interfering  in  his  behalf.    Xow.  when  the  same 
judgment  is  made  the  basis  of  an  action  of  another  state,  he  ought 
to  be  allowed  the  same  latitude  of  defense;  for  if  it  were  dther- 
wise.  the  foreign  court  would  be  required  to  give  greater  faitii 
and  credit  to  the  judgment  than  it  is  entitled  to  at  home,  which 
the  constitution  does  not  require.     Black  on   Judgments.   ^   918. 
That  the  defense  made  by  defendant   may.  undi-r  (»ur  Code,  be 
.set  up  bv  wav  of  answer,  is  well  settled.     Tiie  cases  in  point  ar-' 
collected"  in  Clark's  Code   (M  ed.)   p.  238.     The  remaining  <iue.s- 
tion  is  whether  the  defense  is  availabh^  to  defendant  in  a  justice's 
court.     It  is  said  that  the  remedy  of  defendant   being  an  injunc- 
tion against   proceeding  with  the  action,  resort  must  be  had  to 
the  superior  court  having  equital)le  jurisdiction.     Tlie  que.stion 
is  not  free  fn.m  difficulty.     It  would  .seem,  iiowever.  lliat  in  view 
of  the  fre(|u<-nt  decisions  of  this  couit  that  while  a  justice's  court 
has  no  jurisdiction  \o  administer  or  enforce  an  equitable  cause  ot 
action   a   defendant    nmy    interpose  an   e(|uilablc   defense   in   that 
court      His  honor  .-orrectlv  submitted  the  issue  niiscd  by  the  de- 
fense.    In  Eulz  v.  Thonq.son.  s7  N.  C.  331.  the  dcfcM.binls  souglil 
t<.  prevent   ;i   recovery  upon  :i   I'oud   by  showing  thai    il   had   been 
executed   in  ;iccor(l;nice  with  ceHain  iigreeuicnls.  and  that   by  reH- 
son  of  which   it    would   be   i.ie.,uitahle  to  ••iiforce  one  part   of   it 
and  le;ive  the  oilier  j.arl  unfullill.-d.     The  ohjedion  was  made  that 
this  defense,  being  e(|uitable  in  its  character,  ecmid  not  be  uijer- 
posed    in   a    justice's  court       I'luflin.   J.   s.'iid  :   "Whenever  such   a 


8;J4  .iiKisnic'TioN.  I  (7/.   1:2. 

court  has  jurisilirlion  ol  tlif  pi-iiu-iital  matter  of  an  action,  as  on  a 
l>oii(l.  for  instance,  it  nuist  ncccss.-ii'ily  have  juristlii't ion  of  every 
iucideutal  (|uestion  necessaiv  to  its  pro|)ei'  (U'terniinat  ion ;  au<l 
thouirh  it  cannot  allirniativdy  administer  an  e(iuity.  it  may  so  fai" 
recoj:ni/e  it  as  to  admit  it  to  l)e  set  ii|)  as  a  (h'fensc. "  In  AIcAdoo 
V.  Callum.  St)  N.  ('.  II!).  ori^inatin";  in  a  justice's  court  for  t\u' 
purjHvsi'  of  oustini;  lit'fenihints.  tenants  of  the  phiintitf,  the  dc- 
feiulants  set  uj*  l)y  way  of  (h-fense  a  conlract  for  a  renewal  of  the 
lease,  etc.  To  the  ol)j«u'tion  that  the  justice  had  no  jurisdiction  to 
hear  such  defense.  Smith,  C.  J.,  said:  "While  this  nrovision  is  not 
iiscif  a  renewal  so  as  to  vest  an  estate  in  the  defendants  foi-  the 
successive  term,  it  ^ave  thcMU  an  eipiity.  whicli.  while  it  cfinnot  he 
specitically  enforced  in  the  coui't  of  a  justice,  will  he  i-eco^iiized 
as  a  defense  to  a  ])r(K'eedin<i:  for  the  ejectment  of  the  defendants.'' 
llur.st  V.  P]verett.  !)1  X.  C.  399.  We  can  see  no  ^ood  rca.son  why 
the  defendant  may  not  set  nj).  by  way  of  defense,  the  facts  which 
show  that  the  jud^nu^nt.  plain1itt''s  cause  of  action,  was  obtained 
by  fraud  practiced  upon  him.  Hell  v.  ITowerton,  111  X.  ('.  73. 
15  S.  E.  891;  Ilohh'n  v.  Warron.  118  X.  C.  326,  24  S.  E.  770; 
Vance  v.  Vance,  118  X.  C.  S{\7^.  24  S.  E.  708.  These  and  other 
cases  in  our  rejiorts  illustrate  the  rule  of  practice,  that  erpiitable 
defenses  may  be  set  up  in  the  court  of  a  justice  of  the  peace.  In 
Earp  V.  Minton,  138  N.  C.  202,  50  S.  E.  624,  the  suit  was  not  upon 
a  judgment,  but  the  judsrment,  in  an  action  between  the  plaintiff 
and  another  party,  one  Cranor.  was  offered  in  evidence  to  sustain 
plaintiff's  title.  The  judgment,  when  so  offered,  could  not  be  at- 
tacked collaterally,  as  shown  both  upon  reason  and  the  authorities 
cited.  In  our  case,  the  defendant,  if  in  the  superior  court,  would 
have  pleaded  the  fraud  in  bar  of  plaintiff's  recovery,  just  as  if 
the  suit  had  been  upon  a  bond  under  seal  obtained  by  fraud.  We 
can  see  no  good  reason  why  he  may  not,  for  the  same  purpose, 
set  it  up  in  the  justice's  court.  It  would  be  incompatible  with  our 
conception  of  remedial  justice  under  the  code  system  to  require 
the  defendant  to  submit  to  a  judgment,  and  be  compelled  to  re- 
sort to  another  court  to  enjoin  its  enforcement.  This  is  one  of 
the  inconveniences  of  the  old  system  which  w^as  abolished  by  the 
constitution  and  the  adoption  of  the  code  practice.  We  but  fol- 
low the  line  marked  by  Ruffin.  J.,  when  he  announced  the  general 
principle  in  Lutz  v.  Thom]won.  supra. 

We  find  no  error  in  the  ruling  of  his  honor  in  regard  to  the 
b)iiden  of  proof  or  probative  forc(»  of  the  testimony  required  to 
estal^lish  the  defense.  We  have  examined  the  authorities  cited 
by  plaintiffs'  counsel,  and  while  there  is.  to  say  the  least,  some 
apparent  conflict,  we  are  of  the  opinion  that  the  conclusion 
)t  ached  by  us  is  in  accordance  with  the  weight  of  authority  and 
those  best  sustained  by  reason. 

There  is  no  error. 

See  "Judgment,"  Century  Dig.  §§  1486,  1487,  1760;  Decennial  and  Am. 
Dig.  Key  No.  Series  §§  820,  930. 


JURISDICTIOX.  895 


JONES   V.   BUNT IX,   1   Blackford.   321,  322.     1824. 

Several   Claims,   Each   too   Small   for   /Superior  Court   Jurisdiction.   But 
the  Aggregate  Within  Such  Jurisdiction. 

Scott,  J.  Declaration  iu  debt  on  the  statute  against  Biuitin. 
for  charging  and  receiving  unlawful  fees  for  services  as  clerk  of 
the  Knox  Circuit  Court.  General  dcnuu*rer  to  the  declaration 
sustained,  and  judgment  for  the  defendant.  The  objection  to  the 
declaration  is,  that  there  are  different  fees  charged  to  have  been 
unlawfully  demanded  and  received  by  the  appellee,  all  united  iu 
<.*ne  suit,  when,  if  each  item  had  been  made  the  foundation  of  a 
separate  suit,  they  would  all  have  been  cognizable  by  a  justice  ol 
the  peace.  ^Ve  can  see  neither  reason  nor  precedent  iu  support  ol: 
this  objection.     The  judgment  must  be  rev'ersed. 

For  similar  rulings  in  North  Carolina,  see  Pell's  Revisal,  at  pp.  732.  79u, 
citing  Boyd  v.  Railroad.  132  N.  C.  184,  43  S.  E.  631,  and  other  cases. 
See  'Courts,"  Century  Dig.  §  417;  Decennial  and  Am.  Dig.  Key  No.  Se- 
ries §  121. 


WASHBURN   V.   PAYNE,   2   Blackford,   216.      1829. 
Jurisdiction  of  Actions  on  Penal  Bonds. 

fPayne  sued  Washburn,  in  a  justice's  court,  on  a  bond  for  $175  con- 
ditioned to  be  void  upon  the  delivery  of  certain  property.  Payne  rlairaed 
only  $81.25,  as  the  amount  he  was  entitled  to  recover  as  damages  for 
the  breach  of  the  bond.  Judgment  for  the  plaintiff  in  the  justice's 
court,  which  was  affirmed,  on  appeal,  by  the  circuit  court  Washburn 
then  carried  the  case  to  the  supreme  court  by  writ  of  error.     Affirmed.  1 

Scott.  J.  .  .  .  The  statute  of  1827  gives  jurisdiction  to  ;i 
justice  of  the  i)eace.  where  the  stun  due  or  demanded  shall  not 
exceed  one  hundred  dollars.  From  the  phraseology  of  the  statute. 
we  are  of  the  opinion  that  1he  intention  of  the  genei-.-il  assembly 
was  to  reguhitc  the  jurisdiction  of  a  ju.stice  of  the  peace,  not  b\ 
the  amount  named  in  the  bond  on  which  suit  miglit  be  bnniglit. 
but  by  the  amotmt  actually  claimed  or  demanded  by  the  plaintiff. 
The  amount  claimed  in  this  ca.se.  and  allefrt-d  to  be  due  to  the 
l)laintiff.  is  $81.25.  This  sum  is  clearly  within  a  ju.st ice's  juris- 
diction under  the  statute.  P'or  this  smn  judgnu-nt  wiis  rendere«l 
by  the  justice,  and  that  judgment  was  correctly  nftirmed  by  the 
circuit  cotn't.     Judgment  affirmed. 

The  contrary   is  held   in  North   Carolina,  s^pp  Coggins   v.    Harn^II,   Rfi 
N.  C.  317  and  other  cases  cited  at   jt.   7:53  of  Pell's  Revisal.  near  top  of 
page.     See  also   note  to  Carmiihael    v.   Moore.  88  N.  C.   29,   iriscri.Ml  at 
chap.  8,  §  2,  citing  State  ex  rel.  Fell   v.   Porter.  60  \.  C.   Hti      S.  ■       t 
Hces  of  the  Peace,"  Centurv  Ditr   ?  161:    n<MPnnial  and  Am.  PIk    K 
Series  S  44. 


8J)6  .11  insDicriox.  \('h.  12. 


HUNTON  V.  LrCE.  60  Ark.  14(;,  J!t  S.  W.  If.l,  L'N  L.  U.  A.  221,     1S95. 

//('!(    <;  Claim  too  Large  to  Conw  Within  the  Jurisdiction  of  an  Inferior 
i\iurt    Maf)   Itr   liroiitjhl    Willi  in    lis   .1  nrisdiition.      Ift'nii.ssion. 

[Sallie  r.  Kalconor  was  iiuitbtd  to  llimtoii  niion  a  promissory  note  for 
the  sum  of  $;!(»(!. .")(i.  By  the  laws  of  Arkansas  a  justice's  eourt  has  uo 
jurisdiction  of  an  aetion  on  contract  where  the  sum  demanded  exceeds 
$300  and  interest.  Ilunton  credited  the  note  in  question  by  endorsing 
thereon  "credit  liy  amount  remitted  $7..^)0,"  and  sued  Sallie  P.  I'^alconer 
for  $2;>y,  as  tlie  amount  due  on  her  note,  in  a  justice's  court.  There  was 
a  judgment  for  tlie  plaintiff  and  the  judgment  being  docketed  became  a 
lien  on  the  lands  of  Sallie  P.  Falconer.  Luce  bought  the  land  and  brings 
this  action  against  Hunton  to  have  such  judgment  declared  a  nullity,  on 
the  ground  that  the  justice  had  no  jurisdiction.  Judgment  against  Hun- 
ton, and  he  appealed.     Reversed.  I 

KiDDicK.  J.  .  .  .  The  decisions  of  the  diflforeiit  states  upon 
the  question  whether  a  ]>laintiif  may,  by  remitting  a  portion  of 
the  amotnit  due  him  on  a  note  or  eontraet,  l)rin^  liis  case  within 
the  jurisdiction  of  an  inferior  court,  are  very  conllietinj;.  Thi.s 
eourt.  so  far  as  we  know,  has  never  passed  directly  upon  this 
question ;  but.  in  several  cases  touching  the  question  of  jurisdic- 
tion, its  reasonino;  is  along  the  lines  adopted  by  tliose  courts  that 
sustain  the  right  of  the  plaintiff  to  bring  his  action  within  tin- 
jurisdiction  of  an  inferior  court  by  remitting  a  portion  of  his 
claim.  Our  constitution  provides  that  justices  of  the  peace  shall 
have  jurisdiction  "exclusive  of  the  circuit  court  in  all  matters 
of  contract  when  the  amount  in  controversy  does  not  exceed  the 
sum  of  one  hundred  dollars,  excluding  interest;  and  concurrent 
jurisdiction  in  matters  of  contract,  when  the  amomit  in  contro- 
versy does  not  exceed  the  sum  of  three  hundred  dollars,  exclusive 
of  interest."  It  will  be  seen  that  the  jurisdiction  of  a  justice  of 
the  peace  in  matters  of  contract  depends  upon  the  amount  in  con- 
troversy, exclusive  of  interest.  In  Lafferty  v.  Day.  7  Ark.  260,  it 
was  held  that  "the  amount  claimed  by  the  plaintiff  is  the  sum  in 
controversy,  and  determines  the  jurisdiction."  and  that,  if  th.- 
amount  sued  for  be  within  the  jurisdiction  of  a  justice  of  the 
peace,  the  defendant  cannot  defeat  the  jurisdiction  by  showing 
that  he  owes  the  plaintiff  more  than  he  has  sued  for.  In  State  v. 
Scoggin.  10  Ark.  328.  Judge  Scott,  discussing  a  question  concern- 
ing the  jurisdiction  of  a  justice  of  the  peace,  refers  to  the  point 
raised  here  as  follows:  "So,  upon  a  like  foundation,  it  has  been 
repeatedly  held  by  the  supreme  court  of  Alabama  that,  althougli 
an  open  account  for  an  amount  beyond  the  jurisdiction  of  a  jus- 
tice of  the  peace  cannot  be  broken  up  so  as  to  ground  several  ac- 
tions before  him.  yet  the  plaintiff  may  elect  to  proceed  for  an 
amount  within  his  jurisdiction,  by  discarding  so  much  of  his  ac- 
count as  may  be  beyond  the  justice's  jurisdiction,  and  proceed 
only  for  such  items  as  may  amount  to  the  sum  of  that  jurisdic- 
tion ;  and  also  of  a  note  or  bond,  after  being  reduced  by  voluntar\- 
credits, — the  recovery  in  all  such  cases  going  to  the  whole  con- 
tract, and  extinguishing  all  claim  to  that  which  was  discarded." 


JURISDICTION.  897 

He  eoufludas.  on  this  point,  that  a  contract  originally  beyond  the 
jurisdiction  of  a  justice  may  be  properly  brought  within  it  by 
credit,  if  the  balance  only  be  claimed.  A  large  number  of  cases 
by  the  courts  of  the  diiferent  states  on  this  question  may  be  found 
collated  in  an  opinion  by  Chief  Justice  Bleckley  in  a  case  lately 
decided  by  the  supreme  court  of  Georgia.  After  saying  that 
"whether  a  creditor  whose  demand  is  created  by  express  contract, 
sucli  as  a  promissory  note,  can  voluntarily  abandon  a  part  of  his 
claim,  or  enter  a  credit  upon  it  for  the  express  purpose  of  reduc- 
ing it  within  the  jurisdiction  of  a  given  court,  is  a  question  upon 
which  the  authorities  differ."  he  adds  that  "it  is  probable  the 
weight  of  decision  is  with  the  atKrmative. "  Stewart  v.  Thomp- 
son, 85  Ga.  830.  The  authorities  on  this  question  may  also  be 
found  collated  on  pages  61  and  62  of  "Courts  and  Their  Juris- 
diction." a  book  by  Judge  Works,  where  the  author  states  the 
rule  a.s  follows:  "A  plaintiff  may  bring  his  action  for  less  than  is 
due  him.  remitting  the  balance,  and  thus  bring  his  case  within 
the  jurisdiction  of  an  inferior  court."  See  also  note  to  Grayson 
V.  Williams.  12  Am.  Dec.  569.  where  the  editor  cites  a  number  of 
cases  holding,  in  substance,  that  it  is  not  the  amount  of  the  {plain- 
tiff's claim,  but  the  sum  that  he  actually  demands,  which  deter- 
mines the  jurisdiction. 

We  have  been  favored  by  briefs  from  the  counsel  representing 
the  different  ]iarti(^s  in  this  cause,  in  which  the  ca.ses  upon  this 
question  by  the  courts  of  the  different  states  have  been  discussed 
and  commented  upon  in  an  able  and  admirable  way,  but  it  would 
serA'e  no  useful  purpose  to  discuss  such  cases  further.  We  will 
only  announce  our  conclusion  that  the  appellants  had  tlie  right 
to  bring  their  ca.se  within  the  jurisdiction  of  the  justice  of  the 
peace  by  remitting  a  portion  of  the  principal  of  their  note.  We 
do  not  see  that  it  is  any  violation  of  the  rights  of  a  debtor  to  al- 
low his  creditor  to  remit  by  volmitary  credits  a  poHion  of  his 
debt,  and  thus  bring  his  claim  within  the  juri.sdiction  of  an  in- 
ferior court.  After  the  judgment  of  the  inferior  court  is  ren- 
clcrod  upon  the  reduced  claim,  the  part  remitted  is  completely  ex- 
tinguished, and  can  nevei-  afterwards  be  asserted  against  the 
debtor.  Tf  the  ci-editor  desires  to  avail  himself  of  tlie  s|)ee(ly  jus- 
tice furnished  by  these  inferior  courts,  at  the  expen.se  of  a  portion 
of  his  claim,  he  should  be  allowed  to  do  .so.  We  therefore  con- 
clude that  the  judgment  of  the  justice  of  the  ])eace  against  Sallio 
Falconei-  for  $299  and  interest  was  valid.  The  decree  df  tlie  eir- 
esiit  declaring  tlie  said  judgment  void,  and  enjoining  the  collec- 
tion of  the  same,  is  therefore  reversed. 

For  a  very  full  note  on  the  qnestlon  embraced  in  the  prlnripal  roue, 
see  28  L.  R.  A.  221-2.".0.  This  niattor  is  ropiilftfed  !>>•  H»;ifiit.'  in  North 
Carolina,  see  Pell's  Revisal.  §  1t21.  .Tn<l  notes;  see  also  Hlddlc  v  MilllnK 
Co.,  I.'.O  N.  C.  at  p.  fiOO,  {-,4  S.  E.  7S2.  See  ".InHticeH  of  (hf  rcnre,"  Cen- 
tury Dig.  5  170;    Decennial  and  Am.  Dip.  K<'    ">-■'■    '^^  ■  i.  ^  s    ii 

Remedies — 57, 


Si)8  JIKISDICTJON.  \('ll.    12. 


MOORE  V.  THOMPSON,  44   \.  V.  221.     18^3. 
Fraud  Upon  the  Jurisdiction  of  the  Court. 

(Action  of  debt  brought  in  a  justice's  court,  for  $100  alleged  to  be  due 
by  note.  The  justice  gave  juilgnicnt  against  tli(>  defendant  wiio  apijealcd 
to  the  superior  court.  In  tlu>  superior  court  tlie  dcl'cndant  pleaded  in 
abatement  that  the  note  sued  on  was  given  for  $110. 02,  and  that  without 
the  consent  of  the  defendant  the  plaintiff  had  credited  the  note  witli 
$10.02  in  order  to  l)ring  it  within  the  jurisdiction  of  a  justice's  court 
■•thereby  committing  a  liaud  ui)on  the  law  .  .  .  and  the  legal  rights 
of  the  defendant."  I'laintiff  demurred  to  this  plea  and  the  demurrer 
was  sustained,  overruling  the  plea.     Defendant   apiicah-d.     Reversed.] 

PK-UisoN.  J.  .  .  .  The  civditor.  without  the  knowledge  or 
consent  of  the  (U-htor.  enters  a  credit  on  the  note  for  the  i)urpose 
of  givinir  jnrisdiction;  the  debtor  lias  never  assented  to,  or  rati- 
lied  this  credit,  imt  has  always  olijeeted  to  it.  This  does  not 
amount  to  a  ])ayiiient.  and  the  inaiiistrate  had  eonseciuently  no 
jurisdiction.  It  is  a  familiar  niaxiiii  oi"  hiw.  "No  one  can  make 
antither  his  debtor  without  his  consent."  The  converse  m  equally 
Irue.  No  one  can  «rive  another  a  specific  article  or  sum  of  money, 
unless  he  eiiooses  to  accept  it;  and  althoui;h  in  tliis  latter  case  the 
acceptance  is  usually  presumed  (as  it  is  supposed  to  be  for  his 
benefit),  yet  there  may  be  reasons  why  he  may  not  choose  to  ac- 
cept (as  in  our  case),  and  then  the  presumiition  is  rebutted.  Sup- 
pose a  creditor,  whose  debt  is  about  beiny  l)arred  by  the  statute 
of  limitations  or  the  presumption  of  payment,  enters  a  credit ;  no 
effect  whatever  is  given  to  it,  unless  the  debtor  assents  to  it.  Tt  is 
said  this  is  like  the  case  of  a  plaintiff  who  remits  a  part  of  his 
damages  to  ])revent  a  variance.  There  is  no  analogy;  for  then 
the  court  allows  the  remittitur  as  an  amendment  of  the  record. 
State  V.  Mangum.  28  N.  C.  369;  Fortescue  v.  Spencer.  24  N.  C. 
63 — both  assume  that  the  case  now  under  consideration  would 
be  a  fraud  upon  the  jurisdiction.  Judgment  reversed,  and  judg- 
ment that  the  writ  be  abated. 

See  note  to  next  preceding  case.  See  "Courts,"  Century  Dig.  §  428; 
Decennial  and  Am.  Dig.  Key  No.  Series  §  169;  "Justices  of  the  Peace," 
Century  Dig.  §§  170,  171;   Decennial  and  Am.  Dig.  Key  No.  Series  §  44. 


WISEMAN  V.  WTTHEROW,  90  N.  C.  140.     1884. 
Fraud  Upon  the  Jurisdiction  of  the  Court. 

[Action  commenced  in  the  superior  court  to  recover  $312.  It  appeared 
that,  from  the  plaintiff's  own  showing,  only  $.^8.75  was  really  due  and 
that  plaintiff  knew  this  when  his  action  was  commenced.  The  judge 
thereupon  dismissed  the  action  on  defendant's  motion,  and  the  plaintiff 
appealed.     Affirmed. 1 

^Merrimox.  J.  Tt  is  the  sum  of  money  demanded  in  the  action 
upon  the  contract,  express  or  implied,  that  determines  the  ques- 
tion of  jurisdiction,  in  a  case  like  the  present  one.  but  the  law 
contemplates  that  the   plaintiff  will   make   his   demand   in   good 


JURISDICTION.  899 

faith  and  with  reasunable  certainty,  and  with  no  pnrpose  to  evade 
or  give  the  juri.sdietiou  improperly.  If  it  manifestly  appears  to 
the  court  that  the  sum  demanded  is  greater  than  was  readly  due, 
tion.  when  in  truth  and  law  it  eouM  not  attach,  then,  in  the  lan- 
guage of  the  late  Chief  Justice  Pearson,  in  Froelieh  v.  Express  Co., 
and  was  so  alleged  for  the  purpose  of  giving  the  court  jurisdic- 
67  N.  C.  1,  "it  is  the  duty  of  the  court,  ex  mero  motu,  to  interfere 
and  prevent  an  evasion  of  the  constitution." 

In  this  case,  the  court  below  does  not  specify  the  particular 
ground  upon  which  the  judgment  dismissing  the  action  for  want 
of  jurisdiction  was  founded,  but  we  must  presume,  in  view  of  the 
facts  api)earing  in  the  record,  that  it  restwl  upon  the  gi'ound  that 
there  was  obviously  a  i)urj)ose  to  give  the  court  jurisdiction,  when 
the  facts  and  law  arising  upon  them  would  not  allow  the  same. 
It  seems  to  us  that  there  were  facts  that  warranted  the  action  of 
the  court.     The  plaintiff  sued  for  $312,  for  feeding  and  lodging 
the  defendant's  servant,  at   regular  intervals,  for  a  period  em- 
bracing several  years.     Pending  that  time,  the  defendant  from 
time  to  time  paid  on  account  of  such  running  indebtedness  sundry 
sums  of  money,  thus  discharging  the  same  pro  tanto.  until,  at  the 
time  the  action  was  brought,  he  owed  her  only  the  sum  of  $r)S. 75. 
This  appears  from  the  plaintiff's  own  showing.     Iler  daughter, 
under  her  direction,   kept   the  account,   and  she  knew  or  could 
have  known  what  sum  was  due  her.     It  was  not  fair  or  proper  to 
allege  that  so  large  a  sum  was    due,    when    in    fact,  within    her 
knowledge,  so  small  a  one  was  due.    We  think  the  court  was  war- 
ranted in  giving  the  judgment  appealed  from.     There  is  no  error 
and  the  judgment  must  be  affirmed. 

"Manifestly,  'tlie  sum  demanded'  is  used  in  the  sense  of  'the  amount 
in  dispute,'  and  on  the  assumption  that  plaintiffs  will  act  faiii.v  and  only 
demand  such  an  amount  as  they  may  reasonably  expect  to  recover;  when 
the  contrary  appears,  it  is  the  duty  of  the  courts  'ex  mero  motu'  to  in- 
terfere and  prevent  an  evasion  of  the  constitution.  In  olden  times, 
when  it  was  found  that,  by  reason  of  the  vast  increase  in  commercial 
dealings,  the  court  of  Common  Pleas  in  England,  to  which  was  assigned 
bv  statute  all  actions  founded  on  contracts,  was  oi)pressed  with  busi- 
ness, the  fiction  of  quo  minus  in  the  court  of  Exchequer  and  the  con- 
trivance of  the  ac  etiam  clause  in  the  King's  Bench  were  winked  at 
and  favored  by  the  courts,  in  order  to  divide  the  jurisdiction  in  regard 
to  contracts,  and  to  relieve  the  court  of  Common  F'leas  of  a  part  of  a 
burden  which  was  too  heavy  for  it.  But  the  condition  of  things  here  Is 
entirely  different,  and  the  courts  are  not  at  liberty  to  wink  at.  or  favor, 
an  attempt  to  evade  the  constitution."  Froelieh  v.  Express  Co..  ♦'"^^- ^• 
at  p.  3.  See  also  Realty  Co.  v.  Cori)ening.  117  N.  C.  OH.  Rl  S.  h.  .)L8. 
See  "Courts,"  Century  Dig.  §  423;  Decennial  and  Am.  Dig.  Key  No.  Se- 
ries §  121. 

ROING  V.   RAILROAD.  87  N.  C.   ?.M.  3f.3.     1R82. 

Jurixdution  of  an  Appellate  Court  in  Cases  iu  Which  It  Haft  No  Orignaf 

Jurisdirtinn  and  in  Cases  in  Which   Its  Jurisdiction  is  Oonnirrent 

With   That  of  the  Inferior  Court. 

f Action   commenced   In  a  justice's  court    to   r.-covor  $20  dumnK«"H  for 

Injurv  to  a  cow.     The  j.istjcP  gave  Judgmmt  againHt  Ih..  d.-f.-ndani   w  in 

appfal.ri  to  the  superior  court,  where  judgment  was  rendered  HgalnHt  the 

plaintiff  and  b-  appealed.     Reversed.     The  ,M.inl   that  (he  Ju»llr,.  had  no 


IKK)  .MKISDU'llON.  [Ch:    12. 

jurisdiition  was  not  uunU^  until  the  case  was  leaclu'tl  in  tlie  siiprenie 
(.•ourt.  Only  that  portion  of  the  ol)inion  which  discusses  the  question  of 
jurisdiction,  is  here  inserted.) 

Asm-:,  A.     .     .  In  tliis  court,  the  (•duiisfl   lor  the  tlcl'cncliiiit 

inovod  to  (tisniiss  llic  action  l"or  want  of  jurisdiction  in  the  supe- 
rior court.  hasiuiT  lii><  motion  upon  tlic  \av\  thai  the  aetion  w;is 
eonunenccd  hcrorc  tlic  justice  of  the  jtcacc  under  section  10,  chai>- 
ter  It),  ot"  l^altlc's  Kevisal,  wliicli  luid  bei-n  declarcHl  to  be  uncon- 
stitutional. Nance  v.  K.  K..  70  N.  C.  f>.  The  answer  to  that  is 
that  tlie  aet  of  ]87(>-7,  cli.  '251.  fjave  to  justices  of  the  peace  con- 
cm-rent  jurisdiction  of  civil  actions  not  founded  on  contract, 
when  tlie  value  of  the  i)i-o]>(M"ty  in  controversy  does  not  exceed 
tifty  dolhiis;  and  allhouiih  the  justice  in  this  ease  sumtnoned 
freeholders  to  assess  the  damages,  it  was  yet  his  judj^ment.  thouiih 
irrci^ular  and  perhaps  erroneous. 

The  counsel  seems  to  have  overlooked  the  distinction  between 
the  cases,  where  the  jtirisdiction  of  the  stiperior  courts  and  the 
courts  of  justices  of  the  |»cace  is  concurrent,  and  where  it  is  ex- 
elusive  in  the  one  or  the  other.  AVe  take  the  distinction  to  be. 
that  where  it  is  concurrent,  and  a  case  is  carried  by  appeal  to  the 
superior  court,  and  the  appellant,  as  in  this  case,  files  an  answer 
under  leave  of  the  court  and  goes  to  ti-ial  without  objection,  the 
court  will  have  cognizance  of  the  matter  ])y  virtue  of  its  original 
jurisdiction  of  the  subject  matter  of  the  action,  and  hy  the  eon- 
sent  of  the  parties  thus  manifested,  however  irregular  the  proceed- 
ings may  have  been  in  the  justice's  i-ourt.  West  v.  Kittrell.  8 
N.  C.  493.  But  when  a  justice  of  the  peace  takes  cognizance  of 
an  action  of  which  he  has  no  jurisdiction,  and  the  case  is  carried 
by  appeal  to  the  superior  court,  that  court  acquires  no  jurisdic- 
tion because  its  jurisdiction  is  altogether  derivative,  and  depends 
upon  that  of  the  jiLstice  from  whose  court  the  appeal  is  taken. 
Allen  V.  Jackson.  86  X.  V.  321  :  Boyett  v.  Vaughn.  85  N.  C.  363. 
Error. 

For  a  full  discussion  of  the  concurrent  jurisdiction  of  the  superior 
court  and  justices'  courts,  see  Houser  v.  Bonsai,  149  N.  C.  51,  62  S.  E. 
776.  See  "Courts,"  Century  Dig.  §  489;  "Appeal  and  Error,"  Century  Dig. 
§§  81-87;    Decennial  and  Am.  Dig.  Key  No.  Series  §  20. 


ROBERSON  V.  ROCHESTER  BOX  CO.,  171  N.  Y.  538,  546.  64  N.  E.  442. 

1902. 

Jurisdiction  of  Courts  of  Equity,   Origin  of. 

Parker,  C.  J.  .  .  .  Tt  is  undoubtedly  true  that  in  the  early 
days  of  chancery  jurisdiction  in  England  the  chancellors  were 
accustomed  to  deliver  their  judgments  without  regard  to  princi- 
ples or  precedents  Jind  in  that  way  the  process  of  building  up  a 
system  of  equity  went  on.  the  chancellor  disregarding  absolutely 
many  established  principles  of  the  common  law.     "In  no  other 


JURISDICTION.  901 

way,"  says  Pomeroy,  "could  the  system  of  equity  jurisprudence 
have  been  commenced  and  continued  so  as  to  arrive  at  its  present 
proportions."  In  their  work  the  chancellors  were  guided  not  only 
by  what  they  regarded  as  the  eternal  principles  of  absolute  right, 
but  also  by  their  individual  consciences,  but  after  a  time  when 
"the  period  of  infancy  was  past  and  an  orderly  system  of  equi- 
table principles,  doctrines  and  rules  began  to  be  developed  out  of 
the  increasing  mass  of  precedents,  this  theory  of  pei-sonal  eon- 
science  was  abandoned :  and  '  the  conscience, '  which  is  an  element 
of  the  equitable  jurisdiction,  came  to  be  regarded,  and  has  so 
continued  to  the  present  day.  as  a  metaphorical  term,  designating 
the  common  standard  of  civil  right  and  expediency  combined, 
based  upon  general  principles  and  limited  by  established  doc- 
trines to  which  the  court  appeals,  and  by  which  it  tests  the  con- 
duct and  rights  of  suitors — a  juridicial  and  not  a  pereonal  con- 
-science."     (Pom.  Eq.  Jur.  §§  48.  57.) 


THORN  V.  WILLIAMS,  4  N.  C.  30.     1814. 
Jurisdiction  of  Courts  of  Equity,  General  Principles  of. 

Se.vwell.  J.  .  .  .  Whenever  the  principles  of  the  law  l)y 
which  the  ordinary  courts  are  guided,  tolerate  a  right,  but  afford 
no  remedy;  or  where  the  law  is  silent,  and  interference  is  neces- 
sary to  prevent  a  wrong;  or  where  the  ordinary  courts  are  incom- 
petent to  a  complete  remedy,  a  court  of  equity  will  afford  relief. 
So  also  in  cases  where  it  is  essential  to  a  fair  trial  in  llic  coui-ts 
of  law,  a  court  of  equity  will  lend  a-ssistant  aid,  by  compelling 
discover}'  of  matters  necessary  for  that  end.  and  in  this  res])ec.t 
she  acts  as  a  handmaid  of  the  law.  Hut  in  no  instance  is  it  be- 
lieved, a  court  of  equity  will  interpose  where  the  party  applying 
has  a  fair  and  complete  remedy  at  law.     .     .     . 


HIPP  V.  RABIN.  19  Howard,  271,  278.     1856. 
Jurisdiction   of   Courts   of  Equity,   Limitations   of. 

Campbell,  J.  .  .  .  Whenever  a  court  of  law  is  compcicni 
to  take  cognizance  of  a  right,  and  bas  power  to  proceed  to  a  judg- 
ment which  atfords  a  plain,  adeq^lat(^  and  iMMuplete  remedy,  with- 
out the  aid  of  a  court  of  equity,  the  plaintiff  nnist  prcM-eed  at  law, 
because  the  defendant  has  a  constitutional  right  to  .i  trial  by 
jury.     .     .     . 

HENDERSON   v.   RATES.   :'.    UlacUfonl,    If.l.      is;!| 
JurisdiclioT)   of  Courts  of  Equity.  Instances  of. 

McKiNNKY.  J.  The  iMiiicipal  question  to  l)e  setllc<|  in  thi^ 
ca.se  i.s,  doe.s  the  bill  of  TTcnderson  show  that  lie  is  without  relief  nt 
law  and  that  a  conrt  of  e(|uity  shonhl  interp<»se?  The  conq.hnn- 
Hnt  contends  tliat  Ihr  ense  presente.l  by  llie  bill  i-  i -ili.trly  ap- 


902  .It  Kisnirriox.  |r//.  7,:'. 

j)rt)priatr  to  a  i-ourt  df  t'(|uity,  and  in  snppoj-l  of  his  position  as- 
sumes sevt't-al  «rro\in(ls,  cadi  of  wliit-li  in  tlio  coui'sc  of  Ihis  ox- 
aniiuation  will  In-  ndticcd.  Tlic  object  of  tlic  hill  is  to  pi-otcct 
from  sale  certain  pcisonal  piopcrtv.  levied  on  by  executions 
against  Town,  and  aijfainst  Town  ^v^:  I'nlliani.  A  i)ai't  of  this  i)i-op- 
erty  is  claimed  by  llendci-son.  by  a  transfer  made  to  him  by  the 
sureties  of  Town,  and  the  icsidue  is  claimed  on  ori<;inal  owner- 
shi|i.  and  a  (h'nial  of  the  divestment  of  his  i-iirht  by  the  pos.session 
t)f  Town,  and  of  Town  ».^  i'ulliam. 

The  ruU^  is  well  settled  tluit  nii<f  will  tiol  be  (jrautcd  in  chan- 
cery irJun,  (il  l(iii\  (I  lompldc  remedy  is  afforded.  '^  Atk.  740; 
:Miro.  Pari.  C'as.  .VJf) ;  Mitf.  PI.  Ill";  Cunningham  v.  Caldwell. 
Hard.  12;i:  Waggoner's  Trustees  v.  IMcKinney  et  al..  1  Marsli. 
179.  It  is  also  well  settled  that  chancery  will  not  entertain  a 
bill  wlien  personal  properly  is  the  fnibject-niatter,  unless  in  some 
IH'Ouliar  cases;  nor  will  it  intcniose  and  enjoin  a  sale  of  personal 
property,  taken  in  exeeution.  either  on  the  ground  that  it  is  not 
the  property  of  the  defendant  in  the  exeeution.  ])ut  belongs  to  a 
third  person,  oi-  that  it  behmgs  to  the  complainant,  unless  it  be 
sluAvn  that  if  the  property  were  sold  the  complainant  would  be 
wilhont  remcdji  al  lair.  Xesmieth  v.  Bowler,  3  Bibb.  487;  Ken- 
urick  V.  Arnold.  4  liibb.  285. 

77<e  remedy  at  law  must  not  only  he  incomplete,  but  llie  dam- 
ages not  an  adequate  compensation,  to  authorize  a  court  of  equity 
to  interpose.  In  the  ea.se  of  Bowyer  v.  Creigh.  3  Rand.  25,  the 
•pi'-stion  of  jurisdiction  is  fully  examined,  and  the  pasition  sus- 
tained, that  equity  interferes  in  no  ease  where  the  plaintiff'  claims 
as  encumbrancer  merely,  and,  where  he  claims  as  owner,  only  in 
those  cases  where,  from  the  peculiar  nature  of  the  property  and 
circumstances  of  the  case,  the  remedy  at  law  is  incomplete.  In 
the  cases  of  Wilson  v.  Butler.  3  Munf.  559,  Scott  et  ux.  v.  Halli- 
day,  5  Id.  103,  and  Sampson  v.  Bryce,  5  Id.  175,  in  which  equity 
exercised  jurisdiction,  the  plaintiff'  claimed  the  property,  not  as 
security  for  money,  but  a.s  belonging  of  right  to  himself,  and  this 
property  was  slaves;  for  this  property  being  capable  of  possess- 
ing moral  qualities,  and  thus  rendered  invaluable,  it  was  consid- 
ered that  damages  would  not  be  an  adequate  compensation.  The 
court,  in  Bowyer  v.  Creigh,  review  the  grounds  of  chancery  juris- 
diction, and  among  others  present  the  follownng:  "Where,  pend- 
ing a  litigation,  the  property  in  dispute  is  in  danger  of  being  lost, 
and  the  powers  of  the  court  in  w^hich  the  controversy  depends  are 
insufficient  for  the  purpose,  e(|uity  will  interpose  to  preserve  it.'' 
"Equity  exercises  a  jurisdiction  to  put  an  end  to  the  oppression 
of  repeated  litigations,  after  satisfactory  determinations  of  the 
question,  upon  the  principle  interest  reipnblicae  ut  sit  finis  lit- 
ium."  It  would  thus  seem  that,  in  cases  of  personal  property, 
the  interposition  of  a  court  of  equity  is  rare,  and  only  occurs  when 
the  legal  remedy  is  incomplete,  and  damages  are  not  an  adequate 
compensation.  The  case  in  3  P.  Wms.  390.  of  the  ancient  silver 
altar  piece,  in  1    Vem.  273,  of  the  horn  by  which  an  estate  was 


JIRISDICTION.  903 

held,  in  3  Ves.  70.  of  the  silver  tohacco  ior  belonging  to  a  club, 
and  some  others,  ami  in  Virginia,  of  slarrs.  are  examples  of  such 
interference  att'orded  by  the  books,  and  show  that  in  those  cases 
the  remedy  at  law  was  incomplete.  Those  cases  rest  upon  their 
own  peculiar  grounds,  and  do  not  affect  the  rule  laid  dowTi. 

It  is  said,  however,  that  this  is  a  hill  of  peace,  thus  giving 
jurisdiction  to  a  court  of  L-haiieery.  and  therefore  the  injunction 
was  correctly  granted,  and  should  not  have  been  dissolved.  As 
this  position  was  strongly  urged,  it  would  seem  to  require  par- 
ticular examination,  ^laddock.  in  1  vol.  p.  166.  says.  ''Bills  of 
peace  are  tiiadc  use  of  where  a  person  has  a  right  which  may  be 
controverted  by  various  persons,  at  different  times,  and  by  differ- 
ent actions,  and  the  court  ^\^ll  thereupon  prevent  a  multiplicity 
of  suits  by  directing  an  issue  to  determine  the  right,  and  ulti- 
mately an  injunction.  Another  occasion  where  a  bill  uf  this  kind 
is  resorted  to  is.  where  there  have  been  repeated  attempts  to  liti- 
gate the  same  question  by  ejectment  and  repeated  and  satisfactory 
trials,  in  which  cases  the  court,  upon  such  a  bill.  prcfenvMl  by  all 
the  parties  interested,  or  by  some  of  them  in  the  names  of  them- 
selves and  the  rest,  will  grant  a  perpetual  injunction  to  restrain 
further  litigation." 

The   examples   and   authorities  refiiTcd   to   by   Maddock  .show 
the  kind  of  right  to  which  the  text  applies.     It  is  that  which  exists 
between  lords  of  manors  and  their  tenants,  and  between  tenants 
of  one  manor  and  another.    ]\rayor  of  York  v.  Pilkington.  1  Atk. 
2S2;  Ld.  Teiiham  v.  Herbert.  2  Atk.  483.     Such  bills  also  lie  for 
duties,  as  in  the  case  of  the  City  of  London  v.  Perkins,  where  the 
city  of  London  brought  only  a  few  persons  before  the  court,  who 
dealt  in  those  things  whereof  the  duty  was  claimed,  to  establish  a 
right  to  it.     1   Harr.  C.  127.  "Where  a  bill  was  brought  by  one 
tenant  of  a  manor,  suggesting  a  custom  for  the  tenants  of  the 
manor  of  A  fof  which  he  was  one),  to  cut  turves  in  the  inanor  of 
B  to  quiet  liiiii.  and  to  have  an  i.ssue  directed  as  to  the  right,  the 
court  said,  'this  bill  is  iiiijiroix'r  and  inconsistent  with  the  natiire 
and  end  of  a  bill  of  peace,  which  is.  that   where  several   pei-sons 
having  the  same  right  are  disturbed,  on  application  to  the  <'ourt 
to  prevent  expen.se  and   multii)licity  of  suits,   issues   will   be  di- 
rected, and  one  or  two  detei-ininations  will  establish  the  right  of 
all  parties  eoncenied.  on  the  foot  of  one  conniion  interest,  and  the 
bill   is  prefei-red  bv  all  the  i)arties  interested,  or  a  determinate 
number  in  the  nanie  of  theniw-lves  and  the  rest;  but  in  this  case 
one  onlv  brings  the  liill  on  the  general  right,  and  not  on  the  fo..| 
of  anv  particular  right.'  and  therefore  the  bill  was  disnnssed  with 
costs""     1   Ahidd    172      So  a  bill  of  this  kind,  after  five  trials  H. 
ejectment.  an<l   verdicts  in  them  all.  has  been  entertainc.l.  and  a 
perpetual  iniundion  granted      Ld    n:;th  v.  Sherwin.  Pr.  (  h.  -61 
Tn  the  eases  in  which,  to  prevent  a  multiplicity  of  suits,  chnncory 
has  entertained    jurisdiction.    Ilu    phiinfiff  nufjhl    In   <slahhs^h    h,.« 
riqhf   In,  a  ,h  tn;n;„niiov  of  a  court  of  ln,r  n,  /ns-  favor,  before 
his  bill  in  .•qiiity.     Mitf.  I'l.  128. 


904  JURISDICTION.  [(7(.    12. 

The  case  of  lhi>  'rrustci-s  of  lliiutington  v.  Nieoll,  '?>  Jolnis.  alJG, 
liHS  been  eited  l>y  I  ho  cDiuphiiiianl  as  sustaining;  his  bill.  Uetwecu 
that  ease  and  tlie  pi'esent.  little  il"  any  aiialoiiv  is  pcrc^'ived.  In 
that  ease  several  actions  ol"  tiespass  whtc  brouj::lit,  and  the  subjecl- 
luatter  was  land.  A  verdict  in  one  ease  was  round,  aud  the  other 
eases  were  i-eady  for  trial,  and  from  the  nature  of  the  respective 
claims,  litiiiation  would  not  have  been  ari'ested  by  the  suits  then 
pendinix.  The  jurisdiction  in  eipiity,  in  I  bat  ease,  was  founiUnl 
on  one  vertlii-l,  the  pendency  of  several  actions,  the  liability  to 
others,  the  great  expense  attending  those  actions,  and  fi-om  tlie 
ease  being  within  the  rule  laid  down  in  Tenham  v.  Herbert,  2  Atk. 
483.  that  tliere  were  some  cases  in  which  a  man,  by  a  bill  of  peace, 
might  come  into  chancery  before  his  right  m'jis  established  at  law. 
The  distinction  was  applied  to  disputes  between  lords  of  manors 
and  their  tenants,  and  between  the  tenants  of  one  manor  and  an- 
other. The  court  in  New  York,  even  with  this  distinction,  was, 
however,  divided  as  to  the  jurisdiction.  From  this  view  of  the 
law,  the  bill  before  us  is  not  entitled  to  the  character  of  a  bill  of 
peace,  and  cannot  be  regarded  as  one. 

It  is  further  urged  by  the  complainant  that  equity  will,  pend- 
ing litigation,  where  property,  the  subject  of  litigation,  is  in  dan- 
ger of  being  lost,  interpose  and  preserve  it.  This  is  unquestion- 
ably a  ground  of  jurisdiction,  as  previously  noticed,  but  it  is  ob- 
viously not  presented  by  the  case  before  us.  The  litigation  pend- 
ing, such  as  required,  cannot  be  supposed  to  apply  to  the  present 
case,  and  the  record  does  not  furnish  evidence  of  any  other.  This 
suit  does  not  constitute  such  pending  litigation,  for  our  courts 
of  chancery  are  fully  competent  to  make  all  necessary  orders,  and 
to  adopt  etfective  means  for  the  preservation  of  property,  the 
subject  of  litigation  in  them.  The  litigation  is  such  as  is  petiding 
in  some  other  court,  whose  poivers  are  unequal  to  that  object. 

Another  ground  is  assumed :  that  the  transfer  by  Town  to  hi.s 
sureties  amounted  to  a  nwrtgage  or  securitg  to  inclemnifj^  them 
against  their  liability  to  the  complainant,  and  that  the  transfer  by 
the  sureties  to  the  complainant  did  not  change  the  nature  of  the 
transaction,  and  that,  consequently,  the  complainant  should  enjoy 
all  the  advantages  of  a  mortgagee,  and  be  entitled  to  relief  in  a 
court  of  equity.  To  this  position  two  objections  arise.  1.  It  does 
not  appear  that  the  transfer  was  a  mortgage,  or  in  the  nature  of  a 
mortgage :  2.  That  if  it  were  a  mortgage,  the  conclusion  of  jurisdic- 
tion would  not  follow. 

The  bill  does  not  aver  that  the  transfer  was  conditional,  and  on 
its  face  it  is  absolute.  There  is  no  averment  that  a  defeasance  was 
executed,  qualifying  the  transfer,  and  no  instrument  of  that  kind 
is  made  an  exhibit.  We  are  referred  to  Crumbangh  v.  Smock.  1 
Blackf.  305.  That  case  scarcely  has  a  feature  resembling  the  one 
before  us.  That  was  a  suit  in  equity  to  foreclose  the  equity  of  re- 
demption in  a  lot  in  Indianapolis.  The  assignment  of  the  certifi- 
cate for  the  lot  was  ab.solute.  but  the  assignee,  on  the  same  day.  ex- 


JURISDICTIOX.  905 

ecuted  to  the  assignor  a  bond  biuding  himself  to  reassign  the  cer- 
tificate on  payment  of  the  money  lent  with  interest.  The  assign- 
ment under  these  eireimustances  was  considered  as  a  security  in  the 
nature  of  a  mortgage. 

The  second  objection  would  seem  to  be  fully  answered  by  turn- 
ing to  the  case  of  Bowyer  v.  Creigh,  3  Rand.  25.  That  case  was  as 
follows:  Caldwell  being  deeply  indebted,  and  suits  depending 
against  him  for  a  great  amount,  on  which  it  was  known  judg- 
ments would  go  against  him  in  the  following  ^tay,  executed  in 
April,  1820.  a  deed  of  trust  to  John  B.  Caldwell  for  the  security  of 
a  debt  due  to  Bowyer,  conveying  a  tract  of  land  in  Ohio,  and  all 
his  pereonal  property.  The  creditors  obtained  judgments,  and 
had  executions  levied  on  a  part  of  the  property  conveyed  to  the 
tniste(\  The  trustee  and  the  cestui  que  trust  filed  a  bill  of  in- 
junction to  sto})  the  sale,  claiming  the  property  as  .security  for 
their  debt.  The  injunction  was  dissolved,  and  the  court  held  that 
a  court  of  chancery  had  no  jurisdiction,  because  the  law  gave  com- 
plete remedy.  The  other  cases  cited  during  this  examination  all 
go  to  establish  the  same  doctrine.  These  are  the  most  prominent 
positions  taken  to  sustain  the  bill,  and  are  obviously  insufficient. 

The  case  presented  shows  a  struggle  between  Town  and  sureties, 
and  between  Hendei-son  and  Town  &  Pulliam  and  the  creditors  of 
the  latter;  and  as  the  case  is  not  one  in  which  chancery  has  juris- 
diction, and  as  the  dismissal  of  the  bill  does  not  prejudice  the 
I  ights  of  the  respective  parties,  we  think  the  circuit  court  was  cor- 
rect in  dissolving  the  injunction  and  dismissing  the  bill,  not  only 
of  Henderson,  but  of  Pulliam.  The  complainant,  if  his  ca.se  was 
proper  for  a  court  of  chancery,  has  made  unnecessary  parties,  and 
parties  also,  who,  from  the  showing  of  a  bill,  were  unconnected 
with  the  principal  transaction.  Entertaining  this  view,  a  majority 
of  the  court  consider  it  unnecessary  to  enter  into  a  particular  ex- 
amination of  the  bill,  or  to  express  an  opinion  of  the  claim  as.serted 
by  Henderson. 

See  "Execution,"  Century  Dig.  §§  507-510;  Decennial  and  Am.  Dig. 
Key  No.  Series  §  171;  "Equity."  Century  Dig.  §§  121  172;  De<HMinlal 
anrl  Am.  Dig.  Key  No.  Series  §§  43-52. 


ELY  V.  EARLY,  94  N.  C.  1,  6-9.     1S86. 
Legal    and    Equitable    Remedies,    How    Administerpd    T'ndn-    the    Code 

Practice. 

fArtion  of  ejectment  to  recover  two  tracts  of  land.  The  complnlnf  was 
in  the  usual  form,  and  the  answer  denied  the  material  all.n.itiniiH  ..f 
tlic  coinidai.il.  The  plaintiff,  by  permission  of  the  court,  amended  hln 
complaint  .so  as  to  allege  ll.af.  by  mutual  mistake  of  the  parties  ho  had 
conveyed  one  of  the  tracts  ..f  lan.l  snc<1  for.  to  (he  defendant;  that  d.' 
fendaiit  had  admitted  such  mistala'  and  hi.d  consented  to  a  |. roper  cor 
rection  of  the  deed.  Defendant  answered  the  am.Mxled  complaint  and 
denied  Its  allegations.  The  jury  fo.md  that  the  land  referre.l  to  In  the 
amendefl  complaint   had   l.con  conveyed  to  the  defendant   by  mlntaUe  of 


90t)  .MK'isnu-rioN.  \('li.  12. 

both  parfles.  nelendant  luovod  for  jviil.miuMit  iion  ()!)slantt'  veredicto. 
Motion  overniiod,  and  judj:;nient  for  tlio  plaint ilT.  l)»'fendant  appealed. 
I*\)r  an  error  in  tlie  rliarge  of  tlie  judj;e  witli  regard  to  llic  (iiuuitiini  of 
proof,  tlie  jndgnuMit  was  reversed.  ()nl>'  so  niiicli  of  tlii'  opinion  as  dis- 
misses the  question  of  jurisdiction,  is  here  inserted.! 

Merrimon.  J.  .  .  .  'rnntiiiix  the  ri«:lit  to  iiavc  the  (k'od  eor- 
riH'tod  for  tlu>  cjiiisc'.s  iiUcjxcd.  ;is  ;i  scpni-iitt'  cMtisc  of  action,  as  cer- 
tainly ill  sonic  cases  it  niiijht  1><'.  llic  plaint  ill'  iiii^lit  have  united  it 
with  the  cause  of  action  at  first  allc<re(l.  'I'iie  Code,  see.  2()7.  pro- 
vides, that,  "the  piaintilV  nia.\'  unite  in  the  same  coniphiint  several 
causes  of  action,  wliether  they  he  such  as  have  l)een  heretofore  de- 
noinimited  lejjal  or  et|uilal>le.  or  hotli.  when  they  all  arise  out  of. 
(1)  the  same  transaction,  or  transaction  connected  with  the  same 
snhjeet   of  action     .  (,"))    claims  to   recover  real   j)roperty, 

with  or  without  damages,  for  the  withholding;  tliereof,  and  the 
rents  and  proHts  of  the  same."  IMainl.v,  tiie  rijjlit  to  have  the  deed 
corrected  was  "connected  with  the  same  sul)ject  of  action" — the 
land — and  it  was  directly  cojinectt'd  with,  and  atfected  the  claim 
"to  recover  real  property."  The  same  section  provides,  that  when 
such  causes  of  action  are  united,  they  must  affect  "all  the  parties 
to  the  action,"  and  so  they  do  in  this  case.  Such  causes  of  action 
may  be  united  in  tlie  same  comidaint.  One  chief  purpose  of  the 
Code  is  to  facilitate  litigation,  without  multiplicity  of  actions,  and 
the  power  of  the  court  to  complete  a  litigation  begun,  by  amend- 
ing the  pleadings,  is  unlimited.  Robinson  v.  Willoughby,  67  N.  C. 
84;  Mc]Millan  v.  Edwards.  75  N.  C.  81. 

But  under  the  circumstances  of  this  case,  we  think  the  ground  of 
the  equitable  relief  demanded,  constituted  a  part  of  the  plaintiff's 
cause  of  action  at  first  alleged,  and  he  did  not  need  to  allege  two 
distinct  causes  of  action.  His  alleged  right  to  recover  the  land, 
and  directly  in  that  connection  and  for  that  purpose,  and  as  a 
part  of  it,  to  have  the  deed  corrected,  constituted  his  cause  of  ac- 
tion. The  legal  and  equitable  rights  in  respect  to  the  land  were  so 
clearly  connected,  so  essentially  one,  that  they  might  not  improp- 
erly be  regarded  and  treated  as  constituting  one  cause  of  action. 
The  defendant  had  possession  of  the  land,  and  was  seeking  in  that 
connection  to  take  an  inequitable  advantage  of  a  mistake  in  a  deed, 
whereby  the  legal  title  was  in  him.  A  part  of  the  plaintiff's  cause 
of  action  was  the  right  to  have  the  deed  corrected. 

It  is  true  that,  under  the  common  law  method  of  procedure,  this 
could  not  be  so,  because,  under  it,  the  plaintiff  would  recover  the 
land  by  his  possessory  action  at  law.  after  he  had  had  the  mistake 
in  the  deed  corrected  in  a  .separate  court  of  equity,  wherein  alone 
he  could  obtain  equitable  relief;  but  under  the  Code  method  of 
procedure,  as  it  prevails  in  this  state,  legal  and  e(|uitable  relief 
must  be  administered  in  the  same  court,  and  may  be  in  the  same 
action,  and  in  stjme  ca.ses,  in  the  same  cause  of  action.  The  prin- 
ciples, doctrines  and  rules  of  law  are  distinct  from  those  of  equity, 
but  they  may  be  administered  together  by  the  same  court,  when 
it  is  appropriate  and  necessary  to  do  so.    McRae  v.  Battle.  69  N.  C. 


JURISDICTION.  907 

98;  Murray  v.  Blackledge.  71  X.  C.  492;  Farmer  v.  Daniel    82 
N.  C.  .152;  Coudry  v.  Cheshire.  88  N.  C.  375.     .     . 

Under  the  present  system  of  eivil  procedure  in  this  state,  issues 
of  fact  as  distinguished  from  ciuestions  of  fact,  arising  in  equitable 
actions,  as  well  as  like  issues  arising  in  actions  at  law.  are  to  be 
tried  by  a  jury.     Whether  this  is  wise  or  not,  is  not  for  us  to  deter- 
mine, but  it  cannot  be.  that  a  jury  should  find  the  facts  in  respect 
to  a  (piestion  of  mistake,  such  as  that  in  this  ea.se.  upon  less  evi- 
dence than  a  chancellor  would  do.  sitting  in  a  court  of  chancery. 
The  strength  of  reason  leads  to  a  different  conclusion.     The  law 
contemiilates  that  a  jurv  shall  find  such  issues,  as  nearly  as  inav 
be.  a.s  a  chancellor  would  do  in  passing  upon  like  issues.   The  court 
should  be  careful  to  in.struct  the  jury  in  such  eases,  as  to  the  na- 
ture of  the  issue,  the  application  of  the  evidence  produced  before 
them.  and.  especially,  that  the  instrument  in  writing  to  be  cor- 
rected, is.  of  itself,  strong  evidence  of  what  is  expressed  in  it;  that, 
however,  it  is  not  absolutely  concliLsive ;  and  that  from  the  evi- 
dence they  should  be  thoroughly  satisfied  of  the  mistake  alleged, 
before  they  would  be  warranted  in  finding  the  affirmative  of  the 
issue  submitted  to  them.     The  peculiar  nature  of  such  i.ssues  ren- 
ders it  necessary  that  this  should  be  done.    As  we  have  said  above, 
the  court  will  not.  in  the  exercise  of  e(|uitable  jurisdiction  in  eases 
like  this,  grant  relief,  unless  the  jtroof  of  mistake  be  clear  and  sat- 
isfact(»ry.     Therefore,  if  the  court  should  be  of  oiiinioii.  that  in  no 
reasonaijle  view  of  the  whole  evidence  produced  on  the  trial  of  the 
i.ssue.  it  is  sufficient  to  warrant  a  verdict  a.scertaining  the  fact  of 
mistake,  then  it  ought  to  direct  the  jury  to  find  the  negative  of  the 
issue.     Tn  the  trial  by  jury  of  issues  arising  in  e(|uitablc  matters, 
the  principles,  doctrines  and  rules  of  equity  should  be  observed 
and  applied,  as  nearly  as  may  be.  in  the  ascertainment  of  the  facts. 
Otherwise,  it  would  lie  difficult  to  administer  equity  at  all  in  many 
cases.    Todd  v.  Campbell.  32  Pa.  St.  250;  Piersall  v.  Nicie.  (i:?  I'a. 
St.  420;  Stockbridge  Iron  Co.  v.  Hudson  Iron  Co..  102  Mass.  45. 

See  Goldsboro  v.  Turner,  67  N.  C  403.  for  a  somewhat  different  view 
of  equity  jurisdiction  and  practire  under  the  Code  system— i^spcially 
with  reference  to  trial  bv  jury  in  causes  solely  cognizable  by  a  court 
of  equity  under  the  old  practice.  In  the  judicial  system  of  (he  Tnlted 
States  government  the  courts  of  eommon  law  and  of  equity  are  k(111  an 
distinct  as  thev  were  in  the  time  of  Coke  and  Ha<on.  (hough  the  same 
judge  has  jurisdiction  in  e^ch.  Post.  Fed.  Pr.  Cird  ed  )  §  1  '^ccdon 
'♦14  U  S.  Rev.  Stat.  (U.  S.  Comp.  St.  1901,  p.  f.S4).  requiring  the  hedoral 
courts  to  conform  to  the  practice  of  the  8ta(e  in  which  <h«^>;  '"••'!!'•''  • 
does  not  applv  (o  (he  rour(s  of  equity  of  (he  ^^n'/"''  States  1  Dan.  hair 
Pr  *?A?.  note  a  See  •Ejectment."  Century  Pig.  5  207:  n.x-.'nnlal  and 
Am.  Dig.  Key  No.  Series  §  7r.:  -Piquity."  Cent.  Pig  ?  riMl;  Pec  and  Am 
Dig.  Key  No.  Series  §  148. 


908  .uicLsiMcrioN.  [Ch.  12. 


IIOOKKH  V.  STATK.  7  Uhukford,  272.  273.     1844. 
W'lmt  Constitutes  a  Court  of  liCvortl. 

[Action  of  debt  on  a  jiulj?iiient  of  a  justice  of  ilu>  peace.  Plea  of  mil 
tiel  record  and  otlier  pleas.  The  issues  on  the  |»U'a  of  mil  tiel  record  was 
submitted  to  the  jury.  VtM'dict  and  jiidgnu-nt  against  the  defendant. 
Reversed. 

The  idaintilT  below  was  the  State,  ex  rel.  Hayes,  and  Hooker  was  the 
defenHant.  Only  that  portion  of  the  oi)inion  which  relates  to  the  plea 
of  mil  tiel   record,  is  here  inserted.) 

Blackford.  J.  .  .  .  There  \va.s  one  issue,  viz.,  that  ou  the 
plea  oi"  mil  tiel  record,  which  shoiiltl  liave  heen  tried  by  the  couil. 
It  was,  to  be  sure,  the  jiid^iiieiit  oi"  a  justiee  of  the  peace  tliat  was 
iu  question,  but  his  court  must  l)c  considered  as  a  court  of  record. 
A  court  that  is  bound  to  keep  a  record  of  its  proceedings,  and  that 
may  line  or  imprison,  is  a  coiu't  of  record.  3  Bl.  Com.  24.  A  jus- 
tice's court  is  wilhin  liiat  dolinition.    Judgment  reversed. 

See  "Justices  of  the  Peace,"  Century  Dig.  §  1;  Decennial  and  Am.  Dig. 
Key  No.  Series  §  1. 


REEVES  V.  DAVIS,  80  N.  C.  209.     1879. 
What  Constitutes  a  Court  of  Record. 

[Action  commenced  in  a  justice's  court  upon  a  former  judgment  of  a 
justice  of  the  peace.  Judgment  against  defendant,  and  he  ap|)ealed  to 
the  superior  court.  In  that  court  judgment  was  rendered  against  the 
defendant,  and  he  appealed.  Affirmed.  The  judge  held  that  a  justice's 
court  ivas  not  a  court  of  record,  and  defendant  excepted.  1 

DrjxARD,  J.  The  action  was  commenced  in  a  justice's  court  on 
the  judgment  of  a  justice,  and  from  his  court  there  was  an  appeal 
by  the  defendant  to  the  superior  court  of  Madison  county  and 
thence  to  this  court.  On  the  trial  in  the  superior  court  the  original 
judgment  for  the  recovery  of  which  the  action  was  brought  was 
offered  in  evidence,  and  when  proof  was  being  offered  by  one 
Creaseman,  a  justice  of  the  peace,  that  he  gave  the  judgment  and 
the  sam.o  was  drawn  up  and  signed  by  him  or  under  his  dictation, 
it  was  objected  by  the  defendant  that  the  judgment  of  a  justice's 
court  was  not  provable  by  law  otherwise  than  by  a  duly  certified 
transcript  of  the  record  from  the  justice's  court,  which  objection 
was  oveniiled  and  the  defendant  excepted. 

The  court  of  a  justice  of  tlie  peace  is  an  inferior  court  of  lim- 
ited jurisdiction,  and  although  he  is  required  to  keep  a  docket  and 
enter  his  proceedings  therein,  it  is  not  under  our  present  system, 
and  was  not  nnder  our  former  svstem.  a  court  of  record.  Lcd- 
better  v.  Csborne,  06  N.  C.  379;  Hamilton  v.  Wright.  11  N.  C.  283; 
Carroll  v.  ]\TcGee,  25  N.  C.  13.  Not  being  a  court  of  record,  the 
rules  of  evidence  established  in  relation  to  the  authentication  and 
proof  of  judgments  of  courts  of  record  are  not  applicable  to  it, 
and  there  being  no  legislative  provision  as  to  how  their  judgments 


JURISDICTION.  909 

are  to  be  proved,  there  can  be  and  is  no  l)etter  way  than  that  which 
has  obtained  heretofore  in  the  practice  of  our  courts  The  rule 
has  been  for  many  years  to  admit  tlie  .iudg'ments  of  justices'  courts 
in  evidence  on  proof  of  their  liaudwritiiitr.  of  their  being  in  oflSce 
at  the  time,  and  of  the  rendition  of  the  same  within  their  counties, 
and  thereupon  the  same  conclusiveness  of  effect  was  attributed  to 
them  as  to  the  judgment  of  courts  of  record  shown  forth  by  tran- 
script under  the  seal  of  the  court.  Hamilton  v.  ^Yricrht.  and  Car- 
roll V.  ]\IcGee.  supra.  AVe  see  no  reason  to  dejiart  from  the  rule  on 
this  subject,  which  has  been  so  long  observed  in  our  courts,  and  in 
consistency  therewith.  Ave  hold  there  was  no  error  in  the  court  be- 
low in  overruling  the  objection  of  the  defendant.  .  .  .  Af- 
firmed. 

As  to  what  constitutes  a  court  of  record,  see  Bouv.  L.  D.  465;  11  Cyc. 
6.57.  As  to  whether  or  not  a  justice's  court  is  one  of  record,  see  24  Cyc. 
023.  See  further  as  to  courts  of  record,  8  Am.  &  Eng.  Enc.  L.  36.  The 
principal  case  was  aproved  in  State  v.  Griffis,  117  N.  C.  715,  23  S.  E. 
164.  See  Pell's  Rev.  §  1416,  and  note.  See  "Justices  of  the  Peace." 
Century  Dig.  §§  397,  398;   Decennial  and  Am.  Dig.  Key  No.  Series  §  135. 


ACKERSOX  V.  ERIE  RAILWAY  CO.,  31  N.  J.  L.  309,  311.     1865. 
Local  and  Transitory  Actions.    Jurisdiction  and  Venue. 

[Action  brought  in  New  .lersey  for  damages  resulting  from  an  injury 
inflicted  in  New  York.  Defendant  demurred  on  the  ground  that  the 
action  could  not  be  maintained  in  the  New  Jersey  courts  but  should 
have  been  brought  in  New  York,  in  which  state,  as  it  appeared  by  the 
complaint,  the  alleged  negligence  and  consequent  injury  occurred.  De- 
murrer overruled,  and  judgment  against  defendant.) 

ITaine.s.  J.  The  plaintiff  was  a  pa.s.senger  on  the  train  of  the 
defendants  from  Dunkirk  to  Port  Jervis.  in  the  state  of  New  York; 
and  allcgi's  thai  he  was  injured  by  reason  of  the  cars  nmning  oil 
the  track,  through  the  carele.ssness  of  the  defendants  and  Iheir 
.servants.  P''or  the  injuries  thereby  sustained  he  has  brought  his 
action  in  this  state.  The  defendants  dcnnir  to  the  declaration  and 
a.ssign  for  cause  of  demurrer,  in  vaiictus  forms,  that  tlic  act  inn  is 
local  and  cannot  be  maintained  in  this  state;  but  should  have  been 
brought  in  the  .state  of  New  York.  Avhen-  the  alleged  careles.sneR.s 
Dcciirn-d  and  1h^'  injury  was  done.  For  the  decision  of  lliis  cn.se. 
we  have  only  to  n^cur  to  the  well  known  and  well  settled  rules  of 
r//.s7/»r/?V>M.  hftwccn  local  and  ira»xHor]i  acliomt. 

Local  arliinis  are  such  as  ie(|uire  the  venue  to  be  laid  in  the 
coiMity  in  which  the  cause  of  action  arose.  These  embrace  all  ac- 
tions in  which  the  subject  or  thing  sought  to  be  recovered  is  in  its 
iiature  local:  such  as  real  actions  of  waste,  when  brought  to  re- 
cover the  place  wastfd.  as  well  as  damages;  and  actions  of  eject- 
ment. They  are  local  bec.-iuse  brought  to  recover  the  seizin  or 
possession  of  lands,  which  are  hwal  subjects.  CoMiyn's  Dig.  Ac- 
tion Xo.  1  ;  ]'>acr»n's  Abr..  Actions  local.  A.  a;  Houvior's  Law  Die. 


DIO  Jl  UISDICTION.  1(7(.    12. 

tit.  Ai'tion.  Sonic  other  actions  which  do  not  seek  tlie  direct  re- 
covery of  hinds  or  teiieinents.  arc  also  h>cal.  I)eca\ise  they  arise  out 
of  a  U>cal  siil).icct.  or  the  violalioii  of  sonic  h>cai  ri«,dit  or  interest. 
Of  this  chiss  arc  waste  for  dainam's  only;  1 1  cspass  (juarc  clausiini 
t"rej2:it.  trespa.ss  on  the  ea.sc  for  injuries  to  thinj;s  real,  as  nuisances 
to  lunises  or  hinds;  disturl)ancc  of  j'i,!i:ht  of  way,  ol)struction,  or 
diveiNion  of  aiu-icnt  walcrcouises.  'I'lic  action  of  replevin  is  local, 
althonjjh  it  is  for  daniaires  onl\ .  and  docs  not  rise  out  of  any  local 
suhject,  hecausc  of  tiic  lUM-cssiiy  of  ^ivinii:  a  local  description  to 
the  thiiiir  taken. 

Traiisltorji  (utioiis  arc  such  pci-sonal  actions  as  seek  only  the  re- 
covery of  money  or  personal  <liattcls,  whether  they  .sound  in  tort 
or  contract.  They  are  universally  founded  on  the  supposed  viola- 
tion of  rights,  wliich.  in  contemplation  of  law.  liave  no  locality. 
1  Chit.  PI.  27;^:  1  Saund.  L'41.  1),  note  (J.  -lud^'c  Gould,  in  his  work 
on  Pleadings,  eh.  ;?,  sec.  112,  says:  "It  will  he  found,  as  a  general 
proposition,  tliat  actions  ex  delicto,  in  which  a  mere  personalty  is 
rccoverahle,  aj'c  liy  common  law  ti-ansitorw"  Tf  the  action  is 
merely  transitory,  the  venue  may  ho  laid  in  the  county  where  the 
cause  of  action  arose,  or  whei-e  tlic  itlaintilT  or  defendant  resides 
at  the  time  of  instituting  the  action;  or  if  the  defendant  he  not  an 
inhahitant  of  this  state,  in  the  county  in  which  the  process  shall 
have  been  served.     Xix.  Dig.  782,  pi.  5. 

The  action  in  this  case  is  not  brought  to  recover  anything  local, 
nor  does  it  arise  out  of  any  local  subject,  or  the  violation  of  any 
local  right  or  interest.  Tt  arises  out  of  the  alleged  negligence  of 
the  defendants  and  their  servants,  and  seeks  the  recovery  of  pecu- 
niary damages  for  personal  injuries  sustained.  It  may  be  brought 
in  this  state,  and  the  venue  laid  in  any  county  in  which  the  de- 
fendants can  be  served  witli  jirocess.  The  practice  in  this  state, 
of  long  continuance,  is  in  accordance  with  this  rule  of  distinction. 
The  demurrer  must  be  overruled  with  costs,  and  judgment  ren- 
dered for  the  plaintiff;  unless  the  defendants  plead  i.ssiuibly  to  the 
declaration  w  ithin  thirty  days.    Judgment  for  ])laintiff. 

Where  the  statutes  of  another  state  authorize  a  recovery  for  death 
by  wrongful  act,  and  such  statutes  are  substantially  the  same  as  those 
in  North  Carolina,  an  administrator  appointed  in  North  Carolina  can 
sue  in  North  Carolina  for  the  death  of  his  intestate  which  occurred  in 
the  other  state  from  negligence  there  committed.  Harrill  v.  Railroad, 
132  N.  C.  655,  44  S.  E.  109,  citing  13  L.  R.  A.  458.  15  L.  R.  A.  583,  103 
U.  S.  11,  38  Am.  Rep  491. 

For  what  actions  are  local  and  what  transitory,  see  Bouv.  Law  Die. 
vol.  2,  pp.  272,  1133;  Shipman's  Common  Law  Plead,  pp.  383-380.  In 
transitory  actions  the  amount  of  the  recovery  is  governed  by  the  lex 
loci  and  not  by  the  lex  fori.  North  Pac.  R.  R.  v.  Babcoclx,  154  U.  S. 
190.  14  Sup.  Ct.  978.  For  jurisdiction  of  equity  over  suits  affecting  realty 
in  another  state  or  country,  see  23  L.  R.  A.  (N.  S.)  924.  and  note;  over 
suits  affecting  non-residents,  see  23  lb.  1135.  See  "Courts,"  Century  Dig. 
§§  22-31;    Decennial  and  Am.  Dig.  Key  No.  Series  §  6. 


Sec.  1.]  PROCESS.  911 


CHAPTER  XIII. 
PROCESS. 


Sec.  1.  Introductory. 

JONATHAN  WEST,  qui  tarn.  v.  RATLEDGE,  15  N.  C.  31.     1S33. 

History  and  Nature  of  Writs  as  Process  by  Which  an  Action  Was  Com- 
menced.    Variance   Between    the   Writ   and   the   Declaration. 

fAction  of  Debt  in  which  the  plaintiff  claimed  $213.32  in  his  writ. 
The  declaration  contained  two  counts:  (1)  In  debt  for  $213.32  under  the 
statute  agauist  usury;  (2)  In  debt  for  $160  under  the  same  statute  and 
for  the  same  alleged  usurious  transaction.  Verdict  against  the  defend- 
ant for  $160.  Defendant  moved  in  arrest  of  judgment  because  of  vari- 
ances betiveen  the  ici-it  and  the  declaration.  Motion  overruled.  Judg- 
ment against  the  defendant,  and  he  appealed.     Affirmed.) 

Daniel,  J.  In  decidiiig  the  question,  whether  a  variaut-e  be- 
tween the  writ  and  the  deehiration  ean.  after  verdict,  l)e  taken  ad- 
vantage of  by  the  defendant  in  arrest  of  the  judgment,  it  becomes 
jiecessary  to  make  some  observations  upon  the  hiw  and  praetiee  of 
the  courts  in  England,  as  well  as  the  law  and  praetiee  of  the  courts 
of  this  state,  and  also  on  the  decisions  that  have  been  made  in  this 
court  on  the  subject.  In  England,  when  a  person  is  about  to  com- 
mence a  suit,  the  usual  course  of  proceeding  is.  in  the  lii-st  place, 
to  execute  a  warrant  to  an  attorney  of  the  court  to  liavc  the  writ 
is.sued.  and  tlie  pleadings  in  the  cause  made  up.  The  attorney  then 
gives  insti-uetions  for  the  original ;  the.se  instructions  are  contained 
in  a  paper  called  the  praecipe,  in  which  he  sets  forth  the  cans*;  of 
action.  Formerly,  the  practice  was  to  take  the  warrant  and  liie 
jiraecipe  to  the  ciuuieery.  wliere  the  oriffiiial  writ  was  caused  to  be 
iriade  out  by  the  Master  of  tlie  Kolls;  which  origiiud  recited  the 
action  as  stated  in  the  praecipe.  The  original  is  ft  mandatory  let- 
ter in  parchment  from  the  king,  tested  in  his  name,  and  sealed 
with  the  great  seal.  It  is  directed  to  the  slieritV  or  other  r.'lurnnig 
officer  of  the  county  wh(!re  the  iilainlilV  inl.'uds  to  lay  the  venue, 
and  is  nuide  returnable  to  the  court  either  of  the  King's  U.n.-li  or 
the  fonuiion  IMea.s,  at  Westminster.  If  the  sherifT  return  on  iln- 
original  non  est  inv^-ntus.  the  original  is  then  left  <»n  tile  in  the 
coiu-t.  and  a  judicial  irrlt  or  pmr^s.^  issu<'s.  called  -a  spmal  rapian 
ad  nspotidrndinii.  which  is  groundefl  u|>on  the  original  11  llj«' 
sherilT  r.iuin  on   tli.-  capias,  non  est   invi-ntus.  the  pInintilT  uuiy 

then   issue  an  alias,  and  a  plurlis-.  and  so  on  to  outlawry,  t )m- 

pel  an  appearance  by  lb.-  drfendant.     Wh.-n  the  defendant  ji|)p.'MrK 
in  court  in  conse(|uenee  of  the  .service  of  the  original.  "V  im  arrent 


iU2  PKocEss.  [Ch.  13. 

ou  ;iii\  prm-i'ss  wliii'h  issiu's  ui'tui  it.  tlit>  plaint  ill'  llicii  tiles  liis 
declarat ion,  aiul  scrvi's  a  cdpy  on  I  he  (Icrcmiant,  who  (U't'i'iuls 
oitluT  by  (litimnur  or  pUa.  It*  lie  pleads  to  the  action,  then  the 
wliole  ol'  the  pU-ailiniis  t(»  the  makin'r  up  of  tlie  issue  are  eoiiipleted 
in  the  s\iporior  court  of  AVcstniinster.  A  nisi  prius  record  is  then 
made  out  and  transmitted  to  the  courl  of  nisi  prius,  or  the  assizes 
of  thi'  countN  where  thi>  \-eiiue  is  laid,  that  the  issues  may  he  tliere 
tried  by  a  jury.  When  a  trial  lakes  place,  and  a  verdict  is  ren- 
dered, it  is  entered  on  the  nisi  ju-ins  roll,  oi-  some  paper  attached 
to  it  wliicli  is  called  the  poslea,  and  deliveivd  to  the  party  in  whose 
favor  the  verdict  is  render(>d.  wlio  retui-ns  it  into  the  sui)erior 
court,  at  Westminstei-,  whei-e  the  i-eeord  beloni;s;  and  on  noticii 
being:  given  to  the  adverse  party,  a  mot  ion  is  then  made  for  judg- 
ment; whieli.  if  no  cause  is  sliown  1o  the  eonti-ary.  is  rendered  by 
tlie  court,  upon  wliich  issues  the  (xccufion. 

In  inodi'rn  times  the  practice  of  conunencing  suit  by  original 
l)urchased  out  of  chancery  has  been  tacitly  waived  by  the  profes- 
sion. The  practice  is  now,  for  the  attorney  to  leave  the  praecipe 
and  a  meniorandum  of  his  warrant  at  1h(»  Filazcr'if  office,  and  thi^ 
Filazer  thereupon  issues  a  capias  ad  i'esi)ondendum  in  the  first  in- 
stance, keeping  the  praecipe  as  instructions  for  the  original,  if 
such  original  should  afterwards  become  necessary  by  the  writ  of 
error  being  brought  after  a  judgment  by  default,  on  demurrer,  or 
on  plea  of  mil  tiel  record:  for  the  want  of  an  original  is  aided 
after  verdict,  by  stat.  18  Eliz.  c.  14.  If  a  writ  of  error  should  be 
brought  for  the  want  of  an  original,  in  any  of  those  cases  where 
the  defect  is  not  cured  by  the  statute  of  Elizabeth,  the  plaintiff 
may.  by  a  petition  to  the  Master  of  the  Rolls,  obtain  an  original 
and  move  the  court,  where  the  record  is,  to  amend  by  adding  the 
original,  which  is  ahvays  granted;  so  that  the  record  is  complete, 
when,  in  obedience  to  the  writ  of  certiorari,  it  is  transmitted  into 
the  court  of  errors.  The  plaintiff  in  error  will  then  have  nothing 
in  the  record  upon  which  he  can  assign  errors,  and  will  fail  in  his 
efforts  to  reverse  the  judgment.  1  Saund.  318.  a ;  Archb.  P.  K.  B. 
73.  By  the  rules  of  the  connnon  law  great  nicety  and  exactness 
were  required  in  the  proceedings  and  ])leadings  in  a  suit;  small 
errors  and  inaccuracies  were  always  sure  to  be  fatal  to  the  party 
inaking  them :  as  for  instance,  in  bailable  actions,  the  declaration 
should  always  correspond  with  the  Avrit  in  the  names  of  the  parti^es. 
and  in  the  cause  of  action  (Bingham  v.  Dickie.  1  E.  C.  L.  R.  276; 
Archb.  Frac.  68,  69.  124).  and  if  there  was  a  variance  in  these,  or 
in  the  sum  demanded,  between  the  writ  and  the  declaration,  it 
would  be  fatal.  Archb.  68.  The  legislature  has  from  time  to  time 
endeavored  to  remedy  what  it  considered  an  evil,  and  has  passed 
several  statutes  of  jeofails  and  for  the  amendment  of  the  law,  to 
prevent  justice  being  strangled  in  a  net  of  forms  and  technicalities. 
The  legislature,  further  to  aid  the  administratitm  of  justice,  pa.ssed 
the  statute  5  Geo.  1 .  c.  1 3  ( 1 73  8 ) .  The  statute  is  as  follows :  "  An 
act  for  the  amendment  of  w^its  of  error,  and  for  the  further  pre- 
venting the  arresting  or  reversing  of  judgments  after  verdict. 


Sec.  1.]  PROCESS.  913 

"Whereas  great  delay  of  justice  hath  of  kite  years  been  occa- 
sioned by  defective  writs  of  error,  which,  as  the  law  now  stands, 
are  not  amendable:  For  the  remedy  whereof.  Be  it  enacted,  etc., 
that  all  writs  of  error  wherein  there  shall  be  any  variance  from 
the  original  record  or  other  defect,  may  and  shall  be  amended  and 
made  agreeable  to  such  record  by  the  respective  courts  where  such 
writ  or  writs  of  error  shall  be  made  returnable ;  and  that  where 
any  verdict  hath  been  or  shall  be  given  in  any  action,  suit.  bill, 
plaint,  or  demand,  in  any  of  his  majesty 's  courts  of  record  at 
Westminister,  or  in  any  other  court  of  record  A\ithin  England  or 
Wales,  the  judgment  thereupon  shall  not  be  stayed  or  reversed  for 
any  defect  or  fault,  either  in  form  or  substance  in  any  bill.  writ, 
original  or  judicial,  or  for  any  variance  in  such  writs  from  the  dec- 
laration or  other  proceedings:  Provided,  nevertheless.  That  noth- 
ing in  this  act  contained  shall  extend  or  be  construed  to  extend  to 
an  appeal  of  felony  or  nuirder.  or  to  any  ]n'oce.ss  upon  any  in- 
dictment or  presentment,  or  information  of  or  for  any  (tfVi  use  or 
misdemeanor  whatsoever."     5  vol.  Brit.  Stat.  43. 

If  the  aforesaid  statute  is  in  force  in  this  .state,  it  cures  the  de- 
fect in  this  ca.se  arising  from  a  variance  between  the  writ  and  de<'- 
laration.  It  becomes  us  now  to  inquire  whether  it  is  in  force  or 
not.  When  this  country  was  first  settled,  it  was  foreseen  that  the 
establishment  of  courts  of  justice  was  ab.solutely  necessary  for 
the  well  being  of  the  society  of  people  who  were  about  to  inhabit 
it.  By  the  fourth  claase  of  the  great  charter,  power  is  given  to  the 
lords  proprietors,  by  and  with  the  consent  of  the  freemen  or  their 
delegates  in  general  a.ssembly.  to  pass  laws  and  make  constitu- 
tions, establish  couits  of  justice,  and  n]ipoint  j\idges  and  magis- 
trates. The  first  judiciary  system  established  in  this  state  was 
under  this  charter.  W^e  learn  from  history.  1  Martin.  303.  304. 
and  from  the  archives  of  the  province,  that  there  was  a  court  of 
chnnrrrji  hdd  hij  tJif  fiorrninr  (Did  ((ni)iriJ.  atid  a  qrcnt  court  of 
cotnmon  lau  jurisdiciion  held  hi/  a  chU [  justice  aud  associntfs,  nud 
inferior  courts  of  limited  JKrisdictiou.  called  precinct  courts.  In  Id 
waffi.<itrntes.  In  the  year  1728.  the  lords  proprietors  surrendered 
their  power  of  governing  the  province  in1(»  tlie  han<ls  of  tlie  king, 
who  in  the  year  1730  sent  out  a  governor,  who  was  emiioweretl  willi 
the  advice  of  the  council,  to  call  assemblies  to  exercise  legi.slativc 
powers  according  to  former  usage,  and  to  e.stal)li.sh  couHs  of  jus- 
tice. T  do  n(»t  discover  that  any  all<'ration  was  made  in  the  judi- 
ciarv  system  which  had  before  exi.sted.  exci'i)t  tiiat  the  governor 
and  couneil  w.  n-  authorized  to  liold  a  court  of  crmrx.  I  h'ani  from 
the  7th  an<l  L'otli  sections  of  the  act  of  1740.  that  the  suitoi-s  in  the 
general  co»irt  conuneneed  their  acticms  by  rr;/»m.«f  nd  napondni- 
duni,  issu(d  luf  llu  clerk  and  aietned  In/  the  chief  justice.  Swim. 
220.  22.^.  The  gen-ral  eonrt  h.ld  its  terms  at  Kdent(»n  In  the 
year  174(1.  the  a.ssembly  i.a.ss.d  another  biw  for  establishing  eourls 
of  justice,  and  regnlatintr  the  proceedings  then-in.  My  this  act. 
the  court  of  rhan<er>i  aud  lh<  (pniral  nr  suimnu  court  wen-  per- 
manently n.x.-d  at  Xewbern.  The  general  court  wan  coniposod  of  h 
Renipflles — 58. 


914  PBOCESS.  [('It.   lo. 

chief  just  ire  sukI  tlirco  associate  justiees.  The  courts  of  assiz< 
were  to  lie  hvU\  Uy  the  ehicf  justice  twice  a  year  at  the  district 
court-houses  of  Kdentou.  Wihiiiui^lou  aiul  Ivlj^econibe ;  cottiih/ 
courts  with  liuiited  jurisdii'tiou  were  established  instead  oL'  tlic 
precinct  courts.  Writs  issuing;  i'roni  the  }j;eneral  court  were  re- 
turned into  it  at  Newhern.  and  tl\(>  ])li'adintrs  and  ]iroceedin<xs 
thereon  were  tht>n  carried  on  and  transactccl  then',  until  the  cause 
was  at  issue;  when  hy  a  inil  of  nisi  priits,  it  was  sent  down  to  the 
proper  place  for  trial  according  to  the  i)ractice  of  the  courts  of 
Coiumon  Pleas  and  Kin»r's  jicinh.  at  ^Vestnlinster.  By  the  40t!i 
section  of  the  act,  it  is  enacted  "that  all  the  statutes  of  jeofails 
whii'h  are  iu)w  in  force  in  Ent»land,  are  hereby  dechired  to  extend 
to  anil  be  in  force  here;  and  that  the  same  shall  be  duly  observed 
by  all  judiTcs  and  justices  of  the  several  coui'ts  of  record  within 
this  province."  The  king,  after  the  lords  i)ro|>rietors  surrendered 
the  powei's  of  government  into  his  hands,  directed  that  all  the 
provincial  ails  of  assembly  should  be  sent  to  him,  and  on  revision 
by  hims(»lf  in  council,  if  tlu-y  were  disallowed,  they  were  to  cease 
having  any  force.  2  I\lartin's  Hist.  2.  In  the  year  1754,  the  as- 
sembly passed  another  act  conceniing  the  judiciary,  which  was 
repealed  by  the  king's  proclamation.  Davis,  IfiT.  The  people 
having  spread  over  a  large  portion  of  the  ]>rovince  east  of  the 
mountains,  it  l)ecame  necessary  to  establish  an  additional  number 
of  district  courts.  In  the  year  1768,  the  assembly  passed  a  new 
court  law  dividing  the  province  into  six  districts,  and  established 
a  superior  court  of  justice  in  each  of  said  districts.  This  act  was 
limited  to  five  years.  In  the  45th  section  it  is  declared,  that  all 
the  statutes  of  jeofails  and  amendments,  which  now  are  in  force 
in  England,  are  and  shall  be  in  force  here.  Davis,  872.  This  act 
went  into  operation ;  for  it  was  the  only  law  passed  before  the  rev- 
olution which  gave  the  judges  power  to  hold  the  superior  courts  at 
TIillsb(jrough  and  Salisbury;  and  we  know  from  history  that  the 
superior  courts  were  held  at  both  of  those  places  before  the  revolu- 
tion. 2  ^lartin,  263.  In  the  year  1773,  the  assembly  re-enacted 
the  court  la^v  which  had  just  expired  by  efflux  of  time,  containing 
the  .same  clause  relative  to  jeofails  and  amendments.  A  suspen- 
sion clause  w^as  added  restraining  its  operation  until  his  majesty's 
pleasure  should  be  known.  A  dispute  arose  between  the  king  and 
tlie  house  of  assembly,  relative  to  the  section  in  the  act  authorizing 
attachments  to  issue  against  the  ])roperty  of  debtors  who  were  not, 
and  never  had  been,  residents  of  the  province.  The  house  of  as- 
sembly refusing  to  strike  it  out  of  the  bill,  the  king  thereupon  re- 
fused to  ratify  the  law.  2  ^lartin.  302.  The  revolution  took  place 
and  the  province  was  changed  into  an  independent  state.  In  the 
year  1777,  the  legislature  passed  a  court  law  (Potter's  Rev. 
c.  115),  in  which  is  to  be  found  the  following  section  ^35)  :  "And 
be  it  enar-ted.  that  all  the  statutes  of  P^ngland  and  Great  Britain  for 
the  amendment  of  the  law,  connnonly  called  statutes  of  jeofails, 
and  which  were  heretofore  enforced  in  this  territory  by  any  act  or 
acts  of  the  general  assembly  under  the  late  government,  are  hereby 


Sec.  1.]  PROCESS.  915 

declared  to  have  continued  and  to  be  now  in  full  force  in  this 
state,  and  shall  be  duly  observed  by  all  judges  and  justices  of  the 
several  courts  of  record  within  the  same,  according  to  the  true  in- 
tent and  meaning  of  the  said  statutes,  unless  where  the  same  are 
or  may  be  altered  by  this  or  any  other  act."  We  know  that  the 
acts  of  174:6  and  1768  had  been  in  force  in  this  territory,  under 
the  provincial  government.  It  would  seem  then  upon  this  review, 
that  the  statute  of  jeofails  and  amendments  referred  to  and  en- 
forced by  these  acts  of  the  colonial  legislature,  including  the  StAt. 
of  5  Geo.  1,  are  as  completely  embraced  within  this  legislative  en- 
actment as  though  they  had  been  incorporated  into  the  act  of 
1777,  and  if  so.  they  must  be  "duly  observed  by  all  the  judges  and 
justices  of  the  several  courts  of  record  within  the  same."  .  .  . 
[After  a  full  review  of  the  authorities  the  conclusion  reached  is 
that,  after  verdict,  no  variance  between  the  writ  and  the  declara- 
tion will  authorize  the  court  to  arrest  the  judgment.] 

See   "Pleading,"    Century    Dig.    §§    146-148;    Decennial   and    Am.    Dig. 
Key  No.  Series  §  74;   "Bail,"  Century  Dig.  §  81. 


WIBRIGHT  V.  WISE,  4  Blackford,  137.     1835. 

Nature  of  the  Writ.     Form.    Defects.     Objections  Hoiv  and  When  to  Be 
Made  and  How  and  When  Waived. 

[Motion  by  the  defendant  to  quash  the  writ.  Motion  sustained,  ami 
the  plaintiff  appealed.  Reversed.  The  writ  was  a  capias  ad  resiKinden- 
dum.  The  concluding  clause  or  teste  of  the  writ  was  as  follows;  'Wit- 
ness Robert  X.  Williams,  clerk  of  Madison  circuit  court,  and  its  seal 
hereto  affixed  at  Andersontown.  the  22nd  day  of  July,  1835."  The  ground 
of  defendants  motion  to  quash  was,  that  the  clerk  had  failed  to  sub- 
scribe  his  name  at  the  conclusion  of  the  teste.  In  opposition  to  the 
defendant's  motion  it  was  insisted:  (1)  That  it  was  too  late  to  object 
to  the  writ  because  it  was  claimed  the  defendant  had  theretofore  I'u- 
tered  an  appearance :  (2)  That  the  writ  was  sufficient  notwithstanding 
the  alleged  defects  therein.! 

Stevens,  J.  It  may  be  observed  that  the  common  law  ductrine 
as  practiced  in  England  respecting  process  is.  in  general,  applica- 
ble to  our  writs  imless  altered  by  statute;  .ind  that,  therefore.  mei*e 
errors  in  our  writs  are  cured  by  the  api)('ariin<'('  of  Ihe  (lefi'ndnnt. 
But  th(;re  is  a  distinction  between  errors  Ihiil  <mly  rcndi'r  llic 
process  voidable,  and  defects  that  render  it  void.  Simple  .•i|)pe;ir- 
anee  does  not  cure  the  latter.  Process  in  Engbind.  ;uid  onr  writs 
answering  to  those  called  process  in  England,  form  no  part  of  the 
record  ;  errors  in  them  cannot  b(;  assigned  for  error;  lienee  the  oidy 
remedy  is  to  move  to  set  aside  the  |)roeeedings ;  juid  that  should 
be  done  before  appearance,  unless  tin-  writ  is  wliolly  void.  In  the 
latter  case,  a  mere  appearance  will  not  <'nre  the  <lefcct.  The  ap 
pearanco.  however,  here  spoken  of.  dws  not  simply  niciiti  tlie  eotn- 
ing  of  the  (h'fetidant  into  the  eonrt-house:  it  means  an  nppeiir- 
anee  to  the  action,  sudi  as  perfectintr  l»ail.  or  taking  some  step  in 
the  action  towards  tie-  <lefense.     The  p.irty  nnist  come  before  the 


JM(i  PROCESS.  [Ch.    ./,?. 

rourt,  or  lie  c.-m  niako  no  objiH'tioii  to  llic  wi'il,  ;nul  this  ho  ciiimot 
do  until  the  wi-it  is  returned.  The  lulc  jipijears  to  be  this:  The 
motion  nnist  he  innde  as  eai-ly  after  Ihc  return  of  the  writ,  as  is 
eonvenient  and  pi-aetieahh'  aeeordinir  to  the  rules  of  the  eoui'l. 
anil  hefoi-e  any  stt'p  is  taken  in  tlie  del'enst'.  The  taking-  a  copy  of 
the  deehiration  out  of  the  ot'lice,  has  heen  deeidid  to  h(^  sueli  a  step 
as  will  eure  errors  in  proeess.  'A  HI.  ('(tni.  L*S7.  n.  10;  1  Sell.  l*r. 
108.  In  this  ease,  the  i)ar1_\'  a|>peai-s  to  have  made  his  motion  in 
due  tinu';  that  is.  tluM-e  is  nothin<r  of  reeoi'd  to  show  or  even  raise 
a  presumption  to  the  eontrai-y. 

The  ((uestion  then  is.  should  the  motion  have  pi'evailed?  The 
appellant  appears  to  iH'st  his  ease  upon  the  common  law.  The 
eonnnon  law  will  not  sustain  him.  At  eonniion  law,  his  writ  would 
have  to  he  tested  in  the  name  of  the  president  ,iudg:o.  and  then  be 
sealed  with  the  seal  of  the  court,  and  officially  sijjned  by  the  clerk. 
Tlie  clerk  is  the  keepiM-  of  the  seal  of  tli(»  coui-t  at  coinnion  law: 
and  when  he  seals  process,  he  should  oflicially  siprn  it  to  show  that 
it  was  sealed  at  the  jiroper  mint  of  justice.  This  writ  at  common 
law  is  erroneous.  In  the  state  of  New  York,  the  conuiion  law  fonn 
exists  as  to  the  teste  of  wi-its.  They  are  t(>sted  in  the  name  of  the 
chief  .iustice;  l)ut  the  clerk  must  put  the  seal  of  the  court  to  them. 
and  otlicially  si^n  tlu'm  ;  and  it  is  error  if  he  fail  to  si^n  his  name. 
Pepoon  ats.  Jenkins.  Col.  &  Caines'  Cas.  fiO.  Our  statute,  how- 
ever, has  altered  the  case.  By  the  fJtli  section  of  the  act  orj^aniz- 
infj  circuit  courts.  Rev.  C.  ISIH.  ]x  1-40.  it  is  enacted,  that  all  writs 
issninfj  out  of  these  courts,  shall  hear  teste  in  the  name  of  the  clerk 
of  the  proper  courts,  etc  The  clerk,  in  issuing  the  writ  now  be- 
fore us.  appears  to  have  substantially  complied  with  that  provi- 
sion of  the  statute.  The  teste  is  in  his  handwriting  and  is  these 
words:  "AVitness  Robert  N.  Williams,  clerk  of  the  jMadison  cir- 
cuit court."  etc.  This  appears  to  ns  a  .sufficient  signing  and  a  suf- 
ficient teste.  Tt  is  tested  in  due  form  as  required  by  the  statute; 
and  as  that  teste  contains  the  name  and  official  character  of  the 
clerk  in  his  own  handwriting,  it  appears  to  be  sufficiently  signed 
to  show  that  it  issued  from  the  proper  mint  of  justice ;  and  that  is 
all  that  can  be  required.     Judgment  reversed. 

See  "Appearance,"  Century  Dig.  §§  118-143:  Decennial  and  Am.  Dig. 
Key  No.  Series  §  24;  "Process,"  Century  Dig.  §  32;  Decennial  and  Am. 
Dig.  Key  No.  Series  §  37. 

The  principal  writs  in  use  under  the  co)nmon  law  practice  are 
here  insc-rted  :  (The  .seal  of  the  court  was  essential  at  common  law. 
but  in  .North  Carolina  it  was  essential  oidy  when  the  writ  i.ssued 
to  another  county.) ' 

Origin.m.  Writ. — Trespass  on  the  Case. 

State  of  North  Carolina. 

To  the  SherilT  of county,  Greeting: 

We  command  you,  that  you  take  the  hody  of  C.  D.  (if  to  be  found  in 
your  county),  and  him  safely  keep,  so  that  you  have  him  before  the  jus- 


Sec.  l.\  PROCESS.  917 

tices  of  our  court  of   Pleas  and   Quarter  Sessions,   to  be   held   for   the 

countj'  of ,  at  the  court-house  in ,  on  the  fourth  Monday 

of  May  next,  then  and  there  to  answer  A.  B.  of  a  plea  of  trespass  on  the 
case,  to  his  damage  one  hundred  and  ttventy-five  dollars.  Herein  fail 
not,  and  have  you  then  and  there  this  writ. 

Witness,  G.  H.,  clerk  of  our  said  court,  at  office  in  ,  the  fourth 

Monday  of  February,  1850,  in  the  seventy-fourth  year  of  our  Independ- 
ence. 

Issued  the  3rd  day  of  March,  1850. 

G.  H.,  Clerk,  etc. 

Writ  in  Debt.  Strike  out  the  words  in  italics  in  the  foregoing,  and 
insert,  "of  a  plea  that  he  render  unto  him  the  sum  of  two  hundred  dol- 
lars, which  he  owes  to.  and  unjustly  detains  from  him,  to  his  damage 
fifty    dollars." 

Writ  in  Debt  on  Tico  Bonds.  Strike  out  the  words  in  italics  in  the 
first  form  and  insert,  "of  a  plea  that  he  render  unto  him  the  sum  of 
three  hundred  dollars,  and  the  further  sum  of  four  hundred  dollars, 
which  he  owes  to.  and  unjustly  detains  from  him,  to  his  damage  seventy- 
five  dollars;"  or  simply,  "of  a  plea  that  he  render  unto  him  the  sum  of 
seven  hundred  dollars,  which  he  owes  to,  and  unjustly  detains  from  him, 
to  his  damage  seventy-five  dollars." 

Writ  in  Debt  Qui  Tarn.  Strike  out  the  words  in  italics  in  the  first 
form,  and  insert,  "who  sues  as  well  for  the  state  of  North  Carolina,  as 
for  himself,  in  this  behalf,  of  a  plea,  that  he  render  unto  the  said  state, 
and  to  the  said  A.  B.,  who  sues  as  aforesaid,  the  sum  of  one  hundred 
dollars,  which  he  owes  to,  and  unjustly  detains  from  them." 

Writ  of  Covenant.  Strike  out  the  words  in  italics  in  the  first  form, 
and  insert,  "of  a  plea  of  a  breach  of  covenant,  to  his  damage  five  hun- 
dred dollars." 

Writ  of  Detinue.  Strike  out  the  words  in  italics  in  the  first  form, 
and  insert,  "of  a  plea  that  he  render  unto  him  one  bay  horse  of  the 
value  of  four  hundred  dollars,  and  one  wagon  of  the  value  of  two  hun- 
dred dollars,  which  he  unjustly  detains  from  him,  to  his  damage  one 
hundred  and  fifty  dollars;"  or  insert,  "of  a  plea  that  he  render  unto 
him  one  bay  horse  and  one  wagon  of  the  value  of  six  hundred  dollars, 
which  he  unjustly  detains  from  him,  to  his  damage  one  hundred  and 
fifty  dollars." 

Writ  of  Trover.     The  same  as  Trespass  on  the  Case. 

Writ  of  Trespass  Vi  et  Armis.  Strike  out  the  words  in  italics  in  the 
first  form,  and  Insert,  "of  a  plea  of  trespass  vi  et  armis,  to  his  damage 
five  hundred  dollars." 

Writ  of  Tri'.spass  Qvare  Clausum  Fregit.  Strike  out  the  words  in 
italics  in  the  first  form,  and  insert  "of  a  plea  of  trespass  quare  clausum 
fregit  to  his  damage  two  hundred  dollars." 

Writ  of  Debt  Against  One  Defendant  as  an  Individual,  and  Another  as 
Executor.  Follow  fhe  first  form  down  to  and  including  the  words 
"fourth  Monday  of  May  next,"  and  then  proceed,  "and  that  you  summon 
E.  F.,  executor  of  G.  II.,  to  be  before  said  justices  at  the  time  and  i)la(e 
aforesaid;  then  and  there  to  answer  A.  B.  of  a  plea  that  they  render 
unto  him  the  sum  of  five  hundred  dollars,  which  the  said  C.  D.  owes  to, 
and  unjustly  detains  from  him.  and  which  the  said  E.  F.,  executor  of 
G.  H.,  unjustly  detains  from  him,  to  his  damage  fifty  dollars,"  etc. 

The  above  forms  are  taUon  from  Eaton's  Forms,  pp.  44  47.  See  lb. 
pp.  40-43,  for  general  directions  as  to  writs. 

firplnin.  "The  action  of  replevin,  though  entertained  in  the  sujierior 
courts,  is  not  fommenced  there;  and  the  writs  of  summons  and  cai)ias, 
provided  by  2  Will.  4,  c.  ^0,  for  the  comniciiccmcnt  of  personal  suits  in 
the  superior  courts,  are  consecpiently  not  applicable  to  this  action.  A 
replevin  Ih  entertained  in  the  superior  courts  by  virtue  of  an  authority 
which  they  exercise  of  removing  suits,  In  certain  cases,  from  an  Inferior 
Jurisdiction,  and  transferring  them  to  their  own  cognizance.  Where 
goods  have   been   distrelned,  a  party  making  jilalnt   to   the  sheriff  may 


01 S  PROCESS.  |(7(.    13. 

have  them  replevied,  tluii  is,  re-delivoied  to  him,  upon  j;iving  seiiiiily 
to  prosecute  an  aition  against  the  distreiner,  lor  the  purpose  of  trying 
the  legality  ot  the  distress;  and,  if  the  right  be  determined  in  favor  of 
the  hitter,  to  return  the  goods.  The  action  so  prosecuted  is  called  an 
action  of  replevin,  and  is  coniniciHed  in  the  county  court.  From  thence 
it  is  removed  into  one  of  the  siipci'ior  courts  by  a  writ  either  of  recor- 
dari  facias  lotpiclaui,  or  accedas  ad  curiam.  In  form.  It  is  an  action  for 
damages,  for  the  illegal  taking  and  detaining  of  the  goods  and  chattels." 
Stephen's  Pleading,  19. 

In  modern  times  the  writ  of  Rei)levin  was  rcgulatt-d  by  statute  in  the 
several  states,  and  the  writ  in  use  in  North  Carolina  i)rior  to  the  adop- 
tion of  the  Code  practice  was  according  to  Eaton's  Forms,  p.  48,  as  fol- 
lows: 

State  of  North  Carolina, 

To  the  Sheriff  county,  Greeting: 

Whereas,  A.  B.  hath  made  oath  before  the  clerk  of  the  superior  court 
of  law  of  said  county,  that  a  certain  bay  horse  has  been  in  his  lawful 
possession  within  three  years  next  preceding  the  date  hereof,  and  that 
he  has  been  deprived  of  the  possession  of  said  horse  by  the  defendant, 
C.  D.,  without  the  consent  or  permission  of  him,  the  said  A.  B.,  and 
that  the  said  horse  is  of  the  value  of  four  hundred  dollars,  and  the  said 
A.  B.  hath  also  given  bond  with  good  security  before  the  said  clerk,  in 
the  sum  of  eight  htindred  dollars,  payable  to  the  defendant,  and  condi- 
tioned to  perform  the  final  judgment  on  this  writ,  and  hath  also  given 
bond  with  good  security  for  the  prosecution  of  this  suit.  We  therefore 
command  you,  that  you  forthwith  take  said  horse  into  your  custody,  if 
to  be  found  in  your  county,  and  deliver  him  to  the  said  i)laintiff,  unless 
the  said  defendant  shall  execute  and  deliver  to  you  a  bond,  with  good 
security,  in  the  sum  of  eight  hundred  dollars,  payable  to  the  said  plain- 
tiff, and  conditioned  to  perform  the  final  judgment  which  shall  be  ren- 
dered in  this  case;  and  if  the  said  defendant  shall  execute  and  deliver 
to  you  a  bond  as  aforesaid,  you  are  to  return  said  bond  with  this  writ. 
We  further  command  you  that  you  summon  the  said  C.  D.,  if  to  be 
found  in  your  county,  to  be  and  appear  before  the  honorable  the  judge 

of  our  said  court,  at  the  court-house  in  ,  on  the  third  Monday 

after  the  fourth  Monday  in  March  next,  then  and  there  to  answer  the  said 
A.  B.  of  a  plea  of  taking  and  unjustly  detaining  the  said  horse,  to  his 
damage  four  hundred  dollars.     And  have  you  then  and  there  this  writ. 

Witness,  E.  F.,  clerk  of  our  said  court,  at  office  in ,  the  third 

Monday  after  the  fourth  Monday  in  September,  1844,  and  in  the  sixty- 
ninth  vear  of  our  Independence. 

B.  F.,  Clerk. 

Issued  the  1st  day  of  January,  184.'j. 

Writ  of  Waste.  Strike  out  the  words  in  italics  in  the  first  form  above 
given,  and  insert,  "of  a  plea,  why  in  the  houses,  land  and  woods,  in  the 

county   of  which   he  holds  and    is  legally   entitled   to  for  the 

term  of  his  natural  life,  under  the  devise  of  J.  H.,  he  has  made  waste, 
spoil  and  destruction,  to  the. disinheriting  of  the  said  A.  B.,  against  the 
provisions  of  law.  and  to  the  damage  of  the  said  A.  B.  of  one  thousand 
dollars." 


Sec.  2.     Subpoena  in  Equity. 

ARCHIBALD  v.  MEANS,  40  N.  C.  230.     1848. 
Process  in  Equity. 

[Bill  in  equity.  Demurrer  by  defendants.  Demurrer  overruled.  De- 
fendants appealed.  Reversed.  The  facts  appear  in  the  beginning  of  the 
opinion. 1 

RuFFiN,  C.  J.  The  merits  of  the  controversy  between  these  par- 
ties cannot  be  determined  in  the  present  state  of  the  pleadings. 


Sec.  2.]  PROCESS.  919 

If  any  person  can  be  deemed  a  defendant  to  the  suit,  a  decisive  ob- 
jection to  the  bill  is.  that  it  is  against  three  married  women,  with- 
out making  the  husband  of  either  of  them  a  defendant.     In  the 
title  of  tht^bill  it  is  said  to  be  "against  Margaret,  the  wife  of  Cor- 
nelius ]\lcKee."  etc.,  but  not  to  be  against  i\IcKee  himself,  or  the 
other  husbands.    Of  coui-se.  as  the  husbands  are  necessarj'  parties 
to  the  account,  so  as  to  render  it  obligatory  upon  all  interested  in 
the  estate,  the  court  ought  not  to  entertain  the  bill  and  order  the 
cause  to  an  account  without  them.    But  the  truth  is,  that  the  hill 
does  not  properly  make  any  person  a  defendant.     The  bill  is  en- 
titled, a  bill  against  certain  persons;  but  the  title  is  no  part  of  the 
bill,  whether  it  precede  the  statement  of  the  bill,  or  be  written  on 
the  back  of  it.     The  stating  part  of  the  bill  ought  to  contain  the 
case  of  the  plaintiff.  sho\\ing  his  rights,  and  the  injuiy  done  to 
him  and  by  whom  it  was  done;  and.  even  then,  the  pei-sons  thus 
mentioned'in  the  bill,  as  the  authors  of  the  wrong  complained  of, 
are  not  thereby  made  defendants,  but  only  those  against  whom 
process  of  subpoena  is  prayed,  as  the  means  of  compelling  their 
appearance,  or  under  our  statute,  publication  in  its  stead.     Coop. 
Ch.  PI.  16;  Beams  El.  PI.  148.    In  the  present  bill  no  pereons  are 
named  in  the  stating  part  of  the  bill  as  the  heire  or  next  of  kin  of 
the  intestate;  but  it  is  only  stated  that  "the  defendants"  are  the 
children  of  their  deceased  brothers  and  a  sister  of  the  intestate, 
and  as  such  are  his  heirs  at  law  and  next  of  kin.    In  like  maimer 
in  the  pi-ayer  for  process,  it  is  against  "the  defendants,"  without 
naming  any  person.    So  that  in  tnith  there  is  strictly  no  suit  prop- 
erly constituted,  in  which  the  court  ought  to  have  decreed,  or  this 
person,  John  AV.  :\leans.  o\ight  to  have  demurred.    The  decree  was 
therefore  erroneous  and  must  be  reversed;  but  as  we  have  observed 
that  this  is  not  an  uncommon  mode  of  stating  a  case  and  making 
I)arties  in  some  parts  of  the  state,  and  the  appellant  might  have 
availed  himself  of  the  defect  more  property  by  objecting  to  ap- 
I)earing,  instead  of  demurrtng,  the  court  is  not  disposed  to  give 
costs  in  either  court.    We  cannot,  however,  but  express  the  hope, 
that  more  attention  will  be  paid  to  the  framing  of  the  pleadings  in 
an  orderly  manner,  and.  to  that  end.  that  recourse  will  be  had  to 
the  booksof  pi-eeedents  of  established  authority,  rather  than  to  the 
loose  and  imperfect  productions  of  the  circuit.     Decree  accord- 
ingly. 

The    following    form    of   Subpoena    in   Equity    is   talcen    from    Eaton's 
Forms,  ."80: 

The  State  of  .\orth  Carolina, 

To  C.  D.  of  county: 

We  rommanrl   vou,  that   laying  anide  all   other  matters   :m(l   t-x<iises. 
you  be  and  api)Par  before  us  in   our  Court   of  Equity  to  be  held  for  the 

,.o„nty  of  at   thf  fonrt-bnuse  in .  on  the  third  Monday 

after  the  fourth  Monday  of  March.  18.^.8.  (o  answer  to  such  things  as 
shall  then  and  there  he  alleged  against  you  by  A.  B.  and  further  to  do 
and  rerelvf  what  our  said  rourt  shall  direct  in  this  behalf  upon  pain 
of  an  attachnu-nt  is..uing  au-ainst  your  person,  and  such  other  proeeBS 
for  cont..mpt   a.'i  the  said   ••ourl   shall   award      Witness    E.   K.  clerK   an 

mastor  of  said   court,  at  office  in .   the   third   JJ"";'"^   after  th.- 

fourth  Monday  of  September.  18.f;7.  »*^    ''■•  '  •    ^^-    "' 


920  PROCESS.  [('/(.    13. 

Issued  .March   1st.  1858. 

For  the  101111  aiui  ri'quisites  ol'  a  Subpoena  in  Equity  in  llu'  i-'ederal 
courts,  see  l.,ovclaiul's  Kornis,  p.  .">(tl,  and  Rules  XI  XX  of  the  Rules  of 
Practice  lor  the  Courts  of  Kquity  of  the  I'niled  States,  prescribed  by 
the  Supreme  Court  of  the  United  States,  to  be  found  in  \i  Dan.  Ch.  Prac. 
•l.';^:.'..  -2  Foster's  Fed.  Pac.  III'.IO.  Shiras's  lOq.  Prac.  14:?.  See  '•Equity," 
Century  Dig.  §  '.\-'2:   Decennial  an(i  Am.  Dig.  Key  No.  Series  §  loD. 


Sec.  3.    IMesne  I'kocicss. 

FERGUSON  ads.  THE  STATE  ex  rel.  REEVES,  31  N.  J.  L.  289,  291. 

1865. 
Mesiw  Process  Defined. 

[Action  against  Ferguson  for  a  mandamus.  There  was  judgment 
against  Ferguson  for  costs,  inter  alia.  Among  the  items  taxed  in  the 
bill  of  costs  was  a  charge  for  serving  the  writ  of  mandamus.  The  law 
allowed  to  the  sheriff,  among  other  fees,  a  fee  on  any  Mesne  Process. 
Ferguson  moved  to  relax  the  costs  and  strike  therefrom  this  item.  Re- 
fused.    The  question  is:    What  is  meant  liy  mesne  process?] 

Haines,  J.  .  .  .  The  charge  for  sheriff's  fees  for  serving 
the  writ  of  innndnimis  should  be  allowed.  It  may,  it  is  true,  be 
served  by  a  person  not  an  olHeer;  but  generally  the  service  by  an 
officer  is  better.  It  is  more  authoritative,  and  less  likely  to  be  dis- 
regarded or  resisted.  The  true  policy  as  tending  to  the  mainte- 
nance of  peace  and  good  order,  is  to  have  such  writ  ser\^ed  by 
an  olificer.  The  charge,  too,  comes  fairly  within  the  terms  of  the 
fee  bill,  which  allows  fees  to  the  sheriff  "for  every  attachment, 
summons,  capias  ad  respondendum,  declaration  in  ejectment,  or 
any  mesne  jjroccss  issuing  out  of  the  supreme  court." 

By  the  term  mesne  process,  is  gencrallij  understood  any  writ 
issued  between  the  original  writ  and  the  execution.  By  original 
process,  the  first  vi^rit  at  the  common  law^  is  not  meant  the  first 
process,  under  our  statute.  Such  original  \yv\i  is  not  used  here. 
All  our  writs  preceding  the  execution  are  mesne  process.  In 
Chitty's  Practice.  140,  it  is  said,  that  by  mesne  process  is  meant 
the  writ  or  proceeding  in  action  to  summon  or  bring  the  defend- 
ant into  court.     .     .     .     Bill  retaxed. 

Mesne  process  is  that  which  is  issued  between  the  original  and  the 
final  process.  Bouv.  Law  Die.  "Mesne."  See  to  same  effect,  Heard's 
Civil  PI.  (Student's  Series)  10.  See  "Costs,"  Century  Dig.  §  701;  De- 
cennial and  Am.  Dig.  Key  No.  Series  §  176;  "Mesne  Process,"  Words  and 
Phrases,  vol.  5,  pp.  4495,  4496. 


Sec.  4.     Arrest.     Common  and  Speciat,  Bail.     Appearance. 

LEWIS  V.  BRACKENRTDGE,  1  Blackford,  112,  114.     1821. 
Evolution   of   Arrests   in   Civil   Actions.      Sha7neful    Oppression    hy   Im- 
prisonment for  Debt.     Affidavit. 

[Lewis  sued  Oliver,  and  Brackenridge  became  special  bail  for  Oliver. 
Lewis  instituted  proceedings  against  Brackenridge  to  enforce  his  liability 
as  such  bail.  Thereupon  Brackenridge  moved  to  set  aside  the  order  of 
bail  in  the  original  suit,  for  want  of  a  suflRcient  affidavit,  and  because 


Sec.  1.]  PROCESS.  921 

Lewis  had  given  Oliver  a  sta.v  of  execution  for  five  months  which, 
Brackenridge  claimed,  exonerated  the  bail.  The  judge  set  aside  the 
order  of  bail,  and  Lewis  carried  the  case  to  the  supreme  court  by  writ 
of  error.  Reversed.  There  was  a  petition  to  rehead  but  the  former  rul- 
ing was  affirmed.  Only  a  part  of  the  opinion  on  the  petition  to  rehear 
is  here  inserted.] 

Blackford,  J.  By  the  common  law  uo  niau  could  be  arrested 
in  actions  upon  contract.  By  a  variety  of  statutes,  the  law  in 
England  was  entirely  changed,  and  in  process  of  time  every  man 
in  such  actions  became  liable  to  imprisonment  without  redress. 
Perhaps  the  common  law  was  too  lenient  for  a  commercial  people; 
but  the  statute  law  certainly  became  shamefiiUy  oppressive. 
These  evils,  however,  have  been  long  since  remedied.  By  the 
statutes  of  Henry  VI.  of  Eliz..  and  more  especially  of  Geo.  I,  the 
personal  liberty  of  the  debtor  and  the  right  of  the  creditor  have 
been  carefully  attended  to.  We  have  a  statute  regulating  arrests 
in  civil  cases,  somewhat  similar  to  that  of  Geo.  I.  and  indeed  they 
may  be  considered  substantially  the  same  as  to  affidavits  for  bail 
in  cases  where  by  our  law  such  affidavits  are  required. 

In  actions  founded  on  tort,  as  trespass,  etc.,  no  particular  sum 
can  possibly  be  sworn  to.  In  such  case  there  must  be  a  positive 
affidavit  of  facts  stated  so  much  at  large,  and  vdt\\  such  precision, 
that  the  court  or  judge  in  making  the  order,  may  be  able  to  deter- 
mine the  quantum  of  the  bail.  In  actions  on  contracts,  the  affida- 
vit, whether  made  by  the  plaintiff  himself  or  by  a  third  person, 
must  show  there  is  at  the  time  of  suing  out  the  writ  an  existing 
debt  then  actually  due,  for  which  an  arrest  may  lawfully  be  made. 
It  should  be  positive  as  to  the  sum  due,  and  not  rest  on  belief,  or 
left  to  be  collected  by  inference.  Thus,  when  the  affidavit  was  as 
the  deponent  vcrUy  believes,  it  was  adjudged  insufficient.  Str. 
1226.  So  where  the  affidavit  depends  upon  a  reference  to  further 
evidence,  it  is  bad.  as  if  it  sets  out  the  sum  to  be  due.  as  appears 
by  an  account  stated  under  the  defendant's  own  hand.  1  Will. 
]21.  or  as  appears  by  an  agreement  dated  such  a  day.  Burr.  1447. 
This  doctrine  is  .settled  by  many  adjudications.  There  is  one  case 
which  was  cited  in  support  of  the  affidavit  in  the  cause  before 
us,  that  certainly  looks  another  way.  ]Maultley  v.  Richardson. 
Burr.  1032.  There  the  affidavit  was  that  the  defendant  was  in- 
debted to  the  phtintiff  in  such  a  sum.  as  he  computes  it.  Tlie  au- 
thority of  this  decision  was  doubted  ))y  Justice  Buller.  1  D.  &  E. 
717,  and  has  since  been  expressly  denied  to  be  law.  4  Taunt.  154. 
It  is  time  to  forget  it.  To  this  trenenil  ruh^  that  the  affidavit  mnsl 
be  positive  as  to  the  real  amomit  <lu(  .  tliere  is  an  exception  in 
favor  of  executors,  administrators,  and  assignees.  Tliey  are  per- 
mitted from  the  nature  of  their  situation  to  swear  to  their  belief. 
I'.urr.  10H2.  22S.3.  The  affidavit  nui.st  be  filed  in  the  clerk's  office, 
or  witli  the  judge  making  th<'  order,  befoi-e  tlie  jirrest,  that  it  may 
be  in  the  custody  of  the  law ;  for  the  offender,  in  ease  it  is  false, 
will  be  subji'ct  to  an  indictment  for  ])erjnry.  and  to  an  a(ttion  for* 
damaL'es.  l>y  the  piirty  injured  ;  nnd  one  good  reiison  why  so  much 
certainty  and  precision  in  the  affidavit  are  re(|nired.  is,  tliat  per- 


1)22  PROCESS.  [(7(.  13. 

jury  iii;i\'  hv  clcai'ly  assiiriud  on  it.  il'  it  provt's  iiiiti-uc.  The  sum 
fixed  by  di-iUt  of  a  judge,  or  specilii'd  in  tlie  allidavit.  is  endorsed 
on  the  writ,  and  tlie  direction  of  the  eh>.rk,  or  fiat  of  the  judfre  vo- 
([uirinjj;  bail,  is  in  all  eases  subject,  of  covirse,  to  conli'o!  of  the 
court.  Wliere  the  process  is  i-eturna.hle.  upon  proper  application. 
made  in  due  time,  the  i^laintill'  may  be  reciuired  to  sliow  the  cause 
of  aetitni  and  of  ai-rest  ;  if  this  is  pi'ima  facie  sufficient,  and  tlio  de- 
fendant, witliout  irointi  into  tlu'  iiiei-its.  cannot  show  himself  le- 
liallv  excused  from  the  arrest,  the  rule  to  show  cause  will  l)e  dis- 
charjred.  No  sujiplementary  or  counter  affidavits  should  be  intro- 
duced, nor  any  evidence  relative  to  the  mei'its  of  tlu>  cause,  than 
that  wliich.  accordinir  to  the  statute,  was  produced  to  the  clei-k  or 
judge  to  procure  the  endorsement  for  bail  on  the  writ.  When  this 
ease  was  under  consideration  at  last  term,  we  did  not  determine  as 
to  the  validity  of  th(>  aflichivit.  because,  admittinfr  it  to  be  as  de- 
fective as  the  defendant  wislied  it  to  be  considered,  our  opinion 
was,  that  the  objections  were  made  entirely  too  late.  We  think  so 
yet.  An  affidavit  to  hold  to  bail  is  a  comi)onent  i)art  of  the  proc- 
ess, used  for  the  ]Min^ose  of  bringinir  the  defendant  into  court. 
Advantage  can  only  be  taken  of  any  irregularities  or  defect  in  it 
by  application  to  the  court  in  the  first  instance.  AVhenever  the 
defendant  regularly  appears  to  the  action,  or  voluntarily  does  an 
act  adopting  the  jn'ocess.  the  object  is  then  accomplished  for  which 
the  affidavit  wa.s  made  and  the  writ  issued.  No  objection  can  after, 
wards  be  made  tc  the  validity  of  the  one  or  the  other.  7  D.  &  E. 
375 ;  1  B.  &  P.  132;  1  Ea.st,  18,  81.  330.  This  doctrine  is  not  inter- 
fered Avith  by  our  statute. 

See  Ex  parte  Hollman,  79  S.  C.  9,  inserted  at  ch.  6,  §  3  ante;  and 
Long  V.  McLean,  88  N.  C.  3,  inserted  at  ch.  11,  §  1.  ante.  See  "Appear- 
ance," Century  Dig.  §  125;  Decennial  and  Am.  Dig.  Key  No.  Series  §  24; 
"Arrest,"  Century  Dig.  §§  56,  71;  Decennial  and  Am.  Dig.  Key  No.  Se- 
ries §§  28,  32. 


Sec.  5.     When  is  a  Writ  Issued. 

HAUGHTON  v.  LEARY,  20  N.  C  14.     1838. 
Writ  Signed  By  the  Clerk  in  May  But  ^ot  Delivered  to  the  Sheriff  Until 

Jvly. 

[Action  of  assumpsit.  Plea  of  set-off.  Judgment  disallowing  the 
set-off.  Defendant  appealed.  Affirmed.  Only  a  part  of  the  opinion  is 
here  inserted. 

The  clerk  signed  and  issued  the  writ  in  May,  but  it  was  not  placed  in 
the  sheriff's  hands  until  .July  21st.  On  .July  8th  the  defendant  acquired, 
by  assignment,  certain  notes  made  by  the  plaintiff,  which  notes  consti- 
tuted the  set-off  in  his  plea.  The  question  presented  is:  When  is  a  writ 
issued  and  an  action  commenced?! 

RuFFiN.  C.  J.  In  our  opinion  the  defendant  is  not  entitled  to 
the  set-off  under  either  plea.  The  first  is.  that  the  notes  were  en- 
dorsed to  the  defendant  before  and  at  the  commencement  of  this 
suit.     This  is  not  tme  in  point  of  fact.     The  assignment  was  on 


{iec.  5.]  PROCESS.  923. 

the  8th  of  July  aud  the  suit,  we  think,  was  conuiienced  on  the  8th 
of  May  preeediug.  on  which  day  the  writ  is  dated,  and  as  stated  in 
the  ease,  truly  dated  and  filled  up.     The  suing  out  the  ^\Tit  from 
the  proper  officer,  or  purchasing  it,  as  it  is  called  sometimes,  is  so 
universally  deemed  the  hringing  suit,  that  no  exception  is  recol- 
lected by  the  court.     It  is  unquestionably  so  within  the  statute  of 
limitations,  which  uses  the  very  words  "that  all  actions  shall  be 
commenced  or  brought  within  the  time  and  limitation  expressed, 
and  not  after."     While  the  teste  of  the  writ  on  the  one  hand  is 
not  the  commencement  of  the  suit,  for  the.  benefit  of  the  plaintifj : 
so  on  the  other,  the  service  of  it,  or  its  delivery  to  the  sheriff,  or 
any  such  thing  is  not  requisite  to  the  commencement  of  the  suit, 
for  the  hcnefit  of  the  defendant:  hut  onhi  getting  the  writ — im- 
pet ratio  hrevis.    Johnson  v.  Smith,  2  Burr.  950.     There  are  many 
cases  to  that  effect.    The  form  of  pleading  also  establishes  it.    The 
constant  form  is,  "that  the  defendant  did  not  assume  wnthin.  etc.. 
ante  impetrationem  brevis. "     "Why?     Because  obtaining  the  writ, 
sealed  and  complete  in  form,  is  in  fact  and  hnv  the  commencing 
suit.    If  this  standard  were  departed  from,  it  would  be  altogether 
uncertain  what  would  amount  to  bringing  .suit — a  point  that  can- 
not be  remaining  to  be  settled  at  this  day.     The  plaintiff  has  pro- 
ceeded on  that  very  writ,  and  brought  the  defendant  into  courl 
under  it  as  the  leading  process  in  this  action.    Its  date  would  de- 
termine the  commencement  of  the  suit  in  reference  to  the  statute 
of  limitations,  if  the  defendant  had  pleaded  it.     For  tlu^  like  rea- 
sons, it  determines  it  for  the  purpo.ses  of  the  present  plea.     .     .     . 
Judgment  affirmed. 

See  "Action,"  Century  Dig.  §§  726,  727;   Decennial  and  Am.  Dig.  Key 
No.  Series  §  64. 


HANCOCK  V.  RITCHIE,   11    Ind.   48,   51-53.     1858. 

Writ  Signed  By  the  Clerk  in  April  But  Not  Delivered  to  the  Sheriff  at 
All.     Defendant  Appeared  Yoluntarily  in  September. 

[Action  by  Hancock  to  recover  upon  two  promissory  notes.  The  writ 
issued  April  15th,  1853,  but  was  never  delivered  to  the  sheriff,  and  on 
September  26th,  1853,  the  defendant  entered  an  appearance  and  filed  an 
answer.  The  rights  of  the  parties  depended  upon  when  the  action  was 
commenced.  The  plaintiff  insisted  that  it  commenced  on  Aril  15th,  and 
the  defendant  insisted  that  it  did  not  commence  until  September  26th. 
The  judge  ruled  with  the  defendant,  and  rendered  judgment  against  the 
plaintiff,   from   which   he  appealed.     Affirmed. 1 

"WoRDEN.  J.  .  .  .  "Was  the  suit  commenced  (Hi  llie  l.')tli  of 
April.  1853.  or  not  until  the  appearance  of  the  defendant  in  Sep- 
tember afterwards?  The  statement  in  the  record  that  the  writ 
issued,  does  not.  we  think,  imply  that  it  was  ])laei'(l  in  the  hands  of 
the  sheriff  for  scn-iee.  Tt  iriighl  have  l)eeii  tlelivei-ed  l)y  the  clerk 
to  the  plaintiff  or  his  attorneys;  but  the  inference  is.  tliat  it  re- 
)naine<l  in  the  clerk's  (►ffiee.  as  he  copies  it  into  the  record.  We 
are  of  o[)ini<>n  that  a  deliver}!  <>f  Un   u-ril  In  Uu  sh(  riff  for  .sv/txt, 


92  {  PROCESS.  f(7(.   13. 

or  s(>m((hi)Kf  equirnhiil  la  such  (Itlivirtj,  irus  tKctssdri/,  in  order 
lluit  th(  action  ti\i<jhi  be  (Uctnal  lo  have  been  commenced. 

In  tlu'  rase  of  CariHMitci-  v.  ButttM-ficld,  'A  Jolm.  ('as.  14(),  the 
writ  had  boon  issnod  and  phu-od  in  the  hands  of  tlio  olticor,  who 
wont  to  aiTosI  tlic  dofonchnit  ;  but  tho  dofrudant  avoided  arrest 
nntil  111'  proi'uicd  tlie  assignment  of  a  note,  foi-  the  |)ui'i)ose  ol" 
setting  it  up  as  an  otl'set  to  the  plaintiff's  claim.  Held,  that  the 
suit  was  conniieneed  before  the  not(>  was  a.ssigned.  This  ease  is 
made  the  basis  of  what  is  said  in  ivferenoe  to  this  matter  in  ("laik 
V.  Redman,  1  lilaekf.  379.  In  this  last  ea.se,  the  point  was  not 
whether  the  writ  nuist  be  delivered  to  the  ot^eer,  but  whether  tin- 
tiling  of  a  deelaration  was  the  eommeneement  of  the  snit ;  and  the 
court  say  that,  "in  New  York  it  has  boon  decided,  that  the  impc- 
tration  of  the  writ,  as  to  every  material  jnirpose,  is  the  connnence- 
ment  of  the  action,"  citing  the  case  of  Carpenter  v.  liuttertield. 
supra.  In  Hronson  v.  Earl.  17  John.  iV,],  it  was  said  by  the  court . 
that  "suing  out  the  writ  has  been  held,  in  several  ca.ses,  by  this 
court,  to  be  the  comnieneement  of  the  suit ;  and  although  there  may 
be  some  uncertainty  or  ambiguity  in  the  term  'suing  out  the  writ.' 
yet  there  can  be  no  doubt  that  the  delivery  of  the  writ  to  the 
proper  officer  or  leaving  it  at  his  house  as  in  this  case  for  the  pur- 
pose of  being  executed,  is  to  be  deemed  the  actual  commencement 
of  the  suit."  In  Rass  v.  Luther.  4  Cow.  188,  it  was  also  held,  that 
the  suit  could  not  l)e  considered  as  having  been  connnenced  until 
the  actual  delivery  of  the  writ  to.  the  officer,  and  in  L'nderwood  v. 
Tatham.  1  Ind.  276,  which  was  an  action  of  replevin,  where  a  de- 
mand was  necessary  before  bringing  suit,  and  none  was  made  until 
the  writ  had  been  delivered  to  the  officer,  it  was  held  that  the 
issuing  of  the  writ  to  the  sheriff  (thereby  implj^ng  its  delivery), 
was  the  commencement  of  the  suit. 

These  authorities,  we  think,  settle  the  question.  As  the  writ  was 
not  delivered  to  the  sheriff  for  service  we  do  not  determine  whether 
if  it  had  been  delivered  in  a  case  like  the  present  where  it  was  not 
served  no  projierty  being  attached  and  no  one  summoned  as 
garnishee  and  the  defendant  not  notified,  the  suit  would  be  con- 
sidered commenc(>d  until  the  appearance  of  the  defendant.  The 
mere  making  out  of  a  writ  without  a  delivery  to  the  officer  for  .serv- 
ice, either  actual  or  constructive  we  think  leaves  the  case  so  far 
as  this  question  is  concerned,  as  if  no  writ  had  been  issued,  and 
the  case  falls  within  the  principle  determined  in  the  case  of  The 
State  V.  Clark.  7  Ind.  -468.  We  are  of  opinion  that  the  suit  cannot 
be  considered  to  have  been  commenced  until  the  appearance  of  the 
defendant  in  September,  1853,  and  that,  therefore,  the  provisions 
of  the  code  of  1852  are  applicable  to  the  proceedings — that  code 
having  taken  effect  May  6,  1853.     .     .     .     Judgment  affirmed. 

See  "Action,"  Century  Dig.  §§  726,  727;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  64. 


Sec.  5.]  PROCESS.  925 


WEBSTER  V.   SHARPE,  116  N.  C.  466,  471,  21   S.  E.  912.     1895. 
W7ie»    is  a  Writ  "Issued"  and  an  Action  "Commenced?" 

I  Action  for  slander.  Plea  of  statute  of  limitations.  Verdict  and  judg- 
ment against  the  plaintiff,  and  he  appealed.  Affirmed.  The  summons, 
bore  date  May  30th.  1893.  The  defendant  contended  that  it  was  not 
issued  until  July  10th,  1893.  If  the  defendant's  contention  was  correct 
the  action  was  barred.] 

Flrches.  J.  .  .  .  If  the  sununons  was  issued  at  the  time  it 
bears  date,  it  was  in  time.  But.  if  it  was  not  issued  until  the  10th 
of  July,  it  was  not  in  time,  and  the  statute  of  limitations  was  a 
bar.  The  presumption  is  that  it  wa.s  is.suod  at  the  time  it  bears 
date,  and  the  burden  is  on  the  defendant  to  show  that  it  did  not. 
To  do  this,  defendant  introduced  the  clerk  and  the  sheriff,  and 
their  testimony  tended  to  show  that  the  summons  did  not  issue  at 
the  time  it  bears  date,  and  that,  as  a  matter  of  fact,  it  was  not  is- 
sued until  the  10th  of  July.  1893.  An  action  is  commenced  by 
issuing  a  summons.  Code.  §  199.  And  an  action  is  commenced 
when  a  summons  is  issued  against  a  defendant.  Id.  §  161.  This 
involves  the  question  as  to  what  is  meant  by  the  word  "issue."  and 
we  are  of  the  opinion  that  it  means  going  out  of  the  hands  of  the 
clerk.  expres.sed  or  implied,  to  be  delivered  to  the  sheriff  for  serv- 
ice. If  the  clerk  delivers  it  to  the  sheriff  to  be  served,  it  is  then 
issued ;  or  if  the  clerk  delivers  it  to  the  phiinitff.  or  some  one  else, 
to  be  delivered  by  him  to  the  sheriff,  this  is  an  i.ssue  of  the  sum- 
mons; or.  as  is  often  the  case,  the  summons  is  filled  out  by  the 
attorney  of  plaintiff,  and  put  in  the  hands  of  the  sheriff.  This  is 
done  by  the  implied  c(msent  of  the  clerk,  and.  in  our  o])inion.  con- 
stitutes an  issuance  from  the  time  it  is  placed  in  the  hands  of  the 
sheriff  for  senice.  But  a  summons  simply  filled  up  and  lying  in 
the  office  of  an  attorney  would  not  constitute  an  issuing  of  the 
summons,  as  provided  for  in  the  Code.  Nor  would  the  fact  that  a 
summons  being  filled  up  and  held  by  the  clerk  foi-  a  prosecution 
bond  fas  the  evidence  in  this  case  tends  to  show  was  the  fact) 
constitute  the  is.suing  of  a  summons,  until  the  bond  is  given,  or  :il 
least  until  it  goes  out  by  the  consent  of  the  clerk  for  the  purpose 
of  being  served  on  the  defendant.  This  being  .so.  we  see  no  error 
in  the  judge's  charge  on  the  (|ustion  as  to  when  the  summons  is- 
sued and  the  statute  of  limilatiojis.     Judgment  affinued. 

To  the  same  effect,  see  Smith  v.  Lumber  Co.,  142  N.  C.  at  p.  30.  54  S.  E. 
788,  et  seq.;  32  Cyc.  425.  Tf  the  summons  be  delivered  to  the  sheriff  by 
the  clerk  or  justice  directly— //(cre  being  no  intermediary— Wu^  day  of 
such  deliverv  to  the  sheriff  is  the  day  of  the  issue.  Smith  v.  Lumber  Co.. 
RU|)ra.  See  "Liniilation  of  Actions."  Century  Pig.  §§  529.  530;  Decen- 
nial  and  Am.  Dig.  Key  No.  Series  §  110. 


I'-li  PROCESS.  [Ch.   13. 


SKC.    ().       kStmAIONS    InDKK     11  IK    CODK    rUACTICK. 

WILSON  &  SIIORER  v.   MOORK  ot  als.,  72   N.  C.  558.     1875. 

Vommoti    Law    Writ.     Subpuvna   in   Equity.     Summons   Under  the  Code. 

Variance  Between  the  Process  and  the  Complaint. 

I  Motion  by  (lie  defeiulauts  to  strikp  out  the  complaint  in  a  civil  ac- 
tion. Motion  allowed,  and  plaint  ilTs  appealed.  Reversed.  Three 
Kiounds    were   assigned    l)y    the   delendants    in    support   of   the   motion: 

(1)  That  "the  summons  commanded  the  defendants  to  answer  the  com- 
plaint of  H'i/S(fH  cl  Shobvr  alone,"  while  the  complaint  was  by  Wilson 
it     Shobcr    and    oil    other    creditors    of    the    Bank    of    North    Carolina: 

(2)  The  snninions  was  asain.st  tlie  defendants  irtdividTially  and  as  ex- 
ecutors, while  in  the  complaint  they  were  charged  not  only  as  individ- 
uals and  executors  but  as  trustees  and  agents  also;  (3)  The  summons 
concluded  with  a  demand  tor  the  relief  demanded  in  the  complaint, 
while  the  complaint  demanded  judgment  for  a  spe<'ific  sum  duo  by  con- 
tract and  for  such  other  and  further  relief,  etc. 

The  plaintiffs  insisted  that  these  grounds  were  not  sufficient  to  au- 
thorize the  granting  of  defendants'  motion;  and  made  a  counter  motion 
for  leave  to  amend  the  summons,  should  the  judge  deem  the  first  or 
second  grounds  assigned  by  the  defendants  sufficient  to  justify  a  dis- 
missal. Motion  refused;  but  the  court  intimated  that  plaintiffs  might 
amend  their  lomplaint  if  they  chose  to  do  so.  Plaintiffs  declined  to 
amend  the  complaint.] 

Bynum,  J.  If  this  wvYv  an  action  at  coiiunon  law,  begun  by 
general  process,  the  i)laiiitil"f  might  have  declared  qui  tarn,  or  the 
defendant  might  have  been  declared  against  in  his  representative 
character.  Hut  the  rule  does  not  hold  e  conver.so,  for  if  the  process 
is.  to  answer  the  plainlilT  ([u\  tain,  and  the  declaration  is  in  his 
name  only,  the  variance  would  be  fatal.  The  rule  was,  that  where 
the  process  was  special,  that  is  to  answer  the  plaintiff  suing  in  a 
particular  capacity  or  calling  upon  the  defendant  to  answer  in 
some  particular  capacity,  the  declaration  must  conform  thereto. 
But  where  the  process  is  to  answer  generally,  the  declaration  may 
be  particular,  and  if  against  the  defendant  in  several  characters 
it  does  not  contradict  the  general  process,  and  is  no  variance.  1 
Tidd's  Prac.  450. 

In  those  cases  where  there  was  a  variance  between  the  writ  and 
the  declaration,  the  rule  was.  not  to  move  to  set  aside  the  declara- 
tion, as  was  done  here,  and  for  which  there  seems  to  be  no  prece- 
dent, but  the  motion  was  U>  ahaie  the  writ.  The  defendant  craved 
oyer  of  the  writ,  and  if.  upon  reading  it.  the  writ  contained  any 
conditions  not  contained  in  the  declaration,  he  took  advantage  of 
the  variance  by  i)lea  in  abatement  of  the  writ.  3  Bl.  Com.  299; 
2  Lil.  Abr.  629.  But  this  indulgence  having  been  abused  and 
made  an  instrument  of  delay,  the  courts  of  common  law  made  a 
rule  that  oyer  should  not  be  granted  of  the  original  writ,  which 
rule  had  the  effect  of  abolishing  pleas  in  abatement  founded  on 
facts  whicii  could  only  be  ascertained  by  the  examination  of  the 
writ  itself.  Tn  conse(|uence  of  this  rule,  it  was  afterwards  held, 
that  if  the  defendant  demanded  oyer  of  the  writ,  the  plaintiff 
might  proceed  as  if  no  such  demand  had  been  made.     Doug.  227, 


Sec.  6.]  PROCESS.  927 

228 :  Bro.  Abr.  tit.  Oyer,  692 ;  2  Ld.  Raym.  970 ;  2  Wils.  97 ;  Co. 
Inst.  320 ;  Gilbert  C.  P.  52.  So  if  this  was  an  action  at  common 
law.  the  defendant's  motion  woiild  fail:  1st.  because  the  matter 
alleged  does  not  constitute  a  variance;  2nd.  if  it  did,  it  could 
only  be  used  as  ground  of  plea  in  abatement  of  the  writ,  and  not 
of  the  declaration. 

But  under  our  new  constitution  and  code  we  have  adopted  suh- 
stantiaUy  the  practice  and  procedure  of  the  courts  of  equity  and 
not  of  the  courts  of  common  law.  In  equity  the  bill  precedes  the 
subpoena,  which  issues  to  bring  the  parties  defendant  into  court. 
The  praver  of  the  bill  is  not  "Your  orator,  therefore,  prays  that 
he  may  have  such  and  such  relief;"  but  it  is  "to  the  end  there- 
fore that  the  defendants  may  answer  the  interrogatories  and  that 
your  orator  may  have  the  specified  relief,  may  it  please  your 
honor  to  grant  a.  writ  of  subpoena  requiring  the  defendants  to 
appear  by  a  certain  day  and  answer  the  ])ill.  and  abide  by  the 
decree  of"  the  court."  Adams  Ivi.  309.  The  subpoena  is  ased  to 
designate  and  bring  the  parties  into  court  only ;  it  neither  speei- 
lies.  as  the  old  common  law  writ  fre(iuently  did.  in  what  right  the 
l.laintiff  claims  relief,  nor  the  right  in  which  the  defendant  is 
sought  to  be  charged.  These  matters  are  set  forth  in  the  bill  only, 
and  the  subpoena  points  to  the  bill  as  containing  the  causes  of 
suit  which  are  to  be  answered.  As  then  it  is  clearly  not  the  office 
of  the  subpoena  to  specify  the  i)laintift"s  claim  or  the  defendant's 
liability,  there  can  be  no  such  thing  as  a  variance  on  that  account; 
and  such  a  motion  as  the  present  is  an  unheard  of  proceeding  in 
equity  and  would  not  there  be  tolerated. 

The  only  dijferrnce  hetwcrn  the  practice  under  the  Code  and  in 
the  court  of  equity  is,  that  by  the  Code  the  summons  does  not 
folloic,  hut  precedes  the  complaint.  "It  shall  command  the  .sheriff 
to  summon  the  defendant  to  appear  at  the  next  ensuing  term  of 
the  superior  court  to  answer  the  complaint  of  the  plaintiif. "  Bat. 
Rev.  ch.  17.  sec.  2;  C.  C.  P.  sec.  73.  In  both  courts  its  only  opera- 
tion and  office  is  to  give  notice  of  an  action  begun,  the  parties  to  it, 
and  where  the  complaint  will  be  filed.  In  our  ca.se,  these  purposes 
liave  be<'n  answered,  and  the  defendants  have  had  every  privilege 
allowed  Ijy  the  regular  course  of  the  court.  Their  objections  seem 
eaptious.  and  for  the  evident  purpose  of  delay.  The  whole  scope 
and  design  of  the  new  code  is,  to  cliscountcnance  all  dilatory  pleas, 
and  to  afford  the  parties  a  cheap  and  speedy  trial  upon  the  merits 
of  their  matter  in  controversy.  To  elVeet  Ibis  end  it  is  the  duty 
of  all  eourts  to  allow  amendments  in  tlu'  libei-al  spiril  clearly  in- 
dicated in  the  code.  C.  C.  \\  sees.  128-13(i.  There  is  ern.r. 
Judgtnenl    i-i-v<'!si(l. 

The  parties,  plaintiff  and  defendant,  must  be  named  in  tlie  summons. 
A  summons  for  "tlie  licirs  of  A"  will  not  do.  Kerlee  v.  Corpeninp;,  07 
N.  C.  at  p.  ?,?A.  "We  have  no  re<'ollecfinn  of  ;i  proceedinn  at  ronimou 
law  aeainst  unknown  heirs.  At  eomruon  law  or  in  equity,  if  heirs  are 
required  to  he  made  defendants,  it  is  the  duty  of  the  plaintiff  to  render 
them  sufh  by  (heir  proper  namt-s."  therefore,  a  proceeding  against  "A 
and    others    unl<nown"    will    not    answer   the    requirements   of   a   statute 


928  iMUREss.  \Vh.  13. 

authorizing  tertain  pioteodinRs  against  non-residrnt  hoirs— they  must 
be  nainod.  I'owors  v.  Hurts,  ;>  Hlacivf.  at  p.  L':!l,  inserted  at  eh.  14,  post. 
See,  also,  Anhibald  v.  Means.  40  N.  C.  2:50,  inserted  at  §  2  ol"  this  chap- 
ter. By  special  statutory  inovision  in  North  Carolina,  proceedings  in 
partition  may  be  conducted  against  nonresident  persons  whose  names 
are  unknown  and  lannot  be  ascertained  after  the  exercise  of  due  dili- 
gence. Rev.  sec.  2490.  Summons  against  feme  covert  in  her  maiden 
name.  19  L.  R.  A.  (N.  S.)  984,  and  note.  See  "Pleading."  Century  Dig. 
§§  14G-148:  Decennial  and  Am.  Dig.  Key  No.  Series  §  74;  'Equity," 
Century  Dig.  §  759. 


STHAYllORN   v.  BLALOCK,  92  N.  C.   292.     1885. 
Seri^icc  of  the  Summoris. 

I  Special  proceeding  before  the  clerk  of  the  superior  court.  The  d^ 
fendants  entered  a  special  appearance  and  moved  to  dismiss  the  pro- 
ceeding for  alleged  defects  in  the  manner  of  service  and  in  the  sheriffs 
return.  The  motion  was  allowed  by  the  clerk,  and  the  plaintiff  ap- 
pealed to  the  judge.  The  judge  remanded  the  case  to  the  clerk  with 
directions — what  the  directions  were  is  not  disclosed  in  the  reported 
case.  Defendants  then  appealed  to  the  supreme  court.  Both  judge  and 
clerk  reversed.     The  facts  appear  in  the  opening  of  the  opinion.] 

]\1errim<in.  J.  This  was  a  special  proceeding  begun  in  the  su- 
perior court,  before  the  clerk  thereof,  on  the  29th  day  of  August. 
1884.  coniiiiaiiding  defendants  to  appear  on  the  12th  day  of  Sep- 
tember. 1884.     The  siunmons  was  returned  September  5th,  1884, 

with    the    following    endorsement:    "Received  188 — . 

Served  September  5th,  1884.  on  the  defendants,  D.  W.  Blalock. 
A.  X.  Blalock.  J.  R.  Blalock  and  Rufas  Blalock.  Fee  $2.40.  J.  R. 
Blalock.  sheritTP  of  Durham  county." 

On  the  12lh  day  of  September.  1884,  the  defendants  entered  a 
special  appearance  through  their  attorney,  and  moved  to  dismiss 
the  action  for  three  causes:  (1)  That  the  sheriff  failed  to  endorse 
on  the  summons  the  day  of  its  receipt  by  him;  (2)  That  the  de- 
fendants had  not  been  served  with  summons  ten  days  before  the 
return  day  thereof;  (3)  That  the  endoi^ement  of  the  .sheriff  on  the 
summons  was  insufficient,  in  that  it  did  not  state  the  manner  of 
serA'ioe  as  required  by  law.  The  clerk  granted  the  motion  and  en- 
tered judgment  dismissing  the  proceeding.  From  this  judgment 
the  plaintiff  appealed  to  the  judge  at  chambers.  At  the  hearing 
of  the  ap])eal.  Ihe  defendants  moved  to  dismiss  it  becau.se  the  ac- 
tion of  the  clerk  was  in  a  inaller  resting  in  his  discretion,  and  not 
subject  to  review  r.pon  appeal.  The  motion  to  dismiss  the  appeal 
was  denied  by  the  judge,  and  the  defendants  excepted.  The  judge 
remanded  the  case  with  directions  to  the  clerk,  and  the  defendants 
appealed  to  this  court. 

The  action  of  the  clerk  was  wholly  .erroneous.  1.  The  sheriff 
ought  regularly  to  have  noted  on  the  summons  the  day  of  its  de- 
livery to  him.  as  required  by  the  statute  (The  Code,  sees.  200  and 
280).  but  his  failure  to  do  so  did  not  vitiate  or  render  the  sum- 
mons void.  Such  notation  is  not  of  the  essence  of  the  summons, 
nor  of  the  ser^'ice  of  it  by  the  sheriff.  Its  purpose  is  to  provide 
evidence  convenient  to  fix  the  day  the  summons  pa.ssed  into  the 


Sec.  6.]  PROCESS.  929 

hands  of  the  sheriff  for  any  proper  purpose ;  2.  Nor  did  the  fact 
that  the  summons  was  served  less  than  ten  days  before  the  return 
day  thereof  render  it  void,  or  defeat  the  proeeeding.  As  this  was 
a  special  proceeding  and  the  summons  was  returnable  out  of  term, 
further  time  ought  to  have  been  allowed  to  the  defendants  to  ap- 
pear, as  suggested  by  this  court  in  Guion  v.  ]\Ielvin,  69  N.  C.  242. 
and  AYeiller  v.  LawTence.  81  N.  C.  65 ;  3.  It  v^•ould  be  more  orderly 
and  complete  for  .sheriffs  to  make  their  returns  of  the  service  of 
the  summons  in  actions  with  more  fullness  than  simply  to  write 
on  it  "served,"  and  the  date  of  service,  and  sign  the  entry 
offieiallv ;  but  this  is  sufficient — prima  facie  sufficient  at  all  events. 
The  statute  (The  Code.  sec.  214)  prescribes  that  '4he  summons 
shall  be  served  in  all  cases,  except  as  hereinafter  provided,  by  the 
sheriff,  or  other  officer,  reading  the  same  to  the  party  or  parties 
named  as  defendants,  and  such  reading  shall  be  a  legal  and  suffi- 
cient service." 

This  statute  prescribes  how  the  officer  shall  make  service  of  the 
.sununons;  it  prescribes  his  duty  as  to  the  manner  of  discharging 
it.  When  the  sheriff  returns  thai  he  has  ''served"  the  summons, 
this  implies  that  he  has  discharged  his  official  duty  in  that  re- 
spect—that he  has  read  it  to  the  defendant.  The  ierm  ''served/' 
as  applied  to  a  summons,  ex  ri  termini,  implies  that  it  was  read 
to  the  defendant  named  in  it:  except  that  in  a  case  where  the  stat- 
ute provides  for  other  form  of  service,  it  means  served  according 
to  hnr:  in  such  coiniection  it  has  a  legal  and  technical  meaning. 
Bouvier  says,  "to  serve  a  summons,  is  to  deliver  it  to  him  pereon- 
ally.  or  to  read  it  to  him."  AVebster  says.  "To  serve  a  Avrit— to 
read  if  to  the  defendant :  or  to  leave  an  attested  copy  at  his  usual 
place  of  abode."  In  general,  to  serve  a  process  is  to  read  it.  so 
as  to  give  due  notice  to  the  party  concerned,  or  leave  an  attested 
copy  with  him.  or  his  attorney,  or  at  his  usual  place  of  abode.  Mui-f. 
on  SlK-nflfs.  sec.  839.  On  the  argument  stress  was  laid  upon  that 
clause  of  the  .statute  which  provides,  in  respect  to  the  service  of 
the  summons  in  special  proceedings,  that,  "when  executed,  he  (the 
sheriff^  shall  immediately  return  the  summons,  with  the  date  and 
manner  of  its  execution."  etc.  It  was  insisted  that  the  word 
"manner."  im])lies  how  the  service  was  made,  and  that  it  nuist  be 
fully,  descriptively  and  specifically  set  forth  in  the  return.  We 
can  see  no  substantial  rea.son  why  such  a  literal  interpretation 
should  be  given  Ihe  term  mentioned.  It  seems  to  us  that  when  a 
sheriff  u.ses  a  term  or  form  of  expression  in  his  return,  that  implies 
that  he  served  the  summons  as  the  statute  directs,  that  the  spirit 
and  the  pur[)ose  of  the  law  are  complied  with. 

We  (](>  not  mean  to  imply  by  what  we  have  said,  that  Ihe  return 
of  the  sheriff  is  conclusive  in  resix'ct  to  the  manner  of  the  .serv- 
ice f)f  the  sninmons;  it  is  to  l»e  taken  where  Ik-  returns  it  "served." 
that  it  was  serv'cd  as  the  statute  requires  in  tliat  ca.se.  until  tlie 
contrary  is  made  to  appear  by  motion  supported  by  affidavits,  or 
in  some  other  pro|)er  and  pertinent  way.  We  may  add.  that  if 
the  service  of  the  summons  Jiad  been  insufficient,  ill  is  was  no  cause 
for  disniissintr  the  proceedings.  .\  motion  to  allnw  tlic  slicrifT  to 
Remedies — 59. 


930  I'Kot  KSS.  \('ll.     /.-). 

anuMul  liis  i-ftuni  niiijflit  liavc  Itrcii  sustaiiuMl.  if  flio  facts  liad  wai-- 
ranlfil  it.  In  -.tuy  \\o\\  of  tlic  matter,  the  plaiiititV  was  onlitlcd  to 
an  alias  suiinnons,  if  Iho  rt'tuiu  for  any  cause  was  insuflieient. 

The  t'xeeption  based  upon  the  supposed  discretion  of  the  clerU. 
not  reviewahle.  has  no  foundation.  The  clerk  has  no  jurisdiction 
of  the  proceeding;  the  supei-ior  <'ourt  liad  jurisdiction  of  it,  and 
tlie  clerk  liad  autli(U"ity  to  ilo  certain  thiiiLrs  in  and  about  it,  as  and 
for  the  <Miui-t.  that  stood  as  the  action  n\'  llie  court,  unless  either 
party  to  the  proceedinjj  should  «'xeei)t  to  it.  and  appeal  to  the 
judire  oi'  the  I'ourt  at  chanibei-s  or  in  term,  in  which  case  the 
judunuent  of  the  judi::e  would  become  that  of  thi^  court,  unless  his 
judirment  should,  on  apj)eal  to  this  court,  be  reversed  or  modified, 
in  which  case,  the  judfxe  would  be  iiMiuiicd  to  acc(>pt  and  act  upon 
the  judirment  of  this  court  as  tlu>  ])i-oper  one  in  the  superior  couj-t . 
r.rit'tain  v.  :\rull,  !)1  X.  C.  498. 

The  judire  remanded  the  case  to  the  clerk  of  the  superior  court 
with  directions.  This  was  error.  The  proceedintr  was  already  in 
the  superior  court;  tlic  couii;  could  not  remand  the  case  to  itself. 
The  court  oupfht  to  have  reversed  the  judgment  dismissing  the  pro- 
eeeding  entei-ed  by  the  clerk  as  and  for  the  coui-t.  and  the  clerk 
having:  entered  the  judgment  of  the  judjie  as  that  of  the  court, 
ouirht  to  have  proceeded  according:  to  law  in  the  proceedinfr  in  the 
superior  court.  Brittain  v.  ^Full.  supra.  The  order  of  the  judge 
nuist  be  set  aside,  and  he  will  give  judgment  reversing  that  en- 
tered by  the  clerk,  and  the  clerk  having  entered  his  judgment  will 
proceed  according  to  law. 

See  "Process."  Cenlurv  Dig.  §§  164-187;  Decennial  and  Am.  Dig.  Key 
No.  Series  §§  132-138,  140. 


GREIEN  V.  THE  STATE,  56  Wis.  583,  585,  14  N.  W.  620.     1883. 
Service  of  the  Summons.     What  is  Personal  Service. 

r Green  was  convicted  of  assault  and  battery  and  carried  the  case  to 
the  supreme  court  by  writ  of  error.  Affirmed.  Green  assaulted  a  man 
and  attempted  to  justify  his  conduct  by  showing  that  the  person  as- 
saulted was  unlawfully  trespassing  on  his  lands.  A  road  had  been  laid 
off  across  the  land  by  certain  judicial  proceedings  and  the  person  as- 
saulted was  in  such  road.  Gi-een  contended  that  the  proceedings  were 
void  because  he  had  not  hcen  duly  served  loith  the  summons  or  notice 
prescribed  by  the  statute.  The  statute  provided  for  a  notice  and  added, 
"which  notice  shall  be  served  personally,  or  by  copy  left  with  or  at  the 
usual  place  of  abode  of  each  occupant  of  such  lands."  The  notice  to 
Green  was  served  by  reading  it  to  him  at  his  residence  on  the  land,  and 
by  posting  copies  of  the  notice  at  three  public  places  in  the  town.  The 
judge  ruled  that  the  notice  was  legally  served.] 

Carsodv.  J.  .  .  .  "Notice  shall  be  served  personally,  or  by 
copy  left  with  or  at  the  usual  place  of  abode  of  each  occupant  of 
sucii  lands."  Rec.  1267.  K.  S.  This  clause  provides  three  ways 
of  sei-A'ing  the  notice  upon  the  occupant:  (1)  Tt  may  be  person- 
ally served;  or  (2)  it  may  be  served  by  copy  left  with  the  occu- 
pant :  or  r3)  it  may  be  served  by  a  copy  left  at  the  usual  place  of 


Sec.  6.]  PROCESS.  931 

abode  of  the  occupant.  If  the  notice  cannot  be  "personally 
served/'  except  by  leaving  a  copy  thereof  with  the  occupant,  as 
contended  by  counsel,  then  the  first  method  prescribed  is  the  same 
as  the  second,  and  hence  without  any  significance  and  might  be 
rejected.  Of  course,  leaving  a  copy  with  the  occupant  would  be 
personal  service,  as  ordinarily  imdei-stood,  but  it  is  not  the  only 
method  of  personal  service.  Here  the  legislature  have  expressly 
prescribed  this  method  in  addition  to  personal  service,  and  have, 
therefore,  pretty  clearly  shown  that  by  declaring  that  the  notice 
may  be  personally  sei-^'ed,  they  meant  to  include  something  other 
and  different  than  leaving  a  copy  with  the  occupant.  Such  being 
the  legislative  intent,  we  are  to  determine  whether  such  other  and 
ditt'erent  method  includes  reading  such  notice  to  the  occupant. 

In  the  late  Dictionary  of  English  Law,  by  Sweet,  it  is  said:  "In 
procedure,  service  is  the  operation  of  bringing  the  contents  or 
effect  of  a  document  to  the  knowledge  of  the  persons  concerned.'' 
Burrill  says:  In  practice,  service  is  "judicial  delivery  or  commu- 
nication of  papers;  execution  of  process."  One  method  of  serving 
personally,  as  stated  in  Wade  on  Notice,  cited  by  counsel  for  the 
plaintiff  in  error,  "is  by  reading  the  notice  to  the  person  served." 
Sec.  1339.  AVe  must  tlierefore  hold  that  where  the  notice  by  the 
supervisors  of  the  time  and  place  of  meeting  and  deciding  upon 
the  application  for  the  laying  out  of  a  highway  is  served  upon  the 
occupants  of  the  land  through  which  such  highway  passes,  by 
reading  such  notice  to  the  persons  .served,  the  same  is  sensed  per- 
sonally, within  the  meaning  of  sec.  1267.  R.  S.  The  case  is.  in  our 
opinion,  clearly  distinguishable  from  that  cla.ss  of  cases  cited  by 
coun.sel.  which  were  decided  under  statutes  requiring  notice  to  be 
given  in  writing,  but  without  prescribing  different  modes  of  serv- 
ice in  the  language  here  employed.     Judgment  affirmed. 

In  White  v.  T-nderwood,  12.5  N.  C.  2.j.  34  S.  E.  104,  it  is  he!d  tliat  a 
person  in  jail  may  he  served  with  summons,  as  the  jail  confers  no  privi- 
leges of  sanctuary.  The  opinion  says  and  shows  that  "this  has  been  the 
settled  rule  of  law  and  practice  both  in  England  and  in  this  country  for 
a  long  period  of  time."  The  same  rule  applies  even  where,  by  statute, 
one  is  rendered  civiliter  mortuus  by  imprisonment,  unless  the  contrary 
be  provided.  "Indeed  tho  decisions  are  iiniform,  that  although  the 
right  of  a  convict  to  prosecute  an  action  is  suspended,  and  his  iiroperty 
in  some  instances  forfeited,  still  he  may  be  sued  and  the  suit  against 
him  may  be  prosecuted  to  judgment."  In  Connecticut  it  is  held  (iiat  if 
a  defendant  be  in  jail,  leaving  a  copy  at  the  jail  is  a  coniiiliance  with  the 
statute  requiring  service  by  "leaving  a  copy  at  tlie  usual  place  of  abode  ' 
The  opinion  cites  cases  from  New  York  and  Connecticut.  See  21  L.  II. 
A.   f\.  S.)   ni4,  and  note 

A  married  woman  can  accept  service,  bul  an  infant  cannot.  Nicholson 
v.  Co.\,  f<?,  N.  C.  44.  An  attorney  cannot,  under  his  general  employment, 
accept  service  for  his  client.  Starr  v.  Hall,  87  N.  C.  o81.  As  to  servi'^e 
on  Infants,  see  Roseman  v.  Ro.seman.  127  N.  C.  404,  inserted  at  ch.  14. 
post:  and  for  service  on  lunatics,  see  Stuard  v.  Porter,  70  Ohio  St.  1. 
ln.serted  at  ch.  14,  post.  Inducing  a  party,  by  fraud,  to  corae  within  the 
jurisdiction  and  th^re  serving  blin  with  i)rocesp.  12  L.  R.  A.  (N.  S.)  041. 
Sec  "Highways,"  Century  Dig.  §  04;  Ibid.  "Process,"  §§  70  S2;  "Hlgh- 
wavs."  Decennial  and  Am.  Dig.  Kev  No.  Series  §  i^O;  Ibid.  "Process." 
§  64. 


032  I'KOCESS.  \('li.   IS. 

WIIKRLKR   V.  COBB.   Tf.   N.   C.   IM.      ISTl!. 
Hdirc;-   of  Drffcla   in    Service.     Gcneidl    Aiiix-nrivnv. 

lArtioii  lo  recover  money,  conuneneed  by  siiinnions  and  an  attachment 
issued  a.uainst  the  del'emlaiit's  pioiierty.  The  siiiuiiioiis  was  served 
by  publieation.  The  deleiuhint  moved  to  dismiss  the  action  for  want  of 
l)roi)er  service  of  process.  Motion  allowed  and  plaintiff  ai)i)ealed.  Re- 
versed. The  docket  showed  that  at  the  return  term  of  the  summons 
J.  P.  Wliidliee's  name  was  entered  as  attorney  lor  the  defendant,  and 
that  ilelendant  was  allowed  until  a  certain  day  after  the  term  to  file 
pleadings.  Only  that  part  of  the  opinion  which  bears  upon  the  motion  to 
dismiss,  is  here  inserted. 1 

Byni'M.  J.  Tlic  sorvico  of  the  sunnnons  by  i>ubli(';itinn  is  fa- 
tally defoctivc.  in  lliat  it  does  not  coiifonn  to  the  I'cciuinMiu'nts  of 
llic  statute.  Tlic  foiuulatioii  and  lirst  stej)  of  .service^  by  ])nl)li('alion 
i.s  an  at'tidavil  tliat  "the  person  on  whom  the  snnnnons  is  to  Itc 
served  eannot.  after  due  dilifrence,  be  found  within  the  state." 
Bat.  Rev.  eh.  17.  see.  83.  This  requirement  was  omitted  in  the 
aflidavit.  why.  it  is  htird  to  eoneeive.  as  it  was  made  by  the  attor 
ney  himself,  who,  as  a  prudent  praetitioner.  shoidd  have  had  the 
statute  before  him  in  drafting  the  affidavit.  For  this  court  had  re- 
peatedly held  that  the  provisions  of  this  statute  must  be  strictly 
followed.  Spieis  v.  llahstead.  71  N.  C.  210.  Everythinj>;  neces- 
sary to  dispense  Avith  personal  service  of  the  summons  must  ap- 
pear hy  alfidavit.  The  mere  issuing  of  a  summons  to  the  sheriff 
of  the  county  of  Paquotank  and  his  endors(Mnent  upon  it  the  same 
day  after  it  came  to  his  hand,  that  "the  defendant  is  not  found  in 
my  county,"  is  no  com])liance  whatever  with  the  law,  for  it  might 
well  be  that  the  defendant  was  at  that  time  in  some  other  county 
in  the  state,  and  that  the  plaintiff  knew  it.  or  by  due  diligence  could 
have  known  it.  and  could  have  made  upon  the  defendant  a  per- 
sonal service  of  the  summons.  Every  principle  of  law  requires 
that  this  personal  service  should  be  made,  if  compatible  with  rea- 
sonable diligence. 

But  the  case  .states  that  "the  docket  shows  that  at  the  return 
term  of  the  court  J.  P.  AVhedbee's  name  is  entered  as  attorney  for 
the  defendants."  and,  at  the  same  time,  this  entry  was  made  upon 
the  docket:  "Defendants  allowed  until  the  first  of  December  to 
file  pleading.s — order  mutual  to  take  depositions  upon  ten  days' 
notice."  There  being  nothing  in  thi.<i  appearance  by  attorney 
qualifying  il.  Ihe  only  reasonable  construction  is,  that  it  iras  a 
general  appearance — that  is,  for  all  purposes.  A  general  appear- 
ance to  an  action  cures  all  antecedent  irregularity  in  the  process, 
and  ])laces  the  defendant  upon  the  same  ground  as  if  he  had  been 
personally  served  with  process.  Pollard  v.  Dwight,  4  Cr.  421 ; 
Taylor  v."  Longworth,  14  Pet.  172:  14  Pet.  203.  Tt  was.  therefore, 
too  late,  at  a  subsequent  term  of  the  court,  to  raise  the  objection 
to  the  regularity  of  the  service.  The  court  will  the  more  readily 
give  this  effect  to  an  appearance  entered  without  qualification, 
because  such  objections,  raised  by  the  defendant  himself,  who  ap- 
pears in  court  to  make  them,  are  generally  for  delay,  and  to  avoid 


Sec.  6.]  PROCESS.  933 

an   answer  to  the   merits  of  the   action.     .     .     .     Judgment   re- 
versed. 

See  Wibright  v.  Wise,  4  Blackf.  137,  inserted  at  sec.  1,  ante,  in  this 
chapter.  "The  purpose  of  the  summons  is  to  bring  the  parties  into 
court,  and  give  the  court  jurisdiction  of  them:  that  of  the  pleadings,  to 
give  jurisdiction  of  the  subject-matter  of  the  litigation  and  the  iiarties 
in  that  connection — and  this  is  orderly  and  generally  necessary;  but 
when  the  parties  are  voluntarily  before  the  court,  and  by  agreement, 
consent  or  confession,  which  in  substance  are  the  same  thing,  a  judg- 
ment is  entered  in  favor  of  one  party  and  against  another,  such  judg- 
ment is  valid,  although  not  granted  according  to  the  orderly  course  of 
procedure."  Peoples  v.  Norwood,  94  N.  C.  at  p.  172,  citing  Farley  v. 
Lea,  20  X.  C.  307;  State  v.  Love,  23  X.  C.  264;  Stancill  v.  Gay,  92  N.  C. 
455.  See  further,  as  to  the  effect  of  a  voluntary  general  appearance,  7 
L.  R.  A.  511.  A  general  appearance,  even  before  a  referee,  cures  all  ante- 
cedent irregularities  in  the  process  and  its  service.  Roberts  v.  AUman, 
106  X.  C.  391,  11  S.  E.  424;  Heilig  v.  Stokes,  63  N.  C.  612.  See  further, 
for  general  and  special  appearance,  the  next  succeeding  case.  See 
■'Appearance,"  Century  Dig.  §§  91-102;  Decennial  and  Am.  Dig.  Key 
Xo.  Series  §  20;  'Process,"  Century  Dig.  §§  108-120;  Decennial  and  Am. 
Dig.  Key  Xo.  Series  §  96. 


SCOTT  V.  LIFE  ASSOCIATIOX,  137  X.  C.  515,  50  S.  E.  221.     1905. 

General.   Special,   and    Quasi   Appearance.     When.   How,   and   for   What 

Purposes,  a  Special  Appearance  May  be  Entered. 

[Scott  obtained  a  final  judgment  against  the  defendant  company,  in 
May,  1902.  At  November  term,  1904,  the  defendant  company  made  a 
motion  in  the  cause  to  set  aside  such  judgment.  The  judge  refused  to 
set  aside  the  judgment,  and   defendant  appealed.     Affirmed. 

The  defendant  was  a  non-resident  coriioration  and  the  summons  was 
served  upon  the  Insurance  Commissioner  of  Xorth  Carolina,  pursuant 
to  ch.  54,  Laws  1899.  At  February  term,  1902,  judgment  by  default  and 
inquiry  was  rendered  against  the  defendant  company.  At  May  term, 
1902,  the  inquiry  was  executed  and  judgment  for  damages  was  entered. 
At  a  subsequent  term  the  defendant  entered  an  ai)pearance  for  the  first 
time.  The  entry  was  made  of  record  in  the  following  terms:  "The  de- 
fendant, appearing  for  the  purpose  alone  of  making  this  motion,  moves 
to  set  asiile  the  judgment  entered  at  May  term,  1902,  as  irregular,  and 
to  find  the  facts  set  forth  in  C.  \V.  Camp's  affidavit,  or  to  pass  upon  said 
proposed  findings  of  fact."  Only  so  much  of  the  opinion  as  discusses 
general,  special,  and  quasi  appearance,  is  here  inserted.! 

W.\LKER.  J.  The  case  was  ar.sriiofl  lieforo  n.s  a.s  if  tho  defendant 
had  enlcred  a  special  appearance,  and  tlie  plninlitT's  counsel  in- 
sisted that,  having  done  so.  the  defendant  could  nol  liave  the  relief 
it  seeks,  nor  could  it  appeal  to  this  court;  citing  Clark  v.  i\rfg.  Co.. 
no  X.  ('.  111.  U  S.  E.  518.  The  argument  of  hoth  counsel  was 
hascd  upon  a  misconception  of  the  hue  nalui-c  of  tlic  a|>p('aran(M' 
entered  hy  fhe  defendant.  Tn  llic  litsl  place,  it  does  not.  on  its 
face.  7)urpoi'f  to  he  a  special  jippearance.  It  is  tiue.  Ilie  defeiuhint 
af)peared  solely  foi-  the  ]tui-pose  of  moving  1o  set  a.si(h'  the  judg- 
ment: hut.  as  such  a  motion  involves  oidy  the  merits  of  the  case, 
and  is  not  confined  to  llie  one  ohjection  llial  llic  eourt  is  without 
jurisdietioii.  it  follows  that  an  appearam-e  entered  sol<'ly  for  the 
purpose  of  making  that  motion  is  essentially  a  general  appearam-e. 


9'M  PROCESS.  \('ll.    i.V. 

Tlu'  tost    for  ili'ltM-niiiiiiiir  tlio  cluirjictci-  (tf  an   appcafimco   is  llii' 
ivliol'  askt'd  :  the   law    lookiiiir  to   its  siihstaiU'c,   ratluT  tliaii   to  its 
form.      It"  the  appearance   is   in   clVcot  Jioneral.  Ilio  fact    that   the 
jiarty    styK's    it    a    s|)ecial    appearance    will    not    clianii'e    its    real 
charaeiei".     :i  ("\c.  |»|>.  .')()■_•.  .')(>;'..     The  (pieslion  always  is  what  a 
|)arty  has  done,  and   not    what    he   intended  to  do.      If  the  reliei" 
prayed  atTecIs  th(>  merits,  or  the  motion  involves  tlie  merits — and 
a  motion  to  vacate  a  jndirment  is  such  a  motion — then  the  appear- 
ance IS.  in  law.  a  ireneral  one.     Td.  pp.  .lOS.  .lO!).     Tlie  court  will 
not  liear  a  jtarly  nixm  a  sjieeial  nppearaneo  except  for  ft  he  pur- 
pose of  movinu:  to  dismiss  an  action  or  to  vacate  a  judjijment  for 
want  of  jnrisdiction.  and  the  authorities  seem  to  hold  that  such  a 
motion  cannot  be  coupled  with  another  based  upon  firounds  which 
relate  to  the  merits.     An  apjiearanee  foi*  any  other  purpose  than 
to  question  the  jui'isdietion  of  the  court  is  general.     2  Enc.  of  PI. 
&  Pr.  68'J.     In  Insurance  Co.  v.  Robbins.  59  Neb.  170,  80  N.  W. 
484,  the  court  says:  "The  effort  of  the  company  evidently  was 
to  try  the   niatt(>r.  and  obtain   a  judgment  on  the  merits,   while 
standing  just  outside  the  threshold  of  the  court.     This  it  could 
not  do.     A  party  cannot  be  permitted  to  occupy  so  ambiguous  a 
position.     He  cannot  deny  the  authority  of  the  court  to  take  cog- 
nizance of  an  action  or  proceeding,  and  at  the  same  time  seek  a 
judgment  in  his  favor  on  the  ground  that  his  adversary's  allega- 
tions are  false,  or  that  his  proofs  are  insufficient.     'A  special  ap- 
pearance.' says  Mitchell,  J.,  in  Gilbert  v.  Hall.  1]5  Ind.  549,  18 
X.  E.  28.  'may  be  entered  for  the  purpose  of  taking  advantage 
of  any  defect  in  the  notice  or  summons,  or  to  question  the  juris- 
diction, of  the  court  over  the  person  in  any  other  manner;  but 
filing  a  demurrer  or  motion  which  pertains  to  the  merits  of  the 
complaint  or  petition  constitutes  a  full  appearance,  and  is  hence 
a  submission  to  the  jurisdiction  of  the  court.'     Whether  an  ap- 
pearance is  general  or  special  does  not  depend  on  the  form  of  the 
pleading  filed,  but  on  its  substance.     If  a  defendant  invoke  the 
judgment  of  the  court  in  any  manner  upon  any  question,  except 
that  of  the  power  of  the  court  to  hear  and  decide  the  controversy, 
his  appearance  is  general."     See,  also.  Handy  v.  Ins.  Co..  37  Ohio 
St.   366:  Pry  v.  Railroad.  73  :\Io.  123;  Cohen  v.  Trowbridge,  6 
Kan.  385;  Briggs  v.  Humphrey.  83  ]\Iass.   (1  Allen)  373;  Craw- 
ford v.  Foster.  84  Fed.  939,  28  C.  C.  A.  576.     "There  are  cases 
where  the  defendant  may  make  a  quasi  appearance  for  the  pur- 
pose of  objecting  to  the  manner  in  which  he  is  brought  before  the 
court,  and  in  fact  to  show  that  he  is  not  legally  there  at  all;  but. 
if  he  ever  appears  to  the  merits,  he  submits  himself  completely  to 
the  jurisdiction  of  the  court,  and  must  abide  the  consequences. 
If  he  appeal's  to  the  merits,  no  statement  that  he  does  not  will 
avail  him:  and.  if  he  makes  a  defense  which  can  only  be  sustained 
by  an  exercise  of  jurisdiction,  the  appearance  is  general,  whether 
it  is  in  terms  limited  to  a  special  purpose  or  not."     Nichols  v 
People.  165  111.  502,  46  N.  E.  237;  2  Enc.  PI.  &  Pr.  625. 


Sec.  6.]  PROCESS.  935 

We  luiLst  hold,  upon  principle  and  authority,  that  the  defend- 
ant has  made  a  full  appearance  in  the  case,  and  will  be  bound  in 
all  respects  by  the  orders  and  decrees  of  the  court,  even  if  not 
already  bound  by  rea.son  of  the  service  of  process.  But  the  latter 
is  in  itself  sufficient  for  that  purpose.  Biggs  v.  Ins.  Co..  128  N. 
C  5.  37  S.  E.  \)ob:  Moore  v.  Jns.  Co.  129  N.  C.  31,  39  S.  E.  637; 
Ins.  Co.  V.  Scott.  136  X  C.  157.  48  S.  E.  581 ;  Fisher  v.  Ins.  Co.,. 
136  X.  C.  217.  48  S.  E.  667.     .     .     . 

See   "Appearance."   Century   Dig.    §§    23-41;    Decennial   and   Am.   Dig. 
Key  No.  Series  §  9. 


GRAHAM  V.  OBRYAX,  120  X.  C.  463,  27  S.  E.  122.     1897. 

Special   Appearance   to   Move   to   Dismiss.     General  Appearance,   Upon 

Such  Motion  Being  Overruled.     Practice  in   Such  Cases. 

[When  this  action  was  called  for  trial,  the  judge  dismissed  it  and  the 
plaintiff  appealed.  Affirmed.  The  facts  appear  in  the  opinion.  Only 
that  part  of  vhe  opinion  which  discusses  the  practice  when  a  special 
appearance  is  entered  for  the  purpose  of  moving  to  dismiss  and  such 
motion  is  overruled,  is  here  inserted.] 

Cl.vrk.  J.  The  judge  held  that  the  plaintiff  could  not  recover, 
and  rendered  judgiaent  in  favor  of  the  defendants  for  costs.  The 
judgment  must  l)e  affirmed,  for  several  rea.sons.  The  defendants, 
entering  a  special  appearance,  moved  to  dismiss  for  want  of  legal 
service  of  sunmions  and  for  want  of  jurisdiction.  The  plea  was 
overruled.  The  defendants  having  excepted,  their  subsequent  ap- 
pearance did  not  bring  them  into  court  a.s  a  general  appearance 
otlierwi.se  would  have  done.  Farris  v.  Railroad  Co..  115  X.  C. 
600.  20  S.  E.  167.  The  record  shows  only  a  summons  and  a  re- 
turn that  the  defendants  "could  not  be  found  in  the  county." 
The  appellees"  counsel,  however,  admits  that  the  record  is  de- 
fective, and  that  in  fact  the  defendants  were  served  by  publica- 
tion, but  c(mtends  that,  being  nonresidents,  and  no  attachment 
having  been  served,  the  service  was  not  a  legal  service.  Upon  that 
stat(?  of  facts,  the  ]»roposition  of  law  is  correct.  Bernhardt  v. 
P>rown.  lis  X.  C.  700.  24  S.  E.  527,  715;  Long  v.  In.surance  Co., 
114  X.C.  465,  19  8.  E.  347.     .     .     .     Affirmed. 

If  the  defendant  enter  a  special  appearance  and  move  to  dismiss  and 
his  motion  be  overruled,  he  should  except  and  proceed  with  his  defense. 
He  does  not  thereby  waive  his  rights  under  his  motion;  for,  il"  his  mo- 
tion be  improi)crly  overruled  in  the  lower  court,  it  will  be  allowed  on 
appeal  and  tlu-  whole  case  dismissed  notwithstanding  the  fact  that  U 
lias  been  tried  on  the  merits.  Mullen  v.  Canal  Co.,  114  N.  C.  S,  1!»  S.  E. 
106;  but  if  the  defendant  fail  to  except  to  a  ruling  refusing  his  motion 
to  dismiss,  and  i)roccc-d  with  his  defense,  his  appearaiuc  Ifc-comcs  a 
general  appearance  for  all  purposes.  Moody  v.  Moody,  118  N.  C.  926,  23 
S  E  933.  No  ajipeal  lies  from  the  refusal  to  dismiss,  imtil  final  judg- 
ment in  the  action;  for  tlic  judgment  overruling  llie  motion  to  dismiss 
is  merely  interlocutory  and  is  not  such  a  judgment  as  can  tie  ai.iiealed 
from  at  once.  If  the  summons  be  void,  the  defendant  may  wliolly  ignore 
it  or  he  may  enter  a  Hpc<ial  appearance  and  move  to  disralss,  just  as  he 


93G  PROCESS.  \('h.   L>. 

prefers,  Houston  v.  Lumber  Co.,  13G  N.  C.  328.  4S  S.  E.  738.  Wlion  there 
in  a  dispute  about  tiie  fact  as  to  wliether  a  defendant  entered  a  general 
or  a  special  api)earaiue,  the  findings  of  the  lower  court  are  final  and 
not  reviewable.  lx)ng  v.  ins.  Co.,  lU  N.  C.  405.  19  S.  E.  347.  "There  is 
no  appearance  unless  of  record,  for  whether  be  appeared  or  not  ought  to 
be  tried  by  the  record,  i;  Com.  Dig.  S;  1  Tidd,  213;  and  an  ai)pearaiice 
to  the  writ  should  be  entered  in  the  lilazer's  office,  by  plea,  or  motion,  or 
entry  on  the  docket,  or  some  oflicial  act,  Crabb's  Hist.  Com.  Law,  5.'">'J." 
Shirley  v.  llagar.  :i  Hlackf.  at  p.  22(5.  See  "Appearance,"  Century  Dig. 
§§  53,  54;    Decennial  and  .\m.  Dig.  Key  No.  Series  §  10. 

I 

DOYLE   V.   BROWN.   72   N.   C.   393.      1875. 
Effect  of  Failure  to  Duly  Serve  Lawful  Process. 

(Petition  to  set  aside  a  decree  for  the  sale  of  lands  for  partition.  De- 
cree sei  aside  and  defendant  appealed.  Affirmed.  Upon  the  trial  of  the 
petition  it  appeared  that  the  sale  was  decreed  in  a  cause  in  equity  with 
the  service  of  process  on  the  petitioners  in  this  cause,  and  that  they 
entered  no  appearance  in  such  cause  in  equity.] 

Reade.  J.  AVlioi'c  a  dofondnnt  has  never  been  served  with 
process,  nor  appeareil  in  person,  or  l)y  attorney,  a  judgment 
asrainst  him  i.s  not  simply  voidable,  Init  void;  and  it  may  be  so 
treated  whenever  and  wherever  offered,  without  any  direct  pro- 
ceedings to  vacate  it.  And  the  reason  is,  that  the  want  of  service 
of  process  and  the  want  of  appearance  is  shown  by  the  record 
itself,  whenever  it  is  otFered.  It  would  be  otlierwise  if  the  record 
showed  service  of  process  or  appearance,  when  in  fact  there  had 
been  none.  In  such  case  the  judgment  would  be  apparently  reg- 
ular, and  would  be  conclusive  until  by  a  direct  proceeding  for  the 
purpose,  it  would  be  vacated. 

A  plaintitf  needs  not  to  be  brought  into  court;  he  comes  in.  A 
judgment  is  of  no  force  against  a  person  as  plaintiff,  unless  the 
record  shows  him  to  be  plaintiff.  If  the  record  shows  him  to  be 
plaintiff,  when  in  fact  he  was  not,  then  it  stands  as  where  the 
record  shows  one  to  be  defendant,  when  he  Avas  not.  In  both 
cases  the  record  is  conclusive  until  corrected  by  a  direct  proceed- 
ing for  that  purpose.  Here  the  record  sought  to  be  impeached 
shows  that  the  plaintiff  in  this  case  was  plaintiff  in  that;  although 
in  fact  she  was  not.  The  record  must  therefore  stand  against  her 
until  it  is  vacated.  And  .so  the  defendants  insist  that  this  action 
cannot  be  maintained:  because,  they  say,  the  plaintiff  is  estopped 
by  the  record.     .     .     .     Judgment  affirmed. 

See  "Judgment."  Century  Dig.  §  25;  Decennial  and  Am.  Dig.  Key  No. 
Series  §  17. 

LONG  V.   IXSURAXCE  CO.,  114  N.  C.  465,   19  S.  E.  347.     1894. 
service  by  Publication.     When  Constitutional.     Actions  In  Rem  and  In 
Personam.    Manner  of  Service  on  Non-residents.    Doctrine  of  Pen- 
noyer  v.  Xeff. 

[The  summons  was  issued  fi  om  a  superior  court  of  the  state  of  North 
Carolina  and  served  bv  an  officer  of  the  state  of  Louisiana  in  that  state, 
pursuant  to  a  statute  of  North  Carolina  making  such  a  service  valid  in 


Sec.  6.]  PROCESS.  937 

those  cases  wherein  it  would  be  lawful  to  serve  such  process  by  publica- 
tion. Defendant  entered  a  special  appearance  and  moved  to  dismiss  upon 
the  ground  that  the  affidavit,  upon  which  the  summons  was  issued  to  the 
officer  in  Louisiana,  was  insufficient.  Motion  refused.  Permission  given 
to  the  plaintiff  to  amend  his  affidavit  and  the  defendant  allowed  time  to 
answer.  At  a  subsequent  term  defendant  again  entered  a  special  ap- 
pearance and  again  moved  to  dismiss  because  of  the  insufficiency  of 
both  the  original  and  amended  affidavits,  in  that  they  failed  to  show 
that  the  defendant  had  property  in  North  Carolina — it  being  admitted 
that  the  defendant  was  a  non-resident  and  this  action  simply  in  per- 
sonam. Plaintiff  made  a  counter  motion  for  judgment  for  want  of  an  an- 
swer, insisting  that  the  defendant  had  entered  a  general  appearance. 
The  judge  found  as  a  fact  that  the  defendant's  appearance  was  only 
special,  and  rendered  judgment  against  the  plaintiff  dismissing  his  ac- 
tion.    Plaintiff  appealed.     Affirmed.] 

Clark.  J.     The  finding  of  the  court  below  that  the  appearance 
of  the  defendant  at  Angiist  term  was  a  special  appearance  is  not 
reviewable.     Act   1891.   c.    120.   authorizing  service   of  summons 
and  other  process  upoii  a  nonresident  by  an  officer  of  the  county 
and  state  where  he  resides,  is.  as  the  act  expresses  it.  only  "in  lieu 
of  publication  in  a  newspaper."     It  can  onl.y  be  done  in  those 
cases  in  which  publication  could  be  made,  and  has  only  the  effect 
publication  would  have,  except  it  may  be  that,  when  the  actual 
notice  is  brought  home  by  such  service  to  a  nonresident,  he  has 
not  the  right  allowed  the  defendant,  when  publication  is  made  by 
Code.  ^  220.  to  defend  after  judgmi^nt.     But  as  to  this  we  need 
not  decide  now.     "Substituted  service  by  publication,  or  in  any 
other  authorized  form,  may  be  sufficient  to  inform  parties  of  the 
object  of  proceedings  taken,  where  property  is  once  brought  un- 
der   the    control    of   the    court    by    seizure,    or    some    equivalent 
act.     .     .     .     Such  service  may  also  be  sufficient  in  cases  where 
the  object  of  the  action  is  to  reach  and  dispose  of  property  in  the 
.state,  or  of  some  interest  therein,  by  enforcing  a  contract  or  lien 
respecting  the  same,   or  to  partition   it  among  different  owners, 
or.   when   th<'  publie  is  a  party,  to  condemn  and  appropriate  if 
for  a  pulilic  pni'pose.     In  other  words,  such  service  may  answer 
in  all  actions  which  are  substantially  proceedings  in  rem.     .     .     . 
Pnx-ess  from  the  tribunals  of  one  state  cannot  run  into  anotlier 
stall-,  and  summon  parties  there  domiciled  to  leave  its  teri-itory. 
and   respond  to  proceedings   against  them."     Pennoyer  v.    Xeff. 
95  r.  S*  7U.  727;  Wilson  v.  Seligman.  1-14  V.  S.  41.  44,  12  Sup. 
Ct.  541.     'There  is  a  large  class  of  cases  which  are  not  strictly 
actions  in  rem.  but  are  frequfiitly  spoken  of  as  actions  quasi   in 
roni.     ...     in  which  property  of  nonresidents  is  attached  and 
held   for  the  disehai-ge  of  debts  due  by  them  to  citizens  of  the 
state,   and   actions   for  the  enforcement   of  mortgages  and   oth<'r 
liens"     Fr.'eman   v.    Alderson.   119   V.   S.   185.  7   Sup.   Ct.   I(i5: 
Ilonithal  V.  P.urwell.  109  X.  C.  10.  18  S.  E.  721.     Where  the  pro- 
ceeding is  for  the  enforcement  of  mortgages  or  other  liens,  or  the 
condemnation  of  a  right   of  way  or  other  easemi'iil.  <.r  the  jiarti- 
tion  of  realty  and  the  like,  the  jurisdiction  a.s  to  nonresidents  only 
authorizes  a  judgment  a<-tinir  upon  tlie  ]iroperty.     AVliere  the  en- 


938  PROCESS.  \('li.  13. 

foivoiiit'iil  (if  ;i  (li'Itt  or  oIluM-  personal  lialiilily  is  sdiij^lit  l)y  suh- 
.it'ctiiii;  pi-dpcrty  ol"  the  nonrosiilciit.  Ilir  .iuiisdiction  is  based  upcin 
llic  stMziii't'  »ii"  tlu'  |ii'(iiici-ty.  and  o\\\y  cxtnuls  to  the  prupcrty  at- 
lacht'd.  In  ncillifi'  case  can  any  pci-soiial  .judiiiiiciit  Itc  rciidci'od 
ajjaiiist  till'  dt'tciidaiit .  iiol  even  t'oi-  the  custs.  iioi'  alT'i'«'liii^  other 
pntporty  of  his,  even  wilhiii  tlic  state.  AVinfree  v.  Iia|,dev.  102 
X.  ('.  r>i:).  :i  S.  K.  ids.  The  act  (1S!»1.  c.  120)  allowinfr  sei-viee 
of  proi-ess  of  this  state  u|)on  a  nonresident  where  he  i-esides  does 
not  and  cannot  extend  ttie  jnrisdietion.  It  is  fp  convenient,  and 
pi-ohahly  a  more  sni'e.  way  of  hi-in<xin^'  home  to  tlie  nonresident 
the  notice  wliich  formerly  was  made  soh'ly  by  pnblieation.  It  is 
optional  with  the  ]ihiintitV  which  mode  he  shall  use.  Mullen  v. 
Canal  Co..  114  X.  C.  8.  11)  S.  K.  10(i.  Hut  the  serviee  of  process 
in  another  state  is  valid  only  in  those  cases  in  which  publication 
of  the  proci'ss  would  be  valid.  22  Am.  &  Ene.  Law.  137;  York  v. 
Stnte.  73  Tex.  651.  11  S.  W.  SG9.  This  is  true.  also,  in  actions 
for  divorce.     Uurton  \'.   Huiton,  4.")  TTun,  08. 

In  tlie  present  case,  the  action  bein^'  for  the  recovery  of  a  debt. 
}>ublication  of  sinnmons  would  have  been  invalid,  because  there 
was  no  attachment  of  the  property  of  defendant,  to  confer  ju- 
risdiction. AVJnfree  v.  Bae^ley.  supra.  As  no  publication  of  sum- 
mons would  have  been  valid,  the  actual  service  in  another  state 
"in  lieu  thereof'  was  equally  invalid.  The  plaintiff  declined  the 
leave  given  him  to  amend  his  proceedings  to  bring  the  defendant 
into  court,  and  the  judge,  therefore,  properly  dismissed  the  ac- 
tion. Not, only  has  the  process  issuing  fr'^m  one  state  no  extra- 
territorial effect  when  served  in  another  state  (except  as  notice  of 
a  proceeding  in  rem,  or  quasi  in  rem.  w^hich  could  be  served  by 
publication  of  the  notice),  but  even  in  the  federal  courts,  whose 
jui-isdiction  extends  throughout  the  Union,  a  pei-sonal  judgment 
can  be  had  agrainst  a  defendant  only  when  sued  in  the  district 
where  he  resides.  Toland  v.  Sprague,  12  Pet.  300.  A  personal 
judgment  against  a  nonresident  can  only  be  obtained  in  a  state 
court  when  he  can  be  found  and  served  with  process  while  in  the 
state  (Peabody  v.  Hamilton.  106  ]Ma.ss.  217;  Smith  v.  Gibson.  83 
Ala.  284.  3  South.  321).  or,  if  a  corporation,  by  ser^nce  on  its 
agent  there.  It  should  be  noted  that  the  statute  now^  fCode. 
§  347),  as  amended  by  chapter  77,  Acts  1893,  is  materially  dif- 
ferent from  the  act  in  force  when  Wilson  v.  IMannfactuinng  Co., 
^}^  N.  C.  5.  was  decided.  An  attachment  now  lies  for  unliqui- 
.lated  damages  ari.sing  out  of  breach  of  contract,  or  for  injury  to 
]iersonal  or  real  property,  but  not  for  any  other  torts. — such,  for 
instance,  as  libel,  which  was  the  cause  of  action  in  Winfree  v. 
Bagley.  supra.     No  error. 

See  "Process,"  Century  Dig.  §  136;  Decennial  and  Am.  Dig.  Key  No. 
Series  §  109. 


Sec.  6.]  PROCESS.  939' 


VICK  V.  FLOURXOY,  147  X.  C.  209.  60  S.  E.  978.     1908. 

Different  Methods  of  Making  Due  Service  of  Process.  Effect  of  Service 
Other  Than  Personal  Service  Within  the  Territorial  Jurisdiction 
of  the  Court.  Proceedings  In  Rem  and  In  Personam.  Amendment 
of  the  Summons. 

[Vick  sued  in  the  superior  court  to  redeem  certain  lands  in  North 
Carolina  from  a  mortgage,  and  to  enforce  a  contract  with  respect  to 
such  lands.  All  the  defendants  were  non-residents  and  process  was 
served  on  them  in  strict  compliance  with  Rev.  sec.  448.  Defendants  en- 
tered a  special  appearance  and  moved  to  dismiss  upon  the  ground  as- 
signed, "that  the  court  had  no  jurisdiction  of  the  persons  of  the  defend- 
ants, for  want  of  proper  service  of  process."  IMotion  sustained  and 
action  dismissed.     Plaintiff  appealed.     Reversed. 

The  subject  matter  of  the  action  was  real  estate  situate  in  North  Caro- 
lina; the  plaintiff  was  the  executor  and  sole  heir  at  law  of  the  mortgagor 
and  a  resident  of  North  Carolina:  the  defendants  were  the  real  and  per- 
sonal representatives  of  the  deceased  mortgagee  and  were  all  non-resi- 
dents.] 

IIoKE.  J.     The  principal  question  presented  in  this  appeal,  on 
the  right  of  plaintiff  to  proceed  as  a  matter  of  jurisdiction  in  the 
court,  has  been  resolved  against  the  defendants'  position  in  sev- 
eral  decisions   of  this   court,   notahly  the   case   of  Bernhardt   v. 
Brown.  118  X.  C.  701.  24  S.  E.  527."  et  seq.     In  that  well-consid- 
ered opinion   the   present   chief  justice   points   out   the   different 
methods  by  which  a  court  may  acquire  jurisdiction  of  a  cause  and 
of  pai-ties  litigant,  and.  among  other  rulings,  holds  as  follows: 
"(1)    There  are  three  modes  for  the  'due  service  of  process' — 
(a)  by  actual  service,  or.  in  lieu  thereof,  acceptance  or  waiver  by 
appearance;  (b)  by  publication,  in  cases  where  it  is  authorized  by 
law.  in  proceedings  in  rem,  in  which  case  the  court  already  has 
jurisdiction  of  the  res.  as  to  enforce  some  lien  on  or  a  partition 
of  i)ropei'ty  in  its  control;  (c)  by  publication  of  the  summons,  in 
cases  authorized  by  law.  in  proceedings  quasi  in  rem.  in  which 
ca.ses  the  court  acquires  jurisdiction  by  attaching  property  of  a 
non-resident,  ab.sconding  debtor,  etc.     A  judgment  o])tained  un- 
der process  served  by  the  two  last-named  methods  has  no  pei'sonal 
efficiency,  but  acts  only  on  the  propei-ty,  (2)  A  proceeding  to  en- 
force a  mechanic's  lien  being  in  rem,  the  service  of  summons  by 
publication  is  authorized  by  section  218   (4)  of  The  Code,  if  the 
defendant    eaimot    aft<'r    due    diligence    be    found    in    the    state, 
whether  hr  be  a  non-resident  or  a  ivsident;   {'•])   Tn  an  action  to 
enforce  a  iiieihanie's  lien  and  in  all  other  procwdings  in  rem  it 
is  not   nreessarA-.  as  in  proceedings  quasi  in  rem.  to  ae(|uii-e  juris- 
diction   by    actual    seizure   or    attachment    of    the    jn-opei-ty — the 
mere  bringing  of  the  suit   in  which  the  claim  is  sought   to  he  en- 
forced    l)eing    equivalent     to     seizure."      And.     in     Draliam     v. 
O 'Bryan.  120  X.  (\  40:?.  27  S.   H.   122.  th.'  same  judge,  for  the 
court,  said:  "A  .service'  by  publication  on   a  non-residi'nt.  in   an 
action    affecting   j»ropertv.    is    valid    without    attachment."     And 
again,  in   Long^  v.   Ins.  ('o..   114  X.  C.  40r),  19  S.   K.  :U7.  and  in 


^-^•^  PROCESS.  [(7).    ]o. 

• 
otliiT  c-iscs.  it  li;is  ht'cii  lirld  tlint,  while  ]t(M'son;il  stM-A'ico  of  jirocess 
in  aiiotlH'r  s\A\r  .m  m  iioii-n'sidfiit  (Icffiitl.-int  is  in  lieu  of  servii'.e 
1>\  |)iihlii';ititiii  .111(1  (Mily  ;i\ .liLihlc  in  c-isc^s  wlu^ro  such  sorvicp 
would  Ih' suriicii'Ml.  vcl.  when  t  he  st;it  iile  so  provides  and  its  leniis 
iu\'  eomplie.l  wirh.  hoth  iiielhods  are  valid  as  lo  aetions  substan- 
tially in  rem  or  (piasi  in  rem.  and  wliei-e  tlu'  relief  sought  is  iv- 
.stricted  (])  to  an  application  of  the  piroperty  seized  by  process  in 
the  cause.  (2)  oi-  to  a  judirment  atfectiiiij  the  title  to  property  or 
sonic  intiM-esl  thei-ein.  or  lien  tli(>reoii,  which  had  its  situs  within 
the  limits  of  the  court's  jurisdiction. 

The  cases  supra  ai-e  in  accord  with  the  decisions  of  the  supreme 
court  of  the  Initeil  States  on  the  same  subject.  I'ennover  v.  Nctl'. 
9o  r.  S.  715;  Arndt  v.  Grio;^'s.  l:U  U.  S.  '.U(\  10  Sup.  Ct.  557.  \u 
this  last  case,  beiuir  an  action  to  determine  tlie  interest  of  certain 
claimants  to  real  estate  situated  witliin  the  state  of  Nebraska,  and 
to  quiet  the  title  thereto.  Mr.  Justice  Brewer,  delivering  the  opin- 
ion of  the  court.  ( (notes  with  approval  from  the  ease  of  Beebe  v. 
Doster.  36  Kan.  ()G(i.  H75.  677.  14  Pac.  150.  et  seq.,  as  follows: 
" Mortgage'  liiMis.  mechanics'  liens,  materialmen's  liens  and  other 
liens  are  foreclosed  against  non-resident  defendants  upon  service 
by  publication  only.  Lands  of  non-resident  defendants  are  at- 
tached and  sold  to  ])ay  their  debts;  and,  indeed,  almost  any  kind 
of  action  may  be  instituted  and  maintained  against  non-residents 
to  the  extent  of  any  interest  in  property  they  may  have  in  Kan- 
sas, and  the  jurisdiction  to  hear  and  determine  in  this  kind  of 
cases  may  be  obtained  wholly  and  entirely'  by  publication.  Gil- 
lespie V.  Thomas.  23  Kan.  138;  Walkenhorst  v.  Lewis,  24  Kan. 
420;  Rowe  v.  Palmer,  29  Kan.  337;  Venable  v.  Dutch,  37  Kan. 
515,  519,  15  Pac.  520.  All  the  states,  by  proper  statutes,  author- 
ize actions  against  non-residents  and  service  of  summons  therein 
by  publication  only,  or  service  in  some  other  form  no  better;  and. 
in  the  nature  of  things,  .such  nnist  be  done  in  every  jurisdiction. 
in  order  that  full  and  complete  justice  may  be  done  where  some 
of  the  parties  are  non-residents."  And  again,  quoting  from  Bos- 
well's  Lessee  v.  Otis.  9  IIow.  336.  348:  "Turning  now  to  the  de- 
cisions of  this  court:  In  Boswell's  Lessee  v.  Otis.  9  How.  336.  348. 
was  presented  a  case  of  a  bill  for  specific  performance  and  ac- 
counting, and  in  which  was  a  decree  for  specific  performance  and 
accounting,  and  an  adjudication  that  the  amount  due  on  such  ac- 
counting should  operate  as  a  judgment  at  law.  Service  was  had 
by  publication,  the  defendants  being  non-residents.  The  validity 
of  a  sale  under  such  judgment  was  in  question.  The  court  held 
that  portion  of  the  decree  and  the  sale  made  under  it  void,  but. 
with  reference  to  jurisdiction  in  a  case  for  specific  performance 
alone,  made  the.se  observations:  'Jurisdiction  is  acquired  in  one 
of  two  modes — first,  as  against  the  person  of  the  defendant,  by 
service -of  process,  or,  secondly,  by^  a  procedure  against  the  prop- 
erty of  the  defendant  witliin  the  jurisdiction  of  the  court.  In 
the  latter  case  the  defendant  is  not  personally  bound  by  the  judg- 


Sec.  6.]  PROCESS.  941 

iiieiit  beyoml  the  property  in  questinii.  And  it  is  immaterial 
whether  the  proceeding  ao:ainst  the  property  ho  by  an  attachment 
or  bill  in  chancery.  It  must  be  substantially  a  proceeding  in  rem. 
A  bill  for  the  specific  execution  of  a  contract  to  convey  real  estate 
is  not  strictly  a  proceedinsr  in  rem  in  ordinary  cases;  but  where 
such  a  procedure  is  authorized  by  statute  on  publication,  without 
personal  service  of  process,  it  is  substantially  of  that  character.^ 
And  on  the  question  before  them  the  court  held :  '  (1)  A  state  may 
provide  by  statute  that  the  title  to  real  estate  within  its  limits 
shall  be  settled  and  determined  by  a  suit  in  which  the  defendant, 
being  a  non-resident,  is  brought  intocourt  l)y  i)u])lication ;  (2)  The 
well-settled  rules  that  an  action  to  (piiet  title  is  a  .suit  in  equity, 
that  ecpiity  acts  upon  the  person,  and  that  the  person  is  not 
brought  into  court  by  ser\'ice  by  publication  alone,  do  not  apply 
when  a  state  has  provided  by  statute  for  the  adjudication  of  ti- 
tles to  real  estate  within  its  limits  as  against  non-residents,  who 
are  brought  into  court  only  by  publication.'  " 

This  is  an  action  to  establish  plaintiff's  title  to  a  tract  of  land 
situated  within  the  .iurisdiction  of  the  coui-t.  and  to  relieve  the 
same  from  any  and  all  liens  that  the  defendants  may  hold  on  the 
same.     The  terms  of  the  statute  ])n)viding  for  personal  service 
beyond  the  state  have  been  duly  complied  with.     Revisal.  sec.  448. 
And  a  correct  application  of  the  principles  in  the  foregoing  de- 
cisions clearly  dctcniiines  that,  if  the  facts  are  established  as  al- 
leged, the  court  has  jurisdiction  to  afford  the  relief  demanded. 
There  is  no  doubt  of  the  correctness  of  the  position  urged  upon  us 
by   the   defendants'   counsel,   that   a    valid    judgmont   strictly   in 
personam  cannot  be  had  unless  there  has  been   a  voluntary  a])- 
pearance  by  defendant  or  there  has  been  ser\nce  of  process  upon 
him  within  the  jurisdiction  of  the  court,  and  that  pei-sonal  sei-v- 
ice  of  process  beyond  the  jurisdiction  does  not  affect  the  principle 
or  render  such  a  judgment  valid.     But  the  relief  sought  here  is 
not  strictly  in  personam,  and.  while  it  may  not  be  with  exactness 
a  proceeding  in  rem.  the  decisions  all  treat  it  as  substantially  in 
ren).   and   the  question  of  the  court's  jurisdiction   comes  clearly 
within  the  jtrinciples  we  hold  to  be  controlling,  and  the  facts  bring 
the  case   within   the  express   terms  f»f  oui'  statute  providing   for 
sen'ice  by  j)nI)lication.     Revisal    sec.  442.     Such  service  may  bo 
bad   whenever  tlu'  defendant  is  a   pidpei-  j.arty   relating  to  real 
property,  and    ^su])seetion  ^)   "wiiere  lie  is  not  a   i-esident  of  this 
state,  but  has  |)roperty  therein  and  the  eoui-t  has  jui-isdietion  of 
the  subject  of  the  action;"   (subsection  4)   "wliei'e  the  subjcet   ol" 
till'  aefidii   is  re;il   ny  pers(,nal  proj)erty  in  this  state  and   the  de- 
fendant   ha.s   (ir   <-lainis   a    lien    or    interest.    ae1;i;il    ny   contingent, 
therein,  or   tlie   relii-f  deiiijindeil   consists   w  liolly   or   |)aftly   in   ex- 
eluding  tln'  (IcrendMiit    fidiii  ;iny  lien  or  intcfcsl   therein." 

Objection  is  furtliei-  ni;idc  to  the  sunniions  served  for  that  the 
Kjuno  is  not  under  seal  of  the  court.  We  are  inelined  to  the  opin- 
i<»n  that,  under  s'-ct ion  4;?1.  l^evisal.  a  seal  is  rerpiired — eertaiidy 


■^^~  PROCESS.  [Ch.  13. 

it  is  always  divsirahlf  wlicii  a  sumiiioiis  is  sotit.  to  a  dislaiu'i'.  Its 
pivsi'iu'o  may  strvc  to  assure  tlic  olliccr  of  aiiotlicr  slate  that,  the 
proetH'dinirs  are  in  u:oo<l  faith  and  uiuhM-  ofiieial  saiietion;  but 
when  it  apjiears  tliat  the  (|er.'ii(i;iiils  have  l)een  aetually  notified, 
as  ill  this  ease,  not  only  el'  th"  lime  and  phiee  when  they  are  re- 
((uired  to  a|)pear.  l)ut  also  iully  infohiied  of  the  nature  and  pur- 
pose of  the  action,  the  ohjeetion  tliat  there  is  no  seal  to  tiie  sum- 
mons is  not  of  tlie  siihstanee.  If  tlie  onieei"  has  acted  without  it, 
thi'  ah.senee  of  a  si'al  is  only  an  iri'i'iiularity,  which  may  be  cured 
now  by  liavin-j:  the  seal  aftixed.  and  the  same  may  be  said  as  to 
Ilie  form  of  the  summons,  it  is  suflieient  to  notify  the  pai'tics, 
;ind  is  a  substantial  e(itiii>lianee  with  the  statute,  accompanied  as 
it  is  by  a  sworn  statement  of  the  nature  of  the  action.  The  power 
of  amendment  to  the  ext(Mit  indicated  lias  ])e(>n  upheld  by  express 
decision.  Henderson  v.  Liraliam,  8-4  X.  C.  4'JG;  Clurk  v.  Ilellen, 
23  X.  C.  41' 1. 

^\'e  hold  lliat  the  e(Mirt  luul  acquired  jurisdiction  and  there 
was  error  in  dismissing  the  action.     Error. 

See  uote  to  next  succeeding  case  and  the  cross  references  there  given. 
See  "Judgment,"  Century  Dig.  §§  2.5-33;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  17. 


BACON  V.  JOHNSON,  110  N.  C.  114,  14  S.  E.  .508.     1892. 

Prerequisites   to   Valid   Service   by  Publication.     Essentials  of  the  Afft- 

davit. 

[Action  for  specific  performance  of  a  contract  to  convey  real  estate 
situated  in  North  Carolina.  The  defendants  were  non-residents  and  the 
summons  was  duly  issued,  and  returned  by  the  sheriff  endorsed  "not  to 
be  found  in  my  county."  Thereupon  the  attorney  of  the  plaintiff  made 
his  affidavit,  the  material  part  of  which  is  as  follows:  "That  defendants, 
upon  whom  service  of  summons  is  to  be  made,  cannot,  after  due  dili- 
gence, be  found  within  the  state  of  North  Carolina,  and  he  is  informed 
and  believes  they  are  residents  of  the  state  of  Maryland;  that  a  cause  of 
action  exists  against  them  in  favor  of  plaintiff,  and  that  they  are  proper 
parties  to  the  same,  which  said  action  relates  to  real  property  in  this 
state,  to-wit,  specific  performance  of  a  contract  to  convey  a  tract  of 
land  lying  in  Craven  county.  Therefore  affiant  prays  that  service  of 
summons  upon  defendants  be  ordered  by  publication,  as  required  by 
law  in  such  cases."  Upon  motion  of  plaintiff,  founded  upon  this  affida- 
vit, the  court  made  its  order  directing  that  publication  be  made  of  the 
summons  and  notice  to  defendants  in  the  .Vewbern  Journal,  a  news- 
paper., for  six  weeks,  requii'ing  them  Lo  appear.  Such  publication  was 
made;  and  at  spring  term,  1891,  of  the  superior  court,  the  plaintiff 
filed  his  complaint,  and,  the  defendants  failing  to  appear,  he  obtained 
judgment  by  default  final  for  want  of  an  answer.  Thereafter  defend- 
ants entered  a  special  appearance  and  moved  "to  set  aside  and  declare 
void  and  irregular"  the  judgment  theretofore  entered,  upon  the  ground 
that  the  service  by  publication  was  void  for  non-compliance  with  the 
statutory  requirements  and,  consequently,  the  court  had  no  jurisdic- 
tion. Defendants  al«o  moved  to  be  allowed  to  come  in  and  defend  the 
action  notwithstanding  the  judgment  by  default — basing  such  motion 
on  sec.  220  of  The  Code  (Revisal  sec.  449).  Both  motions  were  denied 
and  defendants  appealed.     Reversed.] 


Sec.  6.]  PROCESS.  94:3 

Merrimox.   C.   J.     The   service  of  the   summons   or  notice  as 
original  process  in  the  action  by  publication  must  be  made  strictly 
in  accordance  with  the  requirements  of  the  statute.     Code,  §§  218, 
219.     This  method  of  service  of  process  and  giving  the  court  ju- 
risdiction i,s  peculiar,  and  out  of  the  usual  course  of  procedure. 
The  statute  prescribes  with  particularity  and   caution  the  cases 
and  causes  that  nmst  exist  and  appear  by  affidavit  to  the  court 
in  order  that  it  may  be  allowed.     The  court  must  see  that  every 
prerequisite   prescribed   exists   in    any   particular   case   before   it 
grants  the  order  of  jniblication ;  otherwise  the  publication  will  be 
unauthorized,  irregular,  and  fatally  defective,  unless  in  some  way 
such  irregularitv  shall  be  waived  or  cured.     Spiers  v.  Halstead, 
71  X.  C.  209 :  AV'indley  v.  Bradway.  77  N.  C.  333 ;  Wheeler  v.  Cobb, 
75  N.  C.  21:  Faulk  v.  Smith.  84  X.  C.  501.     The  statute  cited 
above,  among  other  things  pertinent  here,  prescribes  and  requires 
that,  in  order  to  obtain  an  order  that  service  of  notice  of  the  ac- 
tion be  made  by  publication,  it  must  appear  by  affidavit  "that  a 
cause  of  action  [exists]  against  the  defendant  in  respect  to  whom 
service  is  to  be  made,  or  that  he  is  a  necessary  party  to  an  action 
relating  to  real  property  in  this  state"  in  a  ease  wherein  that 
party  "is  a  non-resident  of  this  state,  but  has  property  therein, 
and  the  court  has  .iuri.sdiction  of  the  subject  of  the  action."  or 
that  "the  subject  of  the  action  is  real  or  personal  property  in  this 
state,  and  tlu^  defendant  has  or  claims  a  lien  or  interest,  actual  or 
contingent,  therein  ;   or  the   relief  demanded  consists   wholly  or 
partly    in    excluding   the   defendant    from   any    lien    or    interest 
therein."     Sufh  prerequisites  must  appear  in  their  substance  at 
least.     It  is  not  sufficient  to  state  generally  that  a  cause  of  action 
exists  against  the  defendauts.  or  that  they  are  necessary  parties 
to  the  action.     A  brief  summar^^  of  the  facts  constituting  the  cause 
of  action  or  of  the  facts  showing  that  the  parties  are  necessary 
parties  to  the  action  should  be  stated,  so  that  the  court  can  see 
and  determine  that  there  exists  a  cause  of  action,  or  that  the  par- 
ties are  necessaiy  for  some  appropriate  purpose.     The  party  de- 
inanding  the  order  shall  not  be  the  judge  to  determine  that  a 
cause  of  action  exists,  or  that  the  parties  sought  to  be  mad(>  par- 
ties are  nece.ssary   pai-ties.     Tt  is  the  province  and  duty  of  the 
court   to  sec  the  facts   and    di'lei'iiiiiie   the   legal    (|uestion   as   to 
whether  there  is  a  cause  of  action  or  not.     Xor  is  it  sufficient  to 
stale  thai  the  ])arty  is  a  necessaiy  party  to  an  action  to  compel 
si)eeifie  performauec  of  a  conti-aet  to  eonvey  laud  in  a  particular 
loealily.     The  facts  must  be  stated  with  sufficient  fullni^ss  to  de- 
velop the  contract  and  the  relation  of  the  parties  to  it :  otherwise 
the  party  dem.nnding  the  order  will  determine  that  he  has  a  cause 
r>f  ar-tion.  while  the  statiite  rerpiires  tlie  court   to  do  so  \ii»on  faets 
apj.earing  by  affidavit.     Clatlin  v,  Harrison.  108  X.  C.  151,  12  S. 
K.  Kej'-  '^■'5.  and  the  cases  eit.d  supra.     The  affidavit  upon  wliieh 
the  order  of  j)ublieation  was  nia<le  in  this  ea.se  failed  to  state  the 
faets  on  whieh  the  j.laintilT  relied  to  eonstitule  his  cause  of  action, 


044  PROCESS.  [Ch.  13. 

juul  otluM-  fiU'ts  to  sliow  tli.it  tilt'  iiiiprlliints  wciv  ncrt'ssary  par- 
ties. 'Pile  iiMirl  failed  to  sec  aiul  (It'tcniiiiit'  upon  cviiU'iU't'  ap- 
poariiiir  as  ir(|iiirc»l  that  tlicrc  was  a  causf  of  action,  and  that  the 
tlofendaiits  wcih'  ii«'t'i'ssai-\-  pai'tifs  to  tlir  action  fof  somt'  ])roper 
pui]iosc.  Ndi-  did  it  ai)pcar  tliat  tlu'  defendants  liad  property 
in  this  state.  'This  is  inalei-ia!  when  the  pnrpose  is  to  ane<i;e  a 
cause  of  action  airainst  the  (hd'endant.  'Hie  order  of  i)ublieation 
was  tlierefore  iniproviih-ntly  frranted.  I*nl)lication  was  not  made 
accordinir  to  hiw.  and  the  court  sliould  have  set  the  judfrinent  com- 
plained of  aside  It  does  not  ai)pear  that  tlie  irret,'ularity  was 
eureil  or  waived  in  any  way. 

We  may  add  also  that  the  court  sliould  have  found  the  facts 
upon  wliich  ii  founth'd  its  conclusion  "tliat  no  just  or  reasonable 
cause  has  been  shown  why  the  said  jud^nnent  should  be  set  aside 
as  irreirular  and  void,  or  that  the  defendants  be  allowed  to  come 
in  and  defend  said  action."  etc.  It  may  be  that  the  court  erro- 
neously decided  that  tlu'i-e  was  no  lesral  cause,  and  exercised  its 
discretion  upon  that  <xround  in  refusino;  to  allow  the  appellants 
to  make  di-fensi'.  AVlu-ther  there  was  such  cause  or  not  is  a  ques- 
tion of  law.  and  the  decision  of  the  court  in  that  respect  is  re- 
viewable in  this  court.  The  court  recites  in  its  judgment  that  it 
finds  from  "the  record  and  the  said  affidavit  that  no  just  or  rea- 
sonable cause  has  been  shown,"  etc.  It  should  have  found  the 
facts,  and  set  them  forth  in  the  record,  so  that  its  decision  of  the 
question  of  law  arisinc:  upon  the  facts  might  be  reviewed.  In  the 
absence  of  demand  that  the  facts  be  found,  it  might  not  be  error 
to  fail  to  set  the  findings  of  fact  forth  in  the  record.  But  the 
contentions  of  the  defendants  in  this  case  imply  a  demand  that  the 
facts  be  found.  The  court  drew  its  conclusions  from  facts  not  set 
forth.  Utley  v.  Peters,  72  N.  C.  525.  There  is  error.  The  judg- 
ment nnist  be  reversed,  and  further  proceedings  had  in  the  action 
according  to  law.  To  that  end  let  this  opinion  be  certified  ac- 
cording to  law.     It  is  so  ordered. 

See  Mullen  v.  Canal  Co.,  114  N.  C.  8,  19  S.  E.  106;  Lemly  v.  Ellis,  143 
N  C  200,  55  S.  E.  629;  Penniman  v.  Daniel,  91  N.  C.  at  p.  434,  inserted 
at  cli.  11,  sec.  4,  ante;  Haddock  v.  Haddock,  201  U.  S.  at  p.  566,  26  Sup. 
Ct.  525,  inserted  at  ch.  12,  ante;  Grocery  Co.  v.  Bag  Co..  142  N.  C.  174, 
55  S.  E.  90;  Best  v.  Brit.  &  Am.  Co.,  128  N.  C.  351,  38  S.  E.  923.  A  civil 
action  must  ordinarily  be  commenced  by  the  issue  of  a  summons,  but 
it  is  not  necessary  to  do  so  where  the  defendant  is  not  within  the  reach 
of  process  of  the  court  and  cannot  be  personally  served.  In  these  last 
mentioned  instances  it  is  sufficient  to  file  the  requisite  affidavit  and 
proceed  to  serve  the  process  by  publication.  Grocery  Co.  v.  Bag  Co., 
142  N.  C.  174,  55  S.  E.  90.  Publications  for  feme  covert  in  her  maiden 
name,  will  it  do?  19  L.  R.  A.  (N.  S.)  984.  See  "Process,"  Century  Dig.. 
§§  108-120;    Decennial  and  Am.  Dig.  Key  No.  Series  §  96. 


PARTIES.  945 


CHAPTER  XIV. 

PARTIES. 


HAYS  V.  LANIER,  3  Blackford,  322.    1833. 
Necessity  for  Xaming  the  Plaintiffs.     Actions  by  a  Copartnership. 

[The  firm  of  Stapp,  Lanier  &  Co.  brought  an  action  against  James  W. 
Hays  and  Thomas  Heck  (trading  under  the  style  and  name  of  Hays  & 
Heck)  and  John  W.  Wheatly.  The  summons  did  not  give  the  individual 
names  of  the  persons  composing  the  plaintiff  firm.  Hays  &  Heck  moved 
to  quash  the  writ.  Motion  overruled.  They  then  demurred  and  the 
demurrer  was  overruled,  and  they  carried  the  case  to  the  supreme 
court  by  writ  of  error.     Reversed.] 

Stev^ens,  J.  .  .  .  The  only  qnestion  before  the  court  is. 
wliether  the  defendants  in  error  can,  in  then*  collective  capacity, 
under  the  style  and  name  of  Stapp.  Lanier  &  Co..  prosecute  and 
maintain  this  action.  There  is  no  principle  more  certainly  and 
satisfactorly  settled  than  that,  in  all  actions,  the  writ  and  decla- 
ration mast  both  set  forth,  accurately,  the  Christian  and  surname 
of  each  plaintiff  and  each  defendant,  unless  the  party  is  a  corpo- 
ration, and  is  authorized  to  sue  and  be  sued  in  such  corporate 
name.  This  rule  of  law  and  practice  is  sustained  by  reason,  jus- 
tice, and  tli<'  hi<:hest  authorities.  In  the  case  now  before  us.  the 
defendants  in  error  are  not  a  corporation  known  to  the  law  by  the 
artificial  name  of  Stapp.  I^anier  &  Co.;  they  are  natural  persons, 
and  must  sue  in  th<'ir  individual  names.  It  is  also  equally  well 
settled  tliat  in  all  cases  of  contracts,  if  it  appears  upon  the  face 
of  the  writ  or  declaration  that  there  are  other  oljli^rees  who  are 
not  named,  it  is  fatal  on  denuirrer.  In  this  case,  the  note  and 
writ  both  show  that  there  are  other  obligees  who  are  not  named; 
this  is  fatal  on  dnnurrer.  1  Chit.  PI.  7;  2  Johns.  Cas.  384:  Pent- 
ley  V.  Siiiilh.  :i  Ciiiiu's.  170;  Anderson  v.  Martindale,  1  East, 
407.  .  .  .  Siipposf  tlic  wi-it  ill  tliis  case,  instead  of  issuing 
ill  till'  Innii  It  .lid.  had  issued  in  the  ikiiim'  nf  .Milton  Stapp,  James 
F.  \>.  L;iiiiir.  etc..  i)ai1ners,  trading  under  the  style  and  firm  of 
Stajip.  Lanier  &  I'o..  would  there  have  been  any  difficully? 
It  is  iipiin-liciidcd  lli;it  there  could  not  have  be«'i)  any;  Ihe  re<'()nl. 
])rocecdings  Jiiid  judgiiieiil  eould  have  followed  tlie  wril.  ;in(l  ;il! 
might.   |»er-li;i|is.    li;i\e  been   cm  red.      .ludgiiietit    re\er-sed. 

See  Heath  v.   .Morgan.  117  N.  C  504.  23  S.  E.  48i>,  to  the  same  effect 
as  the  principal   case.     See  "PartnerBhip."  Century    Dig.   g   300;    Decen- 
nial and  Am.   Dig.  Key  No.  Series  §  l!t7. 
Remedies — 60. 


946  I-AKTIKS.  \('h.    11. 


PALIN   V.   SMALL.   63   X.  C.   484.     1867. 
Xamiiuj   the   Plaintiffs    When    Copartnership   Sues. 

[Action  for  breach  of  warranty  of  the  soundness  of  a  horse.  The 
summons  or  "writ  was  in  the  name  of  William  Palin,  John  Palin  and 
Joseph  Palin,  partners,  trading  under  the  firm  and  style  of  Palin  & 
Brothers."  The  defendant  insisted  that  it  was  necessary  that  plaintiffs 
not  only  show  that  the  warranty  was  made  to  them,  but  also  that 
plaintiffs  were  cojiartners.  The  judge  ruled  otherwise  and  there  was  a 
verdict  and  judgment  against  the  defendant,  and  he*  appealed.  Af- 
firmed.] 

Sin'Ti.K.  J.  Had  till'  irril  in  this  ca.se  been  i.ssuecl  in  tlic  firm 
name  of  "Palin  &  Brothers."  without  rccitinor  the  individual 
names  of  the  pei'sons  eomposinj;  the  firm,  the  defect  would  have 
been  fatal ;  for  it  is  well  settled  tliat  the  irril  must  set  forth  ac- 
curately the  namr  of  each  pJaiiiliff  a)id  dcf(  ndoiil.  But  here  the 
writ  does  set  forth  the  full  names  of  all  tlie  plaintiffs,  with  the 
addition  that  they  are  "partners  trading  under  the  firm  and  style 
of  Palin  &  Brothers."  It  is  not  pretended  that  the  contract  was 
not  made  vxith  the  plaintiffs.  William  Palin.  John  Palin,  and  Jo- 
si'ph  Palin,  but  the  di'fendant  insists  that  as  the  writ  recites  that 
they  were  "partners  trading  under  the  firm  and  style  of  Palin  & 
Brothers,"  the  faet  of  i)artnership  under  such  name  should  have 
been  proved  upon  the  trial.  His  honor  hdd  this  to  he  unneces- 
sarii,  and  was  of  the  opinion  that  these  words  in  the  writ  should. 
he  regarded  as  surplusage.  In  this  we  concur.  The  addition  of 
the  firm  name  to  the  individual  names  composing  the  firm  was  not 
necessary,  but  being  added  it  can  do  no  harm,  and  will  not  sub- 
ject the  plaintiffs  to  any  additional  proof.     Judgment  affirmed. 

See  "Partnership,"  Century  Dig.  §  360;  Decennial  and  Am.  Dig.  Key 
No.  Series  §  197. 


POWERS  V.  HURST.  3  Blackford.  229,  231.     1833. 
Necessity  for  Naming   the  Defendants. 

[Hurst  instituted  a  suit  against  "Clement  Powers  and  others  whose 
names  are  unknown,  heirs  of  Walter  E.  Powers,  who  all  are  not  resi- 
dents of  the  stale."  This  was  held  sufficient  by  the  judge.  Powers  car- 
ried the  case  to  the  supreme  court  by  writ  of  error.    Reversed.] 

^FcKixxEv.  J.  .  .  .  The  proceeding  is  instituted  against 
Clement  Powers  and  others  unknown,  alleged  to  be  the  heirs  of 
the  judgment  defendant,  who,  it  is  said,  "are  not  all  residents  of 
Indiana."  This  statement  of  non-residence  is  indefinite,  and 
clearly  insufficient.  If  a  ]^art  of  the  heirs  were  residents,  they 
could  not  be  joined  with  those  who  Avere  non-residents.  From 
the  expression  used,  "who  are  not  all  residents  of  Indiana,"  a 
part  at  least  mast  be  considered  as  being  residents,  and  therefore, 
exclusive  of  other  objections,  the  affidavit  would  be  defective. 
The  .statute  authorizing  the  proceeding  against  non-resident  heirs, 


PARTiEy.  947 

does  not  authorize  it  agaiust  them  eo  nomine,  but  leaves  to  the 
rules  of  the  common  law  the  mode  of  enforcing  their  liability, 
subject  to  the  particular  provisions  of  the  statute.  We  have  no 
recollection  of  a  proceeding  at  common  law  against  unk)wwn 
heirs.  At  common  law  or  in  equity,  if  heii*s  are  required  to  be 
made  defendants  to  a  suit,  it  is  the  duty  of  the  plaintiff  to  render 
them  such  hi/  fiuir  proper  names.     .     .     .     Judgment  reversed. 

See  Wilson  &  Shober  v.  Moore,  72  N.  C.  55S,  and  note,  inserted  at 
ch.  13,  see.  6.  See  'Attachment,"  Century  Dig.  §  295;  Decennial  and 
Am.  Dig.  Key  No.  Series  §  111. 


GAMLY  V.  BECHIXOR,  2  Levinz,  197.     1678. 
Naming  the  Defendants. 

Assumpsit;    whereas   quidam   Allison   was   indebted   to 

the  plaintilT.  who  intended  to  sue  the  said Allison,  the 

defendant;  in  consideration  the  plaintiff  would  forbear  the  said 

Allison  promised  him  to  pay  the  debt.     After  judgment 

upon  verdict  for  the  plaintiff  in  C.  B.  in  non  assumpsit,  error  was 
brought  in  B.  R.  and  it  was  assigned  that  it  does  not  appear  what 
Allison  was  intended  in  the  case;  for  it  is  quidam  Allison  without 
christian  name,  and  so  it  may  be  any  Allison  in  the  world;  and 
Rainsford.  Chief  Justice,  and  Twysden  held  this  an  error.  But 
Wylde  and  Jones  contra:  Be  it  what  Allison  it  will,  the  defend- 
ant hath  promised,  and  that  is  so  found,  and  this  judgment  may 
be  pleaded  in  bar  to  any  other  action  brought  in  consideration  of 
forbearance  of  any  Allison  without  christiaii  name,  with  an  aver- 
ment that  he  is  the  same  person ;  and  rather  than  reverse  it  for 
this  cause,  they  would  intend  quidam  was  his  christian  name. 
Quare  adjournat. 

See  "Parties,"  Century  Dig.  §  108;    Decennial  and  Am.  Dig.  Key  Xo. 
Series  §  66. 


WILSON   V.   THE   STATE,   6   Blackford,    212,   213.      1842. 
Result  of  a  Defect  of  Parties  in  a  Court  of  Law.     Misjoinder  and  Xon- 

joinder. 

[Wilson,  as  priiu  ipal,  and  McCarty,  as  surety,  entered  into  a  recog- 
nizance in  the  sum  of  $400,  i)ayablc  to  th(>  state,  to  l)o  void  ui)Oii  condi- 
tion that  Wilson  appear  at  court,  etc.  Wilson  did  not  aiipcar  according 
to  the  terms  of  the  recognizance,  and  the  state  proceederl  against  Wil- 
son alone  to  enforce  the  recognizance.  Wilson  contended  that  the  pro- 
ceeding could  not  be  sustained  because  it  was  against  him  alone  and 
not  against  bini  and  .McCarl.v — they  two  being  jointly  li:il)le  on  the 
recognizance.  The  judge  ruled  against  Wilson  and  gave  judgment 
against  him  for  $400,  and  Wilson  tarried  the  case  to  the  supreme  court 
by  writ  of  error.  Anirmcd.  While  Wilson  duly  pleaded  that  McCarty 
was  jointly  liable  with  him,  lu-  faib'd  to  i)Icad  that  McCarty  was  living 
at  the  commencement  of  the  proceeding — but  for  that  he  woubi  have 
defeated  the  state. 1 


948  I'AKTiKS.  \Ch.  J  I. 

Okwey.  J.      .      .      .      SoiMO  of  tin-  (Idct  fines  wliicli  have  been  es- 
tal>lisln»d  ill  lohition  to  llie  .joinder  ol  paiMies  seem  to  bo  soinewliat 
arbitrary.     In  actions  t'o\iiuled  on  contract,  ii"  an.\-  ol"  lliose  livinsr 
to  whom  the  promise  or  t)bliijation  is  }nadc  he  (nnillcd  as  plaintilVs, 
or  any  to  wlioni  //  /",<  )i()l  )»a<l(    (x   jonnd.  and  the  fact  appear  in 
the  deehiration.  it  is  fatal  on  demufrer.  in  arrest  of  judjrment.  oi' 
in  error:  aiid   il'  the  defeet    is  not  shown   liy   the  |)h'adinj]!;s,   it   is 
gronnd  of  nonsuit  under  the  «reneral  issue.     1   Chit.  I'l.  IIJ;  Ver- 
non V.  JetVrt\^•s.   2  Stra.   11 4(5 -,   Anderson  v.  ^Fartindale,  1   East, 
4!>7 ;  Seott  V.  (iodwin.  1   B.  &  P.  (i7.      |  Not  so  in  (qtdhj — the  cause 
is  continued  that  jiropei-  ])arties  may  l)e  made.     Park  v.  Ballen- 
tiue,  6  Rlaekf.  223,  post.]      But  wiien  tlie  action  is  by  executoi-s 
or  administrators,  eitlier  on  eontraet   or  tort,  and  there  is  a  eo- 
executi»r  ov  admini.strator  not  joined,  objection  to  tlie  nonjoinder 
can  be  taken  only   (after  oyer  of  the  letters  testamentary  or  of 
administration)  by  a  plea  in  abatement,  that  the  omitted  executor 
or  administrator  is  livin*;  and  not  made  a  i)ai'ty.     1  Chit.  PI.  20; 
1  Saund.  21)1.  i;.  n.  4.     The  same  rule  is  applicable  to  all  actions 
founded  on  tort,  thousrh  the  nonjoinder  of  a  person  jointly   in- 
terested with  the  plaintiff  appear  of  record.     1  Saund.  291.  ^'.  h. 
n.  4.     In  actions  ex  contractu,  if  a  part  only  of  several  joint  con- 
tractors be  sued,  and  the  defendant  Avish  to  avail  liimself  of  the 
omission  of  the  others,  he  must  do  it  by  a  plea  in  al)atement  ;  if 
he  omit  to  do  so,  he  cannot  afterwards  urije  the  objection  in  any 
form,  thouuh  the  declaration  set  out  a  joint  contract.     1  Saund. 
154,  n.  1  :  Kees  v.  Abbott,  Cowp.  832,  per  Bidler,  J.;  Hawkins  v. 
Ramsbottom.  6  Taunt.  171).     So.  to  an  action  on  a  specialty,  part 
of  the  obligors  being  omitted,  the  defendant  cannot  have  oyer  and 
demur;  he  must  still  plead  in  abatement.     Cabell  v.  Vaughan. 
1  Saund.  291,  a,  n.  2.     The  plea  in  abatement  for  the  nonjoinder 
of  a  contractor,  must  show  not  only  that  the  omission  has  been 
made,    but    that    the    contractor    omitted    is    living.     Cabell    v. 
Vaughan.  1  Saund.  291,  a,  b.  n,  4.     If,  however,  the  declaration, 
or  other  pleading  of  the  plaintiff,  expressly  show  what  it  would 
be  necessary  to  aver  in  the  plea — that  there  are  joint  contractoi-s 
who  are  not  joined,  and  who  are  living — then  the  defendant  may 
demur,  move  in  arrest  of  judgment,  or  sustain  error.     1  Chit.  PI. 
46;  1  Saund.  291,  b,  n.  4,  and  the  authorities  there  cited;  Dillon 
V.  The  State  Bank,  6  Blkfd.  5.     We  are  aware  that  in  scire  facias 
on  a  recognizance,  and  also  on  a  bond  to  the  crown,  it  has  been 
held,  that  if  the  declaration  show  that  a  part  only  of  the  cognizors 
or  obligors  are  sued,  though  it  does  not  appear  that  the  others  are 
living,  the  nonjoinder  is  fatal  on   demurrer.     Rex  v.   Young.   2 
Anstr.  448;  Rex  v.  Chapman.  3  Id.  811.     Believing  these  cases 
to  be  irreconcilable,   in   principle,  with  the  d<;cisions  which  have 
been  made  in  regard  to  nonjoinder  of  parties  to  ordinary  con- 
tracts, we  do  not  feel  disposed  to  adopt  the  supposed  distinction 
on   which  they  are  founded.     The  record  before  us  shows  only, 
that  there  was  a  joint  recognizor,  who  is  not  a  party  to  the  scire 


PARTIES.  949 

facias;  but  it  does  not  show  that  he  was  living  at  the  commence- 
ment of  the  suit.  The  circuit  court,  therefore,  connnitted  no  er- 
ror in  rendering  judgment  in  favor  of  the  state.  Judgment  af- 
firmed. 

See,  to  the  same  effect  as  the  principal  case,  Wilcox  v.  Hawkins,  10 
N.  C.  84,  which  also  rules  that  a  defect  of  parties  may  be  cured  by 
amendment,  if  leave  to  amend  is  moved  for  in  apt  time,  in  the  lower 
court.  But  in  Grant  v.  Rogers,  94  N.  C.  755,  it  is  held  that  such  an 
amendment  will  be  allowed  in  the  supreme  court,  though  not  moved  for 
in  the  lower  court,  in  proper  cases.  See  also  Mordecai's  L.  L.  1152.  See 
"Recognizances,"  Century  Dig.  §  40;  Decennial  and  Am.  Dig.  Key  No. 
Series  §  12. 


PARK  V.  BALLEXTIXE,  6  Blackford,   223.     1842. 
Result  of  a  Defect  of  Parties  in  a  Court  of  Equity. 

[A  trustee  filed  a  bill  in  equity  for  the  sole  purpose  of  obtaining  relief 
for  his  cestui  que  trust,  which  cestui  que  trust  was  not  joined  as  a 
party.  The  judge  dismissed  the  bill  on  the  final  hearing  because  of  the 
defect  of  parties.     The  trustee  appealed.     Reversed.] 

Dewev.  J.  .  .  .  The  dismissal  of  the  bill  is  ag'ainst  estab- 
li.shed  practice.  It  is  true,  the  bill  could  not  be  maintained  in 
the  name  of  Park,  who  is  shown  to  be  a  mere  trustee  for  Dutton. 
The  latter  should  have  been  a  party.  IMalin  v.  INIalin,  2  John. 
Ch.  238.  and  authorities  there  cited.  Between  the  present  parties, 
the  eaiLse  is  not  in  a  situation  to  be  heard  upon  its  merits;  but  the 
bill  should  not  have  been  dismissed.  The  cause  should  have  stood 
over,  that  the  proper  parties  might  have  been  made.  Anon.  2 
Atk.  15;  Jones  v.  Jones,  3  Atk.  111. 

See  next  preceding  case,  as  to  effect  of  a  defect  of  parties  in  actions  at 
law.  See  "Equity,"  Century  Dig.  §§  759,  786;  Decennial  and  Am.  Dig. 
Key  No.  Series  §§  362,  375. 


LEWIS   v.   McXATT.  65  N.  C.  63,  66.     1871. 
Result  of  a  Defect  of  Parties  Under  the  Code  Practice. 

fAction  of  trespass  vi  et  armis  commenced  in  1860,  before  the  adop- 
tion of  the  Code  practice,  and  tried  in  1870.  after  the  adoption  of  the 
Code  practice.  The  action  was  brought  by  Lewis  alone.  Tlie  evidence 
showed  that  the  injury  complained  of  was  to  the  joint  property  of  Lewis 
and  another.  The  defendant  insisted  that  plaintiff  could  not  recover 
because  of  a  failure  to  join  the  other  joint  owner  as  a  party  iilaintiff. 
The  judge  ruled  that  the  i)laintiiT  could  recover  his  share  of  the  dam- 
ages incident  to  the  injury  to  tbo  joint  i)ro|><'rty.  and  he  so  inslnicted 
the  jury.  Defendant  excejited  and  ap|)ealed.  Afflrmed  as  to  this  ruling, 
but  reversed  on  another  ruling  not  germane  to  the  subject  under  consid- 
eration.] 

Dick.  J.  .  .  .  The  f|uestion  of  pleading  raised  on  the  Irinl 
by  the  defenchinrs  (MMUisel  is  atteiuled  witli  some  (liHicMdly  on 
aeeouiit   of  till'  change  in  our  system  of  priwcdiu'e.     At  comiiion 


050  I'AlM'llvS.  [Ch.    II. 

law  ill  ju'timis  in  ronii  ox  dcliclo.  wliicli  arc  uo\  for  tlio  bi-cacli 
o['  a  I'oiitrat't.  if  a  }»art\-  wlui  ouLrlit  lo  join  he  oniitlod,  the  oli.jiH'- 
tioii  can  only  ho  taken  Ity  a  plea  in  alialciucnt .  or  hy  way  of  ap- 
portioiiiiH'iit  of  dainaixcs  on  tln'  trial:  and  tlic  dcfciulant  cannot. 
as  in  actions  in  form  ex  contrai'tu.  jrivc  in  evidence  the  nonjoinder 
as  a  irnnind  of  nonsuit  on  llic  plea  of  the  fronoral  issno.  1  Chit. 
IM.  7(i. 

Cndor  Ihr  C.  C.  P..  sec.  8,  par.yl.  all  civil  actions  i)endiiij;  in  the 
courts  when  the  present  constitution  was  ai)i)!-oved  hy  congress, 
and  which  were  not  founded  on  contract,  are  to  he  f?overned  hy 
thi  ('.  C.  v..  "as  far  as  may  he  aeeordinj?  to  the  state  of  the 
progress  of  the  action,  and  having  regard  to  its  subject  and  not 
to  its  form."  A  ditferent  provision  is  made  as  to  actions  founded 
on  contracts  made  previous  to  the  C.  C.  P.  Merwin  v.  Ballard, 
(ifi  X.  C.  1()8.  The  V.  C  P..  sec.  62,  provides  that  the  parties  who 
are  united  in  interest  must  be  joined  as  plaintiffs  or  defendants, 
etc.  If  a  necessary  party  to  an  action  be  omitted,  and  the  defect 
appeai-s  upon  the  face  of  the  complaint,  the  nonjoinder  must  be 
taken  advantage  of  by  demurrer.  C.  C.  P.  sec.  95.  If  it  does  not 
appear  upon  the  face  of  the  complaint  the  objection  may  be  taken 
by  answer.  C.  C.  P.  98.  "If  no  such  objection  be  taken,  either 
by  demurrer  or  answer,  the  defendant  shall  be  deemed  to  have 
waived  the  same."  C.  C.  P.  sec.  99.  It  does  not  appear  from 
the  transcript  at  what  term  of  the  court  the  issues  w^ere  joined  in 
tliis  case,  and  the  defendant  might  have  put  in  a  plea  in  abate- 
ment at  any  time  before  pleading  in  bar  of  the  action.  If  the  is- 
sues were  not  joined  when  the  case  was  transferred  to  the  su- 
perior court,  he  w'ould  have  been  entitled  to  have  objected  to  the 
nonjoinder  of  a  necessaiy  party  by  answer,  as  the  defect  does  not 
appear  in  the  pleadings.^  As  the  defendant  went  to  trial  without 
taking  any  such  objection,  the  charge  of  his  honor  must  be  sus- 
tained. 

A  defect  of  parties— a  failure  to  join  those  who  should  be  joined— 
must  be  taken  advantage  of  by  demurrer  if  it  appear  on  the  face  of  the 
complaint,  and  by  answer  if  it  does  not  so  appear;  but  the  misjoinder 
of  unnecessary  parties  is  a  mere  matter  of  surplusage  under  the  Code 
practice.  Tate  v.  Douglas.  113  N.  C.  190.  18  S.  E.  202;  Pell's  Rev.  at  p. 
218.  See  "Parties,"  Century  Dig.  §§  123-125;  Decennial  and  Am.  Dig. 
Key  Xo.  Series  §  80. 


HAY  V.  M'COY,  6  Blackford,  69.     1841. 
Corporations  as  Parties. 

A  count  in  a  declaration  in  debt  commenced  as  follows :  Andrew 
P.  Hay  and  others  (naming  them),  being  a  body  corporate  and 
politic,  known  by  the  name  of  the  board  of  trustees  of  the  Clark 
county  .seminar>\  and  being  the  regular  successors  in  office  of 
John  C.  Parker  and  others  (naming  them),  were  summoned  to 
answer,  etc.     Tt  tlien  stated  that  the  last  named  persons.  Parker 


PARTIES.  951 

and  others,  beiiiir  the  board  of  trustees,  etc..  by  an  agreement 
scaled  with  the  seals  of  the  trustees  last  mentioned,  promised,  etc., 
that  neither  they,  nor  the  defendants,  being  their  successors,  had 
paid.  etc.  Held,  that  this  count  was  insufficient:  that  the  addi- 
tion to  the  defendants'  names  of  the  words  ''being  a  body  cor- 
porate, etc.."  was  a  mere  descriptio  personarum:  that  the  defend- 
ants must  be  considered,  under  this  comit.  as  being  sued  in  their 
individual  capacities,  on  a  contract  to  which  they  were  not  parties, 
arid  by  which  they  were  not  bound.  Held,  also,  that  if,  as  the 
plaintiff'  contended,  the  agreement  sued  on  was  binding  on  the 
hoard  of  trustees  of  tlie  Clark  county  seminary  as  a  corporation, 
the  suit  should  have  been  brought  against  the  corporation  by  its 
corporate  name.     .     .     . 

See    "Corporations,"    Century   Dig.    §    1954;     Decennial    and    Am.    Dig. 
Key  No.  Series  §  505. 


SHIRLEY  V.   HAGAR,   3   Blackford,   225,  227.      1833. 

Infants  as  Parties  Plaintiff  or  Defendant.    Prochein  Amy.     Guardian  ad 

Litem. 

[Action  on  the  case  for  slander,  brought  by  Mary  Ann  Hagar,  by 
John  Ilagar  her  father  and  next  friend,  against  Shirley.  Among  a 
number  of  defenses — including  a  motion  to  quash,  a  demurrer  and  four 
pleas,  all  of  which  were  overruled — the  defendant  objected  to  the  char- 
acter in  which  the  plaintiff  sued.  This  objection  was  also  overruled 
and  there  was  a  verdict  and  judgment  against  Shirley  who  carried  the 
case  to  the  sui)reme  court  by  writ  of  error.  Reversed.  There  was  no 
allegation  in  the  declaration  that  Mary  Ann  Hagar  was  an  infant,  nor 
was  there  any  allegation  that  .John  Hagar  had  been  admitted  by  the 
court  to  act  as  her  prochien  amy.] 

]\IcKiXNEV.  J.  .  .  .  We  will  proceed  to  examine  the  objec- 
tion made  to  the  chai-acter  in  wliich  the  plaintiff  sues.  She  sues 
by  prochein  amy.  witiiout  any  averment  of  infancy  in  the  dec- 
laration, or  of  the  admission  of  the  prochein  amy  by  leave  of  the 
court.  This  is  assigned  as  error,  and  it  is  contended  by  the  de- 
fendant in  error,  that  the  objection  is  not  well  taken,  because  the 
law  will  j)r(.suiiic  infancy,  and  therefore  its  averment  is  uini(>ces- 
sary. 

At  coiimioii  hiw.  an  infant  could  neither  su(^  nor  defend,  except 
by  guai-dian.  Lawes  on  PI.  in  Assump..  432;  TTarg..  note  1.  to 
Co.  Lift.,  l.-jr).  b.  liy  the  statutes  of  Westm.  ].  13  Edw.  1.  <'h.  4!). 
and  Westm.  2.  13  Edw.  1.  ch.  15,  he  is  authonzed  to  sue  Ii>  pro- 
chein amy.  In  all  cases,  however,  it  is  error  if  an  inl'iinl.  though 
sued  with  <itlicrs.  does  not  defend  by  guardian,  ilarg..  notes  1. 
2.  to  Co.  Litt.  llf).  120.  In  either  character,  as  plaiiitilV  or  de 
f'endanl.  prior  to  the  statutes  of  Westminsler,  and  subsei|ncnt 
thereto  when  defending,  the  guardian  is  by  special  appoinlinent 
of  the  c(»urt.  [bid.  The  reason  why  ;iii  infant,  irresponsible  for 
costs,  and   without   the  inafurity  of  Judgnient   such  as  the  hiw  re- 


052  PARTIKS.  [I'll.     If. 

qniii's  111  i;i\r  validity  to  contrncts.  slioiild  sue  by  i)rocli('in  Jiniy, 
is  lliouirht  obvious.  It  is  to  iiu'rt  a  liability  [\)v  costs,  to  n'sti'aiu 
from  riiinous  litipfation.  and  to  atVord  to  tlic  inrxporionco  oi"  Icj^al 
minority.  tlirou<rli  tlic  iiitcrvcntion  of  \\\r  (^ourt,  a  necessary  pro- 
tection. A  proclu'in  am\\  tbcrci'oiv'.  sues  by  the  permission  op 
the  court,  and  the  fact  of  such  pcnnission  being  cjivcn,  should  ap- 
pear in  (he  declaration,  or  it  is  error;  2  Saund.  117  f,  n.  1;  and  it 
is  the  duty  of  a  eo\u-t.  il"  informed  that  a  suit  by  proehein  amy 
is  not  for  the  interest  of  the  infant,  to  arrest  the  jn'oceedinj?.  Tliis 
power,  posst'ssed  by  the  court,  is  connected  with  its  <j:eneral  su- 
perintending control  over  infants.  2  iSaund.  PI.  and  Kv.  HSO; 
Gould's  PI.  249;  Bae.  Abr.  Infancy,  K,  2.  The  presumption  of 
infancy  is  never  indultred.  As  a  ^roinid  of  relief,  it  must  be 
shown:  and  of  defense,  be  either  pleaded  or  iriven  in  evidence. 
It  is  said,  he  outjht  to  appear  to  be  an  infant ;  for,  if  he  sues  at 
full  age  by  guardian  or  prochein  amy,  it  is  error.  6  Com.  Dig. 
V\.  2,  c.  1.  p.  302;  2  Inst.  261.  The  right  to  sue  is  inseparably 
connected  with  the  legal  interest,  and  tlu;  fact  that  the  legal  in- 
terest in  the  action  remains  in  the  infant,  though  suing  by  pro- 
chein amy,  is  demonstrated  by  the  exercise  of  the  rights  by  courts, 
to  dismiss  the  prochein  amy  for  various  causes,  for  malconduct  in 
the  management  of  the  cause,  if  required  as  a  w^itness,  or  from 
lapse  of  time,  if  the  infant  before  the  end  of  the  suit  attains  full 
age.  The  right  then  to  sue  by  prochein  amy  being  dependent 
upon  minority,  and  the  admission  of  the  prochein  amy  by  the 
court,  these  facts  should  appear  in  the  declaration,  or  it  is  error. 
Being  of  opinion  that  the  suit  was  improperly  brought,  the 
question  occure,  in  what  manner  should  the  objection  have  been 
taken  ?  The  defect  appears  on  the  declaration,  and  is  the  subject 
of  demurrer.  A  demurrer  to  the  declaration  Avould  have  reached 
it,  but  as  the  demurrer  to  the  declaration  was  withdrawn  on  being 
overruled,  the  objection  w^as  available  on  the  issue  at  law  to  the 
pleas,  as  that  issue  assumed  on  the  part  of  the  plaintiff  the  suffi- 
ciency of  the  declaration.  We  are,  therefore,  of  opinion  that  the 
judgment  of  the  circuit  court  must  be  reversed. 

See  "Infants,"  Century  Dig.  §  278;    Decennial  and  Am.  Dig.  Key  No. 
Series  §  92. 


HOUGH  V.  CANBY.  8  Blackford,  301.     1846. 
Equity  Practice  When  Infants  are  Defendants. 

[Canby  filed  a  bill  in  equity  against  Hough  and  others  who  were  in- 
fants. The  relief  sought  was  the  enforcement  of  a  vendor's  lien.  No 
subpoena  was  served  on  the  infants,  but  the  court  appointed  a  guardian 
ad  litem  to  defend  on  their  behalf.  The  guardian  ad  litem  appeared, 
but  did  not  answer.  No  evidence  was  offered.  In  this  state  of  the  rec- 
ord the  judge  decreed  a  sale  of  the  infants'  lands  to  satisfy  the  alleged 
liens.     Appeal  by  the  infants.     Reversed.] 


PARTIES.  953 

Dewf.v.  J.  .  .  .  This  decree  is  erroneous.  Process  should 
have  been  served  upon  the  infant  defendants  in  the  same  mimner 
as  if  they  had  been  adults.  1  Smith's  Ch.  Pr.  146.  And  to  en- 
able thciii  to  plead,  answer,  or  demur,  an  assignment  of  a  guardian 
was  necessary.  lb.  255.  It  was  irregular,  according  to  the  Eng- 
lish ])ractice.  to  a.ssign  a  guai'dian  for  the  infants  before  service 
of  process  upon  themseh'es.  But  we  do  not  mean  to  say  that,  im- 
der  our  practice,  it  is  essential  that  the  service  of  process  should 
precede  the  appointment  of  a  guardian ;  the  record,  however,  must 
show  both  to  have  been  done.  Such  not  being  the  fact  in  the 
cause  before  us,  it  was  erroneous  to  proceed  to  a  decree.  It  was 
also  erroneous  to  decree  against  infants  without  proof  of  the  mat- 
ters alleged  in  the  bill.  Hough  v.  Doyle,  8  Blackf.  300.  .  .  . 
Decree  reversed. 

A  decree  \vill  not  be  made  against  infants  upon  mere  admissions  in 
the  pleadings.  There  must  be  proof  in  the  same  manner  as  if  the  bill 
had  been  denied.  Hough  v.  Doyle,  8  Blackf.  300.  The  infant  should  be 
personally  served  with  process.  Pell's  Rev.  p.  171.  See  "Infants,"  Cen- 
tury Dig."  §§  195,  2.57;    Decennial  and  Am.  Dig.  Key  No.  Series  §§  78,  89. 


MORRIS  v.  GENTRY,  89  N.  C.  248.     1883. 

Practice  i7i  Appointment  of  Prochein  Amy  or  Guardian  ad  Litem  for 
Infant  Parties.  Common  Law  and  Code  Practice.  How  far  Infants 
Bound  by  Fraudulent  Judicial  Proceedings. 

[Ejectment  to  recover  lands  which  plaintiffs  inherited  from  their 
father,  but  which  had  been  sold  under  a  decree  of  a  court  of  equity  and 
purchased  by  one  under  whom  the  defendant  claimed  by  mesne  con- 
veyances. The  decree  of  sale  was  rendered  in  an  ex  parte  petition  for  a 
sale  for  partition.  The  petition  purported  to  be  filed  by  the  mother  of 
the  plaintiffs  while  they  were  infants — she  apparently  assuming  to  act 
as  their  next  friend.  While  the  plaintiffs  were  ostensibly  parties  to  the 
proceedings,  they  knew  nothing  of  it — neither  did  their  mother.  The 
land  was  worth  $2500,  but  was  sold  for  $469.  The  commissioner  re- 
ported that  the  price  bid  was  not  a  fair  value,  but,  notwithstanding 
this  report,  the  sale  was  confirmed  and  title  ordered  to  be  made  to  the 
purchaser.  Title  was  made  as  directed.  Thereafter  the  defendant  ac- 
quired the  title  of  the  purchaser.  The  defendant  bought  at  a  bankrui)t 
sale  and  had  full  knowledge  of  the  above  facts.  Such  was  the  substance 
of  the  comjilaint.  Defendant  demurred  on  the  ground  that  it  appeared 
in  the  complaint  that  the  court  had  jurisdiction  of  both  the  subject- 
matter  and  the  i)artlcs  and,  hence,  the  decree  could  not  be  set  aside. 
The  demurrer  was  overruled  and  an  order  entered  permitting  the  i)lain- 
tiffs  to  amend  their  complaint  and  the  defendant  to  answer.  Defendant 
appealed.  Reversed.  The  petition  under  which  the  land  was  sold,  was 
filed  in  the  court  of  equity  prior  to  the  adoj'tion  of  the  Code  practice; 
but  the  decree  of  sale  and  other  subsequent  i)rocoedings  were  had  in  the 
superior  court  after  the  adoption  of  the  Code  practice. 1 

Merrimon.  J.  n  is  ;iii  rssiiitial  and  finidamenfal  principle  of 
the  law.  that  all  properly  constituted  judicial  proceedings  must 
be  upheld  as  regular,  warraiiied  by  the  facts  and  the  law  applica- 
ble ffi  them,  valid  and  eit'ectiial.  until  the  ermtrarv  shall  be  shown 


[KA  TAKiiKS.  [Ch.  II. 

niid  rsf;ihlislic«l  hy  sonu»  comix'tciit  proceeding  for  lliat  i)ur]iose. 
lU'iire.  w  liciTver  if  ;n>pe;iis  upon  tlie  face  ot"  Die  record  in  any 
;iction  oi-  otliei-  judicial  |>i-occcdinir.  that  the  comM  had  jurisdiction 
i<\'  the  parlies  litisrant  ;iiid  the  siiltject matter  in  iitiijation.  the  hiw 
presumes  tliat  tlie  court  t;ot  jurisdiction  in  a  rcjruhii-  or  proper  way. 
and  that  its  unhi-s.  deci'ees  and  judirnients  ai'c  vnlid  and  effectual, 
however  irregular  or  rranduK'nt.  until  the  ii'i'e<xulai'ity  and  in- 
validity, hecanse  of  IVand  or  other  sullicient  cause,  shall  he  duly 
estahlished.  and  such  pi-oceedini;s.  orders,  decrees  and  jndfjnients 
shall  be  declared  invalid  hy  i)ropei-  decree.  To  allow  the  records 
of  courts  of  justice,  fheir  jnd^nnenfs  and  decrees,  to  be  questioned 
and  lield  to  be  inopei-ative  in  the  same  tribnind  that  made  them. 
OI-  in  other  ii-JlMMials.  woiiM  l)e  subversive  of  judicial  authority 
and  destructive  of  public  and  private  justice.  The  law  is  too  true 
to  it.self.  and  too  thoroutrh  in  its  life  and  vi«ror.  to  allow  of  such 
practical  absurdity;  it  re(|uires  that  its  courts  shall  be  careful  to 
see  that  their  judgments  settle  and  establish  rights,  and  when  once 
made  iiiusi  prevail  everywhere.  The  courts  making  them  will  be 
slow  to  disturb  them,  and  never,  except  for  adequate  cause  shown 
in  a  direct  proceeding  foi-  the  luirpose. 

It  is  likewise  well  settled  that  courts  will  protect  tliird  persons 
who  honestly  do  acts  and  acquire  rights  under  their  judgments, 
although  such  judgments  may  be  afterwards  reversed.  All  that 
such  persons  need  be  careful  to  see.  is,  that  the  court  had  juris- 
dicticm  of  the  parties  and  of  the  subject  matter,  and  that  the  order 
or  judgment.  \\]^ou  the  faith  of  which  such  acts  were  done  or 
rights  acquired,  authorized  the  same  to  be  done  or  acquired.  As. 
where  land  was  sold  ])y  an  order  of  court,  it  is  only  necessary  that 
the  purchaser  should  see  tiuit  the  court  had  jni-isdiction  of  the 
l)arties  and  had  authority  to  order  the  sale,  and  that  the  order  did 
authorize  it.  This  implies  hoAvever.  that  the  third  person  pur- 
chased honestly  on  his  part,  and  without  knowledge  of  fraud  on 
the  part  of  othei-s  in  procuring  or  bringing  about  the  sale.  He 
will  not  be  allo\\ed  to  take  advantage  of  his  own  fraudulent  con- 
duct or  that  of  others,  of  which  he  had  knowledge  at  the  time  of 
the  purchase.  University  v.  Lassiter,  83  N.  C.  38;  Ivey  v.  Mc- 
Kinnon.  84  X.  C.  651;  Sutton  v.  Schonwald,  86  N.  C.  198;  Gilbert 
v.  James.  86  X.  C.  244. 

Now.  the  late  court  of  equity  and  the  supertor  court  succeeding 
to  its  jurisdiction  in  Stokes  county  had  authority  upon  the  ex  parte 
petition  of  the  ])laintiflPs.  while  they  were  infants,  suing  by  their 
mother  as  next  friend,  to  order  and  make  a  valid  sale  of  their  land 
)iicntioned.  for  partition,  and  to  pass  the  title  thereto  through  its 
commissioner  appointed  for  the  purpose.  The  Code,  sec.  1602. 
Ex  parte  Uodd.  62  X.  C.  97;  Rowland  v.  Thompson.  73  X.  C.  n04; 
George  v.  High,  85  X.  C.  113;  Ivey  v.  McKinnon ;  Sutton  v.  Schon- 

wald.  s\i])ra. 

According  to  the  allegations  in  the  complamt.  the  record  upon 
its  face  shows  that  an  ex  parte  petition  was  filed  by  the  plamtiffs, 


PARTIES.  955 

then  infants,  suing  by  their  mother  as  next  friend,  suggesting  that 
the  land  in  (|uestion  ought  to  be  sold,  that  an  order  of  sale  was 
made  and  confirmed  by  the  court,  the  purchase  money  was  paid, 
and  by  the  like  order  title  was  made  to  the  purchaser.  Irregu- 
larities, important  ones,  in  the  proceeding  to  sell  the  land  are  al- 
leged, but  it  was  sufficient  for  the  purchaser,  (taking  it  that  he 
purchased  honestly  and  fairly  and  without  the  knowledge  of  fraud 
on  the  part  of  any  one  in  procuring  the  sale  to  be  made,  and  the 
contrary  is  not  suggested  or  alleged)  to  see  that  the  court  had 
jurisdiction  of  the  parties  and  of  the  subject-matter,  and  that  the 
order  authorized  the  sale  to  be  made.     All  this  appeared  to  him. 

It  is  said,  however,  that  the  plaintiffs  and  their  mother,  repre- 
sented as  being  their  next  friend,  in  fact,  had  no  knowledge  of 
the  filing  of  the  petition  or  of  the  sale  of  the  land  until  recently, 
long  after  it  was  made,  and  that  they  never  authorized  or  sanc- 
tioned the  same.     But  the  presumption  of  law  is  that  they  had 
knowledge  and  notice  of  the  whole  proceeding,  and  it  must  be 
taken  that  they  had;  that  they  by  themselves,  or  by  an  attorney 
of  the  court,  filed  the  petition  with  the  practical  knowledge  and 
sanction  of  the  conrt.  and  the  whole  was  done  at  their  instance, 
by  the  court,  it  having  proper  regard  for  the  interests  of  the  in- 
fants, and  they  must  be  bound  by  the  decrees  until,  by  proper 
action,  the  whole  of  the  proceeding  shall,  because  of  material  ir- 
regularities, be  set  aside;  or.  becaiise  of  fraud  on  the  part  of  some 
one  in  jn-ocuring  the  sale  to  be  made,  declared  and  decreed  to  be 
void;  and  even  then,  the  sale  to  the  purcha.ser  will  remain  good 
and  effectual,  unless  the  plaintiffs  can  allege  and  prove  that  he 
fraudently   procured  or  participated   in   the  fraudulent  procure- 
ment of  the  sale  to  be  made,  or  had  knowledge  at  the  time  of  the 
sale  of  such  fraud  on  the  part  of  others,  or  such  information  as 
put  him  on  inquir>\ 

It  is  not  alleged  that  the  purchaser.  William  TI.  Gentiy,  pur- 
chased otherwise  than  honestly,  nor  is  there  any  suggestion  in  the 
eniiii.iaint  uiifavoraljle  to  him,  except  that  he  bought  the  lajid  Jit 
gn-atly  less  than  its  reasonable  value;  but  it  is  alleged  that  his 
son.  tiie  defendant  Stei-ling  G<'ntry,  purcha.sed  from  the  a.ssignee 
in  banknipley  "with  full  knowledge  of  the  manner  in  which  his 
father  became  the  pureha.ser."     This  allegation  is  vague  and  in- 
definit<\     So  far  as  appears  from  the  comj)laint  the  purchase  by 
the  fathei-  was  bona  fide.  If  the  purchaser  of  the  father  was  tainted 
with  fraud  aii<l  the  son  was  cognizant  of  this,  or  participated  in 
the  fraud,  then   11h'  plaintiffs  ought  to  have  so  allegetl.     The  al- 
legation that  the  defendant  Joyce  liad  knowledge  of  "the  nature 
of'said   Sterling  Gentry's  titlr"  ai    Ihe  lime  lir  j>iirchased,  is  so 
indefinite  as  Hint    il    has   iicith<'i-   lorcr   nor  i)oinl.      The  complaint 
is  vague,  uncertain  and   iii(i< Unite,  and   it    is  diflicult   to  determine 
whelhir  the  action   was  hrou^lit    to  recover  the  jxissession   of  the 
land,  treating  the  sale  in  e(iuity  as  void,  or  whether  the  object  is 
t(,  impiaeh   the  flecree  lliercin   \\,v  fraud.      I'.ut   he  this  as  it    may. 


056  I-AIM'IKS.  \('l,.     If, 

ill  tlio  al)S('iu'r  of  it  (Iciiiiil  of  what  is  ivllcf^cd,  wo  liavc  a  painful 
appivluMisioii  that  a  (latjfrant  fraud  was  liracliccd  hy  soiiu'  porsoii 
or  poi-sous  upon  the  plaintilVs.  whili;  llu'v  wcrr  infajits.  and.  in  an 
impin'tant  sense,  in  ('(tiitiinpl.ii  lou  of  hiw,  uiuUm-  the  care  and  pro- 
tection of  Ihc  (•(Uirt.  .\s  it  now  appears  to  us.  to  say  the  k'ast. 
tlie  eourl  was  not  circuiiispeet  ;  it  allowed  ilsell'  to  he  imposed  upon 
hy  desiirniiii!;  and  ilishonest  persons  in  a  respeet  and  ahout  a  matter 
wlierein  it  oiifrht  to  have  jriven  special  and  careful  attention. 

This  is  another  sad  illustration  of  the  loose  and  careless  practice 
that  too  irenerally  i)revails  in  the  coui'ts,  of  allowinpj  {guardians 
ad  litem  and  next  friends  of  infant-s  to  he  ai)i)ointed  almost  as 
of  course.  ui)on  a  sui^ijeslion.  and  fre(|uently  without  that,  who. 
however  careless  aiid  faithless  as  to  the  triLst  reposed  in  them, 
are  bj-  implication  recognized,  and  must  in  the  nature  of  judicial 
procecdintrs  he  treated  as  recognized  hy  th(>  court.  It  is  the  duty 
of  courts  to  have  special  regard  for  infants,  their  rights  and  in- 
terest, when  they  come  within  their  cognizance.  The  law  makes 
this  so.  for  the  good  rt^ason,  they  cannot  adequately  take  care  of 
themselves.  It  is  a  seri(^us  mistake  to  suppose  that  a  next  friend 
or  a  guardian  ad  litem  should  be  appointed  upon  simple  sug- 
gestion ;  this  should  be  done  upon  proper  application  in  writing, 
and  due  consideration  by  the  court.  The  court  should  know  who 
is  appointed,  and  that  such  person  is  capable  and  trustworthy. 
The  appointment  of  guardians  ad  litem  and  their  duties  are  pre- 
scribed by  statute.  The  Code,  see.  181.  But  while  the  statute 
(sec.  180)  allows  infants  to  sue  by  their  next  friends,  the  manner 
of  the  appointment  of  them  and  their  duties  are  left  as  at  connnon 
law.  As  to  their  api)ointmont.  Tidd  in  his  work  on  l*ractice  says, 
at  page  100;  ''To  constitute  a  prochein  am^^  or  guardian,  the  per- 
son intended,  who  is  usually  some  near  relation,  should  come  with 
the  infant  before  the  judge  at  his  chambers,  or  else  a  petition 
should  be  presented  to  the  judge  on  behalf  of  the  infant,  stating 
the  nature  of  the  action,  and,  if  for  the  defendant,  that  he  is  ad- 
vised and  believes  he  has  a  good  defense  thereto,  and  praying  in 
respect  of  his  infancy  that  the  person  intended  may  be  assigned 
him  as  his  prochein  amy,  or  guardian,  to  prosecute  or  defend  the 
action.  This  petition  should  be  accompanied  by  an  agreement 
signifying  the  a.ssent  of  the  intended  prochein  amy,  or  guardian, 
and  an  affidavit  made  by  some  third  person  that  the  petition  and 
agreement  were  duly  signed.  On  being  applied  to  in  either  of 
these  ways,  the  judge  will  grant  his  fiat,  upon  which  a  rule  or 
order  should  l)e  drawn  up  and  filed  with  the  clerk  of  the  niles  in 
the  King's  Bench,  for  the  admis.sion  of  the  prochein  amy,  or 
guardian,"  etc.  2  Arch.  Pr.  354,  2  Sell.  Pr.  65,  Appendix 
(Forms)  504;  Story's  Eq.  PI.  sec.  57,  58,  and  note.  It  would  have 
been  better  if  such  practice,  or  the  substance  of  it,  had  prevailed 
in  this  state  from  the  beginning,  but  a  loase  practice  has  been  rec- 
ognized and  pursued  by  the  courts,  and  we  cannot  now  disturb 
rights  that  have  been  acquired  imder  it.     If  the  strict  methods 


PARTIES.  957 

in  this  respect  of  the  English  courts  had  prevailed,  it  could 
scarcely  be  possible  that  calamitous  cases,  like  this  seems  to  be, 
and  many  similar  ones  that  have  come  before  this  court,  and  many 
that  have  not.  could  happen.  This  evil,  in  the  future,  may  be 
easily  and  thoroughly  corrected. 

^Ye  think  the  court  erred  in  overruling  the  demurrer.  If  the 
action  was  brought  to  recover  possession  of  the  land,  the  complaint 
states  facts  showing  the  title  thereto  in  the  defendants;  if  it  may 
be  treated  as  an  action  to  impeach  the  decree  directing  a  sale  of 
the  land  for  partition,  there  is  no  .sufficient  allegation  that  the  de- 
fendants were  in  any  way  connected  Avith  or  had  knowledge  of 
the  procurement  of  the  sale  so  as  to  affect  the  validity  of  their  title. 
So  th(^  conii>laint.  as  it  stands,  "does  not  .state  facts  sufficient  to 
constitute  a  cause  of  action."  and  the  demurrer  ought  to  have 
been  sustained.  There  is  error.  But  the  court,  in  overruling  the 
demurrer,  granted  leave  to  the  defendants  to  answer  over,  and  to 
the  plaintiffs  to  amend  the  complaint.  .  .  .  The  case  will  be 
remanded  with  instructions  to  reverse  so  much  of  the  judgment 
as  overrules  the  denuirrer.  and  to  enter  judgment  sustaining  the 
same,  and  dismis.sing  the  action,  unless  the  plaintiffs  avail  them- 
selves of  the  leave  granted  to  amend  the  complaint,  in  which  case 
the  action  will  proceed  according  to  law.  It  is  so  ordered.  Re- 
versed. 

Persons  having  any  interest,  real  or  nominal,  antagonistic  to  that  of 
the  infant,  must  not  be  selected  to  prosecute  or  defend  on  behalf  of  such 
infant.  George  v.  High,  85  N.  C.  113.  A  plaintiff,  though  he  be  but  a 
mere  nominal  party  with  no  real  interest  in  the  controversy,  must  not 
act  as  guardian  ad  litem  for  an  infant  defendant.  Ellis  v.  Massenburg, 
126  N.  C.  129,  3.")  S.  E.  240.  The  i)laintiff's  attorney  must  not  advise  or 
draw  pleadings  for  the  guardian  ad  litem  of  an  infant  defendant.  Moore 
V.  Gidney,  75  N.  C.  34.  For  the  present  law  of  North  Carolina  governing 
the  practice  when  infants  are  plaintiffs  or  defendants,  see  Pell's  Rev. 
sees.  40.5-407.  where  all  the  imi)ortant  rulings  are  briefly  but  clearly 
stated.  See  also  "Rules  of  Practice  in  the  Superior  Court,"  140  N.  C. 
683,  53  S.  E.  xiv.  Rules  1.5-18.  The  court  in  which  the  action  or  pro- 
ceeding is  pending  ai)points  a  next  friend  or  guardian  ad  litem.  Mor- 
decai's  L.  L.  400,  n.  17.  A  justice  of  the  peace  may  appoint  a  next  friend 
for  an  infant  to  the  end  that  he  may  prosecute  an  action  on  behalf  of 
the  infant  in  such  justice's  court.  Houser  v.  Bonsai,  149  N.  C.  51,  G2 
S.  E.  776.  See  further,  as  to  next  friend  and  guardian  ad  litem,  Mor- 
derai's  L.  L.  404-405,  89-90.  p'or  validity  of  the  payment  of  a  judgment 
to  the  next  friend  of  an  infant,  see  140  N.  C.  683,  rule  15;  11  L.  R.  A. 
(X.  S.I  913,  and  note;  for  right  of  the  next  friend  and  guardian  ad 
litem  to  comiironiise,  see  21  lb.  338,  and  note.  See  "Infants,"  Ci'ntuiv 
Dig.  §  92;    Decennial  and  Am.  Dig.  Key  No.  Series  §  41. 


WHITE  V.  MORRIS,  107  N.  C.  92.  98.  99-101,  12  S.  E.  80.     1890. 
Hoxo  to  Proccfti   Whrn   There  are  Infant  Drfnulnnts.     Infant  Apprar'tnq 

hy  Altcirnc]!. 

[Mary  "White  sued  the  dcfpndants.  who  were  infants,  for  the  re-exeou- 
tion  of  a  deed  whifti,  shf-  allogc<I,  had  hovn  made  to  her  by  the  ancestor 
of  such  infants,  but  which  had  liccu  lo.^^t   Ixforc  being  registered.     There 


058  PARTIES.  \n,.     If. 

was  a  jiulKinent  acrordinjj;  to  tho  prayor  ol"  the  coniplainl.  The  infants, 
having  anivotl  at  age.  moved  in  the  cause  to  set  aside  such  judgment 
on  the  ground  that  it  was  irregular  and  void.  Motion  overruled,  and 
dofeniiants  appeaUHl.     AtlhnuMl.l 

Davis.  J.  .  .  .  In  tliis  cns^c^  tlio  (1of<Mi(l;iiit.s  insist  tliat  tho 
jinlii'iiu'iit  \va.s  ii-i't'Liulaf  ;iii(l  vnid.  upon  scvcfal  ^m-oiiikIs.  TIk^ 
Hi'st  is  that  tlicfc  was  no  pci-soiial  scfvicc  on  tlio  infants.  Por- 
nu'rly  an  inlant  wa.s  hi-oujrlit  into  coiii't  just  a.s  any  otiioi*  defend- 
ant \vas.  It'  he  li;i(l  a  ireneral  guardian,  process  was  served  upon 
tlie  jiuai-dian;  it  there  was  no  j^enefal  •^niafdian.  the  eouft  aecpiired 
.jiii-isdiction  l)y  service  of  i)roeess  upon  the  infant,  and  appointed 

sonn'   suilahlc    person — frequently  sot )lTieer  of   the   cotu't^as 

Ljuardian  ail  litem,  wlio  accepted  service,  aud  defended  for  him; 
l)ut  since  the  Code  of  Civil  Procedure  (section  217)  the  serviee 
upon  a  minor  under  the  age  of  14  years  nuist  be  upon  him  per- 
sonally, and  also  liis  father,  nuither,  or  ijuardian,  or,  if  there  be 
none  in  the  state,  then  upon  any  pei*son  liaving  the  care  and  cou- 
trol  of  such  minor,  or  with  whom  he  shall  reside,  or  in  whose 
service  he  shall  he  employed.  In  the  ])resent  ease,  process  was 
not  served  upon  the  defendants  pei*sonally,  as  was  required,  but 
upon  their  !n:randrather.  with  whom  they  lived.  ...  In  Mar- 
shall V.  P'isher.  1  Jones,  (N.  C.)  Ill,  it  is  said  that  a  judgment 
against  an  infant  appearing  by  attorney,  though  erroneous,  "is 
of  full  force  and  ett'ect  until  it  be  reversed,"  and  the  objection, 
says  Pearson,  J.,  could  only  be  taken  advantage  of  by  a  w^rit  of 
error.  As  writs  of  error  are  now  abolished  in  civil  actions,  and 
appeals  substituted  therefor,  (Code,  §  544  et  seq.,)  it  can  now  be 
only  by  an  appeal.  See,  also.  Turner  v.  Douglass,  supra.  The 
defendants  rely  .upon  Stancill  v.  Gay,  92  N.  C.  464;  Larkins  v. 
BuUard,  88  N.  C.  35;  and  Perrj^  v.  Adams,  98  N.  C.  167,  3  S.  E. 
Rep.  729.  There  is  a  very  clear  distinction  between  those  cases 
and  this.  In  them,  there  was  no  service  of  process  at  all  on  any- 
body, no  guardian  ad  litem  appointed  to  protect  their  rights,  and 
no  answer  by  any  one  of  them;  and  the  curative  act  of  1879, 
neither  by  its  letter  nor  spirit,  was  intended  to  make  the  proceed- 
ings and  judgments  valid  in  such  cases.  In  Periy  v.  Adams,  the 
prasent  chief  justice  said:  "The  object  of  the  curative  statute  is 
to  cm-e  the  judgment  and  proceeding,  when  such  personal  service 
was  omitted,  but  it  does  not  embrace  cases  w^here  no  service  was 
made  upon  the  infant,  or  any  other  person  in  his  behalf,  as  the 
statute  recjuires  to  be  done."  In  the  case  before  us,  there  was 
service  upon  the  grandfather  of  the  infants,  with  whom  they  lived, 
and  an  appearance  and  answer  for  them. 

The  defendants  say,  secondly,  that  there  was  no  evidence  be- 
fore the  court  to  su])port  the  finding  of  fact  that  "W.  L.  Reid 
filed  an  answer  as  guardian  ad  litem  for  the  defendants,  or  of  his 
appointment  a.s  guardian  ad  litem."  The  recitals  and  facts  ap- 
pearing in  the  record  constitute  evidence  in  theuLselves  to  support 
the  finding,  and  this  objection  cannot  be  sustained.     The  law  is 


PARTIES.  959 

careful  in  protecting  the  rights  of  infants,  and  when  they  are 
brought  within  the  jurisdiction  of  the  courts,  by  proper  or  suffi- 
i-ient  process,  a  guardian  ad  litem  should  be  appointed  for  them, 
who  shall,  "if  the  eaase  in  which  he  is  appointed  be  a  civil  action, 
tile  hi.s  answer  to  the  complaint  within  the  time  required  for  other 
defendants. ' '  and  the  reciuiremeuts  of  the  Code,  §  181 ;  and  the 
present  chief  justice  said,  in  Ward  v.  Lowndes,  96  N.  C.  378,  2  S. 
E.  Rep.  591  :  '"This  statute  should  bo  .strictly  observed,  but  mere 
irregularities  in  observing  its  provisions,  not  affecting  the  sub- 
stance of  its  purpose,  do  not  necessarily  vitiate  the  action  or  spe- 
cial proceeding,  or  proceedings  in  them."  In  AVilliamson  v.  Hart- 
man.  92  X.  ('.  239.  it  is  said:  "Generally  a  judgment  will  be  set 
aside  only  when  the  irregulai-ity  has  not  been  waived  or  cured, 
and  has  bet'u  or  may  be  such  as  has  worked,  or  may  yet  work, 
serious  injur\  or  prejudice  to  the  party  complaining  interested  in 
it."  While,  as  has  been  said,  the  courts  will  always  be  careful 
of  the  rights  of  infants,  it  will  not  set  a.side  irregular  judgments 
against  them  as  a  matter  of  coui-se ;  and,  before  doing  so,  it  ought 
to  appear  from  the  record  or  other\\'ise  that  the  infant  has  suf- 
fered some  substantial  wrong  or  injury.  Of  course  it  may  be 
impeached  for  fraud,  and  will  also  be  set  aside  if  void.  .  .  . 
Judgment  al'tirmed. 

See  'Infants,"  Century  Dig.  §§  257,  304;   Decennial  and  Am.  Dig.  Key 
No.  Series  §§  89,  105. 


ROSEMAX  V.  ROSEMAN,  127  N.  C.  494,  498,  37  S.  E.  518.     1900. 
Service  of  Summons  on  Infants. 

Clark.  J.  .  .  .  The  la.st  objection  is  as  to  service  of  sum- 
mons upon  the  children  of  ^Irs.  Newsom  under  14  years  of  age. 
Sununons  was  served  hy  delivering  a  copy  to  each  of  them  per- 
sonally, as  prescribed  l)y  Code.  §  217(2).  A  guardian  ad  litem 
was  regularly  appointed.  Sununons  M'as  served  upon  him.  and 
he  filed  answer.  The  statutory  requirement  has  been  sufficiently 
complied  \\itli.  The  objection  that  a  copy  of  the  summons  was 
not  also  left  with  the  "father,  mother,  or  guardian"  is  a  refine- 
ment, and  eannot  invalidate  the  judgment  when  a  guardian  ad 
litem  has  been  duly  ai)pointed,  and  has  filed  answer,  and  there  is 
no  suggestion  of  fraud;  most  especially  when  (as  in  this  instance) 
Iho  mother  is  a  party  t<t  the  action,  has  filed  her  answer  consenting 
to  the  onl\-  relief  asked,  the  ai)poinlnieiit  of  a  substituted  trustee, 
and  has  filed  a  consent  judgment.     Affirmed. 

A  copy  of  the  summons  must  be  served  upon  the  infant  and  also  upon 
his  father,  niother  or  guardian,  etc.,  only  when  tlic  iufant  is  luider  the 
age  of  fourteen.  Rev.  sees.  439.  440  (2),  and  Pell's  notes  thereto.  An 
infant  cannot  lawfiilly  accept  service  of  process;  but  If  he  does  accept 
service  and  a  guardian  ad  litem  is  thereafter  api)oliiled  who  properly 
represents  him.  sudi  defect  in  the  servi(('  f)f  tiie  pnx ess  is  <iirod.  Pell's 
Rev.  p.  171.  See  -Infants."  Century  Dig.  §§  25.5-264;  Decennial  and  Am. 
Dig.  Key  No.  Series  §  80. 


^(>0  PARTIES.  \('li.    11. 


DEAL  V.   SKXTOX,    111    X.  C.   If)?.  56  S.   E.  691.     1907. 
Infant  in   Vmtrr  s<i  Merc  as  a  I'artti. 

I  Ejectment  by  a  jiiaiiuilT  wlid  was  in  vi'iitrc  sa  mere  at  the  time  the 
locus  in  quo  was  sold  hy  order  of  (oiiil  lor  |)aililion.  Tlie  defendant's 
title  was  based  upon  such  sale.  Tlie  i)laintifl",  beiuK  in  ventre  sa  mere 
at  the  time  of  the  commencement  of  the  proceedings  for  partition  and 
at  the  time  of  the  sale,  was  in  no  manner  made  a  party  to  such  iiroceed- 
ings.  The  question  i)rpsentcd  is:  Are  infants  in  ventre  sa  mere  es- 
topped by  judicial  sales  of  realty  in  which  tliey  have  a  vested  interest, 
they  not  being  parties  to  such  proceedings?) 

Browx.  J.  .  .  .  Tlic  question  pi-o.soiitod  upon  this  appeal 
is  important  ami  iicrplcxinfr.  booanso  of  tlio  faot  tliat  the  dofond- 
ant  is  a  i)ni-clias('r  Tor  value,  and  l)eeause  of  the  jjreat  difiieulty  in 
jnirehasers  at  such  judieial  sales  proteetinf?  themselves,  havinp:  no 
knowledge  of  the  existence  of  an  unhoi-n  child  in  its  mother's 
womb.  Tf  we  hold,  as  we  must,  that  the  inheritanee  vested  imme- 
diately in  the  ])laintiff.  while  en  ventre  sa  mere,  upon  the  death 
of  the  father,  the  conclusion  nuist  follow  that  such  inheritance 
ouirht  not  to  be  divested  and  the  child's  estate  destroyed  by  judi- 
cial proceediuirs  to  Avhich  it  was  in  no  form  or  manner  a.  party,  and 
for  Avhich  not  even  a  sruardian  ad  litem  wa.s  appointed.  It  may  be 
that  our  civil  procedure  is  defective  in  not  providing  for  such  con- 
tingencies, but  that  is  no  reason  why  the  vested  estate  of  the  un- 
born child  in  esse  should  be  taken  from  it.  The  general  rule  in 
this  country  and  the  acknowledged  mle  of  the  English  law  is  that 
posthumous  children  inherit  in  all  ca.ses  in  like  manner  as  if  they 
were  born  in  the  lifetime  of  the  intestate  and  had  survived  him. 
and  for  all  the  beneficial  purposes  of  heirship  a  child  en  ventre 
sa  mere  is  considered  absolutely  born.  This  has  been  the  recog- 
nized law  of  this  state  since  Hill  v.  IMoore.  5  N.  C.  233,  decided  in 
1809.  down  to  Campbell  v.  Everhart,  139  N.  C.  503,  52  S.  E.  201, 
decided  in  1905.  It  is  also  recognized  generally  by  the  text- 
writers  and  judicial  decisions  in  other  states.  Kent's  Com.  (13th 
Ed.)  vol.  4.  p.  413;  AYashburn  on  Reap  Property  (5th  Ed.)  vol.  3, 
pa^e  IG;  Tiedcman  on  Real  Property.  ^  673;  14  Cyc.  39,  Avhere  the 
decisions  are  collected.  The  statute  law  of  this  state  treats  the 
unborn  child  in  its  mother's  womb  with  the  same  consideration 
as  if  bom.  P)y  the  seventh  canon  of  descent  (Revisal  of  1905, 
§  1556),  a  child  born  with  10  lunar  mcmths  after  the  death  of  the 
ancestor  inherits  equally  with  the  other  children.  By  section 
1582.  an  infant  unl)orn.  but  in  esse,  is  rendered  capable  of  taking 
by  deed  or  other  writing  any  estate  whatever  in  the  same  manner 
as  if  he  were  bom.  Campbell  v.  Everhart.  supra.  From  most 
remote  times  the  common  law  of  England  regarded  such  child  as 
capable  of  inh(;riting  direct  from  the  ancestor  as  much  so  as  if 
bom.  Doe  v.  Lancashire,  5  T.  R.  49;  Thelliison  v.  Woodford, 
4  V&sey,  Jun..  227;  Harper  v.  Archer,  4  Smedes  &  M.  (Miss.)  99, 
43  Am.  Dec.  474,  where  all  the  ca.ses  are  collected.     The  old  writ 


PARTIES.  961 

of  de  A-eutre  inspiciendo  was  devised  by  the  courts  for  the  pur- 
pose of  examininor  the  widow,  and  was  granted  in  a  case  where  a 
widow,  whose  husband  had  lands  in  fee,  marries  again  soon  after 
his  death  and  declares  herself  pregnant  by  her  first  husband, 
and  under  that  pretext  AAdthholds  the  land  from  the  next  heir. 
Such  writ  commanded  the  .sheriff  or  sergeant  to  summon  a  jury 
of  12  men  and  as  many  women,  by  whom  the  female  is  to  be  ex- 
amined "traetari  per  ubera  et  ventrem. ''  1  Black.  Com.  456; 
Viner  s  Ali.  vol.  21.  p.  546.  Of  course,  no  such  unseemly  pro- 
ceeding would  be  tolerated  in  this  age,  but  the  General  Assembly 
could  easily  protect  the  unborn  child  as  well  as  the  innocent  pur- 
chaser by  prohil)iting  the  sale  of  land  for  partition  until  12  months 
after  the  intestate's  death. 

The  question  as  to  the  status  of  the  purchaser  was  considered  by 
the  supreme  court  of  Kentucky,  in  the  case  of  I\rassie  v.  Hiatt's 
Adm'r.  82  Ky.  314.  in  which  it  is  held:   (1)  A  child  born  within 
10  months  of  the  death  of  the  intestate  is  entitled  to  a  share  in  his 
estate,  as  if  born  and  in  being  at  the  time  of  intestate's  death. 
(2)  The  court  had  jurisdiction  to  sell  the  land  on  the  petition  of 
the  guardian  of  the  two  other  children;  but  the  sale  affected  only 
their  rights.     The  right  of  the  unborn  child  could  not  in  any  wise 
be  aft'ccted.      (3)  IIa\'ing  an  interest  in  the  land,  she  could  not  be 
deprived  of  it  by  an>'  proceeding  to  which  she  was  not  a  party, 
and  may  recover  such  interest  from  a  remote  vendee  of  the  pur- 
chaser at  the  judicial  sale.     The  supreme  court  of  Illinois  reaches 
the  same  conclusion,  and  says  that  a  person  must  have  an  oppor- 
tunity of  being  heard  before  a  court  can  deprive  him  of  his  rights, 
and  that  an  unicorn  child,  not  having  been  made  a  party,  can  re- 
cover from  those  claiming  his  title,  as  his  rights  are  not  cut  off 
by  the  decree.     Rotsford  v.  0 'Conner,  57   111.  72.     The  case  of 
Giles  V.  Solomon,  in  New  York,  10  Abb.  Prac.  (N.  S.)  97.  note,  is 
ver>'  iiuich  in  point.     In  that  ca.se  a  bill  to  foreclose  a  mortgage 
executed  by  the  deceased  father  was  filed  in  Januarv\  1841.     A 
daughter  was  boni  to  his  widow  in  April,  1841.  two  days  after 
foreclosure  decree  was  entered.     The  daughter,  not  being  a  party 
to  the  foreclosure  proceedings.  i)rought  her  action  in  18G0  to  re- 
deem.    Tli(>  court  held  .she  was  not  barred  by  the  decree  of  1841, 
and  permitted  her  to  redeem  her  one-seventh  by  i)aying  one-seventh 
of   the   mortgage  and    iiiteiest,   and   charged    the   purchaser   with 
back   rents.     In   South   Carolina   at  one  time  the  courts  declined 
to  proceed  witli  a  suit  to  partition  the  proj)erty  of  the  ancestor 
until   12  months  aft'T  bis  dratli.  .so  as  to  avoid  the  possibility  of 
entering  judgment    wliieli    might    conMiet    with    the    rights  of   an 
uiiboMi  cliild.     As  tliere  was  mo  statui"  on  the  subject    the  courts 
of  Soiifli  Cai-fdina  diseonl iiiued  Ibis  practice  for  some  reason,  and 
then   held   that   a  child  en   ventre  sa   mere  iiiusl    lie   icgaiwlcd  as  a 
peiX/Ti  in  being  wh(»  could  not  !)<•  bound  by  a  judgment  in  |)arti- 
tion  to  which  li<-  was  not  a  party.      F'eaj-son  v.  Carltnn.  IS  S.  C.  47. 
It  is  true  that  .fudge  Fn>eman.  in  his  elaborate  note  to  Carter  v. 
Remedies — 01. 


962  I'VKTIKS.  {('Ii.    11. 

Wliih'.  KM  Am.  Si.  lu'p.  S(i:>.  S70.  rcpudiMtcs  this  doclriiu-.  ;in(l 
says:  "It  is  lu'Iiovinl.  how«'V(M-.  that,  tlic  i-uU'  cannot  prevail,  and 
that  su.li  a  <lidd  must  ho  i-ciTJnd. d  as  not  in  hcini?  for  the  purposi^ 
of  thf  suit,  and  as  h(>inj;  n'|»i-esontod  hy  the  i)a.r1i('s  hefore  the 
i'(Uirt."  ete.  Thi^  aulluu-ity  eited  by  tlie  h'arned  aniu)tator  is  tile; 
opinion  of  the  sui)reme  eourt  of  tlu^  United  States  in  Knotts  v. 
Stearns.  :)1  1 1.  S.  638.  23  L.  Kd.  252.  which  seems  to  sustain  him. 
The  falhii  y  in  th(>  position  seems  to  us  to  be  in  supposing  that  the 
living  ehildren  i-an  ivpresent  the  unborn  ehild.  It  is  not  a  ea^e 
of  "'lass  rei>resentation.  The  interests  are  eonllieting,  and  not 
nuitual.  It  is  to  the  interest  of  the  living  heirs  to  make  the  divi- 
sion as  short  as  possible,  and  therefore  to  keep  out  the  heir  who 
has  not  yet  made  his  appearance.  The  ea.ses  of  Ex  parte  Dodd, 
62  N.  C.  97.  and  many  similar  cases,  to  Springs  v.  Seott,  132  N. 
C.  o-iS.  44  S.  E.  116.  iiave  no  application  here,  as  the  object  of  a 
partition  proceeding  is  to  dissever  liu"  interests  of  the  parties, 
and  there  is  no  chiss  representation  about  it.  The  tenant  in  com- 
mon who  is  not  made  a  i)arty  personally,  or  by  guardian  ad 
litem,  or  in  some  legal  way,  is  not  bound  by  it.  In  the  forcible 
language  of  counsel  for  plaintitt'  in  their  brief:  "If  the  court 
could  take  what  the  law  said  was  hers  and  sell  and  convey  to  an- 
other without  her  even  having  knowledge  of  it.  or  representation, 
our  boasted  'process  of  law'  doctrine  is  irridescent — a  constitu- 
tional hallucination."     Affirmed. 

See  further,  on  the  subject  of  the  principal  case,  IG  Am.  &  Eng.  Enc. 
L.  260;  31  Am.  Rep.  20;  8  Rose's  Notes,  744,  and  1  Supplement  to  Rose's 
Notes,  1147.  See  -'Judgment,"  Century  Dig.  §  1213;  Decennial  and  Am. 
Dig.  Key  No.  Series  §  690. 


GREGORY  V.  PAUL,  15  Mass.  31.     1818. 
Married  Women  ds  Parties  Plaintiff  and  Defendant. 

[Deborah  Gregory  sued  Paul,  as  executor  of  Charles  Warburton,  to 
recover  a  legacy  given  to  her  by  the  will  of  Warburton.  The  defendant 
pleaded  in  abatement  the  coverture  of  the  plaintiff  and  that  her  hus- 
band was  living  and  resided  in  Great  Britain.  The  plaintiff  replied  that 
she  had  been  deserted  by  her  husband  before  this  action  was  brought; 
that  she  had  supported  herself  as  a  single  woman  for  five  years  preced- 
ing the  action;  and  that  her  husband  was  an  alien  who  never  had  been 
within  the  United  States.  To  this  replication  the  defendant  demurred, 
and  the  plaintiff  joined  in  the  demurrer.     Demurrer  overruled.] 

PcTN.VM.  J.  Tt  appearing  from  the  pleadings  that  the  plaint- 
iff's husband  was  living  at  the  commencement  of  this  suit,  the 
writ  must  l)e  abated,  uidcss  the  reasons  contained  in  the  replica- 
tion are  suffi.-icnt  to  entitle  the  plaintiff  to  sue  as  feme  sole;  for 
the  general  tiilc  of  law  is  very  clear,  that  the  wife  cannot  sue 
alone,  but  nuLst  join  with  her  husband ;  and  that  a  gift  or  legacy 
to  the  wife,  and  even  the  rewards  of  her  ])ersonal  labor,  during 
the  coverture,  vest  in  the  husband,  and  he  may  release  them.     In 


PARTIES.  963 

deed,  the  liu.sl)and  and  wife  are  cousidered  as  one.  Her  will  is 
merged  in  his;  and  the  power  which  she  might  have  had,  as  a 
feme  sole,  to  make  contracts,  is  suspended.  For  these  disabilities 
she  is  liberally  recompensed  by  the  obligations  which  the  marriage 
imposes  upon  the  hiLsband  to  provide  for  her  support  during  the 
coverture,  and  by  a  claim  for  dower  after  its  dissolution.  She 
has  also  many  exemptions  from  civil  and  criminal  process,  to 
which  he  alone  is  liable,  although  both  may  have  participaieu  in 
the  benefit  of  the  contract  or  conunission  of  the  crime,  during  the 
continuance  of  the  matrimonial  connection. 

l>ut  the  rule  was  anciently  relaxed,  from  necessity,  in  casas 
where  the  reasons  upon  which  it  was  formed  ceased  to  exist. 
Thus,  where  the  husband.  Sir  Thomas  Belknap,  was  exiled,  his 
wife  was  permitted  to  sue  in  her  own  name.  And  the  same  rea- 
son applying  where  the  husband  had  abjured  the  realm,  the  wife, 
in  that  case,  was  allowed  to  sue,  as  a  ^\^dow,  for  her  dower.  In 
such  case,  also,  she  has  been  permitted  to  alien  her  land  without 
her  husband.  And  she  is.  in  such  cases,  exempted  from  the  dis- 
abilities of  coverture.  She  may  maintain  trespass;  she  may  sue 
for  her  jointure ;  and  she  may  be  sued,  also,  as  a  feme  sole.  Du- 
bois V.  Hale,  2  Vern.  614.  She  maj'  also  make  her  will ;  and.  as 
the  court  well  obsen^ed.  she  might  in  all  things  act  as  if  her  hus- 
band were  dead ;  and  that  the  necessity  of  the  case  required  that 
she  should  have  such  a  power.  The  wife  of  an  alien  enemy  has 
also  been  held  liable  to  suits,  as  the  hiLsband  was  not  amenable 
to  the  process  of  the  court.  Deny  v.  Duchftss  of  ^lazarine,  1  Ld. 
Raymd.  1-17.  Other  cases  have  been  considered  as  within  the  ex- 
ceptions to  the  general  rule;  as  where  husband  and  wdfe  live  sep- 
arately by  agreement,  he  allowing  her  a  separate  maintenance; 
Lord  INIansficld  considering  that,  in  such  cases,  the  wife  was  liable, 
principally  on  account  of  the  separate  allowance  for  her  support. 
But  this  class  of  cases  has  been  overniled,  in  the  year  1800,  in  the 
case  of  Marshall  v.  Kutton,  8  D.  «&  E.  545;  Lord  Kenyon,  who  de- 
livered the  opinion  of  the  judges,  obser-\'ing  that  there  is  no  au- 
thority in  the  books,  "that  a  woman  may  be  sued  as  a  feme  .sole, 
while  the  relation  of  the  marriage  subsists,  and  she  and  her  hus- 
band are  living  in  this  kingdom."  This  last  ease  was  twice  argued 
before  all  the  judges.  excei)ting  two;  and  all  who  heard  agreed  to 
the  opinion,  as  delivered  by  Lord  Kenyon.  it  may  also  be  ob- 
served. Ihal  this  opinion  \v;us  in  conformity  to  tliat  of  the  justices 
of  the  ('onnn(»n  I'lens  in  the  year  1778.  Lean  v.  Schutz.  2  Wm.  B. 
119;'). 

I'ut  wlialevei'  dilfcrence  may  havt?  existed  iis  to  the  legal  elTeet 
of  a  voluntary  separation  and  maintenance,  it  has  been  uniformly 
considen  d  that  hanishiiient  or  abjurati<m  was  a  civil  death  of  the 
hiLsband.  .\iiil  Hie  baui.shment  of  the  husband,  even  for  a  limiled 
time,  rtperates  a  removal  of  tlu'  disabilities  of  the  coverture,  so 
f;ir  as  to  en;ib|e  the  wife  to  sue  and  be  sued  as  a  feme  sole,  although 
the  tini"  of  luiiiisliineiit  li;i(l  expired  when  the  action  was  brought. 


!'t'4  PARTIES.  [r/(.    7/. 

Xt'wsimu'  v.  lioycr.  'A  W  W.  'M .  Tlius.  wlicrr  tlic  liushaiul  was 
attaiiittMl  of  TchMiv  and  Iransportod.  l)ut  was  afterwards  ])ard()iu'd. 
and.  after  the  pardon,  a  share  of  an  estate  dest-ended  to  the  wife, 
it  was  deci-eed  to  lier.  it  not  appeariiiir  that  tlie  husl)and  had  re- 
turned after  the  jiardon — yet  there  was  no  hiwfnl  cause  to  prev(>nt 
his  return.  .\nd  the  facts  and  cii-cunistances  which  shouhl  he 
eonsidei'cd  as  jtroof  of  havinj;  ahjured  the  realm,  have  heen  lih- 
erally  reirarded.  Thus,  wliere  the  hushand  resich'd  ahroad,  leav- 
intr  his  wife  to  ti-ath'  and  irain  cnnlit  as  a  feme  sole,  this  lias  been 
considered  as  suflii'ient  to  entitle  her  to  obtain  credit,  and  to  ren- 
der her  liahlt>  to  be  sued,  as  a  feme  sole.     De  Gaillon  v.  L'Aijjle. 

1  B.  t.^-  V.  ;i")7.  This  case  was  much  like  that  at  bar;  for  it  did  not 
ajipear  that  the  husband  was  ever  in  Kiifrland.  or  intended  to  jro 
thither,  lie  could  not  complain  if  his  wife  should  l)e  taken  and 
impri.soued  for  debt,  for  be  had  renounced  her  society.  Upon  the 
same  rea.soninjr.  the  ca.se  of  Walford  v.  The  Duchess  de  Pienne. 

2  Esp.  r)54.  was  decided.  The  duke  was  a  foreigner,  w^bo  left 
England  in  17f>3.  with  an  intention  of  returninpr  soon.  Tlie  suit 
■was  commenced  in  1797;  the  court  held  that  his  absence,  thus  con- 
tinued, should  be  considered  as  a  desertion  of  the  wife,  and  as  suf- 
ficient to  enable  her  to  contract  on  her  own  account.  Kay  v. 
Duchess  de  ]*ienne,  .S  Camp.  123-.  And  the  law  is  the  same,  when 
applied  to  lier  situation  as  plaintiff.  In  a  late  case,  where  the 
term  for  wliich  the  husband  was  transported  had  expired,  the  wife 
was  permitted  to  sue  as  if  unmarried  :  the  defendant  not  provine: 
that  her  husband  had  returned.  Carroll  v.  Blencow,  4  Esp.  27. 
^liserable.  indeed,  would  be  the  situation  of  those  unfortunate 
women  whose  husbands  have  renovmc(Hl  th(Mr  society  and  country, 
if  the  disabilities  of  coverture  should  be  applied  to  them  during 
the  continuance  of  such  desertion.  If  that  were  the  case,  they 
could  obtain  no  credit  on  account  of  their  husbands,  for  no  process 
could  reach  him,  and  they  could  not  recover  for  a  trespa.ss  upon 
their  peraons  or  their  property,  or  for  the  labor  of  their  hands. 
They  would  be  l(>ft  the  wretched  dependents  upon  charity,  or  driven 
to  the  commission  of  crimes,  to  obtain  a  precarious  support.  Nor 
does  the  late  decision,  cited  by  the  counsel  for  the  defendant  in 
this  action.  11  East.  803,  militate  with  the  principles  I  have  stated. 
The  wife,  in  that  ca.se.  was  not  permitted  to  sue  as  a  feme  sole, 
although  the  husband  had  gone  beyond  sea  without  making  any 
provision  for  her  support.  P>ut  it  Avas  admitted  by  the  demurrer, 
that  the  husband  \\as  born  within  the  realm,  was  then  a  subject. 
had  not  been  banished,  and  had  not  abjured.  His  absence,  under 
.such  circumstances,  might  be  considered  as  temporary,  and  of 
course,  as  not  varying  the  rights  of  the  husl)and  or  the  wife. 

The  case  at  bar  comes  within  the  spirit  of  the  rule  of  the  com- 
mon law.  founded  in  reason  and  necessity,  in  cases  of  exile  and 
abjuration.  The  plaintitf  has  been  domiciled  here  many  years  as 
a  feme  sole.  Her  husband  is  an  alien,  and  never  was,  and  is  not 
expected  ever  to  be,  in  this  countr3^     He  abandoned  his  wife,  and 


PARTIES.  9Go 

for  a  great  number  of  years  made  no  provision  for  her  support 
in  his  own  coimtry.  He  has  not,  it  is  true,  abjured  his  country ; 
but  he  has  compelled  his  wife  to  abjure  it.  This  should  not  make 
the  case  better  or  woi"se  for  her.  If  the  husband  had  been  a  native 
citizen,  and  had  deserted  his  wife,  and  become  a  subject  of  a  for- 
eign state,  the  law  would  be  clear  for  her,  upon  the  adjudged  cases. 
We  are  satisfied  that  the  plaintiff  may  acquire  property,  and  be 
permitted  to  sue,  and  is  liable  to  be  sued,  as  a  feme  .sole ;  and  that 
her  release  would  be  a  valid  discharge  for  the  judgment  she  may 
recover.  The  replication  is  adjudged  good,  and  a  respondeat 
ouster  is  awarded. 

That  a  married  woman,  whose  husband  is  an  alien  who  never  was  in 
the  United  States,  stands  upon  the  footing  of  a  feme  sole  for  purposes 
of  bringing  and  defending  actions,  etc.,  see  Levi  v.  Marsha,  122  X.  C. 
565,  29  S.  E.  832.  which  approves  the  principal  case.  See  "Husband  and 
Wife,"  Century  Dig.  §§  738-743;  Decennial  and  Am.  Dig.  Key  No.  Se- 
ries §  203. 


SACKETT  v.  WILSON,  2  Blackford,  85,  86.     1827. 
Marriage  of  a  Feme  Sole  Paity  Pendente  Lite. 

[Sackett  sued  Wilson,  as  executrix.  The  defendant  was  a  feme  sole 
when  the  action  was  commenced,  but  she  married  while  the  action  was 
pending.  The  plaintiff  suggested  the  marriage  and  moved  that  the  de- 
fendant's husband  be  made  a  party,  which  motion  was  overruled.  The 
judge  dismissed  the  plaintiff's  action,  and  the  plaintiff  appealed.  Re- 
versed.] 

13l.\ckford.  J.  .  .  .  The  court  correctly  overruled  the  mo- 
tion to  make  the  husl)and  a  party;  that  could  only  be  done  by  .scire 
facias.  TUit  the  i)laintiff  was  not  obliged  to  proceed  against  the 
husband.  Upon  the  failure  of  his  motion  to  make  the  husband  a 
party,  he  offered  to  proceed  in  the  cau.se  against  the  defendant 
alone.  Tliis  we  conceive  he  had  a  right  to  do.  The  marriage  of 
the  feme  defendant  did  not  in  any  respect  affect  her  liability. 
At  the  connnencement  of  the  action,  she  was  a  feme  sole;  and  she 
eould  not  by  taking  a  husl)and.  abate  the  suit,  or  prevent  its  pro- 
gressing agaiiisf  hei-  alone.  Chit.  1*1.  45;  Hamm.  on  Part.  227(2). 
The  cireiiit  court,  therefore  committed  an  error  in  di.smissing  the 
suit.     Judgment  reversed. 

The  ruling  of  the  principal  case  is  given   in   2  Bish.  on  the  Law  of 
Mar     Wom      see:.    310.    where   several    authorities   to    the    like   effect   are 
.'■itcd.     See '"Abatement  and   Revival,"   Century   Dig.   §§   182-l'.t();    Decen 
nial  and  Am.  Dig.  Key  No.  Series  §  34. 


WARD   V.    WARD.   17   N.  C.  553.      1834. 
Married  Women  as  Parties  in  Equity. 

[Mary  Ward,  being  entitled  to  a  separate  estate  undi  r  a  marriage  set- 
tlement", nicd  a  iiill  again.sl   her  husband,  Seth  Ward,  and  others,  for  the 
removal  of  the  trustee  In  the  de<'d  of  seltlenicnt.  for  an  account,  and  for 
the  seniring  of  the  tniHt  fund.     Demurrer,  on  the  ground  that   tlw  idain- 


!u;i;  I'AKiiEs.  [Ch.  li. 

tiff  beinp  a  feme  eovert   she  eould  not   sue  alone.     DiMuiiner  overruled, 
and  defendants  appealed.     Reversed.] 

I>.\NIK1,.  J.  A  I'l'iiii'  covcft  li.iviii'j:  ;i  ,st'])iii'}it('  ('s1;it(»  may.  in  a 
etuirt  of  iM|iii|y,  Ix'  sued  as  a  foiiic  sok'.  and  he  ])i-iR'oeded  afjjainst 
witlutiit  luM'  luisl)aiid  ;  for  in  respect  of  her  separate  estate  she  is 
looked  upon  as  a  ftiiie  sole.  In  Dubois  v.  Hale.  2  Ver.  614,  Mr. 
Kaithhy.  the  annotator,  lia.s  eolleeted  and  difjested  all  tlie  authori- 
ties on  thi.s  (|uestion.  In  a  eonrt  of  e(iuily.  baron  and  feme  are 
I'oiisidered  as  hvo  dislinet  ])ei*sons  and  therefore  a  wife,  by  her 
proehein  am\".  may  sue  her  own  husband.  The  question  to  be 
settled  on  this  demurrer  is,  can  she  sue  alone,  in  forma  pauperis. 
The  courts  of  equity,  as  well  as  the  courts  of  law,  permit  persons 
to  sue  in  forma  pauperis,  when  proper  affidavits  are  made.  2 
^lad.  Ch.  256.  But  I  can  find  no  ease  where  a  wife  has  been 
permitted  to  sue  her  husband  in  that  character.  I  cannot  find 
any  ease,  where  the  wife  has  been  permitted  to  sue  alone  in  a 
court  of  equity.  AVhere  the  liusband  is  made  a  party  defendant, 
the  invariabh'  practice  is,  for  the  feme  covert  to  sue  by  her  pro- 
ehein amy.  The  rule  is  established,  I  suspect,  not  only  to  secure 
costs,  but  to  have  a  responsible  person  who  would  be  liable  if  the 
process  of  the  court  .should  be  abused,  and  also  that  a  proper  and 
tit  adviser  miji;ht  interpose  to  prevent  domestic'  feuds,  and  at  the 
same  time  protect  the  feme  from  the  frauds  and  power  of  the 
husband.  3  P.  Wms.  39.  The  plaintiff  asks  leave  to  amend  her 
bill  by  adding  a  proehein  amy.  This  is  an  appeal  under  the  late 
act  of  a.s.sembly.  from  an  interlocutoiy  decree.  This  court  has 
no  power  to  make  any  order  or  decree  in  the  cause,  except  on  the 
point  appealed  from.  We  are  of  opinion  that  the  court  below 
erred  in  overniling  the  demurrer;  it  should  have  been  sustained. 
Decree  overruled. 

"In  no  case  need  she  prosecute  or  defend  by  a  guardian  or  next 
friend.'"  Revisal,  sec.  408  (2).  See  "Husband  and  Wife,"  Century  Dig. 
§  744;    Decennial  and  Am.  Dig.  Key  No.  Series  §  203. 


MANNING  V.  MANNING,  79  N.  C.  293,  297,  28  Am.  Rep.  334.     1878. 
Married   Women  as  Plaintiffs   Under  the   Code  Practice. 

[Caroline  Manning  sued  her  husband  to  recover  her  real  estate  from 
him  and  for  damages  caused  by  his  appropriation  of  the  rents  and 
profits  of  her  lands.  Defendant  demurred  on  the  ground  that  his  wife 
could  not  sue  him.  Demurrer  overruled,  and  appeal  by  defendant.  Af- 
firmed on  this  point.  Only  so  much  of  the  opinion  as  discusses  the 
right  of  the  feme  plaintiff  to  sue,  is  here  inserted.! 

Byxi'm.  J.  .  .  .  Tt  seems  now  to  be  generally  settled,  after 
great  confusion  in  the  decisions  growing  out  of  the  conflicting 
statutes  of  th(^  several  .states,  that  a  married  woman  is  invested 
with  the  lefjnl  fiile  to  her  property,  and  may  maintain  in  her 
own  name  any  appropriate  action  to  preserve  and  secure  it  to  her 


PARTIES.  967 

own  use.  ^Miller  v.  Bannister.  109  :\ra.ss.  289;  10  Kan.  56;  19 
Iowa.  236;  2  Bish.  L.  :M.  W.  sees.  130.  131.  Avhere  the  anthorities 
on  both  sides  of  the  qnestion  are  cited.  In  this  .state,  by  statnte, 
the  wife  may  sue  alone  in  two  cases. — first,  where  the  action  con- 
cerns her  separate  property,  and  second,  where  the  action  is  be- 
tween herself  and  her  husband;  in  all  other  eases  where  she  is  a 
party  her  hasband  nuist  be  joined  with  her.  C.  C.  P.  sec.  56. 
No  difficulty  is  therefore  presented  as  to  the  parties  to  the  action. 
The  demurrer  admits  the  facts  set  forth  in  the  complaint  and 
the  sinofle  (luestion  is — do  they  present  a  cause  of  action  ?  The 
relief  demanded  is:  First,  the  possession  of  the  land,  and  second, 
damages  for  withholding  the  rents  and  profits.  We  think  the 
plaintiff  is  entitled  to  both — to  be  let  into  possession,  and  to 
damages  against  the  husband  for  appropriating  to  his  own  use, 
against  her  consent,  the  j-ents  and  profits. 

The  principal  case  is  approved  in  Perldns  v.  Brinldey,  133  N.  C.  at  p. 
159,  45  S.  E.  541.  See  'Husband  and  Wife,"  Century"  Dig.  §  738;  De- 
cennial and  Am.  Dig.  Key  No.  Series  §  203. 


VICK  V.  POPE,  81  N.  C.  22,  25.     1879. 
Married  Women  as  Defendants  Under  the  Code  Practice. 

[Plaintiff  sued  "William  Pope  and  his  wife  on  a  note  executed  by  them 
jointly,  during  the  coverture,  for  the  debt  of  the  husband— which  note 
contained  no  clause  charging  it  upon  the  wife's  separate  estate.  Both 
defendants  were  served  with  the  summons.  No  defense  being  inter- 
posed, judgment  was  rendered  against  l)oth  defendants  and  an  execution 
issued.  The  feme  defendant  then  moved  to  set  aside  the  judgment.  The 
above  facts  were  found  by  the  judge  upon  the  hearing  of  the  motion. 
The  judgment  was  vacated  and  plaintiff  appealed.  Reversed.  After 
disposing  of  the  contention  that  the  feme  defendant  was  entitled  to  re- 
lief on  the  ground  of  mistake  and  excusable  negligence,  the  opinion 
proceeds:] 

Smith.  C.  J.  .  .  .  The  second  point  made  is  that  the  pro- 
ceeding in  the  action  is  irregular,  and  the  judgment  erroneous, 
and  as  such  liable  to  be  set  aside.  The  new  system  of  practice 
ref|uires  that  "when  a  married  woman  is  a  party,  her  husband 
must  be  joined  with  her,"  except  that,  first,  "when  the  action 
concerns  her  .separate  property  she  may  sue  alone."  and  sec- 
ondly, "uiini  the  action  is  between  herself  and  her  husband,  she 
may  sue  alone,  and  in  no  case  need  she  prosecute  or  defend  by  n 
gnardian  or  next  friend."     C.  C.  V.  sec.  56. 

The  sumiiKHis  iinist  be  served  (mi  the  hu.sband.  as  well  as  on  the 
wife,  when  tiie  ae1i<tn  is  intended  to  subject  her  or  her  separate 
estate  1f»  lialiility;  atid  be  is  alb»wed  on  motion,  and  with  her  eon- 
sent,  whieli  we  iinisl  assnme  to  have  been  given  1o  warrant  llu^ 
action  of  the  eunct.  ami  liec;inse  no  suggestion  to  the  eontrary 
appears  in  tlie  aflidavit.  "(o  defend  the  same  in  In  r  name  and 
behalf  "      P.at.   Kev.  ch.  69.  sec.   15. 


•^f»^*^  PARTIES.  |(7(.    11. 

Tt  is  iiianif<^st  tluil  to  licr  luisl)jMurs  in;iM;i<;i'iiit'iit  and  protec- 
tion arc  t'litrustt'd  the  interests  of  the  wife  in  an  adversai-y  suit. 
and  in  the  al>senee  of  eollnsion  or  I'rand  on  his  part  with  the 
phiintilV.  the  jndiiinent  ninst  hr  conclusive  as  to  antecedent  iiiat- 
tci-s.  and  as  etVcctnal  as  in  other  Ccises.  More  csi)ecially  nnist. 
this  lie  so.  since  the  hiw  dispenses  witli  a  jjnardian  or  jirochcin 
amy.  and  now  h'aves  to  them  alone  to  set  u|)  and  establish  any 
defense  that  cither  may  have  aijainst  the  plaintiff's  demand,  if 
it  were  otherwi.se,  how  could  a  valid  .judf::ment  ever  be  obtained 
a4rainst  a  married  woman,  and  how  could  her  liability  be  tested? 
If  she  is  disaliled  from  I'csistinj;  a  false  claim,  how  can  she  prose- 
cute an  action  for  her  own  benefit,  when  nothing  definite  is  de- 
termineil  by  the  result?  It  is  no  sufficient  answer  to  say  that  the 
defendant's  execution  of  the  note  with  her  husband  did  not  bind 
her.  The  judgment  conclusively  establishes  tlie  obligation,  and 
such  facts  must  be  assumed  to  exist  as  warranted  its  rendition, 
inasnuich  as  neither  coverture  nor  any  other  defense  was  set  up 
in  opposition  to  defeat  it.  As  then  a  married  woman  may  sue 
and  with  her  husband  be  sued  on  contracts,  they  and  each  of  them 
must  at  the  projier  time  re^sist  the  recovery  as  other  defendants, 
and  their  failure  to  do  so  must  be  attended  with  the  same  conse- 
(luenees.  The  duty  of  making  defense  for  both  or  for  either  now 
devolves  upon  the  hu.sband  alone,  and  he  must  employ  coimsel 
to  nnike  such  defense  ett'ectual  and  in  proper  form. 

3.  An  appearance  by  attorney  for  both  the  hu.sband  and  wife 
is  legal  and  proper,  and.  therefore,  says  Taylor,  C.  J.,  "if  an 
action  be  brought  against  a  husband  and  wife,  if  the  husband 
appear  by  attorney,  he  shall  enter  an  appearance  for  both;"  and 
he  adds,  that  this  may  be  done  when  the  wife  is  under  age,  "be- 
cause the  husband  may  by  law  make  an  attorney  and  appear  both 
for  himself  and  wife.""  'Frazier  v.  Felton,  8  N.  C.  231.  "Mar- 
ried women,"  says  Ruffin,  J.,  in  a  ease  where  relief  was  sought 
in  the  court  of  e(iuity,  "are  barred  by  judgments  at  law  as  much 
as  other  persons  with  the  single  exception  of  judgments  allowed 
by  the  fraud  of  the  hiLsband  in  combination  wath  another;"  and 
referring  to  the  allegation  of  its  injustice  and  wrong,  he  adds. 
"That  was  a  thing  that  might  have  been  .shown  on  the  trial  at 
law.  and,  therefore,  cannot  itself  be  heard  now.  She  must  charge 
and  prove  that  she  was  prevented  from  a  fair  trial  at  law  by 
collusion  between  her  adversary  and  her  husband,  preceding  or 
at  the  trial."     Green  v.  Branton,  16  N.  C.  504-. 

The  present  appTication  has  in  it  no  such  meritorious  element 
as  would  have  entitled  the  feme  defendant  to  relief  in  equity, 
and  it  does  not  call  for  nor  authorize  the  interposition  of  this 
court,  in  the  manner  proposed.  It  is  true  an  irregular  judg- 
ment, not  taken  according  to  the  course  of  the  court,  may  be  set 
aside  and  reformed  at  any  time  as  has  been  often  held.  Keaton 
V.  Banks.  32  N.  C.  381  ;  Monroe  v.  Whitted,  79  N.  C.  508,  and 
numerous   other   cases.     While   the    judgment   .sought   to   be   set 


PARTIES.  969 

aside  is  neither  erroneous  nor  irregular,  if  it  were  irregular,  the 
motion  should  have  been  made  in  a  reasonable  time,  and  not 
after  its  transfer  to  an  innoeent  holder  for  full  value  with  noth- 
ing upon  its  face  nor  in  the  record  to  indicate  any  infirmity. 
Winslow  V.  Anderson,  20  N.  C.  1.  We  think,  therefore,  the  nil- 
ing  of  the  court  was  not  warranted  by  any  facts  contained  in  the 
attidavit,  and  the  judgment  ought  not  to  have  been  disturbed  for 
any  of  the  causes  assigned.     Reversed. 

To  what  extent,  the  principal  case  is  shaken  by  subsequent  decisions, 
see  McLeod  v.  Williams,  122  N.  C.  451,  30  S.  E.  129,  and  Roseman  v. 
Roseman.  127  X.  C.  494,  37  S.  E.  518;  McAfee  v.  Gregg,  140  N.  C.  448,  53 
S.  E.  304.  For  the  statute  law  of  North  Carolina  regulating  the  prac- 
tice when  a  feme  covert  is  a  party,  plaintiff  or  defendant,  and  the  in- 
terpretation of  such  statutes,  see  Pell's  Revisal,  sec.  408,  and  notes. 
See  "Husband  and  Wife,"  Century  Dig.  §§  836,  856;  Decennial  and  Am. 
Dig.  Key  No.  Series  §§  230,  239. 


DORSHEIMER  v.  ROORBACK,  18  X.  J.  Eq.  438.     1867. 
Lunatics  as  Parties. 

["This  was  a  motion  on  the  part  of  the  defendant  to  order  the  bill  to 
be  taken  from  the  files,  on  the  ground  that  the  complainant  was  an 
idiot,  and  the  bill  was  filed  in  her  name  by  one  Couse,  as  her  next 
friend,  he  not  having  been  appointed  her  guardian  upon  inquisition 
found,  or  been  authorized  by  this  court  in  this  case  to  file  the  bill  as 
her  next  friend."] 

The  Ciiaxceij.or.  The  motion  is  made  by  the  defendant,  and 
not  on  part  of  the  idiot,  or  any  one  in  her  behalf.  But  in  this 
case,  where  it  is  alleged  in  the  bill  that  complainant  is  an  idiot 
a  nativitate,  and  unable  to  manage  her  affairs,  and  sues  by  a  per- 
son calling  himself  her  next  friend,  without  any  apiiointnient. 
if  tile  pi-ocecding  is  not  according  to  hiw.  and  not  binding  on  the 
idiot,  the  defendant  must  make  this  motion  td  i>i-oteet  himself 
from  being  obliged   to  (Icl'tiid   a   suit  broiighl    without  authority 

Tdiots  and  iiniatics  may  sue  at  law  by  next  fi-ieiid,  to  be  ap- 
pointed l)y  the  ('(►urt;  but  in  equity,  nuist  sue  by  tlie  comim'ttee 
or  guardian  of  their  estates  duly  appointi'd.  When  the  idiocy 
or  lunacy  is  intt  i)artial.  and  in  all  ciises.  when  it  has  been  found 
on  an  impiisition,  a  court  of  eciuity  will  not  allow  a  suit  to  be 
brought  by  nu  idiot  or  bmatie  i)i  his  oini  luinir,  or  IIkiI  of  a  next 
frii  11(1,  nomiiiat''(l  by  hiiiisrjl'.  ny  a|)|)ointe(l  by  the  court;  his 
guardian  or  committee  mu.st  join  in  tlie  suit.  When  a  pei-son  is 
only  pari  Kill  !i  incdpahlr.  ;is  one  merely  deal'  and  fluiiib.  the  eoui't 
will  appoint  a  iie.xt  frienil  to  be  joined  with  liini  in  the  suit,  and 
to  conduct   it   for'  him. 

The  authorities  all  agree  that  idiots  and  luiuitics  must  siir  in 
rqvihi  Inf  Hicir  romwilfcrs  or  (fiiardinits.  In  this  state,  the  per- 
sons to  whom  the  e.states  of  idiots  and  hinalies  are  eoiiniiilted 
U[)on    impiisition    found,   are   styled    their  (iiKirdonis :   in    many   of 


i)70  I'AKl'lKS.  |(7(.    II. 

tlu'  dIIum-  ><tiiti's.  iiiui  ill  l-'iiLrl.-nul.  tlicy  ;irc  called  their  cinnmiUccs. 
Sht'lfdnl  till  liiuiaties.  41.").  says:  "Icliots  and  limalies  must  sue  in 
.•uiirts  ul  e((iiil>'  l»y  tlieii*  eoiiiiiiittees.  ■'  hi  Sloi-y's  l'](i.  IM.  sec.  64 ; 
1  |);m.  rii.  Ti-,  i:\u\  Va\.)  Tit-.  Stock  on  Xoii  Compotes  Mentis. 
:VA:  Mittoid.  I-:.|.  n.  LM).  and  "J  liarl..  (Mi  I'r.  L'24.  the  same  rule  is 
laid  down;  and  it  is  rurtlur  stated  hy  .some  of  these  anthoritios. 
tliat  a  suit  ouirht  not  to  l»e  hroutrht.  e\'en  by  the  committee,  with- 
out tlu-  dii-ection  of  llie  coiirl.  upon  an  iiupiiry  mach".  whelliei'  it 
is  lor  the  heueht  I't'  the  idiot  or  lunatic.  I  find  no  case  or  au- 
thority in  wliidi  it  is  held  that  they  may  sue  hy  a  next  friend, 
either  a  voliuiteer  or  appointed  tor  the  i)uri)ose.  The  only  sem- 
hlaiice  of  authoiit.x  round,  is  tl:e  passaj^e  in  Sheli'ord,  416,  and 
copied  in  1  Dan.  Cli.  I'r.  SI  :  "  M' a  p.  ison  exhihitiufi;  a  bill,  ai)pear 
u[>on  the  face  of  it  to  he  either  an  idiot  or  a  lunatic,  and  no  next 
frii'nd  or  committei-  is  named  in  the  liill.  the  deteiuhint  may  de- 
mur."' Daniell  cites  Fuller  v.  Jiance.  1  Cli.  ('as.  1!),  which  has 
uotliiuiT  in  it  t»n  this  point.  Sbelford  cites  Mitford  on  IM.  153, 
which  says:  "If  an  infant  or  a  married  woman,  an  idiot  or  a 
lunatic,  appi'ar  to  be  sucb  on  the  face  of  the  bill,  and  no  next 
friend  or  connuittee  is  named,  the  defendant  may  demur."  Lord 
Redesdale  evidently  intends  to  refer  sinjiula  singulis,  and  does  not 
mean  to  imply  that  a  next  friend  is  proper  for  an  idiot  or  lunatic, 
any  more  than  that  a  committee  is  necessary  for  an  infant  or  feme 
covert.  This  passaire  has  been  adopted  by  the  other  writers,  with- 
out noticing'  that  the  words  "next  friend"  were  not  applicable  to 
the  subject  of  which  they  were  then  treating— idiots  and  lunatics. 
The  rule  is  a  wise  one.  It  should  not  be  permitted  that  any 
volunteer  should,  by  styling  himself  the  next  friend  of  an  idiot, 
bi-ing  a  suit  for  him.  and  lose  or  jeopard  his  rights  by  an  action 
brought  inojiportunely,  and  it  may  be.  prosecuted  without  skill 
or  honesty.  The  idiot  would  liave  no  security  for  the  amount  re- 
covered by  such  next  friend,  and  the  defendant  could  not  pay  him, 
or  settle  with  him.  safely.  The  motion  to  take  the  bill  from  the 
tiles  must  be  granted. 

"We  think  it  well  settled  that  ichere  there  has  been  no  inquisition 
the  lunatic  may  sue  by  next  friend.  The  jurisdiction  is  expressly  rec- 
OKnized  and  upheld  bv  English  chancery  courts.  See  Beall  v.  Smith, 
L  R  9  ch.  8o.  91;  .Tones  v.  Lloyd,  L.  R.  18.  Eq.  265,  274,  275.  In  the 
latter  case  Jessel,  M.  R.  said:  'Can  a  suit  be  instituted  by  the  lunatic, 
not  found  so  bv  inquisition,  by  his  next  friend?  I  have  no  doubt  it  can. 
There  is  authority  upon  the  subject,  and  it  seems  to  me  so  distinct 
that  I  have  no  occasion  really  to  refer  to  the  reasons,  for  I  think  the 
cases  of  Light  v.  Light,  25  Beav.  248,  and  Beall  v.  Smith,  L.  R.  9,  ch.  85, 
are  such  authorities;  but,  independently  of  the  unreimrted  case  of  PMsher 
V.  Melles,  where  I  know  the  ])oint  was  discussed,  and,  independently  of 
authority,  let  us  look  at  the  reason  of  the  thing.  If  this  were  not  the 
law,  anybody  might,  at  his  will  and  pleasure,  commit  waste  on  a  luna- 
tic's property,  or  do  damage  or  serious  injury  and  annoyance  to  him  or 
his  propertv  without  there  being  any  remedy  whatever.'  To  the  same 
effect  is  Busw.  Insan.  sec.  120,  where  it  is  said  that  'when  a  person  is 
in  fact,  insane,  hut  has  not  heen  so  adjudged  by  a  competent  tribunal, 
or  placed  in  charge  of  a  committee  or  guardian,  the  courts,  whether  of 


PARTIES.  971 

law  or  equity,  have  jurisdiction  to  entertain  suits  brought  by  one  as 
the  next  friend  of  tlie  insane  person.'  Tliese  autliorities  are  decisive 
against  the  defendant  upon  the  question  of  jurisdiction."  Smith  v. 
Smith,  106  X.  C.  at  p.  503.  11  S.  E.  188. 

"First  a  motion   is  made  by  defendants  to   dismiss  the  bill,  because 
it  is  brought  in  the  name  of  'Daniel  Shaw,  guardian  of  Penelope  Green, 
etc.,'  when  it  should  have  been  brought  in  the  name  of  the  lunatic,  by 
Shaw,  as  her  committee.     Actions  at  law,  in  behalf  of  lunatics,  can  be 
brought  in  no  other  name  than  theirs:   they  must  not  be  brought  in  the 
name  of  the  committee.     Stock  on  Xon  Compos   Mentis,   33;    Cocks   v. 
Darson,  Hob.  215;    Nay,  27;    Pop.  141.     And  they  appear  by  guardian  or 
attorney,  according  as  they  are  within  age  or  not.     Ibid.     But,  in  equity, 
this  incapacity  to  sue  or  defend   is  more  considerable.     In  this  court, 
after   an    inquisition    has   taken    place,   and   a   committee   has   been    ap- 
pointed, the  joinder  of  the  name  of  the  lunatic,  though  usual,  is  merely 
a  formality.     Stock,  33;    Wyatt's  Pr.  Reg.  272;    Ridler  v.  Ridler,  1  Eq. 
Cas.  Ab.   279;    Ortley  v.  Messere,  7  .John.   Ch.   139;    Calvert  on  Parties, 
303.     In  England,  the  practice  is  to  bring  the  bill  in  the  name  of  the 
committee,  as   is   done  in  the  present   case.     Either  way  will  be  good. 
The  motion   is  therefore  overruled."      Shaw   v.   Burney.   36   N.   C.   at   p. 
150.     The  matter  of  appearance  by  parties  non  compos  mentis — whether 
plaintiff  or  defendant — is  now  regulated  by  statute  in  North  Carolina. 
See  Pell's  Revisal,  sees.  405,  406,  and  notes.     For  actions  by  or  on  be- 
half of  lunatics,  sec.   2  L.  R.  A.    (N.   S.)    961,  and  note.     See   "Insane 
Persons,"   Century   Dig.   §§   162-165;    Decennial   and  Am.   Dig.    Key   No. 
Series  §§  92-94. 


STUARD  V.  PORTER,  79  Ohio  State,  1.  85  N.  E.  1062.     1908. 
Lunatics    as    Parties.     Service    of    Summons    on    Insane    Defendants. 

Guardian  as  a  Party.     Venue. 

[Wood    Stuard    killed    Horace    G.    Porter    and,    being    acquitted    of    a 
charge  of  murder  on  the  plea  of  insanity,  was  sued  in  the  court  of  com- 
mon pleas,  by  the  administrator  of  Porter,  for  damages  "for  the  wrong- 
ful   death    of    plaintiff's    decedent."      The    action    was    brought    against 
Wood  Stuard  and  his  duly  appointed  guardian  Dal.  P.  Stuard.     Dal.  P. 
Stuard   waived   service  of  the  summons  and   entered   a  general   apiiear- 
ance.     The  summons  was  served  on  Wood  Stuard  and  on  the  superin- 
tendent of  the  State  Hospital   for  the  Insane,  in  whose  custody  Wood 
Stuard  then   was.     The  service  was  by   delivery  of  a   copy  to  each   of 
them.     The  sheriff  made  the  service.     Dal.  P.  Stuard  demurred  on  the 
ground  that  there  was  a  misjoinder  of  parties  because  both  the  insane 
person  and  his  guardian  v.ere  made  defendants.     Thereupon  the  plain- 
tiff, Porter,  dismissed  the  action,  entering  a  nol.  ))ros.,  as  to  the  guardian. 
Thereafter  the  guardian  was  permitted   to  withdraw  his  demurrer.     He 
thereupon  moved  to  quash  the  service  of  the  summons  which  had  been 
made  on  the  insane  defendant.     Motion   sustained.     Thereuiion  an  alias 
summons  was  Issued  and  served  just  as  the  original  had  been  served — 
except  that  the  original  was  issued  to  and  served  by  the  sheriff  of  the 
county   in    which   the  State  Hospital  vas  located,  and   the  alias  was  is- 
sued  to   and   served    by   the   sheriff  of   the   county   in    which    the    insaw 
defendant  resided  prior  to  his  confinement  in   the  State  Hospital.     This 
service   of  the   alias   was   also   quashed   on    motion    of   the   guardian   of 
Wood   Stuard.  and   ju'lgment  rendered  against   Porter  dismissing  his  ac- 
tion.    T'pon  a  petilion  in  error  the  cirrnit  conrt  reversed  their  judgment 
and   ordered    the  action  to   proceed.     The   Sliiards   tlicn    carried    the  case 
to   the   supreme   court    hy    writ    of   error.      Tlic   judgment    of    the    circuit 
court  is  afTlrmed.l 

Davis.  J.     .     .     .     Tlic  (|iK'sti(iii    to  lie  dotoj'niincd   is  wliethcp 
]]](•]•>•  wji.s  it  IcpJil  service  of  simiirioris  n[>on   Ihe  iti.'<;iiie  flcfeiulnnt. 


i>~2  IVMJTIKS.  \('li.     11. 

Wo»><l  Stii;>i-(1.  or  if  not.  ^vll(^thtM•  \ho  court  h.ul  oht.iiiKHl  jiirisdic- 
tioii  of  his  pcisoii  tlu\)ay:li  tli"  iiUiirdinii.  Two  racts  iiiiist  Ix',  ami 
prariically  an-,  conceded,  vi/..  thai  Dal.  I*.  Stuard  is  tlic  Icirally 
appoiiitid  uiiardi.Mi  of  Wood  Stuard.  anil  that  at  the  time  of  I  he 
app.»iiitiiKMit  of  his  -ruardian  ^olh  ^Vood  Stuard  and  his  yuaitlian 
wcro  rcsidtMil.s  of  .Mori^an  countv.  It  cannot  he  pi-csuincd.  fi-oiii 
the  circumstances  of  this  case,  tliat  when  tlie  wai-d  was  removed  to 
the  slate  hospital  in  Athens  county,  there  was  any  intention,  on 
the  pari  (d"  himself  or  anyhody  else,  to  change  the  place  of  his 
lejral  residence.  In  fact  the  chanire  of  location  was  involuntary, 
ami  for  a  temporary  pui'i)Os<>.  and  he  was  in  law  incapable  of  mak- 
ing:  a  volunta'y  chany:e  of  residence!  In  case  of  his  recovery  it  is 
made  the  duty  of  the  officers  of  the  law  to  return  him  to  his  home 
in  the  comity  from  which  he  was  sent.  Sections  709,  7243,  Rev. 
St.  ]!)0h.  These  considerations  lead  to  the  conclusion  that  Wood 
Stuard  not  only  was.  but  now  is.  a  legal  resident  of  Morgan  county. 
The  statutas  of  this  state  do  not  specifically  prescribe  any  par- 
ticular method  for  service  of  summons  upon  an  insane  defendant. 
Ordinarily  the  service  of  sunnnons  upon  a  defendant  would  be  by 
leaving  a  liMie  copy  of  the  writ  at  his  usual  i)lace  of  residence,  or 
by  delivering  a  copy  to  the  defendant  in  person.  Neither  of  thes(; 
modes  of  service  was  adopted  in  this  ease,  and  v^''e  are  thus  led  to 
the  inquiry  whether  the  court  of  conniion  ])leas  has  acquired  ju- 
risdiction of  the  person  of  AVood  Stuard  in  any  other  manner. 

Waiving  consideration  of  the  proposition  that  the  guardian  ot 
an  insane  person  is  not  a  nece.ssary  party  defendant  in  an  action  of 
this  kind,  it  seems  to  us  very  clear  that  he  is  at  least  a  proper 
party.  Our  Code  of  Civil  Procedure,  in  the  chapter  entitled 
"Parties  to  Actions,"  provides  that  "the  defense  of  an  insane  per- 
son nmst  be  by  his  legally  ai)pointed  guardian,"  or  in  certain 
cases  by  a  trustee  for  the  suit,  appointed  by  the  court.  Section 
5000.  Rev.  St.  1008.  Elsewhere  oui-  statutes"  (s(>ctions  6260.  6304, 
par.  .').,  Rev.  St.  li)08)  makes  it  the  duty  of  a  guardian  for  a  lunatic 
"to  appear  for  and  defend,  or  cause  to  be  defended,  all  suits 
again.st  such  ward. "  Not  only  is  the  duty  to  appear  for  and  defend 
distinguished  by  the  statute  from  causing  a  defense  to  be  made, 
but  it  would  seem  that  the  very  act  of  appearing  and  defending 
would  involve  the  necessity  of  filing  all  necessary  pleadings  in  the 
case,  and  to  do  any  of  these  required  things  implies  notice  to  the 
guardian.  No  mode  of  notifying  the  guardian  is  provided.  Can 
it  be  said  to  be  illegal  to  sei-ve  him  as  a  party  with  sunnnons  along 
with  his  ward?  The  guardian  cannot  be  a  merely  nominal  party, 
lacking  any  substantial  interest,  in  a  controversy  of  this  kind. 
His  ward's  estate  is  not  bound  by  a  debt  or  lien  existing  before 
the  guardianship.  The  liability  for  a  tort  becomes  a  lien  only 
from  the  date  (jf  judgment  and  the  plaintiff  was  not  an  ascertained 
creditor  whom  the  guardian  was  bound  to  recognize  in  the  admin- 
istration of  his  ward's  estate.  Evans  et  al.  v.  Lewis.  30  Ohio  St. 
11.    The  guardian  was  therefore  not  merely  required  by  law  to  see 


PARTIES.  073 

that  a  defense  was  made,  but  he  was  iuterested  as  a  trustee,  to  the 
extent  that  it  was  his  duty  to  see  that  the  trust  estate  was  not 
luiduly  hnrdinied.  Hence,  if  lie  was  not  a  neeessars'  party  to  the 
aetiou,  lie  was  at  least  a  proper  party  defendant ;  and  so  the  au- 
thorities seem  to  hold. 

In  22  Cye.  1224.  the  law  is  stated  thus:  ''An  insane  person 
may  be  sued  the  same  as  a  sane  person.  At  common  law  the  nile 
was  the  same  after  inquisition  of  lunat-y  and  the  appointment  of 
a  fruardiau  or  committee;  but  now,  if  there  be  a  committee  or 
•ruardian.  it  is  generally  necessary  to  join  him  a.s  a  party  defend- 
ant. '  Tn  10  Ency.  PI."  &  Prac.  1228.  we  find  this:  "If  the  party 
be  under  the  management  of  a  committee  or  guardian,  service  of 
process  should  be  upon  the  committee,  or  upon  both  the  committee 
and  the  lunatic."  In  9  Ency.  PI.  &  Prac.  935,  we  read  the  fol- 
lowing: "Although  it  may  not  be  necessary  in  all  cases  to  make 
the  guardian  a  party  to  an  action  or  proceeding  affecting  the  ward 
.solely,  yet  it  is  usually  proper  to  do  so.  that  he  may  protect  the 
ward 's  interests. "  In  Carter  v.  Burrall.  80  App.  Div.  395,  81  N.  Y. 
Supp.  30.  the  couii:  held  that  the  committee  of  a  lunatic,  if  he  so 
elects,  is  entitled  to  come  in  and  defend  an  action  against  his  ward, 
and  if  lie  declines  to  do  so.  the  plaintiff  may  apply  for  leave  to 
make  him  a  party  defendant.  The  supreme  court  of  ^Massachu- 
setts.  in  AVhitf'omb  v.  Jacobs.  9  Gray,  255,  said  that  a  guardian 
should  be  made  a  partv  to  proceedings  against  the  ward;  but  tlu^ 
same  court,  in  Taylor 'v.  Covering.  171  Mass.  303.  50  N.  E.  612. 
remarked  that  "this  is  not  strictly  true.  He  .should  have  notice 
of  the  proceedings."  This  is.  in  effect,  saying  that  it  is  not  nec- 
es.siiry  to  make  the  guardian  a  formal  party,  but  the  court  does 
not  go  to  the  extent  of  saying  that  he  would  be  an  improper  party. 
However,  the  court  did  hold  that  the  court  below,  "on  being  in- 
formed that  the  defendant  was  an  in.sanc  person,  under  guardian- 
ship in  lliis  comiiionwealth.  properly  ordei-ed  notice  of  the  pend- 
ency of  the  action  to  be  given  1(i  the  guardian:  and.  if  the  guard- 
ian had  a]ipeared  in  the  action  in  the  name  of  the  defendant,  this 
pi-obably  would  have  cured  the  want  of  sei'\-iee  on  the  defendant." 
AVe  shall  refi-i-  to  this  further  on.  The  supi-enie  coui-1  of  Illinois 
implie<il\-  held  ihat  the  sruardiaii  of  an  insane  person,  who  Ii.mI 
lieen  made  a  defendant  and  seived  with  pnM'css,  was  a  pntper 
parly,  because  it  held  tlial.  being  made  a  parly,  he  might  lake  an 
api)eal  for  the  wai'd.  not wilhslanding  the  cause  had  been  defi-nded 
bv  a  guardian  ad  litem,  who  miLrht  also  have  appealed.  Sill  v. 
Sill,  is.-,  III.  .','M.  .-.7  \.  Iv  H12. 

Both  the  lunatic  himself  and  his  legally  appointed  guardian 
being  residents  of  .Morgan  c(Mni1y.  and  the  latter  being  a  proper 
|tarty  to  the  ai-tion.  lliis  action  against  both  was  rightly  brought  in 
that  county  f.secti<ni  5()2H.  l?cv.  St.  190H).  and  the  mode  of  service 
is  clearly  provided  for  in  section  5035.  Hev.  St.  PHIS.  .Tnri.sdiction 
of  the  i»ersou  of  the  [ruardiau  was  obtaine.l  by  waiver  of  pHM-ess 
and  cntrj'  of  ap|)euraiice  by  him.      Possibly,  as  suggested  by  the 


974  PARTIES.  \('ll.    11. 

supitMin-  court  (•!'  Massiicliiisctts.  Tiiylor  v.  liovci'in*;,  siii>r;i,  this 
iii;i\  liavc  cured  ;i  \v;mt  of  service  on  the  insane  det'endimt  liimself ; 
luit  we  need  not  icsort  to  tliat  extremity  in  this  (Uiso.  I'ndcr  the 
statuti'  summons  was  pro|)erly  directetl  to  tlie  sheritl'  ol"  Athens 
county,  which  w:us  |)ei-sonall_\  sci'ved  on  the  insane  defendant  in 
that  eounty.  Tlie  eourt  had  jurisdietion  of  tlie  person  fis  to  both 
the  ward  ami  t  he  i^uardiaii  from  lliat  time  until  the  dismissal  with- 
out piejudice  as  to  the  »ruardian.  a  pi-riotl  of  more  than  two 
months.  The  tlismissijl  from  the  ejuse  of  the  {>:nardian,  if  lie  was 
a  proi^er  parly  in  tlie  tii-st  instance,  could  not  all'eet  the  jurisdic- 
tion over  the  person  of  the  ward  already  properly  acquired.  Its 
only  effect  would  be  to  dispense  with  tlie  presence  of  the  <ruardiaii 
as  a  paHy  until,  at  some  future  stai-e  of  the  action,  the  court 
should  iind  it  necessary  to  bring  him  in  again. 

It  follows  that  tlie  judgment  of  the  court  of  common  pleas 
(luashing  the  sen^ice  made  on  Wood  Stuard  by  the  sheriff  of 
Athens  eounty  and  the  judgment  of  that  court  dismissing  the 
l)laintitt"s  petition  for  want  of  jurisdiction  over  the  person  of  the 
defendant  were  erroneous,  and  the  judgment  of  the  circuit  court 
is  therefore  affirmed. 

See  "Insane  Persons,"  Century  Dig.   §§  166,  169;    Decennial  and  Am. 
Dig.  Key  No.  Series  §  95. 


WILLIAMS  V.  BANKHEAD,  19  Wallace.   563,  570.     1873. 
Parties  in  Equity. 

[Bill  in  equity  in  the  circuit  court  of  the  United  States  for  the  eastern 
district  of  Arkansas,  to  subject  a  fund  to  the  satisfaction  of  a  mortgage 
on  real  estate  situate  in  Arkansas.  Bankhead  filed  the  bill  and  Wil- 
liams and  others  were  defendants.  For  reasons  stated  below,  the  de- 
fendants insisted  that  the  widow  of  the  mortgagor  was  a  necessary 
party.  The  judge  ruled  otherwise  and  rendered  a  decree  against  defend- 
ants, Williams  and  others,  and  they  appealed.  Reversed.  Some  time 
prior  to  1854,  James  Branch  contracted  to  purchase  a  tract  of  land  in 
Arkansas  from  Isaac  Bolton.  Branch  paid  part  of  the  purchase  money 
and  took  from  Bolton  a  contract  to  convey  when  the  residue  of  the 
price  should  be  paid.  In  1854,  Branch  mortgaged  his  equitable  estate 
in  such  land  to  Bankhead.  Bankhead,  in  a  suit  in  equity,  sought  a  fore- 
closure of  his  mortgage.  While  such  proceeding  was  pending,  a  state 
court  decreed  a  rescission  of  the  contract  of  sale  and  purchase,  made  by 
and  between  Branch  and  Bolton,  and  that  the  purchase  money  paid  by 
Branch  be  refunded  to  his  widow— she  claiming  the  same  under  a  mar- 
riage settlement.  Bankhead  then  filed  this  bill,  in  the  circuit  court  of 
the  United  States,  seeking  to  sut)ject  the  money  directed  by  the  state 
court  to  be  refunded  to  Branch's  widow,  to  the  satisfaction  of  the  mort- 
gage made  to  him  by  Branch.  To  this  bill  the  defendants  were  Wil- 
liams— who  was  in  possession  of  the  land  covered  by  the  contract  to 
convey  and  the  mortgage — the  administrator  of  Branch,  and  the  devisee 
of  Bolton;  but  Branch's  widow  was  not  a  party.  The  defendants  in- 
sisted that  no  decree  could  be  made  subjecting  the  fund  to  Bankhead's 
mortgage  because  the  widow  was  an  indispensable  party.  Bankhead  in- 
sisted that  he  was  excused  from  making  her  a  party  because  she  did 
not  reside  in  Arkansas  and  therefore  could  not  be  served  with  process. 


PARTIES.  975 

After  disposing  of  another  point  presented  by  the  appeal,  the  opinion 
proceeds:] 

Bradley,  J.  .  .  .  The  other  ground  of  appeal,  namely,  that 
the  widow  was  an  indispensable  party,  presents  a  more  serious 
^liiestion.  On  the  one  hand  it  is  said  that,  not  being  a  party,  her 
rights  were  not  eonelnded ;  and  that  the  only  inconvenience  arising 
from  proceeding  with  the  case  without  her  was  the  double  liability 
to  which  Bolton  and  the  administrator  of  Branch  became  exposed 
by  having  to  pay  her  and  Bankhead  both,  under  contrary  decrees 
of  different  courts.  The  general  rale  a.s  to  parties  in  chancery  is. 
that  all  ought  to  be  made  parties  who  are  interested  in  the  con- 
troversy, in  order  that  there  may  be  an  end  of  litigation.  But 
there  are  ciualifications  of  this  rule  arising  out  of  public  policy 
mid  the  necessities  of  particular  cases.  The  true  distinction  ap- 
pears to  be  as  follows:  Firet.  Where  a  person  will  be  directly  af- 
fected by  a  decree,  he  is  an  indispensable  party,  unless  the  parties 
are  too  numerous  to  be  brought  before  the  court,  when  the  case  is 
subject  to  a  special  rule.  Secondly.  Where  a  pei-son  is  interested 
in  the  controvei-sy.  but  will  not  be  directly  affected  by  a  decree 
made  in  his  absence,  he  is  not  an  indispensable  party,  but  he  should 
be  made  a  party  if  possible,  and  the  court  wall  not  proceed  to  a  de- 
cree without  him  if  he  can  be  reached.  Thirdly.  Where  he  is 
not  interested  in  the  controversy  between  the  inunediate  parties 
litigcUit.  but  has  aji  interest  in  the  subject-matter  which  may  be 
conveniently  settled  in  the  suit,  and  thereby  prevent  further  liti- 
gation, he  may  be  a  party  or  not,  at  the  option  of  the  complainant. 

In  the  prasent  case,  if  the  ciuestion  were  one  of  mere  personal 
liability  on  the  part  of  Bolton,  McNeill,  and  AVilliams.  it  might 
have  l)een  admissible  to  proceed  without  making  the  widow  of 
liranch  a  party,  inasmuch  as  she  was  not  a  resident  of  Arkansas, 
and  could  not  at  the  time  be  made  a  party  in  the  circuit  court 
without  being  S(M'\'ed  with  process  in  the  district  of  Arkansas  or 
voluntarily  appearing  to  the  suit.  The  act  to  further  the  admin- 
istration of  justice,  by  which  an  order  of  publication  for  the  ap- 
pearance of  iioiiri'sident  defendants  is  provided  for.  if  it  would 
apply  to  the  ca.se.  bad  not  been  i)a.s.sed.  But  this  is  not  a  ca.se  of 
mere  personal  liability.  It  concerns  the  disi)Osal  of  a  specilic  fund, 
in  wliich  (lie  wid(»w  claims  an  interest.  If  the  sum  of  .t3.(l6(). 66 
mentioned  in  the  decree  is  not  paid,  the  plantation  is  directed  to 
be  sold  in  order  1o  raise  the  amount  of  liankhead's  claim.  And 
this  plantation  is  in  the  possession  of  the  widow  by  hei-  icnanls. 
She  is  to  reecive  the  rents  and  prolits  thereof  luitil  her  .'laim  is 
satislicd  1)\  the  j.ayment  of  the  said  sum  of  $:106().()()  and  the  in- 
terest due  tli.non.  awarded  hrr  by  the  Desha  county  court.  Her 
interests,  therefore,  are  directly  affected  by  thi>  decree.  I'ndcr 
these  circum.stances  we  think  that  she  wa-s  an  indispensable  jtarty. 
Tlie  decree,  therefore,  MMist  be  reversed,  Mud  the  cause  renuuided 
to  be  |.n>eeeded  in  according  to  law. 


!>7(>  I'AKTIES,  •  I  r/(.    1  i. 

See  "Equity."  Century  Dig.  §§   246-263;    Decennial  and  Am.  Dig.  Key 
No.  Series  §§  89-96. 


STEVENSON    v.    AUSTIN.    :J    Metcalf    (Mass.)     474,    480.      1842. 

Parties  in   Equity.     Very  Niimrrotis  Porlirs.     Trustees  and  Cestuis  que 
Trust  as  Parties.     A  Few  of  a  (la.ts  Sufficieuf.  Wheti. 

I  Hill  in  equity  seeking  to  reacli  a  certain  fund  in  tlie  liands  of  Austin. 
James  Hruce  became  insolvent  and  nuule  a  deed  of  assignment  to  trus- 
tees for  the  lienefit  of  his  creditors.  Among  tlie  assets  so  assigned  was 
a  claim  to  the  fund  in  question.  Austin,  Bruce  and  the  trustees  were 
made  defendants;  but  the  creditors  secured  by  the  deed  of  assignment 
were  not  made  defendants.  The  defendants  insisted  that  such  cred- 
itors were  necessary  parties.  These  creditors  consisted  of  nineteen  in- 
dividuals and  firms — some  of  whom  were  non-residents,  one  firm  being 
resident   in   Europe — and   seven   corporations.! 

Wilde.  J.  .  .  .  Tt  appears  that  Bruce,  having  become  in- 
solvent, has  n.ssifrned  his  jiropoi-ty  and  effects,  inclnding  his  equit- 
able claim  to  the  funds  in  the  liands  of  Austin,  to  Stevenson  & 
Curtis,  in  trust  for  the  use  and  benefit  of  his  creditors.  The  as- 
signee's are  made  parties  defendants  in  this  suit;  but  it  is  ob.iected, 
that  the  creditors,  who  have  become  parties  to  the  assignment, 
ouiiht  also  to  be  made  defendants  in  this  suit.  The  general  rule 
is.  that  all  parties  interested  in  the  subject  of  the  suit  should  be 
made  parties,  plaintiffs  or  defendants,  so  that  the  court  may  settle 
flu  rights  of  all  parties  interested,  and  may  thereby  prevent  fu- 
ture litigation.  But  there  are  many  exceptions  and  qualifications 
to  the  general  mile.  AVhcn  the  parties  interested  are  very  nu- 
merous, so  that  it  would  be  difficult  and  expensive  to  bring  them 
all  before  the  court,  and  all  the  different  interests  may  be  fairly 
tried,  the  court  will  not  require  a  strict  adherence  to  the  rule.  It 
is  said  that  the  creditors  in  this  case  are  numerous,  some  residing 
out  of  the  commonwealth,  and  the  residtmcc  of  others  being  un- 
known. AVe  think,  therefore,  that  it  is  sufficient  to  make  the  as- 
signees parties,  who  alone  have  a  right  to  claim  the  property 
(they  having  the  legal  title),  and  who  are  empowered,  and  whose 
duty  it  is.  to  represent  the  interests  of  juid  to  act  for  all  the  cred- 
itors interested  in  the  trust. 

In  Adair  v.  The  New  River  Co.,  11  Ves.  445,  it  is  .said  by  Lord 
Eldon.  that  it  is  not  necessary  to  make  all  the  individuals,  who  an; 
interested,  parties:  "The  court  therefore  has  required  .so  numj'. 
that  it  can  be  .justly  said,  they  will  fairly  and  honestly  try  the 
right  between  themselves,  all  other  persons  interested,  and  the 
plaintiff."  So  in  Lloyd  v.  Loaring.  6  Ves.  779,  Lord  Eldon  says. 
"I  have  seen  strong  pa.ssages.  a.s  falling  from  Lord  Ilardwicke. 
that  where  a  great  many  individuals  are  jointly  interested,  the 
court  will  let  a  few  represent  the  whole."  So  in  Vernon  v. 
Blackerby.  2  Atk.  145.  Lord  Ilardwicke  refers  with  approbation 
to  a  case  decided  in  1720.  where  several  persons  were  interested, 
who  haxl  givfii  a  general  power  and  authority  to  .some  few  only,. 


PARTIES.  977 

and  therefore  to  avoid  iur-onvenienoo  from  niakiiiLr  munerons  par- 
ties, the  court  restrained  them  to  those  particuhu-  persons  who 
were  intrusted  with  the  general  power.  It  is  laid  down  in  ]\Iit- 
ford.  PI.  3d  ed  .  142.  that  "trastees  of  real  estate  for  the  payment 
of  debts  or  legacies  may  .sustain  a  suit,  either  as  plaintiffs  or  de- 
fendants, without  bringing  before  the  court  the  creditors  or  lega- 
tees for  A\  horn  they  are  trustees ;  and  the  rights  of  the  creditors'^or 
legatee.s  will  be  bound  by  the  decision  of  the  court  against  the  trus- 
tees." And  this  rule  seems  supported  by  the  current  of  the  au- 
thorities. In  :Meux  v.  :\raltl)y.  2  Rwanst.  277.  several  of  these  and 
some  other  authorities  are  referred  to.  and  the  question  as  to  par- 
ties in  similar  cases  was  very  fully  considered.  In  that  case,  on 
a  bill  against  the  treasurer  and  directors  of  a  joint  stock  company, 
it  was  held  that  it  was  not  necessars^  that  the  rest  of  the  projtrir 
etors.  being  very  numerous,  should  be  made  parties.  Sir  Tliomas 
Plumer.  master  of  the  rolls,  after  referring  to  several  authorities, 
says:  "Here  is  a  current  of  authority,  adopting,  more  or  less,  a 
general  principle  of  exception.  ]\v  whicli  the  rule,  that  all  persons 
interested  must  be  parties,  yields  when  justice  requires  it.  in  the 
instance  either  of  plaintiffs  or  defendants.  The  rigid  enforcement 
of  the  rule  would  lead  to  perpetual  abatements.  This,  therefore, 
cannot  be  regarded  as  a  new  point,  or  as  creating  a  difficulty.  It 
is  quite  clear  that  the  present  suit  has  sufficient  parties,  and  that 
the  defendants  may  be  considered  as  representing  the  company." 

Nor  is  there  anything  inconsistent  with  this  principle  of  excep- 
tion in  the  decision  of  the  case  of  Newton  v.  The  Earl  of  Egmont, 
4  Simons.  585.  and  5  Simojis.  180.  cited  by  the  dc^fendants'  counsel. 
In  that  case,  the  plaintiff'  claimed  priority  of  his  incumbrance  to 
the  claims  of  sundry  creditors  for  whose  use  and  benefit  the  estates 
incumbered  had  been  conveyed  in  trust;  and  it  Avas  held  that  all 
the  creditors  must  be  made  parties.  The  Vice  Chancellor  says.  "I 
accede  to  the  rule  laid  down  in  Adair  v.  The  New  River  Co.  That 
rule,  however,  applies  only  to  cases  where  there  is  one  general 
right  in  all  the  parties;  that  is.  where  the  character  of  all  the  par- 
ties, so  far  as  the  right  is  concerned,  is  homogeneous.  In  this  case, 
where  the  question  is  priority  of  charge,  the  veiy  nature  of  the 
([uestion  makes  it  necessary  that  all  the  creditors  should  be  par- 
ties. It  imj)lies  a  contest  with  ever>^  other  ])eisoii  elainu'ng  an 
interest  in  the  land."     5  Simons,  137. 

From  the.se  authorilies  it  seems  very  elear  liiat  there  is  no  de- 
fect of  jjarlies  in  the  present  case,  and  (hat  it  is  uniu'cessary  that. 
the  creditors  of  liruce  should  l)e  made  parlies,  which  nnist  be  at- 
ten(le<l  with  great  delay,  expens*'  and  difficulty,  without  subserv- 
ing, in  any  respect,  the  adniiiiist  ration  of  justice  between  the  par- 
lies interested,  'i'lie  inti-rests  of  these  creditoiN  are  similar,  which 
the  trustees  are  bound  to  enforce  and  defend. 

See  "Kfiuity,"  Cciilnrv  \)\ii.  §  :i.^:'.;  Doconnliil  .iinl  Am  DIr  Key  No. 
Series  §  96. 

Remedies— 02. 


!»7S  I'AIM'IKS.  \('ll.     II. 


CLINE  V.  (iUEKN.    1    niiickford.   :>:'.     1.S20. 

Hotc  Long  a   Party  Is   Considered   to   be   in   Coiirl.     When   \otiee  of  a 

Motion   Is  l'c(iiiired. 

ICllne  obtained  a  Hnal  jiitiRnioiit  against  Croen;  execution  issued  and 
Green's  property  was  sold  thereunder.  Gieen  then  made  a  motion  in 
the  cause  to  quash  the  exeeution,  which  motion  was  granted.  Reversed. 
The  cause  in  which  the  motion  was  made  liad  been  concluded  by  the 
entry  of  a  final  jndgment.  No  notice  was  given  to  Cline  that  Green  in- 
tended to  make  the  motion  to  quash.] 

HoLi^i.vx,  J.  The  groiuuls  on  wliicli  tlii.s  motion  wa.s  siistciiiuHl 
arc  iiiiiin])oi-t;int,  inasmuch  as  ;i  jn'i'vious  notice  of  the  iiuitioii  was 
iiulispcn.sal)I(>.  Every  iiulividiial  has  an  uiKiucstionahh'  i'i<iht  lo 
be  heard  wlieii  his  interest  is  jeopardized  hy  le«.!,a,l  proceedings; 
hill  unless  he  lias  notice  of  these  ])i'occedings,  he  has  no  oppor- 
tunity of  being  heard.  While  a,  suit  is  (l< poidliig,  the  plaintiff  is 
considered  in  court,  and  ready  to  support  his  right ;  but  when  the 
juflfjmcnt  is  ohtnincd,  judicial  proceedings  are  at  an  end.  and  the 
jdaintitf  is  considered  in  court  no  longei-.  Every  objection  after- 
wards made  to  the  manner  in  which  the  judgment  is  executed,  is. 
in  legal  intendment,  made  without  his  knowledge,  unless  he  is 
spiH'ially  notified  thereof.  There  can,  therefore,  be  no  (|uestion 
but  that  the  plaintiff  should  have  had  notice  of  the  time  when  this 
motion  was  intended  to  have  been  made,  that  he  might  have  been 
prepared  to  have  defended  liiin.self  against  its  effect.  Judgment 
reversed. 

A  cause  Is  pending  for  puri)Oses  of  motions  until  the  judgment  is 
fuUy  performed — satisfied.  (But  after  final  judgment  the  opposite  i)arty 
must  be  given  due  notice  of  an  intended  motion,  as  is  ruled  in  the  ijrinci- 
pal  case.)  Lynn  v.  Lowe,  88  N.  C.  at  top  p.  484,  citing  many  cases; 
see  also  Lanier  v.  Heilig,  149  N.  C.  384,  63  S.  E.  69.  See  "Execution," 
Century  Dig.  §  475;    Decennial  and  Am.  Dig.  Key  No.  Series  §  163. 


PALMER  v.  CROSBY,  1  Blackford,  140.     1821. 
Jomt  Parties.     Several  Parties.    Joint  and  Several  Parties. 

[Crosby  sued  Palmer  and  five  others  in  trespass  for  assault  and  bat- 
tery. Four  of  the  defendants  were  served  with  process  but  two  were 
not  served.  There  was  a  verdict  and  judgment  against  the  four  who 
were  served  and  they  carried  the  case  to  the  supreme  court  by  writ  of 
error.     Affirmed. 

Palmer  and  the  three  others  who  Avere  served  insisted  that  Crosby 
should  have  sued  out  an  alias  writ  for  the  two  defendants  who  were  not 
served,  before  proceeding  to  judgment  against  those  who  were  served.] 

1jLacki-T)Kd.  J.  In  suj)port  of  the  first  point,  the  plaintiffs  in 
error  have  cited  1  Str.  478,  2  Str.  1269,  and  1  Wils.  78.  These 
are  all  actions  founded  on  contract,  and  if  the  present  were  a  case 
of  that  kind,  the  objection  would  be  a  sound  one,  and  the  authori- 
ties in  |)oint :  there  eonid  have  ])een  no  proceedings  in  the  cause 


PARTIES.  979 

against  tlie  defeiKlants  sumiiioiied,  until  the  sheriff  had  returned 
that  the  others  were  not  inhabitants  of  the  county,  whieli  return 
is  substituted  by  our  statute  for  the  English  process  of  outhiwiy. 
Even  Avliere  a  contract  is  joint  and  several,  though  the  plaintiff 
may  go  against  one  or  all  of  the  contractors,  yet  he  ought  not  to 
sue  an  intermediate  number.  AVhen  he  sues  more  than  one,  he 
depends  upon  the  joint  contract,  and  then  all  the  joint  contractors 
living  should  be  parties;  if  they  be  not,  it  is  good  ground  for  a 
ph'a  in  abatement.  The  King  v.  Young.  2  Anst.  448;  1  Will. 
Saund.  291.  n.  4;  Leftwich  v.  Berkeley.  1  Hen.  &  Munf.  61. 
Neither  can  the  plaintiff  enter  a  nolle  prosequi  as  to  any  of  the 
defendants  in  an  action  on  contract,  except  where  they  sever  in 
])Ieading.  and  one  pleads  something  which  goes  to  his  personal 
di.scharge.  Noke  v.  Ingham.  ]  Wils.  89.  But  the  law  is  very  ciif- 
frrent  in  aeiions  founded  on  tort.  The  persons  guilty  are  sep- 
arately liable  to  the  party  injured,  and  he  has  a  right  to  sue  one 
or  all,  or  any  number  of  them.  1  Will.  Saund.  291,  n.  4.  If  the 
{ihiintiff  commence  suit  against  several,  he  may,  at  any  time  before 
judgment,  enter  a  nolle  prose(iui  as  to  any  of  them.  Even  after 
a  joint  plea  in  an  action  of  trespass,  and  after  a  verdict  that  the 
defendants  are  jointly'  guilty,  tlic  i)laintiff  may  enter  a  nolle  prose- 
«iui  as  to  some,  and  take  judgment  against  the  others.  1  Will. 
Saund.  207,  n.  2.  The  ca.se  before  us  is  one  of  assault  and  battery, 
in  which  the  writ  was  served  on,  and  the  judgment  entered  against, 
four  only  of  the  six,  persons  against  whom  the  plaintiff  complained. 
Why  is  this  wrong?  As  the  action  might  have  been  originally 
instituted  against  these  four.  so.  at  any  time  before  final  judgment, 
thr  plaintiir  might  elect  to  take  his  damages  against  them  alone, 
and  abandon  his  action  Jigainst  the  others.  He  might,  even  after 
liis  verdict  again.st  the  four,  have  entered  a  nolle  i>rosequi  as  to 
two.  and  taken  judgment  only  against  the  I'cst.  It  is  no  obji^ction 
to  the  proceedings  now  undi;r  consideration,  that  there  was  no 
entry  of  a  nolle  ])r<)se(|ui  as  to  the  two  upon  whom  the  ])rocess  was 
not  .sei'vid  :  lliat  was  unnecessary,  bex?ause  lliey  wen;  no  more  par- 
ties to  the  action  than  if  their  names  had  not  been  in  the  writ. 
Where  suit  is  only  against  sojne  of  the  tres|)assers,  it  is  usual  to 
declare  against  lliem  siiiiul  cuiii  (|uihus(lain  ignotis,  and  il  was  once 
thought  that  if  tlie  plaiiil  iff.  in  such  a  case,  dci-l.-ired  siiiiul  cinii 
.\  and  r..  Ilie  ;ict  ion  should  abate.  Iie(;ause.  it  was  said,  as  the  plaiii- 
titV  knew  till'  other  t  r-espa.s.sers.  he  ought  1o  have  joined  them  in 
the  suit.  Hob.  I(i4.  1!)9.  liut  t  his  objection  was  cured  by  a  verdict. 
Ilenly  V.  Uroad,  1  jjcon.  41  In  the  ease  undci-  consideration,  the 
declara1i(tn  is  that  six  couiinil  led  Ihe  t  resiia-ss,  which  is,  in  snh- 
sfance,  the  saini;  is  if  it  were  that  the  lour  si uud  cum  the  other  two 
(•(►nunifted  it.  So  thai,  according  to  the  case  of  llenl\-  v.  liroad. 
no  objection  conld  he  made,  after  verdict,  that  the  othci-  two  were 
not  parties  to  the  ;icl  ion.  The  dist  inct  ion  made  in  Iho.so  cases  from 
llniiiirt  &  Leonard  has  been  long  sinc('  done  away;  it  is  now  con- 
sidei-rd   iirnnatefiid   whctlicr  the  other*  t  respassers  were  IcTiowri   or 


!)Si>  r\iM'iKS.  [Ch.  11. 

unkiu»\vii  to  \ho  i^hiiiitiff;  iind  tlic  cxci'plioii  1o  llio  doclnration 
hen'  uri:i«l  for  t  lie  rcvciNiil  of  the  .judirinciit .  would  not  linvr  been 
i;ihh1  1i;u1  it  boon  jjlciidcd  in  abatniu'iit .  1  Will.  Sauud.  L*!>1,  ii.  4; 
Koso  V.  Olivor,  2  Johns.  MOf).      .      .      .     .liidLnncnt  afliriiit'd. 

See  Keviaal,  se<-s.  41J,  ■\\:\.  For  effect  of  releasing  one  joint  tort 
feasor,  see  19  L.  R.  A.  (N.  S.)  618.  See  "Assault  and  Battery,"  Centur.v 
Dig.  §  GH:    neoennial  and  Am.  Dis-  Key  No.  Series,  §   -15. 


See  •Parties,"  30  Cyc.  1-144:   for  i)arties  in  equity,  see  1  Foster's  Fed. 
Prae.  §§  42-62.     See  2  L.  R.  A.   (N.  S.)   1089,  7   lb.  415,  11   lb.  676,  15  lb. 
129,  18  11).  G4:>.  19  lb.  984,  and  notes   (under  what  name  a  i)arty  may  sue 
or  be  sued,  idem  sonans);    5  lb.  Gil,  and  note   (wife  as  plaintiff  against 
husband  in  an  action  on  a  contract);   2  lb.  9G1,  and  note  (action  by  and 
on  behalf  of  insane  persons):    22  lb.  454,  and  note    (only  the  personal 
representative  can  sue  for  i)ersonal  assets  of  the  estate  of  a  decedent): 
4  lb.  657.  and  note  (action  by  foreign  executor— ancillary  administrator 
appointed  pendente  lite);   20  lb.  221,  21  lb.  10i21,  and  see  also  477,  22  lb. 
492,  and  notes;   also  Sergeant  v.  Stryker,  16  N.  J.  L.  464,  and  note,  in- 
serted at  ch.  8,  sec.  3,  (b).  Mcintosh  Cont.  408-423,  3  Page  Cont.  ch.  60, 
Clark  Cont    351-359.  7  Am.  &  Eng.  Enc.  L.  104-110,  30  Cyc.  59-67,  52  L. 
R    A    305,  61  lb.  509,  63  lb.  727,  15  lb.  375,  21  lb.  653,  23  lb.  146,  25  lb. 
257,  28   lb.   532,  51   lb.  241,  653,  53  lb.  390,  609,  and  notes    (right  of  a 
stranger  to  sue  on  a  contract  inter  alios — privity);   15  L.  R.  A.   (N.  S.) 
399    and  note  (action  bv  one  for  whose  benefit  a  clause  is  inserted  in  a 
contract  inter  alios);   19  lb.  475,  8  lb.  249,  and  notes,  143  N.  C.  386,  394, 
Mcintosh  Cont.  422   (parties  to  actions  against  a  telegraph  company  for 
negligence,  etc.,  in  transmission  of  messages);    19  L.  R.  A.    (N.  S.)    984, 
and  note    (action  against  a  feme  covert   in  her  maiden  name);    16    lb. 
276,  and  note   (foreign  sovereign  as  a  defendant);    12  lb.  941,  and  note 
(a    defendant    fraudulently    induced    to    enter    a    state    that    service    of 
process  might  be  had  on  him). 


INDEX 

[the  figures  refer  to  the  pages.] 

A. 

ABATEMENT,  of  nuisance,  72. 
by  act  of  party  injured,  72-86. 

cutting  down  bridge  across  navigable  stream,  73,  74.  75. 

cutting  projecting  limbs  of  trees,  etc.,  82. 

destroying  intoxicating  liquors,  76,  77. 

killing  sheep-killing  dog,  46,  47. 

killing  troublesome  dogs,  80,  81. 

removing  building  that  interferes  with  light,  etc.,  81 

removing  gate  across  highway,  72,  73. 

removing  obstruction  in  a  stream,  82. 

when  exercised  as  to  a  public  nuisance,  76. 

ABATEMENT,  plea  in, 

for  defect  of  parties.  948,  979. 

for  variance  in  declaration  and  writ,  926. 

for  want  of  jurisdiction,  875. 

ABDUCTION,  of  child, 

action  by  parent  for  abducting,  526-527. 

measure  of  damages  for  abduction,  527. 

what  constitutes  abduction  and  kidnapping,  527. 

ABUSE  OF  LEGAL  PROCESS, 

conspiracy  to  use  legal  process  improperly,  480. 
distinguished  from  malicious  prosecution,  473,  474,  475. 
what  constitutes,  and  the  remedy  for.  470-472,  474,  475-478. 

ACCESSION,  title  affected  by,  196. 

ACCORD  AND  SATISFACTION,  definition  and  essentials.  88-90. 

ACCOUNT,  acceptance  of  account  stated,  657,  658. 

action  brought  for  separate  items,  673.  674,  675,  076. 
effect  of  account  stated  upon  light  to  separate  items,  676. 

ACCOUNT,  action  of, 

•'account  render,"  343. 

jurisdiction  of  law  and  equity  in  matters  of  account,  342,  343,  344. 

practice  in.  at  law  and  in  equity,  342,  343,  344. 

when  the  action   lies,  341.  342,  343. 

when  assumpsit  may  be  brought  instead,  342,  343. 

ACTIONS, 

against  the  state,  162. 

commenced  when.  922-923.  924.  925. 

commenced  by  summons,  except  where  luiblication  is  fn  lio  made,  044. 

I'onsidcrod  as  pending  how  long.  978. 

foiKfriiinK  real  estate,  119. 

distinction   in   forms  abolished   undtr  the  Code,  362-3fi.">. 

ex  contractu  and  ex  delicto  di-stinguished.  320-337. 

ex  contractu  or  ex  delicto  for  negligencp.  395-397. 

ex  contractu  and  ex  delicto  under  the  Code  practice,  330.  331. 

for  t.hn  death  ftf  a  person.  366  373. 

for  direct  and  consequential  injuries,  618.  619.  620.  625. 


f)S2  INDEX. 

I  rilK   IK.l  KKS    KKKKK    H)   Mil     I'MKS.] 

AC  r IONS   -Hint ill vuhI. 

for  special  injury  by  publir  nuisam-o,   lOti. 
in   tort   or  contract  optional,  when,  lHU>-(>(i7. 
in  tort  or  contract   for  nialinactice  by   i)liysician,  412,  413. 
in  tort  for  furnishinj;  unw  liolcsonic  food,  4(i7,  408,  410. 
local  and  transitory  actions  distinguisliea,  yo9-910. 
mixed   actions,   125,  201. 

on  the  custom  and  in  si)ecial  case  against  innkeepers,  t)20-G22. 
on  otlicial  bonds  in  the  name  of  the  state  e.\  rel.,  (545,  646. 
possessory  actions,  120,  152. 
real  actions,  119.  121,  152. 
procedure  in,  in  common  law  courts,  911. 

procedure  at  common  law  compared  with  the  Code,  363,  364,  365. 
splittintj  accounts,  where  one  item  or  several,  673,  674,  675,  676. 
trespass  and  case  distinguished.  260.  261,  382,  383,  394,  395. 
waiving  the  tort  and  suing  in  contract  617-618. 

waiving  the  tort  and  suing  in  assumpsit  for  goods  sold,  658,  659,  660. 
waiving   the   tort   and   suing   in    assumpsit    for   money    had   and    re- 
ceived, 658,  659. 
for  waste,  201,  202,  203. 

for  waste,  trespass  by  tenant  and  case  by  remainderman,  258. 
when  debt,  covenant,  or  assumpsit  should  be  brought,  632-634,  643. 

ACTION  TO  RECOVER  LAND, 
by  equitable  owner,  173. 
equitable  defenses,  160.  174. 
jiarties  in,  158,  159. 

under  the  Code  practice,  151-155,  156,  157,  158. 
see  Ejectment. 

ACTIONS  EX  CONTRACTU, 

distinguished  from  actions  ex  delicto,  321-329. 

forms  of,  338-347. 

imprisonment  for  debt  in.  explained,  320,  321. 

joined  with  causes  ex  delicto,  332,  333. 

on  warranty  of  soundness,  325. 

ACTIONS  EX  DELICTO, 

distinguished  from  actions  ex  contractu,  321-326,  328,  329. 

forms  of,  348-361. 

imprisonment  for  debt  in,  explained,  320,  321. 

joined  with  causes  ex  contractu,  332,  333. 

ADJOINING  LANDOWNERS, 

right  to  abate  a  nuisance,  81,  82. 
right  to  control  flow  of  water,  83-87. 

ADVERSE  POSSESSION, 

entry  by  rightful  owner,  61,  62. 
entry  under  claim  of  right,  57-60,  61. 

ALIMONY,  see  Divorce, 

AMENDMENTS  AND  JEOFAILS,  statutes  regulating,  912-915. 

ANCILLARY   REMEDIES,   845. 
claim  and  delivery,  605,  607. 
requisites  of  affidavit  in,  845. 
under  the  Code  practice,  845. 

ANIMALS, 

case  and  trespass  for  injury  done  by,  625,  626. 

case  or  trespass  for  injury  done  to,  618,  625,  626. 

dogs.  Killing  as  a  nuisance,  80.  81. 

dogs,  sheep-killing,  killed,  46,  47. 

dogs,  when  killed  in  self-defense.  16,  17. 

dogs,  liability  of  owner  for  injury  done  by,  32,  33,  625.  626. 


INDEX.  983 

[the  figures  refer  to  the  pages.] 

ANIMALS — <;ontinued. 

liability  of  owner  for  injury  done  by  dangerous  animals,  625,  626. 
liability  of  owner  for  injury  done  by  trespassing  animals,  254,  255, 

256. 
running  at  large,  damage  by  and  to.  255,  256. 
trespassing,  damage  feasant,  43,  44,  45,  48. 
trespassing,  injury  to,  48,  49,  50. 
trespass  by  wild  animals  kept  in  a  park,  injunction,  265,  266. 

APPEALS, 

certiorari  to  correct  or  certify  case  on  appeal,  838-839. 
certiorari,  upon  diminution  of  the  record,  838. 
effect  of  failure  to  give  bond,  882. 
effect  of  appeal  upon  injunction,  818-821. 
effect  of  appeal  upon  a  judgment,  818-821. 

effect  where  appellate  court  has  concurrent  and  derivative  jurisdic- 
tion. 900. 
from  order  of  judge  disbarring  an  attorney,  836-837. 
in  habeas  corpus  proceedings,  454>  455,  456. 
in  the  case  of  receivers,  864. 

in  overruling  motion  to  dismiss  on  special  appearance,  935-936. 
powers  of  appellate  court  in  arrest  and  bail,  848. 

APPEALS  OF  DEATH,  366-369,  372. 

APPEARANCE, 

how  entered  at  common  law,  936. 

geneial  and  special  distinguished.  933-935. 

effect  of  general  appearance,  882,  883. 

effect  of,  as  a  waiver  of  objections  to  the  writ,  915-916. 

general   appearance  in   person   or   by   attorney,   waiver  of  defective 

service.  932-935. 
special  appearance,  for  what  purpose  made.  933-935. 
special  appearance  to  move  to  dismiss,  practice  in,  935-936. 
special  appearance  to  move  to  dismiss,  overruling  the  motion,  935- 

936. 
voluntary  general  appearance,  effect  of,  933-935. 
voluntary  ai)i)eaiance,  a  waiver  of  process,  924. 
voluntary  appearance,  effect  of  in  attachment,  852-854. 
when  a  waiver  of  objection  to  jurisdiction,  883. 

ARBITRATION  AND  AWARD, 
arbitration  bonds,  90,  91. 
award  specifically  enforced,  314. 
distinguished  from  a  reference  under  the  Code,  94. 
enforcement  by  rule  of  court,  90,  91,  94. 
history  and  practice,  90,  91. 
practice  in,  93,  94,  95. 
what  may  be  submitted  to,  91.  92. 
void  agreement  for,  in  insurance  policy,  92,  93. 

ARREST. 

evolution  of,  as  jirocoss  in  civil  actions,  920-922. 
effect  of  apptarauce  as  a  waiver  of  objection,  920-922. 
what  the  afTidavil   should  contain.  92(1  922. 

ARREST  AND  BAIL, 

api)f'llatf>  fourt  docs  not  rnviiw  the  fads.  S-i"'. 

df'fendant  arrested   in  an  action  for  seduction,  536. 

duty  of  the  court  to  find  the  facts.  847. 

In  what  cases  allowed  in  civil  actions,  846. 

motion  to  vacate,  practice  In,  847,  848. 

ne  exeat  used   in  friuity,  848. 

not  applied  to  actions  purely  ex  contractu.  320,  321. 


!>S4  INDEX. 

[rilK   I'RilKKS   UKl'KU    1()    llllC  PAtiKS.  | 

AURKST  AM)  MAIL— lontinued. 

what  the  atlUlavit  shoiihl  lontain.  84(5,  847,  84S. 

wheu  exoiution  issued  against  the  person  ol"  delenduut,  S48-830. 
ARREST  OF  JUDGMENT. 

variance  between  writ  and  declaration  as  groiind  ol"  mot  ion.  !)1 1-915. 

ASSAULT  AND  BATTERY, 
assault  delined,  o(i. 

assault  without  battery  or  si)ecial  injury,  o85,  386. 
elements  ol"  danuige  in  assault,  oS5,  392-393. 
excessive  force,  39,  40,  41.  42. 
evicting  a  person  from  a  hotel.  34,  35,  36,  37. 
evicting  a  tenant,  62-6;"). 
giving  croton  oil  in  jest,  407. 

improper  advances  to  a  woman,  385,  386,  392,  393. 
in  ceremonies  of  secret  society,  390. 
in  defense  of  house,  39,  40,  42. 
in  recaption  of  property,  50-55. 
injury  from  unlawful  act,  squib  case,  382,  383. 
is  forcible  vaccination  a  battery,  392. 

mutual  assaults,  fighting  by  consent  as  a  defense,  389,  390. 
provocation  as  a  defense,  386-389. 
to  prevent  a  trespass  in  the  public  road,  38. 
suit  by  husband  and  wife  for  injury  to  wife,  496. 
volenti  non  fit  injuria,  as  a  defense,  389,  390. 
what  constitutes  an  assault,  383,  384,  385,  386. 
what  constitutes  a  battery,  391,  392. 

ASSIGNMENT, 

assignee  of  land  cannot  sue  for  breach  of  covenant  of  seizin,  273. 
of  land  does  not  give  right  to  sue  for  previous  trespass,  267. 

ASSIGNMENT  FOR  BENEFIT  OF  CREDITORS,  767-771. 

ASSISTANCE,  WRIT  OF,  when  issued,  318,  319. 

ASSIZE,  WTIIT  OF,  120,  152. 

ASSUMPSIT,  common  counts  in,  670. 

concurrent  with  case,  wheu,  353,  354. 

different  counts  in  action  on  promissory  note.  678,  679. 

distinguished  from  debt,  345. 

form  of  action  on  the  case,  345. 

for  gratuitous  service,  648. 

for  service  where  no  intention  to  charge,  649,  650. 

for  services  rendered  to  insane  person,  653. 

for  money  had  and  received,  in  sale  of  property,  617-618. 

for  money  paid,  by  purchaser  of  land,  when  title  defective,  313. 

general  counts  and  special  counts  required,  when,  654-657. 

judgment  by  default  and  inquiry,  644,  645. 

on  account  stated,  657,  658. 

on  account,  when  it  does  not  lie.  669-671. 

on  express  contract  and  quantum  meruit,  654-657. 

on  general  count,  when  special  contract  exists,  656,  657. 

on  implied  promise  to  pay  for  goods  retained,  652. 

on  implied  promise  to  pay  for  services  rendered,  650,  651. 

on  promissory  note  at  common  law  and  under  statute,  3  and  4  Anne, 

676,  677. 
on  special  contract  and  for  goods  sold,  etc.,  when,  672-673. 
on  special  or  implied  promise,  when,  671-673. 
waiving  the  tort  and  suing  in  contract,  326. 
waiving  the  tort  and  suing  for  goods  sold,  658,  659,  660. 
waiving  the  tort  and  suing  for  money  had  and  received,  658,  659. 
when  a  consideration  must  be  alleged  and  shown,  681,  682. 
when  it  lies,  and  origin  of,  344-347. 


INDEX.  985 

[the  figures  refeb  to  the  pages.] 

ASSUMPSIT — continued. 

see  Goods  bargained  and  sold,  and  Goods  sold  and  delivered, 
see  Money  had  and  received, 
see  Money  paid  to  another's  use. 

ATTACHMENT, 

affidavit,  requisites  of,  845,  858. 

against  a  national  bank,  859. 

as  an  ancillary  remedy  under  the  Code,  857. 

at  common  law  and  under  the  Code,  explained,  854-856. 

effect  of  voluntary  appearance  by  defendant,  852-854. 

history  and  nature  of  the  remedy,  852-854. 

how  far  a  judgment  in.  is  conclusive,  852-854. 

issued  before  summons  is  issued,  when,  856. 

motion  in  the  cause  to  obtain  or  vacate,  857. 

"original  attachment"  and  ancillary  remedy  under  the  Code,  856,  860. 

remedy  for  wrongful  use  of,  855. 

the  doctrine  of  Pennoyer  v.  Neff,  860. 

•what  may  be  taken  under,  855. 

who  may  become  parties  to  the  proceeding,  857. 

ATTORNEY  AND  CLIENT, 

attorney  appearing  on  both  sides  of  suit,  76.:)-767. 

proceedings  in  nature  of  appeal  from  order  disbarring,  836-837. 

B. 

BAILMENTS, 

liability  of  innkeeper  for  loss  of  guest's  property,  620-622. 
remedy  for  injury  to  property  in  the  hands  of  a  bailee,  619-620. 
when  case  and  when  trover  against  a  bailee,  612,  625. 
when  case,  trover,  or  trespass  by  bailor  against  bailee,  624-625. 

BANKS,  no  attachment  against  a  national  bank,  859. 

BASTARDY,  a  civil  action,  96. 

mother  entitled  to  custody  of  bastard,  523. 

BETTERMENTS,  doctrine  explained,  176-178. 

made  on  land  under  oral  contract  of  purchase,  311,  312. 
partition,  when  improvements  made  by  one  tenant,  739-741. 

BILLS  AND  NOTES, 

action  of  debt  on  promissory  note,  678,  679. 

consideration  jiresumed  in,  679,  681. 

jurisdiction  and  iiractice  in  actions  on  lost  note,  680. 

produced  at  trial  of  action,  079,  680. 

remedy  on  at  common  law  and  under  statute  3  and  1  Anne,  676,  677 

BILLS  FOR  ADVICE, 

when  .sustained,  ami  the  limits  of,  716-720. 
who  may  file  such  bills,  718-720. 

BILLS  OF  PEACE, 

explained,  two  kinds,  821-824. 

to  prevent  multiplicity  of  suits  of  the  same  kind,  824-826. 

to  prevent  miiltii)Iicity  of  suits  by  same  plaintiff.  Code  practice,  826- 

827. 

BONDS, 

can  the  recovery  exceed  the  penalty,  631,  637,  638-040. 

how  judgment   entered   in  debt  for  i)enalty.  63."»-630. 

how  jurisdi<  linn  defcniiined  in  .utions  on  penal  bonds.  895. 

BOrXDAUIES. 

judgment  iocaiiiiK  is  l)indinK,  189. 
old   proceHsioninK  praetiee,   188. 


«»86  INHKN. 

[rilK   FHil'RKS   RKKKU  TO  TIIK  TACiKS.  | 

BOl' X HAH  1 ES—  t  out i iuuhI. 

rt'inodifs  for  I'OiU'nsion  ol",   lSO-180. 
special  procooding  to  sottle,  188,  189. 

BREACH  OF  PROMISE  OF  MARRIAGE,  714-7ir.. 

BRIDGES,  across  navigable  streams,  73,  71,  75. 

C. 

CAPIAS,  see  Process. 
CARRIERS,  see  Railroads. 

CASE,  ACTION  OX  THE, 

broad  scope  of  the  action,  350,  3;")!. 

assumpsit  or  case  for  false  warranty,  690,  G91,  692. 

concurrent  remedy  with  assumpsit,  when,  353,  354. 

distinguished  from  trespass,  348,  349,  351-353,  382.  383,  394,  395,  618, 

G19,  620,  625. 
for  breach  of  duty.  353,  354. 
for  conspiracy,  707-710. 

for  disturbing  easement,  or  increasing  the  servitude,  259,  260. 
for  enticing  child  or  servant,  524-525. 
for  injury  to  health,  406. 
for  Injury  to  realty.  260,  261. 
for  libel  and  slander.  413. 
for  slander  of  chattels,  627. 
in  the  nature  of  waste,  202,  204,  258. 
form  of  writ  in,  916-917. 

lies  when  the  injury  is  not  direct  but  consequential,  352. 
on  the  custom  and  on  special  case  against  an  innkeeper.  620-622. 
origin  and  nature  of.  350. 

remedy  of  lessor  for  injury  to  the  land  during  the  term,  252,  253. 
waiving  the  trespass  and  suing  in  case,  352.  3.")3. 
when  case  and  when  trover  lies  against  a  bailee,  612.  625. 

CAVEAT,  see  Wills. 

CAVEAT  EMPTOR. 

as  to  patent  and  latent  defects,  697-699,  701-702,  703.  704. 
has  no  application  to  partition,  736-738. 
in  contracts  for  the  sale  of  land,  271,  272. 

CERTIORARI, 

as  a  substitute  for  an  appeal.  832-833,  835,  836,  837. 
in  habeas  corpus  proceedings,  456. 

distinguished  from  mandamus,  836-837. 

distinguished  from  recordari,  835. 

distinguished  from  writ  of  error  and   false  judgment.  832,  833-835, 
837. 

issued  upon  suggestion  of  diminution  of  the  record,  838. 

issued  only  after  final  judgment,  833-835. 

nature  and  uses  of  at  common  law,  832,  833-835. 

to  correct  or  certify  case  on  appeal,  838-839. 

what  application  must  show,  833. 
CHANGE  OF  REMEDY  by  statute,  115-118. 

CHATTELS,  recaption  of.  51-59. 

right  of  seizure  when  sold  on  installment  plan,  39-41. 
trespass  in  retaking.  41. 

CHURCHES, 

excommunication  as  a  cause  of  action,  426-428. 
privileged  communications  in  church  trials,  425-428. 
rights  of  pew-holder,  71,  72. 


INDEX.  987 

[the  figures  refer  to  the  pages.] 

CIVIL  AND  CRIMINAL  ACTIONS,  distinguished,  96-111. 
actions  for  a  penalty,  civil,  106,  107. 
bastardy,  a  civil  action,  96. 
both  brought  for  the  same  offense,  112. 
contempt  proceedings,  criminal,  98-102. 
merger  of,  reasons  for,  113-11.5. 

when  merger  takes  effect,  111-115. 
peace  warrant,  a  criminal  action,  97. 
taxing  prosecutor  with  costs,  criminal,  103-106. 

CITIES  AND  TOWNS, 

trespass  q.  c.  f.  for  injury  to  street,  247. 
for  invasion  of  market-house,  248. 

CLAhM  AND  DELIVERY. 

for  house  removed  from  plaintiff's  land  and  affixed  to  another's  laud, 

198,  199. 
if  affidavit  and  undertaking  given,  it  is  replevin,  850. 

if  not  given,  it  is  detinue,  850. 
like  detinue,  replevin,  or  trover,  604-607. 
nature  of  the  remedy,  850,  851. 
the  defendant  must  be  in  possession,  606,  607. 
what  judgment  is  rendered,  850-851. 
various  cases  in  which  detinue,  replevin,  or  claim  and  delivery  will 

lie,  607. 

CLOUD  UPON  TITLE, 

bills  to  remove,  821-824. 

jurisdiction  in  actions  to  remove,  182-186. 

what  constitutes,  184-186. 

CODE  PRACTICE, 

administration  of  equity  under,  905-907. 

claim  and  delivery  in,  605-607. 

distinctions  between   actions  at  law  and  suits   in  equity  abolished. 

362,  363. 
distinction  in  forms  of  actions  abolished,  362. 
forms  of  action  under,  627. 

forms  of  action  e.\  contractu  and  e.x  delicto,  330,  331. 
how  law  and  equity  administered,  363,  364. 
in  actions  for  deceit  and  false  warranty,  693. 
in  actions  for  false  imprisonment,  458. 
in  actions  for  real  estate,  151. 
in  attacking  a  judgment  for  fraud,  891-894. 

misjoinder  and  nonjoinder  of  parties,  how  taken  advantage  of,  950. 
nature  and  purpose  of  the  summons,  926-928,  933. 
procedure  compared  with  that  at  conimon  law  and  in  equity,  363-365. 
recovery  on  express  and  inii)lied  contract.  655. 
recovery  in  contract  upon  an  action  in  tort,  330,  331. 
tort  and  contract  distinguished,  327,  328,  330. 
not  distinguished  by  form  of  adion.  :'.62. 

CONDITIONS, 

action  for  breach  of  dependent  and  independent  conditions,  6S2-684 
concnncnt,  plaintiff  must  show  nadiin'.ss  to  i)erform,  684,  685. 
dependent  and  indfi»<  iidcnt  distinKmslicd,  t;,S2  (!S4. 

CONSIDERATION, 

I)reH\inu;d  in  negotiable  inst iuin<nl,  679.  6X1, 
when  ninst  be  alleged  and  sliown,  6S1,  G.S2. 

CONSIGNOR  AND  CONSIGNEE, 

actual  and  rouRii  uctiv  delivery,  5,  6,  7. 
stoppagr-  in  transit n,  ■\.  5. 

CONSOLIDATION  OF  ACTIONS.  |.owir  of  (ourlH  to  make,  825. 


*>f^8  INDEX. 

I  rilK   I'KiUKKS   REKKU  TO  TllK   I'AliK.S.J 

CONSPIRACY,  action  for.  lies.  wluMi,  707-710. 

esstMitials  and  inacticc  in  actions  for,  707-710. 
renunly  by  ait  ion  on  (lie  case.  707-710. 

to  interfere  with  riglit  of  employment  of  labor,  enjoined,  588. 
CONSTITUTIONAL  LAW. 

due  process  of  law  under  I Itli  amendment,  877-881. 

constructive  service  as.  885-890. 
effect  of  statutes  niaUins;  it  criminal   to  violate  contract  of  service, 

572-575. 
full   faith  and  credit   clause,  in  divorce  proceedings,  885-890. 

as  to  a  foreign  judgment,  891-894. 
impairing  obligation  of  contract,  115-118. 
imi'risonment  for  debt,  846. 

CONTEMPT, 

compelling  a  person  to  testify  in  proceedings  for,  100-102. 
for  failure  to  obey  mandatory  injunction,  232. 
power  of  courts  to  commit  for,  103. 
proceedings  for.  criminal  action,  98-102. 
trial  by  jury  in  proceedings  for,  102. 

CONTRACTS, 

arl)itration  agreements,  when  valid,  92,  93. 

concurrent  conditions  in.  684-685. 

consideration  alleged  and  shown,  when,  681,  682. 

constructive  service  on  breach  of  contract,  549-555. 

enforcement  of  negative  covenants,  712-714. 

dependent  and  independent  conditions  in,  682-684. 

effect  of  remitting  a  part  to  confer  jurisdiction,  895-898. 

entire  and  divisible,  in  accounts  for  goods  sold,  673-676. 

entire  contract  for  service,  remedy  by  servant  violating,  555-557. 

entire  contracts,  when  assumpsit,  express  or  Implied,  will  lie,  654, 

655. 
exempting  master  from  liability  for  negligence,  570. 
if  any  written  agreement,  it  must  be  shown,  656,  657. 
implied,  for  money  had  and  received,  661-667. 
implied,  in  money  paid  to  the  use  of  another,  667-669. 
implied  liability,  when,  648-653. 
injunction  for  breach  of,  when,  710-712. 
liability  for  causing  a  third  person  to  violate,  180.  181. 
liabilitv  of  third  person  for  interfering  with  contracts  of  service.  582, 

583,  586,  589. 
of  lunatic  before  and  after  inquisition,  750,  756. 
parties  to  actions  on  joint  contracts,  978-980. 
promise  of  marriage,  714,  715. 

remedy  for  breach,  for  failure  to  give  note  in  sale,  672,  673. 
remedy  on,  in  sales  for  cash  or  credit,  671-672. 
remedy  of  servant,  when  wages  payable  In  installments,  549-555. 
remedy  on,  when  money  payable  in  installments,  642,  643. 
remedy  on,  when  one  party  is  bound  under  seal  and  the  other  not,  631. 
remedy  on.  for  revocation  of  license,  as  ticket-holder,  etc.,  270. 
right  of  third  person,  not  a  party,  to  sue  on,  329,  666,  980. 
waiving  the  contract  and  suing  in  tort,  323-32_9.  333-337,  353,  354. 
waiving  the  tort  and  suing  in  contract,  666-667. 
what  contracts  are  and  are  not  in  restraint  of  trade,  710-712. 
when  breach  of  contract  amounts  to  a  tort,  321-329,  333-337,  353,  354. 
when  case  and  when  assumpsit  will  lie  for  breach,  353,  354. 

CONTRACTS  FOR  THE  SALE  OF  LAND, 

measure  of  damages  for  breach  by  purchaser,  300-304. 
measure  of  damages  for  breach  by  vendor,  304-306. 
proper  parties  to  proceeding  to  enforce,  318. 
remedy  of  purchaser,  at  law.  for  breach,  304-306. 


INDEX.  989 

[the  figures  refer  to  the  pages.] 

CONTRACTS  FOR  SALE  OF  LAND — continued, 
remedy  of  purchaser  in  equity,  SOS-SOT. 
remedies  of  vendor,  315-318. 
remedy  of  vendor,  at  law,  for  breach,  300-304. 
remedy  of  vendor,  when  payment  in  installments.  317-318. 
right  to  specific  performance  with  compensation  for  defects,  313. 
when  caveat  emptor  applies.  271.  272. 
when  oral  contract  will  be  enforced,  309-311. 
•when  oral  contract  not  enforced,  what  relief  gianted,  311,  312. 
when  purchaser  may  rescind  for  defects  and  sue  lor  money  paid,  313. 

CONTRIBUTION,  for  defects  in  partition,  736-738. 

CONVERSION,  EQUITABLE,  as  to  partnership  real  estate,  734-736. 

CORPORATIONS,  MUNICIPAL, 

mandamus  to  enforce  payment  of  judgment  by,  794-796. 
quo  warranto  to  dissolve,  803-804. 

CORPORATIONS,  PRIVATE, 

actions  by  and  against  should  be  in  corporate  name,  950-951. 

liability  for  slander,  420. 

quo  warranto  against,  how  brought,  802-803. 

quo  warranto  for  usurping  office  in,  801-802. 
CORRECTION,  absolute  deed  converted  into  a  mortgage,  297,  298. 
COSTS,  prosecutor  taxed  with,  103-106. 
COUNTERCLAIM,  for  fraud,  deceit  and  false  warranty,  605-606,  693. 

COURTS, 

conferring  jurisdiction  by  combining  several  items,  895. 

conferring  jurisdiction  by  remitting  part  of  claim,  895-897,  898. 

conferring  jurisdiction  by  consent,  882. 

distinction  between  law  and  equity  in  federal  courts,  907. 

effect  of  concurrent  and  derivative  jurisdiction,  on  appeal,  900. 

effect  of  proceeding  when  court  has  no  jurisdiction,  874,  877,  882. 

injunction  by  United  States  court  to  stay  proceedings  in  state  court, 

815-816. 
jurisdiction,  in  actions  on  bonds  fixed  by  penalty,  646. 
of  common  law  and  ecclesiastical  courts,  714,  715. 
of  equity  courts,  900-905. 
of  federal  courts,  876.  877. 
of  the  English  courts,  875,  876. 
In  local  and  transitory  actions,  909-910. 

within  and  without  the  state,  in  divorce  ])roceedings,  885-890. 
of  North  Carolina,  early  history,  913-914. 
power  of  courts  of  law  and  equity  to  control  the  custody  of  children, 

520-524,  527. 
power  of  state  courts  to  discharge  by  habeas  corpus  one  held  under 

extradition  proceedings,  453. 
power  of  state  courts  to  discharge  by  habeas  corpus  one  held  under 

federal  authority,  451-453. 
power  of  United  States  courts  to  discharge  (in.-  froui  cuslody   under 

authority  of  state  court,  450,  451. 
power  to  commit  for  contempt.  103, 
praf.-tice  in  law  and  equity  in  federal  courts,  772. 
practice  when  courts  have  concurrent  and  e.\c)usive  jurisdiction,  883- 

884,  890. 
what  constitutes  a  court  of  record,  908. 

COVENANT.  ACTION  OF. 

against  the  grantee  in  a  dci d  poll.  629-630. 
concurrent  with  debt.  when.  339,  630.  631,  637. 
does  not  lie  against  an  infant,  631. 
for  breach  of  covf  nani  of  warranty.  281,  282. 


91)0  INHKN. 

[TUK    lU'.lUKS    KKKKK  TO  Till;    I'AtJKS.] 

COVKNANT.  ACTION'  l)l"     < diii  iiiiUMl. 

form  of  w  lit  in,  !M7. 

jmiginont  liy  (Icrault  and  imiuiry,  iMl,  OJ;"). 

lies  on  sealed  instrument.  ;{38,  339.  34G.  347,  628.  G29. 

when  covenant   ajiainst  one  and   assnmi)sit  apainst   another  in  con- 
tract, 631. 

writ  of  covenant  between  landlord  and  tenant,  125. 
COVENANTS, 

against  incumbrances,  damages  for  breach,  277. 

against  incumbrances,  effect  of  notice,  275.  276. 

against  incumbrances,  what  is  an  incumbrance.  277. 

assignee's  right  to  sue  for  breach  of  covenant  of  seizin,  etc.,  273-275. 

of  quiet  enjoyment  explained,  281. 

of  quiet  enjoyment,   seizin   and   warranty,   measure  of  damages  for 
breach,  277-279. 

of  quiet  enjoyment  and  seizin,  when  broken,  277,  278. 

of  seizin  and  right  to  convey  do  not  run  with  the  land,  273. 

of  seizin  and  right  to  convey,  when  broken,  273-275. 

of  warranty  and  quiet  enjoyment,  what  is  an  eviction.  280,  2S1. 

of  warranty  and  quiet  enjoyment,  what  plaintiff  must  show  as  breach, 
280.  281. 

of  warranty,  form  of  action  on,  281,  282. 

of  warranty  runs  with  the  land,  273. 

of  warranty,  wiiat  will  sui)i)ort  an  action  on,  273. 

remedy  in  equity  on  covenants  in  a  deed,  285. 

who  may  sue  for  breach,  heir  or  executor,  282-284. 
CREDITORS'  BILLS, 

advertising  for  creditors,  775-777. 

bill  filed  by  one  creditor  converted  into  a  general  creditors'  bill,  772- 
775. 

consolidation  of  actions,  767,  768,  770. 

general  creditors'  bill  explained.  769. 

judgment  creditors'  bill  explained,  769. 

jurisdiction  in  superior  court,  771. 

letting  in  belated  creditor,  775-777. 

necessity  for  judgment  at  law,  769-772. 

practice  in  equity  and  under  the  Code,  767-771. 

right  of  one  creditor  to  contest  the  claim  of  another,  772-775. 

statute  of  limitations  as  to  claims  filed,  772-775. 

when  priority  gained  by  creditor,  767-771. 

who  can  participate  in  the  funds,  772-777. 

CROF«, 

remedy  for,  when  severed  by  tenant  and  by  adverse  holder,  190-192. 
trespass  q.  c.  f.  by  purchaser,  246. 


D. 

DAMAGES,  actual  or  compensatory  and  itunitive  distinguished,  392,  393. 
actual  and  punitive,  in  action  for  abduction  of  child,  527. 
actual  and  i)unitive,  in  trespass  q.  c.  f.,  238,  239. 
elements  of  damage  in  an  assault.  385,  392-393. 
elements  of,  in  malicious  prosecution,  462. 
for  breach  of  covenants  of  quiet  enjoyment,  seizin  and  warranty,  278, 

279. 
for  failure  to  deliver  telegraph  message,  403-405. 
for  forcible  eviction  of  tenant,  66,  67. 
for  trespass  on  land,  236-238. 
general  and  special  distinguished,  403-405. 
in  an  action  by  parent  for  seduction  of  daughter,  533. 
in  an  action  for  fraud  and  deceit,  702,  705. 


INDEX. 


991 


[THE  FIGURES  REFER  TO  THE  PAGES.] 


DAMAGES— continued. 

in  an  action  for  mutilating  a  dead  body,  517-520. 

in  actions  for  nuisance,  233-236. 

in  an  attempt  to  retake  property  by  force,  53. 

in  ejectment,  146-148,  175,  176. 

measure  of,  for  breach  of  contract  to  buy  land  by  purchaser,  300-304. 

measure  of,  for  breach  of  contract  to  sell  land  by  vendor,  304-306. 

measure  of,  in  trover,  616-617. 

mental  anguish  as  element  of,  for  tort,  392-393,  403-405. 

past,  present  and  prospective  for  land  taken  under  eminent  domain, 

266-268. 
present  and  prospective  in  the  construction  of  a  railroad,  234-236. 
provocation  in  mitigation,  in  assault  and  battery,  386-389. 
provocation  in  mitigation,  in  libel,  430-433. 
proximate  and  remote,  in  case  of  negligence,  401-403. 
resulting  from  fright,  386,  392,  393,  401-403. 
resulting  from  threats,  381,  382. 

return  of  property  as  affecting  damages  in  trover.  616-617,  623. 
what  recovered  in  detinue,  602-604. 
when  punitive  damages  allowed  in  false  imprisonment.  478.  479. 

DANGEROUS  COMI^IODITIES, 

liability  of  wholesaler  to  consumer  for  injuries,  409,  410. 

selling  or  delivering  without  giving  notice  of  their  nature,  409,  410. 

DEAD  BODIES, 

right  of  action  for  mutilation  of,  517-520. 
elements  of  damage  in  such  actions,  517-520. 

DEATH, 

action  for  damages  under  Lord  Campbell's  Act,  537,  538. 

in  what  state  action  may  be  brought,  910. 

no  civil  action  at  common  law  for  injury  resulting  in  death,  537,  538. 

remedies  for  injuries  causing,  366-373. 

recovery  for,  under  Lord  Campbell's  Act,  369-373. 

DEBT,  ACTION  OF.  e.xplained,  632-634. 
distinguished  from  assumpsit,  345. 

does  not  lie  for  different  installments  in  a  contract,  642,  643. 
does  not  lie  upon  a  collateral  agreement,  632-634. 
form  of  writ,  917. 

how  judgment  entered  in  debt  on  penal  bond,  635-636. 
judgment  by  default  final,  644,  645. 
on  promissory  note,  678. 

remedy  for  penalty  given  by  statute,  640-642. 
remedy  on  a  judgment.  642. 

what  amount  can  be  recovered  in,  634-635,  640-642. 
when  concurrent  with  covenant,  339,  630,  631,  637. 
when  it  lies,  and  essentials  of.  339,  340. 
when  prefened  to  covoiiant  or  assumpsit,  644-645. 

DEED,  absolute  convertfd  iiiio  a  mortgage,    297.  289. 

liability  of  grantee  in  derd  poll  in  an  action  of  covenant.  629-630. 

remedy  for  defects  in  quantity,  etc..  271,  272. 

DELIVERY,  actual  and  constructive,  5.  6. 

DE.MrilRER,  effect  in  opening  the  record,  842. 

effect  ol.  where  several  (omits  or  cjiuses  of  action,  643. 

DETINl'E,  ACTION  OF. 

!in  atflrniance  of  conlinuint;  title,  ijmi.  t;til. 

(llslinguisticd  troni  repNvin,  :'.6I. 

diHtinguishecl  from  trover,  6(il. 

effect  (if  destruction  of  subject-matter  pendente  lite.  tilM   6(13. 

form  of  writ,  917. 


W2  INHKN. 

[TIIK   IKilliKS   UKKKK  TO   Till;    l'A(ii:S.  | 

DKTINI'K.  ACTION  OF— continued. 

husband  and  wife  join  in.  tor  wife's  Koods  l)aiItMl  licfore  eoverture,  359. 

jndijnient  >;iven  in  tlie  alternative,  i'.f.o,  :Uil. 

judgment  in,  eoncliisive  as  to  title.  (idO-tidl. 

judgment  rendered  and  effect  of,  604. 

modern  extension  of  the  action,  360. 

nature  of  the  action,  ',\7>\\. 

value  of  the  property  at  the  time  of  the  verdict,  G02-604. 

wager  of  hiw  allowed,  otiO. 

what  damages  recovered  in,  602-604. 

what  must  be  shown  in,  599-600. 

when  it  iorresi)onds  to  claim  and  delivery,  605,  608. 

DEVISES,  see  Wills. 

DISCHARGE  OF  OBLIGATION, 

by  payment  of  smaller  amount.  90. 
the  rule,  eo  ligamine.  etc.,  89. 

DISTRESS. 

for  rent,  how  exercised,  87.  88. 
impounding,  44,  45. 
resisting  attempt  to  retake,  52,  53. 
seizing  animals  damage  feasant,  43,  44,  45. 
unlawful  rescue,  44,  45. 

DIVORCE, 

action  by  wife  for  alimony  with  and  without  divorce,  515-517. 

domicile  of  husband  and  wife  in,  how  determined,  885-890. 

doctrine  of  Pennoyer  v.  Neff  in,  885-890. 

effect  of  judgment  upon  constructive  service,  885-890. 

extra-territorial  effect  of  judgment  in,  885-890. 

power  of  the  state  and  state  courts  to  control  such  proceedings,  885- 

890. 
remedy  of  wife  for  cruel  treatment  by  husband,  515. 

DOGS,  see  Animals. 

DUE  PROCESS  OF  LAW, 

administration  upon  the  estate  of  a  living  person,  877-881. 

constructive  service  by  publication,  885-890. 

in  proceedings  in  rem  and  in  personam,  939-942. 

three  ways  in  which  due  service  of  process  may  be  had,  860. 

E. 

EASEMENT. 

case  and  not  covenant  for  disturbing,  259. 
interference  with  flow  of  water,  83-87. 
owner  of.  liable  in  trespass  q.  c.  f.  for  improper  use,  249. 
remedy  for  increasing  the  servitude,  259,  260. 
remedy  for  obstructing,  166,  167. 
trespass  q.  c.  f.  does  not  lie  for,  246. 
EJECTMENT,  action  commenced,  when,  134. 
common  law  practice  in,  125-127,  156. 
consent  rule,  general  and  special,  138. 
damages  in,  146-148,  175,  176. 
does  not  lie  for  an  easement,  166,  167. 
equitable  defenses  in,  140,  174. 
equitable  defenses  under  the  Code,  160. 
fictions  in,  casual  ejector,  134. 

.John  Doe  and  Richard  Roe,  132. 

lease,  entry  and  ouster,  132-133. 

of  possession,  144. 
for  a  roadbed  and  right  of  way  by  a  railroad,  167-169. 


INDEX.  993 

[the  figures  refer  to  the  pages.] 

EJECTMENT— continued. 

forms  in,  declaration,  127. 

notice  to  tenant,  127. 

prosecution  bond,  128. 

consent  rule,  128. 

service  of  declaration.  129. 

bond  of  defendant,  129. 

plea  of  not  guilty.  129. 

verdict  and  judgment  for  plaintiff,  129. 

verdict  and  judgment  for  defendant,  130. 

declaration  in  trespass  for  mesne  profits,  130. 

pleas  in  trespass  for  mesne  profits,  130. 

verdict  and  judgment  in  trespass  for  mesne  profits,  131. 
judgment  in.  as  an  estoppel,  149-155. 
judgment  in.  for  one  tenant  in  common,  166. 

origin  of,  to  try  title,  120.  121,  125,  126.  127,  132,  133,  146,  152,  153. 
ouster  of  one  tenant  in  common  by  another,  164-166. 
parties  in.  132,  133. 

against  an  agent  of  the  state,  162. 

by  owner  of  equitable  title,  173. 

by  mortgagee  against  mortgagor,  172,  173,  289. 

by  one  tenant  in  common  against  another,  138,  164-166. 

by  one  tenant  in  common  against  a  stranger,  163,  166. 

by  vendor  against  purchaser,  315-317. 

coming  in  to  defend,  134-137,  143-145. 

letting  in  to  defend  under  the  Code,  158,  159. 

defenses  open  to  one  let  in  to  defend,  144,  145. 
pleading  in,  by  one  tenant  in  common,  164-166. 
])racti(e  in.  134-137,  168. 
transition  to  the  Code,  156-157. 
under  the  Code  practice,  148,  151-161. 
proving  defendant  to  be  in  poseesaion.  133-137. 
rents  and  profits  how  recovered  by  mortgagee,  289. 
summary  proceedings  in,  169-172. 
title  involved,  legal  or  equitable.  139-140,  168. 
title  that  plaintiff  must  show,  140-143,  168. 
trespass  for  mesne  profits  a  continuation  of.  146-148. 
writ  of  possession  in,  134,  135. 

ELECTION  OF  REMEDIES, 

between  covenant  and  debt,  630-631,  637. 

between  debt  or  assumpsit  on  promissory  note.  678. 

between  detinue  and  trover.  601. 

between  trespass  or  trover  and  assumpsit,  658-660. 

between  trespass  and  case,  352,  353,  618-619,  620. 

between  trover  and  assumpsit,  617-618. 

by  servant  wrongfully  discharged  by  master  on  entire  contract.  551. 

debt  preferred  to  covenant  or  assumpsit,  when,  044-645. 

for  injuries  resulting  from  neglig^ce  of  railroads,  395-397. 

in  actions  for  tort  or  contract,  321-333. 

in  cases  of  fraud  and  deceit,  704. 

motion  in  the  cause  or  recordarl.  839-841. 

tort  or  <ontract  for  false  warranty,  691.  692,  694. 

tort  or  contract   under  the  Codf  for  malpractice.  413. 

trespass  or  case  for  nial|)ra<tice,  412,  413. 

waiving  tort  and  suing  in  contract,  666-667. 

waiving  contract  and  suing  in  tort.  323-329.  333-337.  353,  354. 

ELECTIONS,  interfering  with   right  to  vote.  485-489. 
offlrers  of,  not  liable  for  judicial  acts.  488.  489. 

EMINENT  DOMAIN, 

damages  past,  present  and  prospective    266  268. 

Ronudles— 63 


IMU  INDEX. 

|tiik  KUJi'KKs  iti;n:K  n)  riii':  iwciKs.  | 

KM  1 X  i:.\r    1  )i).M  Al  N— continued. 

injunction  not  issued  to  ristniiii  culiMprisi's  uikIim'  ciiiincnt  domain, 

practice  in  condemnation  proceedings,  2(59. 

remedy  for  one  whose  land  is  taken,  26fi-2tI8. 

riglit  acquired  by  railroad  in  riglit  of  way  and  roadbed,  167-169. 

use  of  projierty  taken  under,  as  a  nuisance,  234,  235. 

ENTICING  AND  HARIK^RIXG. 

action  by  husband  for  enticing  and  harboring  wife,  501. 

action  by  wife  for  enticing  her  husband,  r)07-.')09. 

action  by  i)arent  for  enticing  child,  r>24-r)2.'j. 

action  by  master  for  enticing  his  servant,  r)82-!)85,  589. 

harboring  a  wife  who  is  forced  to  leave  her  husband,  50:5. 

liability  of  parents  for  enticing  wife  to  leave  her  husband,  503,  504. 

liabilitv  of  strangers  and  relatives  for  enticing  and  harboring  wife, 

504-507. 
remedy  by  action  on  the  case  for  enticing  child  or  servant,  524-525. 
remedy  of  master  for  enticing  servant,  582-586,  589. 
what  constitutes  enticing  in  the  case  of  child  or  servant,  524-525. 

ENTRY, 

by  landlord  upon  tenant  at  sufferance,  62-65,  66,  67,  68,  69. 

effect  of  entry,  60,  61,  62. 

gaining  possession  by  force,  60. 

right  of,  by  the  owner  of  land,  61,  119. 

right  of  entry  tolled,  119. 

summary  eviction  of  servant  and  other  occupants,  70,  71. 

upon  another's  land  to  abate  a  nuisance,  81,  82. 

upon  another's  land  to  retake  chattels,  56-59. 

upon  land  under  claim  of  right,  236,  237. 

what  constitutes  entry,  59,  60. 

writ  of  entry,  explained,  119,  120,  152. 

EQUITY  .JURISDICTION, 

general  principles  of,  901,  902-905. 

limitations  of,  901-905. 

origin  of,  900-901. 

in  matters  of  account,  342-344. 

in  boundary  cases,  186,  187. 

in  construction  of  wills  and  to  advise  fiduciary,  716-720,  733. 

in  creditors'  bills,  767-771. 

in  foreclosure  of  mortgages,  285-287. 

in  cases  of  nuisance,  216-219,  228,  229. 

in  partition,  727,  730-734,  736,  740,  743-744. 

in  bills  for  redemption  of  mortgages,  296,  297. 

in  cases  of  waste,  202,  207. 

over  the  estates  of  infants,  744-746. 

over  lunatics,  751,  752. 

over  person  and  property,  862,  865,  866. 

over  realty  in  another  state,  910. 

to  issue  injunction,  376-380,  804-808. 

to  prevent  multiplicity  of  suits,  824-826. 

to  remove  cloud  and  quiet  title,  182-186. 

to  require  specific  delivery  of  chattels,  608,  609. 

to  restrain  continued  trespass,  265,  266. 

to  stay  proceedings  at  law,  816,  817. 

various  instances  of  equity  jurisdiction,  901-905. 

parties  in  equity,  necessary  and  jiroper  parties,  974-976. 

result  of  defect  of  parties,  949. 

where  parties  are  numerous,  976-977. 
practice  under  the  Code,  363,  364,  905-907. 
practice  in  the  federal  courts,  772,  907. 


]  XDEX. 


995 


[the  figures  befeb  to  the  pages.] 

EQUITY  JURISDICTION— continued, 
subpoena  as  process,  918-920,  927. 
see  Injunction,  Receivers,  Specific  Performance. 

EQUITY  OF  REDEMPTION,  see  Mortgages. 

ESTOPPEL, 

by  judgment  in  an  action  to  recover  land,  151-155,  157,  158. 
by  judgment  in  ejectment,  149-155. 
by  judgment  in  trespass  q.  c.  f.,  256,  257. 
of  tenant  to  deny  landlord's  title,  161. 
applies  to  licensee  of  tenant,  161. 

ESTREPEMENT,  writ  of,  202. 

EXECUTION. 

liabilitj'  of  one  causing  improper  levy,  619-620. 
officer  levying  under,  may  maintain  trespass,  622-623. 
officer  selling  under,  may  bring  separate  action  for  price,  690. 
when  equity  will  enjoin  a  sale  under,  777-779.  901-905. 
when  issued  against  the  person,  if  arrest  and  bail  has  not  been  used. 
848-850. 

EXECUTORS  AND  ADMINISTRATORS, 

action  by  administrator  for  wrongful  killing  of  intestate,  373,  537, 

538. 
action  by,  to  set  aside  fraudulent  conveyance  of  intestate,  780-782. 
administration  upon  the  estate  of  a  living  person,  877-881. 
collector  appointed,  when.  725,  726. 

effect  upon  executor,  by  filing  caveat  to  the  will,  725,  726. 
power  of  clerk  to  revoke  letters,  725,  726. 
proper  party  to  sue  for  assets  of  the  estate.  980. 
right  of  retainer,  2,  3. 

when  they  may  file  a  bill  for  advice,  716-720. 
when  made  parties  to  foreclosure  proceedings,  285-288,  292. 
when  they  may  sue  for  breach  of  covenants  in  a  deed,  282-284. 
when  proper  parties  to  action  for  specific  performance,  318. 
sale  of  real  estate  for  assets  by, 

what  the  petition  must  show,  757-758. 

who  are  proper  parties,  761-763. 

how  infants  made  parties,  765-767. 

reference  to  ascertain  necessity  for  sale,  759. 

defenses  open  to  heir  or  devisee,  759. 

when  homestead  claimed,  759-760. 

power  of  the  court  to  fi.\  the  terms  of  sale,  etc.,  76n-761. 

report  and  confirmation  of  sale,  762. 

opening  biddings  and  resale,  761-764. 

practice  in  attacking  such  sales,  767. 

attorney   for  i)laintiff  advising  defendant,  765-767. 

references  as  to  history  and  practice  in  such  proceedings,  767. 

P]XTRADIT[0.\,  i)Ower  of  state  court   to  discharge  by  habeas  corpus  one 
heifl  under,  453. 

F. 

FALSE  IMPRISONMENT. 

(llHtingiiiHhfil  from   malicious  prosecution.    |.'.7   Kin,    165,  483. 

offr-ct  of  void  and  erroneous  process.  4.">7-46L 

elements  of  damage  in,  460,  401. 

liability  of  master  for  false  iniprlHoniupnl   by  servant,  MW. 

malice  and  probable  rausp  not  rssenllal,  46(». 

remedy  iinrler  the  Cod"  praclic<',  458. 

what  constitutes  the  orferise.   456.  457. 

when  punitive  daningcK  allowed,  47S,  479. 

wh<  n  trespass  anrl  when  cjise  the  proper  i-eniody,  457  460,   k;!). 


!•!»«;  i.\im:\. 

[THK  KKil'RKS    KKFKK  TO  TIIK    PACKS.] 

KALSK  WARRANTY,  see  Fraud  and  Deceit. 

FELLOW-SKRVANT  ACT.  r>i;i-567. 

FP:LL0\V-SERVANT  doctrine,  557-564. 

FIXTURES,  removal  of  trade  fixtures,  8,  9. 
ronioving  house  from  laud,  195-199. 
wlieu  does  a  c-liattel  liecouie  a  fixture,  199. 

FOOD,  one  furnishing  uuwliolesonie  food  liable,  407,  408,  410. 

FORECLOSURE,  see  Mortgages. 

FORCIBLE  ENTRY  AND  DETAINER. 

by  landlord,  in  case  of  tenant  at  sufferance,  62-69. 
distin.guisbed  froni  forcible  detainer,  211,  212. 
forcible  detainer  by  tenant.  212,  213. 
unlawful  detainer,  remedy  for,  210. 
what  constitutes,  210.  213. 

FORCIBLE  TRESPASS,  what  constitutes,  68. 

FRAUD  AND  DECEIT,  elements  of,   701,   703.  704. 
action  ex  delicto  and  ex  contractu,  when,  324,  325. 
action  in  tort  for  deceit  and  false  warranty,  690,  691,  693. 
distinguished  from  warranty.  693-695. 
election  of  remedies  in,  704,  706. 
in  sale  of  land  when  no  covenants  taken.  271,  272. 
fraud  as  a  defense  to  a  foreign  judgment.  891-895. 
in  the  case  of  latent  and  patent  defects,  697-699,  701-702. 
knowledge  of  maker  that  statement  is  false,  695-697,  701-705. 
matters  of  opinion,  puffing  one's  wares,  703-705. 
measure  of  damages.  702,  705. 
must  result  in  injury,  700,  702. 
practiced  by  vendee  on  vendor,  705,  706. 
suppressio  veri  or  suggestio  falsi,  697-699,  701-704. 
when  mere  silence  amounts  to,  697-699,  701-702. 
when  scienter  shown,  690-697. 
when  rescission  allowed,  704,  705. 

FRAUDULENT  CONVEYANCES, 

action  by  administrator  to  set  aside  conveyance  by  intestate,  780- 

782. 
creditor's  remedy  at  law  and  in  equity,  777-779. 
effect  of  filing  creditors"  bill,  767-771. 

remedy  of  creditor  when  fraudulent  grantor  is  dead,  780-782. 
what  deeds  are  void  under  13th  Elizabeth,  778. 
what  property  may  be  reached  under  13th  Elizabeth,  779. 
when  creditor  must  go  into  equity,  779,  780. 

FREEDOM  OF  THE  PRESS,  explained  in  libel,  428-430. 

FRIGHT,  damage  resulting  from,  386,  392-393,  401-403. 
injury  from,  caused  by  negligence,  401-403. 

FRUCTUS  INDUSTRIALES,  see  Crops. 

G. 

GOODS  BARGAINED  AND  SOLD, 

distinguished  from  goods  sold  and  delivered,  669-671. 
when  the  action  lies,  669-671. 

GOODS  SOLD  AND  DELIVERED,  action  lies  when.  669-671. 
distinguished  from  goods  bargained  and  sold.  669-671. 
judgment  by  default  final  or  by  default  and  inquiry,  when.  673. 
splitting  account,  when  one  item  or  several,  673-676. 
when  note  given  for  the  price.  671-672. 
when  purchaser  fails  to  comply  with  terms,  671-673. 


INDEX.  997 


[the  figures  refer  to  the  pages.] 

GUARDIAN  AND  WARD. 

effect  of  appointment  by  deed  or  will,  523,  524. 
sale  of  ward's  land  tor  investment,  747-749. 
sale  of  ward's  land  for  payment  of  debts,  746. 
refeTence  to  ascertain  if  sale  is  necessary,  747-749. 
sale  should  be  confirmed,  747-749. 


H. 

HABEAS  CORPUS. 

appeal  in  such  proceedings,  454-456,  524. 

by  wife  to  be  released  from  restraint  by  husband,  490,  491. 

by  prisoner  after  indictment  found,  454,  455. 

bv  one  in  custody  under  judgment  of  a  court  of  competent  jurisdic- 

"tion.  444-446. 
duty  of  judge  in,  453-456. 

for  one  restrained  under  contract  to  serve,  575-577. 
for  what  restraint  the  writ  issues,  446-450. 
history  and  nature  of,  439-441,  444,  445. 
not  substitute  for  writ  of  error  or  appeal,  445-447. 
power  of  state  court  to  discharge  one  held  under  federal  authority, 

451-453. 
power  of  state  court  to  discharge  one  held  in  extradition,  453. 

practice  in,  441-444. 

right  of  wife  to  have  husband  released.  495. 
use  of  the  writ  to  control  custody  of  children,  520-524,  527. 
when  issued  by  United  States  court  to  discharge  one  hi  Id  under  state 
authority,  450-451. 

HEALTH, 

action  on  the  case  for  injury  to,  40G. 

action  on  the  case  for  sickness  caused  by  ])ublic  nuisance,  40li. 

comiiulsory  vaccination.  392.  ^ 

injury  resulting  from  malpractice  of  physician,  412.  41S. 

liability  for  injury  to,  by  Christian  Scientists,  etc.,  413. 

liability  for  giving  croton  oil  in  jest,  407. 

liability  for  injury  from  selling  unwholesome  food.  407.  40S.  410. 

liability  for  letting  house  infected  with  smalli)ox.  411.  412. 

liability  for  selling  dangerous  commodities  without   noti<e,  409,  410. 

HIGHWAYS, 

gate  across,  removed  as  a  nuisance.  72-73. 

landowner  iirevcnting  tnspass  in,  38. 

turning  out  of,  \vhen  imi)assable,  77-80. 

service  of  notice  in  proceeding  to  establish,  930-931. 
HOMESTEAD,  claimed   in  sale  of  land  for  assets,  759-760. 
HOUSES,  a  man's  house  is  his  castle,  ;'.!»,  40. 

hroakiiig  ojien  when,  40. 

remedy  for  removing  fiom  land.  19.5-201. 

remedy  when   rcmovi  d   troni   mortgaged  i)remises,  200.  1,(11. 

HUSBAND  AND  WIFE, 

iKtioti  by  husband  for  alicnat ion  ol   wlj^es  affecliou.  ..0... 

injunction   to  [irevont  alienation.  37fi-3SO. 
action  bv  husband  for  rrim.  con.,  497.  49S. 
.iction  by  husband  for  enticing  and  harboring  wife,  501. 

against   parents  of  wife,  503.  504. 

against   strangi-rs  and  relatives.  504-.507. 

for  liarboring  when   wife  forced  to  leave.  .503 
a«tlon  by  husban^l  for  injury  to  wife.  2:'.9.  21(t 

by  selling  deleteriouK  drugs  to.  5(i9  511. 

for  injury  cauHing  death  of  wife.  369-373. 


998  INDEX. 

[the  fuiures  rkfek  to  Tiiio  rA(ii;s.J 

HUSBAND  AND  WIFE— (>ontlnued. 

aotion  liy  hiishaiui  of  sciluitioii  o(  \\\\\\  495-497. 

basis  of  ait  ion,  ronsortiuni,  4'J.'). 

consent  of  wife,  496.  497.  499,  500. 

form  of  aotion,  495. 

for  trespass  and  sedni'tion.  li;>S. 
action  by  wife, 

for  crim.  con.,  498-500. 

for  enticing  husband.  507-509. 

for  mutilation  of  husband's  dead  body.  517-520. 

iiabcas  coriJUS  for  restraint  by  husband,  490-495. 

habeas  corpus  for  rcleas(>  of  husband.  495, 

living  separate  from  husband,  9G2-9G5. 

effect  of  marriage  pendente  lite,  965. 

effect  of  married   women   statutes   ui)on    wife's   riglit   of  action. 
513-515. 

suing   alone   under  Code   practice.   966-967. 
action  by  wife  against  husband, 

in  contract.  980. 

in  equity,  966. 

for  injuries  to  her  person.  513-515. 
action  by  both  husband  and  wife. 

in  detinue  for  wife's  goods  bailed  before  coverture,  :'.59. 

jointly,  for  injury  to  wife,  496. 

jointly  and  separately,  for  injury  to  wife.  511-513. 
action  against  wife. 

appearance  by  attorney,  968. 

duty  of  husband  to  defend,  968. 

in  her  maiden  name,  980. 

joinder  of  husband,  967-969. 

judgment  binding,  when,  968. 
custody  of  children,  who  entitled  to,  520-524,  527. 
divorce  proceedings  by  wife  for  cruel  treatment,  515. 
domicile  of,  in  divorce  proceedings,  885-890. 
liability  of  wife  for  tort  growing  out  of  contract,  336,  337. 
marriage  of  infant  daughter,  as  emancipation.  507. 
parties  in  equity  suit,  918-919,  96.5-966. 
right  of  husband  to  protect  wife,  17-20,  240. 
right  of  husband  to  preserve  his  honor,  17-20,  47. 
right  of  husband  to  restrain  wife,  490,  491. 

right  of  wife  whose  land  is  mortgaged  for  husband's  debt,  291-293. 
right  to  sue  each  other  at  common  law  and  under  statutes,  515. 
specific  performance  against  husband  when  wife  refuses  to  join,  308, 

309. 
support  of  wife,  liability  of  husband  for,  516. 
support,  remedy  of  wife  for,  515-.")17. 


IMPRISONMENT  FOR  DEBT, 

at  common  law  and  under  statutes.  920-922. 

constitutional   provision  not  ai)plied  to  torts,  320,  321,  846. 

effect  of  statute  making  it  a  crime  for  servant  to  violate  contract, 

572-575. 
no  exemption  from,  for  fine  and  costs  in  criminal  actions,  104-106. 

INFANTS. 

as  parties,  appear  by  guardian  or  prochein  amy,  951-952. 
appearing  by  attorney,  effect  of,  957-959. 

failure  to  appear  by  guardian  or  prochein  amy,  how   taken  ad- 
vantage of,  951. 
how  to  appoint  guardian  ad  litem  and  prochein  amy,  953-957. 


INDEX.  990 

[the  figubes  kefeb  to  the  pages.] 

INFANTS— continued. 

guardian  ad  litem  to  file  answer,  957-959. 

how  made  defendants,  957-959. 

how  service  of  summons  made  upon.  959. 

infants  in  ventre  sa  mere  as  parties,  960-962. 

practice  in  making  infants  parties  in  law  and  equity,  766,  952- 
953. 
emancipation  ot.  by  arriving  at  full  age,  544,  545. 

by  marriage,  524,  547-549. 

effect  of.  upon  right  to  earnings,  546-549. 
estates  of,  sold  when,  744-746.  747-749. 

practice  in  such  proceedings.  747-749. 
how  far  bound  by  fraudulent  or  irregular  proceedings,  953-957. 
liability  in  covenant.  631. 
liability   for  tort  growing  out  of  contract,  335-337. 

INFORMER,  action  by  for  penalty,  lOS-110. 

INJUNCTION, 

as  an  ancillary  renudy,  when  granted,  851. 

what  the  affidavit  should  contain,  851. 
common  and  special   distinguished,  811-812.  814-815. 
definition  and  nature  of,  805,  806. 
effect  of  api)eal  from  order,  818-821. 
enforced  by  contempt  proceeding,  821. 
general  lules  governing  the  issue  of,  809-811. 
in  what  cases  relief  by,  may  be  granted,  376-378. 

nine  cases  in  which  it  is  used  to  protect  legal  rights,  809-811. 
interlocutory  and  final,  812. 

irilerlocutory  or   preliminary,   when   issued,  813-815. 
judicial  and  remedial.  806. 
mandatory,  as  preliminary  and  final,  230-232,  804-808. 

how  enforced,  232. 
to  enforce  negative  covenants,  712-714. 
to  prevent  alienation  of  wife's  affections,  376-380. 
to  prevent  breach  of  contract.  710-712. 
to  prevent  commission  of  a  crime,  817-818. 
to  prevent  injury  by  criminal  act.  588. 
to  prevent  enticing  and  intimidating  servants,  586-589. 
to  prevent  irreparable  injury  to  realty,  261-265. 

continuous  or  repeated  trespass,  265,  266. 

what  application  must  show,  265. 

preliminary,  when  issued  for,  262,  263. 

right  at  law  first  established,  when,  261-263. 
to  prevent  multi|)licily  of  suits.  821-827. 
to  prevent  a  private  nuisance,  216,  217. 
to  prevent  a  public  nuisance,  218,  219. 
(o  prfvent  i)ublication  of  a  libel,  438,  439. 
to  prevent  i)ui)lication  of  jjictures.  boycott  lists,  etc.,  439. 
to  jjrevent  the  sale  of  liquor,  S17-818. 
to  prevent  waste.  202,  205,  208.  209. 
to  restrain  enterprises  for  the  public  good.  269. 
to  stay  proceedings  at  law,  816-817. 

when   courts  have  concurrent  jurisdiction.  883-884. 

in  state  court,  by   iiijiin<tioii   from   Fnitc-d   States  court.  815-816. 

to  stay  execution,  811-812. 
to  test  the  validity  of  a  town  ordinance.  817-818. 

INNKEFPFRS. 

giHst   and   boarder  distinguished.  620-622. 

liability  for  loss  of  gneafs  property.  620-622. 

right  to  discriminatp  as  to  persons  dealing  with  guests.  ?.'>  n< 

right   to  erigagf  in  business  connected  with  inn,  35-37. 


lOCV)  INDKX. 

[  rilK  KltUIKKS   Ki!;i''ICK  TO    rilK   l'AtiK.s.l 

1 N  N  K  E  E  P 1-:  R  S— con  tinned. 

right   to  evirt   poisons  by   lone,  IH-iiT. 
right  to  rot'use  ui-coiunioiiat  ion,  270,  271. 

INQUISITION  OF  LUNACY,  749-756. 

INSANE  PERSONS. 

effect  of  inquisition,  749-753. 

contracts  by,  before  and  after  inquisition,  T.'iU.  17t{i. 
history,  nature  and  object  of  iuciuisition,  749-7.^)3. 
notice  to  lunatic  in   inquisition,  754-7r)G._ 
practice  in  inquisition  under  modern  statutes,  754-756. 
liability  of,  for  servict  s  rendered,  653. 
parties  to  actions  at  law  and  in  equity,  969-974. 
guardian  or  connnittee  as  a  party,  971-974. 
sale  of  estates  of.  how  made,  746. 
service  of  summons  on,  971-974. 

where  action   brought    wht  n    insane   person   taken   out   of   county   of 
domicile,  971-974. 

INSURANCE,  arbitration  agreements  in  policy,  91-93. 

INTERPLEADER, 

bill  for  advice  is  in  nature  of,  716-718. 
definition  and  essentials.  828-S31. 
Code  practice  in,  828-831. 
privitv  between  claimants,  830-831. 
what  bill  should  show,  828-829. 

INTOXICATING  LIQUORS. 

declared  a  nuisance,  not  destroyed  by  individual,  76.  77. 
injunction  to  prevent  sale,  817-818. 

J. 

JOINDER  OF  ACTIONS, 

debt  and  assumpsit  joined,  642-643. 

legal  and  equitable  causes  under  the  Code,  905-907. 

tort  and  contract  for  deceit  and  false  warranty.  690-694. 

tort  and  contract,  when  joined,  332,  333. 

JOINT  OBLIGATIONS,  parties  to  actions  on,  978-980. 

JUDGMENT, 

against  married  women,  how  talven  and  when  valid,  967-969. 
attacking  a  judgment  for  fraud,  883-884. 

under  the  Code  practice,  891-894. 

domestic  or  foreign  judgment,  891-894. 
bv  default,  in  debt,  final;    in  assumpsit  and  covenant,  with  inquiry, 
644.  645. 

and  inquiiy  against  purchaser  in  contiact  for  land,  301. 

final  or  with  inquiry  in  action  for  goods  sold,  etc..  673. 
debt,  proper  action  on,  642. 
docketed,  when  not  a  lien  on  land,  780. 
doctrine  of  Pennoyer  v.  Neff,  885-890.  940. 
effect  of  appeal,  as  vacating,  818-821. 
effect  of  appeal  from  justice  of  the  peace,  110. 
effect  of   where  no  service  of  process  and  no  appearance,  882,  936. 

when  service  by  publication,  885-890,  936-942. 

without  service  of  process,  839. 
effect  of,  in  trover  as  vesting  title  in  defendant,  614-616. 
effect  of,  when  the  court  has  no  jurisdiction  of  subject-matter,  874. 
effect  of,  as  against  an  infant  in  ventre  sa  mere,  960-962. 
effect  of  nonsuit  in  replevin,  356. 
enforcement  jirevented  by  injunction,  when,  816-817. 


INDEX. 


1001 


[the  figures  refer  to  the  pages. 1 


JUDGMENT— continued. 

estoppel  by,  generally.  151. 

in  ejectment,  149-155. 

in  action  to  recover  land.  151-155,  157.  158. 

in  trespass  q.  c.  f.,  256,  257. 

in  attachment  proceeding,  852-854. 
evidence  of  probable  cause  in  malicious  prosecution,  466-4 <0,  4.2,  4.o. 
extra-territorial  effect  of.  885-890. 

in  attachment.  860. 
form  of,  in  caveat  proceedings,  723,  724. 

in  ejectment  by  one  tenant  in  common.  163,  166. 

in  foreclosure  proceedings,  291-293. 

in  uetinue.  360,  361. 

in  debt  on  penal  bond,  635-636. 
full  faith  and  ciedit  clause  as  to  a  foreign  judgment,  88o,  891. 
former   judgmen   as  a   bar,   in   cases  of   permanent   injury  to   land, 

235,  236. 
in  divorce,  as  affected  by  domicile,  885-890. 
of  courts  not  of  record,  how  shown  in  evidence,  908-909. 
on  one  installment,  when  a  bar  as  to  the  others.  550,  o.A. 
when  notice  required  of  motion  affecting  a  judgment,  978. 

JUDGES. 

liability  of,  for  their  acts,  480-483. 

JUDICIAL  SALES,  .  ^ 

date  at  which  the  purchaser's  title  is  fixed.  294,  29o,   .bo. 
how  conducted  in  foreclosure  proceedings,   291-293. 
how  far  purchaser  protected  in  case  of  fraud  or  irregularity,  9od- 

957 
mortgagee  or  trustee  buying  at  his  own  sale,  295,  296. 
of  infant's  land  bv  guardian,  practice  in,  746-749. 
opening  the  biddings  and  resale,  294,  29o,  761-764. 
remedies  to  enforce  payment  of  purchase  money,  68o-690. 
when  writ  of  assistance  will  issue,  318.  319. 

JURISDICTION,   defined.   875.  .      o-rr 

general  and  special,  of  the  English  courts,  87o. 
of  the  English  and  federal  courts  compared,  87o-8... 
of  courts  of  equity.  901-905.  .o-.  -.c- 

in  removing  cloud  and  quieting  title,  182-186. 
to  prevent  multiplicity  of  suits,  265,  266. 
concurrent  and  exclusive,  883-884,  890. 
concurrent  and  derivative,  in  appellate  court.  900. 
conferring,  by   consent,  8S2. 

by  remitting  excess  of  claim,  89ij-8J8. 
by  splitting  accounts.  673-676. 
by  combining  several  items,  895. 
determined  by  amount  demanded  in  good   laith.  ..2.,  8.t...  s\^s-s^J. 
determined  how,  in  actions  on  iienal  bonds,  S9.,. 
failure  to  give  bond  as  affecting.  8^2. 

fictions  to  confer  jurisdiction  in  the  K"|l'«l^^^^«"'-f«-  89»- 
fraud  upon,  by  making  claim  too  large,  898-89H. 

by  remitting  (lart  of  claim.  898. 
in  divorce,  as  affected  l>y  domicile.  885-890. 
in  local  and  transitory  actions,  909-910. 
in  trover.  t;i7-fil8.  „ 

of  justices  of  the  peace  in  tort  and  contract.  .._4-.li<. 
in  criminal  luoceedingH.  97. 
in  summarv  proc.-edings  in  ejectment.  1.1. 
over  acts  rommitt.  d  on  boundary  rivers.  89(1. 

over  the  person,  by  service  of  proceHs.  p.Mw.nal  ..r  conHtructive.  885- 
S90,  936-942. 


IdOlI  INDEX. 

[TllK   l-UilKKS   HKl-KK  TU  TlIK   TAtiKS.  | 

.iriUSUlCTlON— continued. 

efTtct  of  the  want  of.  877-88".. 
over  the  siibjci  l-niatter,  by  const  nut  ive  service,  ,S8r>-890. 

want   of  suoli  juristiict ion.   how   taken  advantage  of.  874-883. 
presuniod,  when  action  may  be  eitlier  tort  or  contract,  325-328. 
to  grant  administration  on  estate  of  living  person,  877-881. 
venue,  as  affecting.  SS:!. 
waiver  of.  by  general  appearance,  882,  883. 

as  to  what  defects  it  operates,  875-877,  8S2.  883. 
want  of,  as  a  defense  to  a  foreign  judgment,  891-892. 

how  objection  taken,  875-877. 

when  court  may  dismiss  ex  mere  motu,  883. 
see  Courts. 

JURY  TRIAL. 

in  equitable  actions  under  the  Code,  905-907. 
in  contempt  proceedings,  102. 

JUSTICES  OF  THE  PEACE, 

api)Oint  guardian  ad  litem  for  minor  defendant,  957. 

conferring  jurisdiction  on,  by  remission  of  part  of  claim,  895-898. 

by  splitting  account.  G73-676. 
effect  of  appeal  from  judgment  of,  110. 
equitable  defenses  set  up,  893,  894. 
judgments  of.  ho.w  shown   in  evidence,  908-909. 
jurisdiction  of,  in  criminal  actions,  97. 
jurisdiction  of,  in  actions  on  penal  bonds,  895. 

in  actions  ex  contractu  and  ex  delicto,  324-327. 

in  summary  proceedings,  in  ejectment,  171. 
liability  of,  for  judicial  acts,  483. 
recordari  to  remove  case  to  superior  court,  839-841. 
whether  they  are  courts  of  record,  908-909. 

K. 

KIDNAPPING,  what  constitutes,  527. 

L. 

LANDLORD  AND  TENANT, 

cropper  distinguished  from  tenant,  585. 
distress  for  rent,  87,  88. 
equitable  defense  of  tenant,  160. 
forcible  detainer  by  tenant,  212,  213. 
landlord  defending  in  ejectment,  143-145. 

liability  of  landlord  for  letting  house  infected  with   smallpox,  411. 
412. 

for  nuisance  maintained  by  tenant.  223-227. 
remedy  of  landlord  when  tenant  abandons,  170. 

when  tenant  holds  over,  170. 
right  to  evict  tenant  at  sufferance,  62-69. 

force  that  may  be  used.  G2-68. 
right  to  remove  trade  fixtures,  8,  9. 
summary  proceedings  in  ejectment,  169-172. 

who  is  tenant  for  such  proceedings.  170-172. 
tenant  distinguished  from  servant,  70,  71. 
tenant  estopped  to  deny  landlord's  title.  161. 
trespass  q.  c.  f.  by  landlord  and  case  by  tenant,  when,  252,  253. 
trespass  q.  c.  f.  by  tenant  against  landlord.  250. 

when  tenant  cannot  plead  breach  of  condition  by  landlord,  682-684. 
LIREL  AND  SLANDER,  distinguished.  416,  421. 
criminal  libel  defined,  413. 


INDEX.  lOOa 

[the  figures  refer  IX)  THE  PAGES.] 

LIBEL  AND  SLANDER— ccntinued. 

criminal  and  civil  proceedings  for  libel   distinguished,  434,  435. 

case  the  proper  remedy  tor,  413. 

excommunication  as  a  cause  of  action  for,  426-428. 

Fox's  libel  act,  history  of,  434-437. 

injunction  against  a  libel,  438,  439. 

justification  as  a  defense,  414,  415. 

justifiable  purpose  shown.  414. 

malice,  when  presumed  and  when  shown,  422-425. 

mutual  libels,  retaliation  as  a  defense,  430-433. 

liability  of  editor  for  libel  published  without  his  knowledge,  420. 

liability  of  telegraph  company  for  sending  libellous  message,  420. 

privilege,  absolute  and  qualified  explained,  422-425. 

communications  in  church  trials,  426-428. 

criticism  of  officers,  candidates,  etc.,  414,  422-425,  428-430. 

no  special  privilege  to  newspapers,  428-430. 
province  of  judge  and  jury  in  trial  for,  434-437. 
slander  of  chattels,  626,  627. 

slander  of  wife,  action  by  husband  or  wife.  513. 
slander  of  women  by  imputation  of  unchastity,  416-418. 

when  special  damage  must  be  shown,  417,  418. 
special  damage  shown  in  actions  for  slander,  416-418,  421. 
■what  is  such  a  libel  as  will  sustain  a  civil  action,  415,  416,  421. 
words  actionable  per  se,  416-420. 

LIBERTY, 

effect  of  statute  making  it  a  crime  for  servant  to  violate  contract,. 

572-575. 
what  is  unlawful  restraint,  22. 

LICENSE,  as  a  defense  in  trespass  q.  c.  f.,  237. 
licensee  estopped  to  deny  title,  161. 
remedy  of  licensee  when  license  revoked,  270. 
to  enter,  obtained  fraudulently,  241. 
to  enter  upon  another's  premises  to  take  property,  56-59. 

LIENS,  common-law  liens,  7,  8. 
stoppage   in   transitu,  3-7. 

LIS  PENDENS, 

effect  of  in  attachment,  858. 

effect  of  in  detinue,  upon  purchaser  of  the  property.  600. 

LORD  CAMPBELL'S  ACT,  369-373. 

LOST   INSTRUMENTS,  jurisdiction  at  law  and   in  equity,  680. 

M. 
MALICE,  what  constitutes  in  enticing  servants,  583,  591. 

MALICIOUS   PROSECUTION. 

action  on  the  case  tor,  457-459,  462,  465. 

what  constitutes  the  offense,  459-462,  467. 

loniplaint  should  contain  what,  466. 

disllngnisiifd   from  aliiisf  of  process,  473-475. 

distinguislif'd   from   false   imprisonment,  457-460,  465.  483. 

elenif^nts  of  damage  in.  462. 

for  public  wrongs  and  for  private  injury.  473. 

nialicf  and  want  of  |)rohahli'  tausc  inHessary.  463.  464.  470,  472. 

probable  cauHr',  advice  of  counsel,  47(».  4j4. 

judgment  as  evidenie  of,  4f;6  47(»,  472.  473. 

mixed  niiestion  of  law  and  fact,  46:'..  464 
stirring  up  vexatious  litigation.  462,  46:'. 


llH)4  IXDEX. 

[rilK  FUIURES   KKFKU  Tl)  TlIK    I'AiiKS.J 

MANDAMUS,  alternative  and  iiereniptory,  794-796. 
as  mesne  process.  ;>2i>. 

distinguishoil  from  quo  warranto,  7'J-,  SUl. 
form  of  rule  to  show  cause,  788. 
nature  of  the  writ  and  wlien  it  issues,  787-794. 
in  Code  practiie,  7!>4. 

not  a  substitute  for  writ  of  error  or  certiorari,  793,  837. 
to  enforce  payment  of  del)t  by  county,  794-79G. 
when  it  issues  to  inferior  courts,  executive  officers,  etc..  792-793. 

MAKKET-STALL.  occupant  only  licensee,  270. 

MARRIAGE,  action  for  breach  of  promise,  714-71."). 

jurisdiction  of  common  law  and  ecclesiastical  courts,  714-71.5. 

MARRIED  WOMEN,  see  Husband  and  Wife. 

MASTER  AND  SERVANT, 

master's  liability  to  servant  on  contract, 

action  by  servant  for  wages  payable  in  installments,  549-555. 

doctrine  of  constructive  service,  549. 

duty  of  servant  to  seek  other  employment,  549. 

burden  of  proof  as  to  this,  549. 

election  of  remedies  by  servant  wrongfully  discharged,  551. 

remedy  of  servant  for  breach  of  contract  of  hiring,  549. 

remedy  on  entire  contract  by  servant  wilfully  abandoning,  555- 
557. 
master's  liability  to  servant  in  tort, 

contract  exempting  from  liability  for  negligence,  570. 
duty  of  master  to  provide  safe  place  and  machinery.  567-570. 

duty  of  servant  in  the  use  of  machinery,  567-570. 

test  as  to  safe  appliances,  570. 

fellow-servant  doctrine,  history  and  limitations,  557-560. 
criticised,  560-564. 

fellow-servant  act  and  its  application,  564-567. 
right  of  master  against  servant, 

for  breach  of  contract,  570-575. 

specific   performance  of  contract  of  service,   575-577. 

violation  of  contract  a  crime,  572-575. 

exoneration  of  master  by  servant,  578-580. 
liability  of  master  for  act  of  servant,  23,  24,  25. 

causing  injury  to  third  person,  592-594. 

for  false  imprisonment  by  servant,  461. 

for  negligence  or  unskillfulness  of  servant,  592-594,  597. 

for  wilful  acts  of  servant,  592-597. 

for  wilful  and  malicious  conduct  of  servant,  59.5-597. 

when  trespass  and  when  case  the  remedy,  592-594. 
peonage,  574,  575. 

summary  eviction  of  servant  and  other  occupants,  70,  71. 
right  of  master  to  recover  for  enticing  servant,  524-525.  582-586,  589. 

who  included  under  the  term  "servants,"  580-582,  584,  585. 

essentials  of  the  action,  582-585,  589. 

form  of  action  and  pleading,  582-586. 

injunction  to  i)revent  enticing  and  intimidating,  586-589. 

what  constitutes  malice  in  interfering,  583,  591. 
right  of  master  to  recover  for  injury  to  servant,  580-582. 

for  seduction  of  female  servant,  591-592. 
right  of  action  by  servant  against  third  person  for  causing  his  dis- 
charge, 589-591. 

MENTAL  ANGUISH, 

element  of  damage  for  an  assault,  392-393. 
in   negligence  cases,   403-405. 
in  action  for  interfering  with  dead  body,  517-520. 


IXDEX.  1005 

[the  figures  refer  to  the  pages.] 

:\IENTAL  ANGUISH— continued. 

in  action  by  parent  for  seduction  of  child,  .")33. 

not  applied  in  wrongful  taking  or  detention  of  pigs,  etc.,  604. 

various  cases  in  which  the  doctrine  has  been  applied,  405. 

MERGER,  of  civil  injury  in  the  criminal  offense.  111-115,  366-373. 

MESNE   PROCESS,   defined,  920. 

MESNE  PROFITS,  trespass  for,  146-148,  190-192. 

how  far  recovered,  175,  176,  191,  192. 

in  ejectment  by  mortgagee,   289. 

MISTAKE,  relief  in  equity  for  mutual  mistake.  736-738. 

MONEY  HAD  AND  RECEIVED,  gist  of  the  action,  661. 
nature  of  the  action  and  when  it  will  lie,  662-665. 
privity  express  or  implied,  602-666. 
total  failure  of  consideration,  666-667. 
waiving  the  tort  and  suing  in  contract,  666-667. 

MONEY  PAID  TO  ANOTHER'S  USE, 

distinguished  from  money  had  and  received,  667-668. 
gist  of  the  action.  667-668. 
not  for  officious  payment,  668. 
request  express  or  implied,  667-669. 

MORTGAGES, 

mortgagor's  remedies,  296. 

bill  to  redeem  should  offer  payment,  296,  297. 

doctrine  of  betterments,  176-178. 

mav    redeem   when    mortgagee   purchases   unless   he   has   acqui- 
esced, 295,  296,  298-300. 

when  mortgagee  purchases  under  power  in  the  mortgage,  298- 
300. 

right  of  wife  whose  land  is  mortgaged  for  husband's  debt.  291- 
293. 
mortgagee's  remedies  at  law  and  in  equity.  2S.^),  289. 

nature  of  mortgagee's  title,  172,  173. 

right  to  possession.  172,  173. 

right  to  enter  and  take  property,  55-59. 

ejectment  against  mortgagor,  172.  173. 

practice  in  foreclosure  proceedings,  291-293. 

strict  foreclosure  and  foreclosure  by  sale,  285-287. 

proper  iiarties  to  foreclosure  proceedings,  285-288,  292. 

foreclosure  wh(  n  i)urchase  money  i)aid  in  installments.  290,  317, 
318. 

form  of  decree  in  foreclosure,  291-293. 

when   receiver  appointed,  868-870. 

practice  in   foreclosure,  ojjening  biddings,  resale,  etc.,  294,  295. 

disposition  of  surplus,  287,  288. 

writ  of  assistance  when  issued.  318,  319. 

house  removed   from   mortgaged  premises,  200-201. 

summary  proceedings  in  ejectment  not  applied,  172. 
absolute  deed  converted  into  a  mortgage.  297.  298. 
chaiigc  of  remedy  by  statute.  115  IIS. 

MOTION   IN  THE  CAUSE, 

for  injunction  to  prevent  mnltipli<ily  of  suits.  826-827. 

Id  (ilifiiln  f)r  vacate  an  attii<  luiK-nt,  S57. 

to  f'nforce  owelty  of  parfidoii.  742.  74:'.. 

when   used   inslfud  of  new  action.  840,  883-884. 

when  proper  remedy  in  judicial  sales.  690. 

N. 
NAVIfJAHM-:   WATERS. 

control  over  by  stato  and  by  conKress.  74.  75. 


K'OlJ  INDEX. 

1  riiK  ma  iii:s  ui:i'i;u  id  iiik  packs.  | 

NAVIGAHLI-:  WATI-:RS— conlinued. 

oltstriu'tiiip  liy  hiidges,  73,  74. 

obstructing,  a  nuisance,  221,  222. 
-\E  F:XEAT,  histor.v,  uses  and  practice  in  issuing,  870-87:;. 

in  equity  instead  of  anest  and  bail,  848. 

liow  supplied  under  the  Code.  870-87:*. 

NEGLIGENCE,  what  is  actionable,  411. 
action  tor  death  (auscd  by,  r>:]7.  5:iS. 

action  in  tort  for,  in  breach  of  contract,  :529,  331,  353-354. 
effect  of  contract  exempting  from  liability,  570. 
fellow-servant  doctrine,  i)'u,  560,  5G4. 

liability  of  master   for  negligence  of  fellow-servant,  557-567. 
liability  for.  in  sale  of  dangerous  commodities,  409,  410. 
in  construction  of  ways,  as  a  nuisance,  234. 
liability  for,  resulting  in  fright  which  causes  injury,  401-403. 
liability  of  servant  for  loss  from  negligence,  578-580. 
liability  for  negligent  act,  squib  case,  382,  383,  394,  395. 
letting  a  house  infected  with  smalli)ox,  411,  412. 
liability  for,  in  mutilating  a  dead  body,  515-517. 
in  telegraph  cases,  mental  anguish,  403-405. 
negligence  and  contiibutory  negligence  defined  and  explained,  397- 

399. 
"last  clear  chance"  in  contributory  negligence,  399-401. 
issues  to  be  submitted  in  contributory  negligence,  401. 
of  master  and  servant  in  the  use  of  machinery,  567-570. 
test  as  to  safe  appliances,  570. 

when  innkeeper  liable  for,  in  loss  of  property,  620-622. 
when  trespass  and  when  case  will  lie,  394,  395. 

NEGOTIABLE  INSTRUMENTS,  see  Bills  and  Notes. 
NEWSPAPERS,  no  special  privilege  in  libel,  428-430. 
NONSUIT,  effect  of  in  caveat  proceedings,  720-721. 
effect  of,  in  replevin,  356. 

NOTICE,  of  motion  affecting  a  judgment  or  execution,  978. 
NUISANCE,  definition  and  kinds,  214. 
what  constitutes,  215,  216. 

in  the  use  of  land  taken  for  i)ublie  use,  234,  235. 
continuance  of,  233-235. 
mixed  nuisances,  223. 
private  nuisances.  233,  234. 

interfering  with  light,  81. 

overflowing  land.  233-235. 

spring  guns,  :31. 
abatement  of,  by  i)aity  injured,  72-86. 

entry  upon  another's  land  to  abate,  81,  82. 

killing  dogs  as  a  nuisance,  46,  47,  80,  81. 

projecting  limbs  of  trees,  82. 
abatement  of  i)ublic  nuisance,  by  individual,  76. 

bridge  across  navigable  stream,  73-75. 

gate  across  highway,  72,  73. 
fommon-Iaw  remedies,  215. 

repeated  actions  for,  233-236. 

measure  of  damages,  233,  234. 
action  on  the  case  for  sjiecial  damage  by  public  nuisance,  406. 

nature  of  special  damage,  220-222,  223-227. 

practice  in  such  actions,  223-227. 
remedies  in   equity,  210,  217. 

bill  to  i)revent  a  public  nuisance,  219. 

information  to  prevent  public  nuisance,  218. 

jurisdiction  and  practice  in  cases  of  private  nuisance,  228,  229. 


INDEX.  1007 

[the  figures  refer  to  the  pages.] 

NUISANCE— continued. 

preliminary  mandatory  injunction,  230-232. 

various  cases  and  tlie  relief  granted,  229. 
modern    remedies,    215. 
remedies  under  the  Code,  236. 

indictment  and  civil  action  for  public  nuisance,  112. 
sale  of  intoxicating  liquors  as  a  nuisance,  76,  77. 
liability  of  landlord  for  nuisance  maintained  by  tenant,  223-227. 
nuisance  or  no  nuisance,  how  and  when  determined,  219,  228,  229. 

O. 

OFFICERS. 

criticism  of  officers  and  candidates,  how  far  privileged,  416.  422-425, 

428-430. 
liability  of  judicial  and  ministerial   distinguished.  481-483. 
not  liable  for  acts  done  in   exercise  of  judicial   authority,   479-483, 

488,  489. 
protected  bv  erroneous  but   not   by   void   process.   457,  4o8,  460,  461, 

484. 

OFFICES, 

quo  warranto  for  usurping,  in  private  corporation.  801-802. 

quo  warranto  to  try  title  to  public  office,  799-801. 

when  mandamus  and  when  quo  warranto  proper  remedy,  792. 

OFFICIAL  BONDS, 

payable  to  the  state,  action  on.  645,  646. 

summary  remedy  on,  646-648. 
OUSTER,  of  one  tenant  in  common  by  another,  164-166. 

P. 
PARENT  AND  CHILD, 

action  for  abduction  of  child,  526-527. 

action  for  enticing  child.  524-525. 

custody  of  child,  who  entitled  to,  520-524,  527. 

power  of  courts  to  control,  520-524. 

power  of  parent  to  dispose  of  by  deed  or  will,  521.  523,  524. 
injuries  to  child,  action  l)y  parent,  540. 

causing  death  of  child,  373.  537-539. 

expenses  incident  to  negligent  killing  of  child.  538. 

where  child  too  young  to  render  service.  540. 

action  by  both  parent  and  child,  539,  540. 

no  recovery  when  defendant  not  in  fault,  540,  541. 
right  of  father  to  services  of  child,  541. 

services  and  earnings  of  adult  child,  544-545. 

to  disi)Ose  of  earnings  of  child,  549. 
right  of  mother  to  earnings  of  child,  542-544. 
<  niancijiation,  what  amornts  to.  .')4S,  549. 

arriving  at  full  age,  544.  545. 

effect  upon  right  to  (arnings.  546-549. 

effect  of  marriage,  524,  547-549. 

marriage  of  infant  daughter,  507. 
seduction  of  thild,  action  l)y  faliicr,  527-534. 

action  by   loth   jiar*  nt  and   <liild,  535,  536. 

action  l)y  mot  in  r,  536. 

action  by  one  in  loco  parentis.  53(». 

effect   of  consent  of  child.  535-536. 

fiction  of  loss  of  service,  528,  529,  531-534,  536. 

PARTIES.  945. 

in  caveat  proceedings,  720-722. 

corporation  as  a  i)arty.  In  corporate  name.  950-951. 


lOiiS 


INDEX. 


[niK    I'UaUKS    UIOKKK  TO  Till.    PAilKS.  I 

TARTIKS— tontinued. 

defect  of  parties  at  law.  DIT-OoO. 

in  equity,  !M;). 
demurrer   ten-  delect   of,  !tj,'). 
in   forei-losure   proceedings,   I'N,")  l>ss.   I'itL'. 
forei.un  sovereign  as  a  dil't  ndaiil.  itSO. 

huslKind  as  idaintiff  in  action  for  injur.v  to  wife.  239,  240,  511-519. 
husband  and  wife  as  parties  in  equity,  !nS-919. 
wife  as  a  party,  in  equity,  9t;r)-9(;(;. 

living  separate  from   husband,  lM)2-!H):i. 
inarriage  of  feme  sole  ixmlente  lite,  96"). 
suing  alone  under  Code  practice,  96G-967. 
husband  joined   in  action   against  wife,  967-969. 
infants  as  parties,  by  guardian  or  next  friend,  951-952. 
ne.\t   friend  not   bound   by  judgment.  535. 
I)ractice  in  appointing  guardian  and  next  friend,  953-957. 
bow  made  defendants,  957-959. 
in  equity.  952-953. 
infants  in  ventre  sa  mere  as  parties,  960-962. 
lunatics  as  iiarties  at  law  and  iu  e:|uitv,  9(i9-974. 
in  bills  for  advice,  718-720. 
in  ejectment,  who  let  in  to  defend,  158,  159. 
agent  of  the  state,  162. 
tenants  in  common.  163-166. 
in  eminent  domain,  actions  for  damages,  267,  268. 
in  specific  performance,  318. 
interveners  in  attachment  proceedings,  857. 
in  actions  on  joint  obligations,  948,  978-980. 
joint,  several,  and  joint  and  several  parties,  978-980. 
joinder  of,  where  two  or  more  liable  in  tort,  978-980. 
misjoinder  or  nonjoinder  of,  947-949. 

under  Code  practice,  950. 
naming  the  parties  in  the  summons  and  pleading,  927,  928. 
the  plaintiffs,  945. 
the  defendants,  946,  947. 
in  a  bill  in  equity,  918-919,  927,  928. 
idem   sonans,   980. 
])roceeding  against  unknown  parties,  927,  928,  946-947. 

in  partition  proceedings,  728. 
I)arties  considered  in  court,  how  long,  078. 
right  of  third  persons  to  sue  on  contracts,  329,  666,  980. 
to  actions  on  official  bonds  payable  to  state,  645,  646. 
trustee  and  cestui  que  trust  as  parties,  977. 
where  parties  are  numerous,  a  few  may  represent  all,  976-977. 
who  may  maintain  actions  for  breach  of  covenants  in  a  deed,  273- 

275,  282-284. 
who  should  be  made  parties  in  equity,  974-976. 

PARTITION,  at  common  law  and  in  equity,  726-731,  740. 
advantages  of  in  equity,  740. 
equity  jurisdiction  in,  727,  730-734,  743-744. 

partition  of  chattels,  736-738,  743-744. 
matters  to  be  stated  in  the  petition  and  decree,  726-728. 
appointment  and  power  of  commissioners,  726-728. 
owelty  allowed,  738-739. 

how^  enforced.  742,  743. 
what  estates  may  be  divided  by  partition  or  sale,  729-730. 
of  partnership  lands,  when  decreed,  734-736. 
partial  partition,  actual  or  by  sale,  730,  731. 
improvements  made  by  one  tenant  in  common,  739-741. 
in  cases  of  tenants  in  common  with  partial  division,  732-734. 


INDEX.  1009 

[THE  FIGURES  REFER  TO  THE  PAGES.] 

PARTITIOX— continued. 

setting  apart  one  share  and  leaving  the  others  to  be  held  in  com- 
mon, 734-736. 
sale  for,  essentials  of  petition,  731,  732. 

when  ordered,  730-736.  741. 
implied  warranty  in,  736-738. 
when  some  of  the  parties  are  unknown.  728,  927-928. 

PARTNERSHIP, 

in  actions  by,  individuals  should  be  named,  945. 
liut  not  necessary  to  i)iove  partnership,  946. 
partition  of  lands  held  by,  734-736. 

PART  PERFORMANCE,  specific  performance  granted,  when,  309-311. 
if  requirements  not  met,  what  relief  granted,  311,  312. 

PAYMENT. 

action  for  money  paid  to  another's  use,  667-669. 

officious  payment  not  recovered,  668. 

what  is  and  is  not  officious  payment,  668,  669. 

PEACE  WARRANT,  a  criminal  action,  97,  98. 

appeal  or  certiorari  in,  374-375. 

nature  and  purpose  of,  374,  375.  ; 

PENALTIES,  action  for.  civil,  106,  107. 

action  by  informer,  when,  107-109. 

debt  proper  remedy  for,  given  by  statute,  640-642. 

equity  jurisdiction  over,  636,  637. 

more  than  penalty  of  bond  recovered,  631,  637-640. 

qui  tarn  actions,  108-110. 

repeal  of  statute  for,  pendente  lite,  109.  110. 

after  judgment,  110,  111.  '*^ 

PEONAGE,  574,  575. 

PERSONAL  IN.JURIES, 

actio  personalis  moritur  cum  persona,  366-373. 

deprivation  of  liberty,  439-485. 

deprivation  of  privileges,  485-488. 

injuries  to  health.  406-413. 

injuries  to  repiitation,  413-439. 

preventive  remedies  by  peace  warrant  and  injunction,  374-380. 

remedies  for,  causing  death,  366-373. 

under  Lord  Campbell's  act,  365»-373. 
resulting  from  assault  and  battery,  382-394. 
resulting  from  negligence,  394-405. 
resulting  from  fright,  401-403. 
resulting  from  thrtats,  381,  382. 
seduction,  391. 

PERSONAL  PROPERTY, 

change  of  condition  as  affecting  title,  192-197. 

rem*  dies  for  injury  to  tangible  i).  p.,  .".98-627. 

suspended  titln  restored,  2. 

things  severed  from  the  realty,  190-201. 
IMIYSICIANS.  liability   for  malpractice,  412,   41:'.. 

PLEADING, 

in  abatement  of  the  writ  at  common  law.  926-928. 

In  actions  for  lircach  of  covenants  in  a  deed,  275,  2S0,  2S1. 

in  actions  to  recover  land.  conu)lalnt.  154,  155. 

in  apiili<ation   for   injiiiution   for  trcKiuisK,   26.'>. 

in  act  ions  for  rontinuing  nuisanre   in   fonsl  ruction   of   railroad,   23C. 

In  hills  for  redemption  by  mortgagor,  296,  1^97. 

In  pjeftnienf  by  one  tenant  in  «nnini()n,  164   166. 

in   the  old  action  of  waste.  203. 

Remedies — 64 


1(1 10  INHKX. 

I  1111      I  II. I   l{l  S     nil  I:K     It)     IIIK    i'ACJKS.  I 

PLKADIXG— <-ontiuupd. 

in  bill  lor  sperific  perforinaiup,  :?18. 

in  naming  parties,  stating  facts,  etc..  in  equity,  yi8-i>-0,  lil'i;. 

in  naming  parties  in  the  writ  and  declaration,  945,  94(). 

oyer  of  and  objection  to  the  writ.  026. 

trespass  q.  c.  f.,  matter  of  aggravation.  L':'.7. 

under  the  Code  comi)ared  with  common  law  and  equity,  :?(5:'.-3G5. 

POSSESSION. 

actual  and  i  onstructive.  in  trespass  q.  c.  f.,  242-245. 

adverse,  of  chattel.  2. 

constructive,  by  entry,  tJl.  62. 

constructive,  where  adverse  holding.  244,  245. 

eviction  of  servant,  etc.,  70,  71. 

gained   by   force,   6t). 

writ  of.  in  ejectment.  134,  135. 

PRINCIPAL  AND  AGENT,  officious  payment  by  agent.  668. 

PRIVITY,  in  action  for  money  had  and  received,  662-666. 
in  bill  for  interpleader.  830-831. 

PROCESS.  911. 

history  and  nature  of  writs.  911-91."). 

at  common  law.  in  equity  and  under  the  Code  explained,  926-928- 
praecipe,  original  writ,  and  capias.  911-912. 
subpoena  in  equity,  purpose  and  form,  919-920,  926. 
arrest  to  conii)el  appearance.  920-922. 
forms  of  original  writs,  916-918. 
issuance  of,  to  commence  action,  922-925. 
in   attachment,   856. 

to  another  state  or  jurisdiction,  936-942. 
by  court  not  having  jurisdiction,  882. 
mesne  process  defined,  920. 
oyer  of  the  writ.  926. 
service  of,  what  meant  by,  928-931. 
by  an  officer,  920. 

acceptance  of.  by  married  woman,  infant,  or  attorney,  931. 
what  is  personal  service,  930-931. 
different  methods  of  making,  860,  939-942. 
effect  of  failure  of,  882. 
upon  infants,  959.  ■ 

upon  lunatics.  931,  971-974. 
ui)on  a  person  in  jail,  931. 
obtained  by  fraud,  931,  980. 
bv  i)ublication.  how  and  when  made,  932-942. 
affidavit  for.  932,  942-944. 

requisites  for,  strictly  complied  with,  942-944. 
effect  of  such  service,  885-890. 

in  proceedings  in  rem  and  in  personam.  186,  936-942. 
personal  service  in  another  state,  instead  of  by  publication.  936- 

942. 
rfturn  of,  how  made.  928-930. 
effect  when  process  not  properly  served,  928-930. 
special  appearance  to  move  to  dismiss  for  defect  of,  935-936. 
general  appearance,  a  waiver  of  defect  of.  932-935. 
effect  of  judgment  when  there  has  been  no  service  nor  appear- 
ance. 936. 
how  and  when  objection  made  for  defect  in  process.  915-916. 

appearance  as  a  waiver  of  such  defects,  915-916. 
voluntary  appearance,  a  waiver  of  process,  924. 
void  process,  how  defendant  should  proceed.  935-936. 
void  and  erroneous  process  in  false  imprisonment,  457-461,  484. 
variance  between  the  writ  and  declaration,  911-915,  926. 


INDEX.  1011 

[the  fkures  refer  to  the  pages.  1 

PROCESSIONING,  see  Boundaries. 

PROHIBITION,  by  what  court  issued,  7S3-785,  787. 

distinguished  from  mandamus  and  injunction.  785-7S7. 

issued  upon  notice  to  show  cause.  787. 

nature  and  purpose  of  the  writ.  783-787. 

when  the  writ  will  and  will  not  issue,  785-787. 

PROSECUTOR,  taxed  with  costs,  criminal,  103-106. 

PUBLICATION,  see  Process. 

PURCHASER  FOR  VALUE,  in  judicial  sales,  953. 
does  not  apply  to  legal  title,  200. 

Q. 

Ql'IA  TIMET,  BILLS,  explained,  821-824. 

QUIETING  TITLE,  jurisdiction  and  practice  in.  182-186. 
special  proceeding  to  settle  boundaries.  189. 
when  bill  for,  sustained,  821-824. 

QUI  TAM  ACTIONS,  108-110. 

QUO  WARRANTO, 

history,  definition,  and  form,  civil  or  criminal,  796-799. 

distinguished  from  mandamus,  792,  801. 

civil  action  in  the  nature  of,  under  the  Code  practice,  799-801. 

prcK-eeding  by  attorney  general  in  the  name  of  state,  800-803. 

information  in  the  nature  of,  797-799,  802-803. 

burden  of  proof  in,  798-799. 

remedy  to  try  title  to  public  office.  799-801. 

how  brought  against  a  private  corporation.  802-803. 

for  usurping  office  in  i)rivate  corporation.  801-802. 

to  dissolve  a  municipal  corporation,  8(i3-S04. 

R. 

RAILROADS, 

action  in  tort  or  contract  for  breach  of  dutv.  353,  354. 

for  failure  to  deliver  goods,  326,  327. 

for  failnie  to  stop  train.  331. 
(laim  for  freight  as  affecting  stoppage  in  transitu,  4,  5. 
ejectment  for  right  of  way  and  roadbed,  167-1G9. 
"last  clear  chame"  in  negligence.  399-401. 
lialiility  for  injuries  caused  by  defective  ajjpliancts.  570. 
liabilitv  in  tort  or  fontract   for  injuries  resulting   from   negligence, 

395-397. 
liability   for  wilful   and   niali(  ious  acts  of  (niployee,  595-597. 
lialiility   for  injury  to  passenger  by  emitloyeo,  :'..S(i,  388.  392-393. 
liability  under  fellow-servant  act.  564-5f;7. 
liability  for  overflowing  lands.  234,  235. 
daniagt  s  for  iiermancnt  injury  to  land.  234-23t; 
negligpncf  and  lontributory  n«  gligcncf.  <'rfe<  t  of.  :'>97  :'i".t'.t. 
remedy  against,  for  land  taken  untb-r  eminent   domain,  266-268. 
right  to  exclude  and  separate  passengers,  270.  271. 

REAL  ESTATE,  reniedifs  coiifcrning,  119. 

seizin  of,  actual  and  constructive,  121-124. 
right  of  owner,  to  things  severed  from.  190-201. 

RECAPTION. 

entering  ui)on  anotlier's  land  to  retake  property,  50-53.  65-59. 

exceaslve  force  In.  50-55. 

of  chatff  l.**  from  a  tort-feasor,  50-52,  54,  55. 

of  property  fraudulently  taken,  51.  54. 


10  iL'  1M>KX. 

fTin:  1  H.i  i;i  >  1:1111;    i<>   1  111    \-  vdi  s.  | 

lil'X'APTlOX— roiitiiuu'd. 

of  property  in  liaiitis  of  liailee.  fiT,  58. 
of  property  taken  hy  distress,  44,  4"!. 
of  property  wrongfully  taken,  5G. 

HKCKIVKRS. 

history  and  nature  of  the  remedy.  Sfil-SG:?. 

equity  and  Code  praetice  in  regard  to,  8l!o-S()-l. 

priniiples  governing  in  the  appointment  of,  8(!C,  868-870. 

powers  of,  and  limits  of  sueh  i)0wers,  S()l-S(!4. 

property  in  the  hands  of,  liow  far  in  custodia  legis,  867-868. 

right  of.  to  bring  actions.  863,  864. 

right  to  sue  outside  of  the  jui-isdiction,  861-864. 

uses  of  the  remedy,  861-861. 

when   appointed    in   foreclosure   iiro<eedings,   868-870. 

praetice  in  appeals  in  regard  to.  8(M. 

RECOGNIZANCE. 

how  taken,  and  effect  of  as  a  judgment,  842. 

proceeding  on,  by  sci.  fa..  841-843. 

defect  of  parties  in  sci.  fa.  proceedings,  948. 

RECORDARI, 

as  a  writ  of  false  judgment  and  as  substitute  for  ai>peal,  80."),  839-841. 
distinguished  from  certiorari.  83.j. 
practice  in,  under  the  Code,  839-841. 
uses  of,  at  common  law,  839. 
when  supersedeas  issues,  841. 
REMAIXDER.MEX  AND  REVERSIONERS, 
remedy  foi',  in  case  of  waste,  20ij,  253. 
right  to  timber  cut  by  life-tenant,  192-195. 

REMEDIES,  ancillary,  845. 
by  judicial  proceeding,  96. 
concerning  real  estate,  119. 
extraordinary,  783. 

for  injury  to  rights  growing  out  of  contract,  628. 
for  injury  to  rights  growing  out  of  relation,  490. 
for  injury  to  personal   security,   liberty  and  privileges,   366. 
for  injury  to  tangible  personal  proi)erty,  598. 
for  rights  other  than  for  realty,  320.* 
for  things  severed  from  the  realty,  190-201. 
in  special  cases.  716. 
without  judicial  proceeding.  1. 
jurisdiction  over,  874. 
process  for,  911. 
parties  to,  945. 
change  of.  by  statute,  115-118. 

REMITTER,  1.  2. 
RENT,  distress  for.  87. 

REPLEVIN,  action  of, 

essentials  of  the  action,  wrongful  taking,  :'.57.  :!58,  361. 
history  and  nature  of,  355-358. 
distinguished  from  detinue.  361. 

from  detinue  and  trover,  358. 
does  not  lie  against  one  not  in  possession,  599. 
for  a  house  severed  from  the  land.  599. 
for  house  removed  from  owner's  land  and  affixed  to  another's  land. 

197. 
for  trees  severed  from  land.  192-195. 
form  of  writ,  917-918. 
judgment  of  nonsuit,  effect  of.  356. 


INDEX.  1013 

[THE    FIGURES    REFER   TO   THE    PAGES.] 

REPLEVIN— contiuued. 

extent  of  liability  on  replevin  bond,  638-640. 

two  kinds,  by  writ  and  by  plaint,  357. 

when  it  corresponds  to  claim  and  delivery,  605,  850. 

who  can  maintain  the  action,  598,  599. 
RESCISSION,  when  allowed  for  fraud,  704,  705. 
RESCUE,  of  animals  taken  by  distress,  44,  45. 

RESTRAINT  OF  TRADE. 

remedy  for,  by  injunction,   710-712. 

what  contracts  are  and  are  not  in,  710-712. 
RETAINER,  by  executor  or  administrator,  2,  3. 
ROADS,  see  Highways. 

S. 

SALE  OF  LAND  FOR  ASSETS,  see  Executors  and  Administrators. 

SALES, 

caveat  emptor  as  to  defects,  697-699,  701-702,  703.  704. 
entering  upon  another's  land  to  take  property  sold,  57.  58. 
fraud  and  deceit  practiced  in,  690-706. 
implied  warranty  in,  737. 

remedy  in  oral  and  written  contracts  of  sale,  671-672. 
remedy  when  sale  for  cash  or  on  credit,  671-673. 
remedy  when  purchaser  fails  to  give  note,  etc.,  671-673. 
stoppage  in  transitu,  3-7. 

when  action  for  goods  bargained  and  sold  or  for  goods  sold  and  de- 
livered, 669-671. 
when  action  for  money  had  and  received  and  when  trover,  617-618. 

SCHOOLS,  action  for  wrongful  expulsion  from,  538,  539. 
SCIRE   FACIAS,  explained,  and  practice  in,  841-843. 

use  of  at  common   law  and  under  the  Code,  843-844. 

SEDUCTION, 

action  by  husband  for  seduction  of  wife,  495-497. 

trespass  or  case  by.  495-497. 
action  by  parent  for  seduction  of  child,  528-534,  536. 

trespass  or  case  for,  .")27-.")30,  532. 

elements  of  damage  in,  530,  533. 
action  by  both  i)arent  and  child  for  seduction  of  child.  535-536. 
action  by  one  in  loco  parentis  for  seduction.  530. 
action  by  masttr  for  seduction  of  servant,  591,  592. 
action  by  woman  for  her  own  seduction,  391,  535.  536. 
death  of  person  seduced,  as  al)aling  the  action,  53G. 
SEIZIN,  actual  or  constructive.  121-124. 

SELF-DEFENSE, 

defense  of  person,  family,  servants  and   propi  riy.  fi-5U. 
from  assaults  with  and   without  felonious  intent.   11. 

reasonable  apijrcbcnsion  of  injury,  11-15. 

retreating  to  the   wall.   11,   12.   15. 
defense  of  one's  liberty,  20-22. 

resisting  an  officer.  13. 
excessive  force.  17,  21.  22.  39-43. 
husband    jirolccting   his   honor.   17-20. 

killing  wife's  paramour.  19.  .30,  47. 
defenrllng   one's   house.   39-43. 
defense  of  property.  25-50. 

force  that  may  be  used,  26-31. 

by  use  of  spring  guns,  25-31. 

Jiy  gnard  dogs.  :'.l   33. 


1014  ixnKx. 

I  I  111;  1  ii.i  i!i  s  iii:ri  u   id   iiii-;  i'A(;is.  | 

SELK-DKFEXSK— contimiod. 

in  protiHting  iiroperty.  rislit  of  innl<ooi)t>r.  ;M-:'.7. 
in  protecting  si  If  and   i)iopi'rty   against   dogs,  I'tt..   ir>.   17,  4(»,  47. 
in    proteiting  property   against   trespassing  animals,  -18-50. 
liy    distriss,   44,   4."). 
excessive  fone  in,  48-riO. 
in  pr»  venting  tlic  talking  of  chattels.  .")4,  55. 
provocation,  fnror  lut  vis,  l!t-U2. 
self-preservation  in  time  of  danger,  23-25. 

SEQUESTRATION'. 

in  equity,  explained.  865-867. 

practice  in  granting  or  removing  the  \\v\t,  .st;6-8(;7. 

used  with  injunction,  when,  866-867. 

SERVICE  OF  PROCESS,  see  Process. 

SET-OFF.  claims  acquired  alter  suit  brought,  922-023. 

SLANDER  OF  TITLE,  actual  damage  must  be  shown,  178-180. 
essentials  of  the  action  for,  178.  179,  181,  182. 
malice  must  be  shown.  181,  182. 

SPECI FIC   PERFORMANCE. 

of  contract  to  convey  land,  306-309. 

what  must  be  alleged.  318. 

proper  parties,  318. 

purchase  money  i)aid  in  installments,  317.  318. 
oral  contract  for  land  enforced  under  part  performance,  309-311. 

when  not  enforced,  what  relief  granted,  311,  312. 
of  award  of  arbitrators  in  regard  to  land,  314. 
of  covenant  for  further  assurance,  285. 
of  contract  to  devise  land.  315. 

of  contract  of  husband  when  wife  refuses  to  join,  ou8.  309. 
with  compensation  for  defects,  313. 

when  wife  refuses  to  join,  308,  309. 
of  negative  covenants,  712-714. 
of  contracts  for  service,  575-577. 
enforced  by  injunction,  710-712. 
when  granted  for  chattels,  608,  609. 

SPLITTING  ACCOUNTS,  G73-676. 

SPRING  GUNS.  25-31. 

STATUTE  OF  FRAUDS, 

when  oral  contract  for  land  will  be  enforced,  309-311. 
when  not  enforced,  what  relief  granted,  311.  312. 

STATUTE  OF  LmiTATIONS. 

as  conferring  title  to  chattels,  2. 

as  to  claims  filed  in  creditors'  bill,  772-775. 

when  a  mortgagor  may  redeem,  299,  300. 

when  an  action  comnunced  so  as  to  stop  statute,  922-923,  925. 

STOPPAGE  IN  TRANSITU,  3-7. 

STREETS. 

owner  of  land  covered  by,  may  maintain  tresi)ass,  248. 
trespass  not  maintained  by  town  for  injury  to.  247. 

STRIKES, 

action  for  strikes,  boycotts,  etc.,  710. 

injunction  to  prevent  interference  by  stiikes,  etc.,  586-589. 

SUBPOENA,  in  equiy,  918-920,  926. 

SUMMARY  PROCEEDINGS,  in  ejectment.  169-172. 

question  of  tenancy  only  at  issue.  171. 

when  title  is  involved.  171. 


INDEX.  1015 

[Till.    KIGl  l!KS    HKIKR    TO    TIIF.    I'ACiKS.  ] 

SUMMARY  PROCEEDINGS— continued, 
on  official  bonds,  646-648. 
to  enforce  payment  of  purchase  money  in  judicial  sales,  685-690. 

SUMMONS. 

compared  with  process  at  common  law  and  in  equity,  926-928. 

effect  of  issuing  without  seal.  941-942. 

necessary  to  commence  action,  except  when  publication  made,  944. 

what  is  meant  by  service  of,  928-931. 

see  Process. 
SUPERSEDEAS,  when  writ  may  issue,  841. 

T. 

TELEGRAPH   COMPANIES. 

liability  for  negligence  in  failing  to  deliver  message.  403-405. 
•who  can  maintain  an  action  against,  for  negligence,  980. 
liability  for  sending  libellous  message,  420. 

TENANTS  IN  COMMON, 

action  for  waste  by  one  against  another.  206. 
ejectment  by  and  against.  138. 
against  a  stranger,  163,  166. 
by  one  against  another,  164-166. 
partition  allowed,  727. 

contribution  for  mistake  or  defects  in,  736-738. 
right  of  one  improving  the  common  property.  739-741. 
with  partial  division  by  devisor,  732-734. 
of  chattels,  remedy  of  one  tenant  against  another,  743-744. 
trespass  q.  c.  f.  by  one  tenant  against  another,  when,  2.51. 
trespass  or  replevin  by  one  tenant  against  another  foi-  taking  crops, 

252. 
trovtr  by  one  tenant  against  another,  611. 
what  constitutes  an  ouster  by,  164-166. 
THEATRES  AND  SHOWS,  liability  to  holder  of  ticket,  270. 
THREATS,  what  are  actionable,  381,  382. 
TITLE,  necfssary  to  sustain  trespass  q.  c.  f.,  242,  243. 

TORTS, 

arising  out  of  contract.  321-325.  329,  331.  333-337,  353,  354. 

definitions  of.  321,  322. 

injiinciion  against  irrei)arable  injury  to  land.  261-265. 

liability  of  owner  for  injury  done  by  animals,  625,  626. 

liability   in   tort,  of  caterer   furnishing   unwholesome   food,   4o7,   408. 

41'!.    " 

parties  to  actions  on,  wlieie  two  or  more  liable,  97S-980. 
rt-voeation  of  license,  action  not  in  tort,  27(i. 
in  selling  dangerous  commodities,  409.  410. 

waiving  the  contract  and  suing  in  tort,  oi-  vi(o  veisa.  323-329,  333- 
3:;7.    :'..'.3.    ?,:,\,    666-667. 

TREKS. 

rf-iiiedy    in   etjiiity   lor  cutting.   264. 

remedy   for.  when  sevired  by  tenant   ;ind  by  adverse  holder,  190-193. 

severt  d  and  converted  Into  a  l)oat.  etc..   192   inri. 

TRESPASS,  ab  initio,  240-242. 

by  entiy  of  rightful  owner.  Gl.  62. 
by  person  <titc-riii«  hotel.  :!5-37. 
roniniltted  through  nec-esslty.  23-25. 

in  turning  out  of  piiblle  road.  77-80. 
nntPiing  upon  another's  land  to  retake  proinrty.  50  .'.:•,.  55  59. 
In  evicting  tenant  at  siilTeraiice,  02-67. 


lOK!  INDEX. 

I  III)    iKiiKis  KKiin   lo  inK  rA(ii:s.l 

TRESPASS— contlmifxl. 

injury  to  trespasser  by  guard  dog,  ?A   2'^. 

by  one  in  public  road.  iJS. 

in  retaking  ebattels,  ;5!)-41. 

liability  lor,  against  person  and  property,  48. 

liability  of  master  lor  tiespass  by  servant,  r(;i2-.^)94. 

on  land,  what  constitutes.  2:>6-288. 

action  on  the  case  for,  258-2G0. 
preventing  trespass,  26-31. 

moll  iter  manus,  40-43. 

by  spring  .guns,  2r)-31. 

by   injunction   when  (ontiiuious  or  dest luctive,  234,  262-266. 

TRESPASS  VI   ET  ARM  IS,  action  of, 

de  bonis  asi)ortatis.  by  bailor  against  bailee,  625. 

does  not  lie  for  reversioner,  624. 

force  in  taking  not  necessary,  622-623. 

what  title  and  possession  will  sustain,  622-624. 
distinguished  from  case,  348,  349,  351-353,  382,  383,  394.  395,  618-620, 

625. 
distinguished  from  trover,  609-611. 
form  of  writ.  917. 

for  ejecting  intruder  from  church  pew,  71,  72. 
joined  with  trespass  q.  c.  f..  ;i49. 

lies  when  injury  is  direct  result  of  force,  348,  349,  351-353. 
waiving  the  trespass  and  suing  in  case,  352,  353. 
when  trespass  and  when  case  for  injury  to  realty,  260,  261. 
who  may  maintain,  609-611,  614,  623,  624. 

TRESPASS  QUAKE  CLAUSUM  FREGIT,  236-258. 
against  owner  of  animals,  254,  255. 
aiders  and  abettors  liable  in,  245. 
as  an  action  to  try  title,  257,  258. 

by  city  or  town  against  invader  of  market-house,  248. 
by  city  or  town  for  injury  to  street,  247. 
by  one  cotenant  against  another,  251. 
by  lessee  for  years,  252,  253. 
by  lessee  or  purchaser  of  growing  crops,  246. 
by  owner  of  an  easement,  246. 

by  owner  of  servient  estate  against  owner  of  easement,  249 
by  i)articular  tenant,  and  case  by  remainderman,  258. 
by  tenant  against  landlord,  250. 

by  tenant  at  sufferance  against  owner  of  land,  62-67. 
by  owner  of  the  fee  covered  by  a  street,  248. 
damages  in.  236-239. 

for  entering  private  room  of  a  woman,  385,  386. 
for  mesne  profits,  190-192. 

continuation  of  ejectment,  146-148,  192. 

form  of.  130-131. 

Code  practice  in,  148. 
form  of  writ  in,  917. 
judgment  in,  as  an  estoppel,  256,  257. 
matter  of  aggravation  in.  237-239,  250. 
possession  sufficient  against  a  wrongdoer,  243-245. 
under  the  Code  practice,  257,  258. 
what  possession  necessary,  242-245. 
what  title  will  support,  242,  243. 
when  entry  lawful,  241,  242. 

TROVER,  a  disaflfirmance  of  title,  600,  601. 
by  one  cotenant  against  another,  611. 
distinguished  from  detinue,  601. 
distinguished  from  trespass,  609-611. 


INDEX.  1017 

[THE   1-U;i  RES    KKKER   TO   THE    PAGES.] 

TROVER— fontinued. 

effect  of  destruction  of  subject-matter,  601-603. 

for  crops  or  trees  severed  by  tenant  or  by  adverse  holder,  190-193. 

for  the  destruction  of  bailed  property,  612.  625. 

for  house  removed  from  owner's  land,  195-196. 

form,  purpose  and  essentials  of,  355. 

form  of  writ  in,  917. 

gist  of  the  action,  614. 

judgment  in  as  vesting  title  in  defendant,  614-616. 

jurisdiction  in,  617-618. 

measure  of  damages  in,  616-617. 

relief  afforded  in,  609. 

return  of  property  as  affecting  damages,  616-617. 

title  and  possession  necessaiy.  609-611,  614-616. 

under  common-law  i)ractice  and  under  the  Code,  330. 

waiving  the  tort  in  trover,  617-618. 

what  amounts  to  a  conversion,  612,  613. 

when  trover  and  when  case  against  a  bailee,  612,  625. 

who  may  maintain  the  action,  609-611,  614-616. 

TRUSTS  A-XD  TRUSTEES, 

trustee  buying  at  his  own  sale,  295.  296. 
when  trustee  may  file  a  bill  for  advice,  716-720. 

TWILIGHT  ZONE,  of  actions  ex  contractu  and  ex  delicto,  and  also  of 
"near  beer,"  324. 

V. 

VACCINATIOX,  effect  of  compulsory  laws,  392. 

VARIANCE,  between  writ  and  declaration,  911-915,  926. 

VENDOR  AND  PURCHASER, 

apijlication  of  caveat  emptor,  271,  272. 

different  remedies  of  vendor,  315-318. 

fraud  practiced  on  vendor,  705,  706. 

effect  of  covenant  against  incumbrances,  275,  276. 

measure  of  damages  for  breach  of  contract  by  purchaser,  300-304. 

by  vendor,  304,  305,  306. 
proper  parties  to  proceeding  to  enforce  contract,  318. 
purchaser  must  protect  himself  by  taking  covenants,  271,  272. 
relation  of  jjarties  similar  to  mortgagor  and   mortgagee,   316-318. 
remedy  of  purchaser  under  oral  contract  for  land,  309-312. 
remedy  of  vendor  when  payment  in  installments,  317,  31S. 
right  to  specific  jierformance  with  compensation  for  defects,  313. 
summary  i)roceedings  in  ejectment  not   ap))liod,  170. 

VENUE,  as  affecting  jurisdiction,  883. 

in  local  and  transitory  actions.  909-910. 

when  insane  defendant  taken  outside  of  county  of  domicile,  971-974. 

VOTING,  interfering  with  right  to  vote.  4S.-,-lS!t. 


W. 

WAGER  OF  LAW, 

allowed  in  debt.  678. 
in  dcllnne,  360. 

WAIVER. 

of  dcfi'ctlve  Hervlcp,  by  nppoamncp,  932-935. 
of  objection   to  arrest,  by  a|i|i«'arancp,  920-922. 
of  r)rocesH.  by  appearance,  924. 
of  objection   to  the  writ,  by  appearan<<'.  9 15-91  r. 
of  objection   to  jiirlKdlctlon,  875-877.  882,  883. 


1()18  INDEX. 

I  rill    iKiiKis  ni;i  i:u   ro  riii:  i-auis.  | 

WARRANTY. 

Uilion  in  tort  or  rontraot,  324,  325,  690-694. 
what  const itutrs,  1594. 

WASTE,  remedies  for.  201. 

action  lor,  by  one  cotenant  against  another.  L'liK. 

action  on  the  case  in  nature  of,  by  reversioner,  2vi?,. 

l)v  and  against  whom,  action  maintained,  204. 

equitable  waste.  202,  208,  209. 

estrepenient,  202. 

form  of  writ,  918. 

jurisdiction  of  equity  in,  207. 

mandatory  injunction  in,  209. 

old  action  of,  practice  in,  203. 

privity  of  estate  in,  204. 

remedy  for.  by  owner  of  contingent  interest,  205. 

what  is,  at  law,  201. 
WATERS  AND  WATERCOURSES, 

damages  for  overflowing  land,  233-235. 

jurisdiction  over  acts  committed  on  boundary  river,  890. 

mill-pond  as  public  nuisance,  219. 

obstructing  and  diverting  natural  streams,  surface  waters,  etc.,  83-87. 

obstruction  of,  how  abated  as  a  nuisance,  S2. 

remedy  for  diverting  or  overflow,  260,  261. 

use  and  control  of,  common  law  and  civil  law  rule,  83-S7. 

WEREGILD.  367. 

WILLS,  caveat,  nature  of  and  practice  in,  720-723,  725. 

effect  of  caveat  ui)on  executor  or  administrator,  725,  726. 

effect  of  nonsuit  in  caveat,  720-721. 

form  of  judgment  in  caveat,  723,  724. 

issue  of  devisavit  vel  non,  723,  724. 

when  two  scripts  are  propounded,  722-723. 

parties  to  caveat  proceedings,  720-722. 

construction  of,  in  equity,  when,  716-720. 

contract  to  devise  enforced,  315. 

partial  division  of  land  by  devisor,  733,  734. 

probate  of,  720-726. 
WRIT  OF  RIGHT,  120-123. 


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